The Federal Court in Roanoke, Virginia recently dismissed a plaintiff’s employment retaliation claim while allowing her sexual harassment and assault claims to proceed. In Auriemma v. Logan’s Roadhouse, Inc., et al. Civil Action No. 7:12-cv-0284 (W.D. Va. Nov. 19, 2012), a former female employee sued the restaurant at which she had worked as a server, alleging sexual harassment, retaliation, and various state law torts (such as assault & battery).
The plaintiff, Andrea Auriemma, had worked for the defendant (Logan’s) between January 2011 and August 2011. In her complaint, Auriemma alleged that, in March 2011, an unidentified male coworker had grabbed her, kissed her against her will, touched her through her clothing, and attempted to further sexually assault her. She alleged that, before this incident, Logan’s knew of the coworker’s reputation for “violent, aggressive sexually assaultive behavior” and that he previously assaulted another female server, but did nothing. Auriemma claimed that Logan’s created a workplace which “perpetuated the types of behavior and attitudes that eventually led to the sexual assault.”
Auriemma further alleged that Logan’s had made her working conditions intolerable after she filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). She claimed that her supervisors not only failed to take any remedial action or respond to her complaints, but also “subjected her to heightened oversight and scrutiny” and “threatened to report her for minor infractions[.]” This ultimately led to Auriemma’s resignation, which she alleged constituted a “constructive discharge” from employment.
The court dismissed the plaintiff’s retaliation claim because the alleged mistreatment was not sufficient to constitute an “adverse employment action,” which is a necessary element of a Title VII retaliation claim. Despite recent Supreme Court case law making it easier for employees to prove an adverse action for retaliation purposes, an employee must still show a significantly negative change in employment terms to establish retaliation. Auriemma claimed that she was constructively discharged after filing her EEOC charge, which requires proof of deliberate employer actions and intolerability of working conditions. The court held that, even when viewing Auriemma’s allegations in the light most favorable to her, they did not rise to the level of intolerability necessary to show constructive discharge. As such, the court dismissed Auriemma’s retaliation claim.
Nevertheless, the court denied the defendant’s motion to dismiss Auriemma’s Title VII sexual harassment and state law tort claims. Logan’s argued that the physical conduct alleged in the complaint was not severe or pervasive enough to support her Title VII claims. The court disagreed, finding that the groping incident was sufficient to create a hostile work environment, and finding a sufficient basis for imputing liability to Logan’s for allegedly allowing the behavior.
Logan’s also sought to dismiss the state law claims by arguing that Auriemma should have filed a workers’ compensation claim as the exclusive remedy for the assault incident. The court ruled that workers’ compensation was not Auriemma’s exclusive remedy because the claimed assault did not “arise out of” her employment at Logan’s. Rather, the court cited to a case holding that an assault that “is personal to the employee” does not arise out of’ the employment for workers’ compensation purposes. Auriemma alleged that her coworker sexually assaulted her while in a storage closet at the restaurant, which tended to show that the assault was personal to her (and not “arising out of” her employment). Thus, Auriemma’s state law claims could proceed.
This decision demonstrates how powerful employee claims of physical assault are against employers. In this case, the employee only claimed one groping incident that occurred without the employer’s knowledge. That one alleged incident, coupled with the employee’s claim that the coworker previously groped another employee, enabled her to survive a motion to dismiss and allowed her to pursue her claims of sexual harassment and assault against her employer.