Opinion
Civil Action No. 03-2634-CM.
April 6, 2005
ORDER
This matter is before the court on defendants' Motion to Dismiss (Doc. 48). Specifically, defendants move to dismiss Counts V, VI, and VII of the First Amended Complaint. Plaintiff Heather Stoldt alleges that (1) Centurion perpetrated an assault and battery upon plaintiff through the conduct of plaintiff's co-worker, whom plaintiff claims physically touched her and/or caused her to have immediate apprehension and fear of physical touching (Count V); (2) Centurion's actions constituted an invasion of plaintiff's privacy, because plaintiff's co-worker, whom plaintiff alleges sexually harassed and assaulted her, intentionally intruded, physically and emotionally, upon plaintiff's solitude and seclusion (Count VI); and (3) Centurion intentionally inflicted emotional distress upon plaintiff, in that the alleged sexual harassment by plaintiff's co-worker was extreme, outrageous and in reckless disregard of plaintiff's well-being (Count VII).
Counts V, VI, and VII are claims asserted by plaintiff Heather Stoldt. As such, the court's reference to "plaintiff" in this opinion includes only Heather Stoldt.
Defendant A-Lert Construction Services is a division of Defendant Centurion Industries, Inc.
I. Standards
The court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff, Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
II. Background Facts
Plaintiff Heather Stoldt began her employment with Centurion in October 2002 as an ironworker at the Lafarge plant in Fredonia, Kansas. Plaintiff was assigned to work with Rodney Folger shortly after commencing her employment. According to plaintiff, Folger bore the title of Lead Man who acted as a foreman with respect to communicating instructions of supervisor Wayne Barkus to other employees and organizing groups of such employees to fulfill the instructions of Barkus.
Plaintiff initially enjoyed working with Folger because he was extremely nice and very polite toward her. However, plaintiff grew increasingly uncomfortable around Folger because, for a period of about two months, he made it a point to be near her as frequently as possible, brought her gifts, complimented her and made sexually suggestive remarks to her. According to plaintiff, Folger touched plaintiff in a manner that she found offensive on at least two occasions. As a result of Folger's conduct, plaintiff alleges that she began to feel overwhelmed, anxious, depressed, and had difficulty sleeping.
On February 19, 2003, Barkus met with plaintiff and Folger to discuss Folger's behavior toward plaintiff. At the conclusion of the meeting, Barkus instructed Folger that he was not to come close to plaintiff or talk to her while at work. Folger agreed not to approach plaintiff in any fashion or to talk to her from that point on. Barkus agreed to keep plaintiff and Folger separate and advised plaintiff that if she needed additional help, she could contact human resources personnel in the main office.
Plaintiff alleges that, in June 2003, Barkus ordered plaintiff to work in close proximity to Folger for the purpose of ratifying and continuing the sexual harassment of plaintiff. On June 19 and 20, plaintiff was once again assigned to work with Folger. Plaintiff alleges that, when she arrived at the plant on Monday morning, June 23, 2003, she observed Folger, who looked up and smiled at her, welding. She entered the tool room where she found Barkus, asking Barkus, "Wayne, why do I have to work with Rodney again?" Plaintiff alleges that Barkus replied, "Well, you're not really working with him, you're working around him." Plaintiff responded, "What else besides working together would you call welding on the same handrail?" Barkus then stated, "I don't know what to do, I'm gonna have to get rid of you."
Plaintiff immediately left work and drove to the A-Lert Construction Services office in Fredonia, Kansas, delivering a handwritten complaint to Mary Dold. According to plaintiff, at a meeting the next morning with Dold at A-Lert's office, plaintiff was told "that her complaint had been fully investigated" and that she had "three options . . . available to her — (1) accept defendants' assurances that she would not have to work solo with Rodney Folger, but accept the fact that she would have to work with Rodney in groups of employees and agree to get along with or at least tolerate speaking with and accepting instructions from Rodney Folger; (2) accept a lay-off with no guarantee she would be rehired; or (3) accept a transfer to work a shutdown in Valdosta, Georgia to work a shutdown which would only run through early July, after which she would have to work as part of a road crew, or perhaps be laid off."
Due to a reduction in work force, plaintiff and her husband were laid off shortly thereafter.
III. Discussion
Plaintiff asserts claims against defendant for assault and battery, invasion of privacy, and intentional infliction of emotional distress arising out of the alleged sexual harassment of plaintiff by Folger. Defendants argue that plaintiff fails to plead a single fact to establish defendants' vicarious liability for these common law tort claims and, therefore, each claim fails to state a claim as a matter of law. Defendants also contend that plaintiff's claim for assault and battery is preempted by the exclusive remedy provision of the Kansas Workers' Compensation Act, Kan. Stat. Ann. § 44-501, et seq.
