No Employer Liability for Employee Assault

A plaintiff’s allegation that defendant coworker at the Radford Army Ammu­nition Plant sexually assaulted her on employer’s premises cannot support her respondeat superior claim against em­ployer; there is no allegation that the defendant employee was performing em­ployment duties at the time of the alleged assaults, says a Roanoke U.S. District Court.

Employer BAE’s argument to dismiss the assault and battery claim against it is straightforward. BAE asserts it cannot be held vicariously liable for the tortious actions of its employee because plaintiff has not alleged the employee was per­forming employment duties at the time of the alleged assaults. Terming the employ­ee’s behavior a “marked and unusual” de­viation from employer’s business, BAE argues that respondeat superior liability cannot lie. The court agrees.

Respondeat superior

Under Virginia law, an employer is lia­ble under respondeat superior for the tor­tious acts of its employee if the employee was performing his employer’s business and acting within the scope of his em­ployment when the tortious acts were committed. If a plaintiff demonstrates that an employment relationship exists, the employer bears the burden of demon­strating that its employee was not acting within the scope of his employment when he committed the tort. Respondeat supe­rior liability may not be imposed solely upon allegations that the harassment took place at the work place and during work hours.

Here, the only allegations connect­ing defendant employee’s behavior to employer are the time and place of the harassment. Plaintiff has alleges scant details concerning defendant employee’s employment – only that he works in the Tub House, within the NC Area. There is no allegation that either individual was performing any employment duties at the time of the assaults. Indeed, the com­plaint does not allege that either assault happened in the NC Area or the Tub House, only that the employee assaulted plaintiff once as she was leaving work and once after she visited her locker. Lia­bility under respondeat superior may not be based on the bare allegation that de­fendant employee assaulted plaintiff on employer’s premises.

The only enablement defendant em­ployee received from his employment at BAE was putting him in this same gen­eral location as plaintiff. He did not use the duties of his employment to overcome plaintiff’s will.

Respondeat superior claim is dis­missed.

Clehm v. BAE Systems Ordnance Sys­tems Inc. (Urbanski) No. 7:16cv12, July 22, 2016; USDC at Roanoke, Va.; Terry N. Grimes for plaintiff; Victor O. Cardwell for defendant. VLW 016-3-337, 10 pp.