A. Vicarious Liability Theory
Under Kansas law, an employer can only be held vicariously liable for the torts of its employees if the employees, at the time of the alleged wrong, are "acting within the scope of their authority and within the course of their employment, or in an effort to further [the employer's] business." Wesley v. Don Stein Buick, Inc., 42 F. Supp. 2d 1192, 1205 (D. Kan. 1999). Plaintiff contends that virtually all of Folger's actions were within the scope of his employment as a Lead Man for defendants, and that, as a result, defendants are vicariously liable for Folger's actions in assaulting and battering plaintiff, invading her privacy, and intentionally inflicting emotional distress upon her.
Under Kansas law:
An employee is acting within the scope of his authority when he is performing services for which he has been employed or when he is doing anything which is reasonably incidental to his employment. The test is not necessarily whether the conduct was expressly authorized or forbidden by the employer, but whether such conduct should have been fairly foreseen from the nature of the employment and the duties relating to it. The liability of an employer for the acts of his employee depends not upon whether the injurious act of the employee was willful and intentional or was unintentional, but upon whether the employee, when he did the wrong, was acting in the prosecution of the employer's business and within the scope of his authority or had stepped aside from that business and had done an individual wrong. The now generally recognized rule is that the employer is liable for the reckless, willful, intentional, wanton, or malicious acts of his employee as well as for his heedless and careless acts if they are committed while the employee is acting in the execution of his authority and within the course of his employment, or with a view to the furtherance of his employer's business, and not for a purpose personal to the employee.Hollinger v. Jane C. Stormont Hosp. and Training School for Nurses, 2 Kan. App. 2d 302, 311-12, 578 P.2d 1121 (1978). The court also looks to the Tenth Circuit case of O'Shea v. Welch, 350 F.3d 1101, 1103-09 (10th Cir. 2003), wherein the court held that, were it to consider the question, Kansas would apply the "slight deviation" rule to whether an employee's pursuit of personal objectives was still within the scope of his employment, meaning that, even if an employee deviates from his employment to serve his or her own purposes, his action may still be deemed to be within the scope of employment. More specifically, "[a] mere deviation by an employee from the strict course of his duty does not release his employer from liability. An employee does not cease to be acting within the course of his employment because of an incidental personal act, or by slight deflections for a personal or private purpose, if his main purpose is still to carry on the business of his employer. . . . In order to release an employer from liability, the deviation must be so material or substantial as to amount to an entire departure." O'Shea, 350 F.3d at 1107 (citing Defendant Mirjian v. Ideal Heating Corp., 129 Cal. App. 2d 758, 278 P.2d 114, 118 (1954)).
Plaintiff asserts in her First Amended Complaint that, with respect to almost every action taken by Folger which plaintiff claims amounted to sexual harassment, Folger was in the process of performing services for which he had been employed or doing something reasonably incidental to his employment. Plaintiff's First Amended Complaint alleges the following: Folger, "who bore the title of Lead Man [and] who acted as a foreman with respect to communicating instructions of Wayne Barkus, Supervisor, to other employees and organizing groups of such employees to fulfill the instructions of Mr. Barkus," (First Amended Complaint, ¶ 17), "reprimanded another employee for using foul language around Plaintiff Heather Stoldt, informing the employee that he had no right talking that way in front of Plaintiff." (First Amended Complaint, ¶ 21). "On another occasion, Rodney Folger heard Plaintiff Heather Stoldt use a cuss word and told her that, if she cussed again, he was going to hold her down and spank her `cute little ass.'" (First Amended Complaint, ¶ 22).
The First Amended Complaint also alleges that "Mr. Folger always wanted to know what Plaintiff Heather Stoldt was doing, and made it a point to be near her as frequently as possible, making sure she had everything she needed to perform her job duties. He was always right on top of Plaintiff Heather Stoldt, and if she needed a pencil, he had it; if she needed a tape measure, he was right there to give it to her, and so on. . . . Mr. Folger began buying things, like new work gloves, for Plaintiff Heather Stoldt." (First Amended Complaint, ¶ 22).
Plaintiff further alleges in the First Amended Complaint that the acts of alleged assault and battery occurred in the following manner:
Rodney Folger . . . would frequently touch her in a manner she found offensive under the guise of helping her straighten out the harness she had to don in connection with her duties, which primarily involved welding, often in high places. When the straps of the harness which went between Plaintiff's legs and around her buttocks became twisted, Rodney Folger was almost always on hand to straighten them out for her, allowing him to place his hands on her derriere or her chest. On another occasion, when Plaintiff Heather Stoldt [and Rodney Folger] were working on certain plates, Rodney Folger placed one of his legs in between Plaintiff's from behind, wrapped his body around Plaintiff's such that the entire front of his torso, including his privates, were pressed up against the Plaintiff's right side, put his elbow on the plate she was working on, and, resting his head on his hand, looked up into Plaintiff's eyes and asked, "What's wrong, are you mad at me?" Plaintiff, petrified, replied, "Rodney, I just want to be left alone!"
(First Amended Complaint, ¶ 29).
Plaintiff's First Amended Complaint also contains the following allegations:
On June 4, 2003, . . . Wayne Barkus ordered Plaintiff Heather Stoldt to work in a hopper, which Barkus new [sic] full well was a closed 8' X 8' X 8' typically airtight cube which had sprung a leak in a seam in one corner in which Rodney Folger and Plaintiff Heather Stoldt would have to work to repair that leak in an extremely tight, hot environment while balancing on a 12" plank in one corner of the hopper, conditions certain to require Folger's and Plaintiff Heather Stoldt's bodies to remain within inches of each other and to make at least incidental physical contact throughout the day.
(First Amended Complaint, ¶ 53).
Viewing all well-pleaded facts in the light most favorable to plaintiff, the court concludes that, at this juncture, plaintiff's allegations are sufficient to survive a motion to dismiss. Plaintiff's First Amended Compliant alleges facts sufficient to construe Folger's actions as a slight deviation from his scope of employment. In other words, the court cannot say as a matter of law that plaintiff will be able to prove no set of facts showing that Folger's actions were within the scope of his employment.
B. Assault and Battery Claim
Plaintiff alleges in Count V of the First Amended Complaint that Folger "engaged in the unwelcome physical touching of Plaintiff in a sexually suggestive manner" and that this unwelcome physical assault and battery "resulted in physical injury to her in the form of bruises and emotional harm having physical consequences." (First Amended Complaint, ¶¶ 110, 113). Defendants argue that plaintiff's injuries are the type of physical injuries covered by the Kansas Workers' Compensation Act (KWCA) and that, therefore, plaintiff's claim for assault and battery is preempted by KWCA's exclusive remedies provision. See Kan. Stat. Ann. § 44-501(b).
The KWCA is an employee's exclusive remedy at law "for any injury for which compensation is recoverable under the workers compensation act." Id. Thus, where an employee suffers a personal injury "arising out of and in the course of [her] employment," KWCA preempts a private cause of action brought by the employee against the employer. Id. As a general rule under Kansas law, physical injuries resulting from a job-related assault and battery are compensable under the KWCA. Springston v. IML Freight, Inc., 10 Kan. App. 2d 501, 704 P.2d 394 (1985) (discussing Brannum v. Spring Lakes Country Club, Inc., 203 Kan. 658, 455 P.2d 546 (1969)).
Plaintiff alleges that she suffered physical injuries and that her emotional distress stemmed directly from the unwelcome touching. As pled, plaintiff's alleged injuries stem from the alleged assault and battery which occurred in the workplace and during the course of her employment. Plaintiff's assault and battery claim in this case appears to be barred by the KWCA.
Moreover, if an employee is assaulted by a fellow workman, an injury so sustained does not arise out of the employment and the employee is not entitled to compensation "`unless the employer had reason to anticipate that injury would result if the two continued to work together.'" Harris v. Bethany Med. Ctr., 21 Kan. App. 2d 804, 810, 909 P.2d 657 (Kan.App. 1995) (quoting Hallett v. McDowell Sons, 186 Kan. 813, 352 P.2d 946 (1960)). Plaintiff alleges that defendant "knew or should have known it was occurring, was intentional, was performed with full knowledge that such touching would cause harm to Plaintiff, and was performed with the intent to cause harm to Plaintiff." (First Amended Complaint, ¶ 114). Specifically, plaintiff alleges that she notified her supervisor of Folger's behavior and that defendants knew of Folger's conduct. As such, according to plaintiff's First Amended Complaint, defendants had sufficient indication that Folger would allegedly assault and batter plaintiff. Plaintiff's claim of assault and battery is therefore barred by the KWCA.
IT IS THEREFORE ORDERED that defendants' Motion to Dismiss (Doc. 48) is granted in part and denied in part. The court hereby dismisses Count V of plaintiff's First Amended Complaint. Defendants' motion to dismiss Counts VI and VII is denied.