By Marjorie Johnson, J.D.
A male server who claimed he suffered sexual harassment by the male head chef, which included a comment suggesting oral sex and allegations that the chef grabbed him from behind and forced his knee between his buttocks, plausibly alleged a claim of assault and battery against the chef but not the employer. A federal court in North Carolina also dismissed his negligent retention and supervision claims against the employer, as well as his Title VII claim against the head chef individually (Watkins v. Bermuda Run CC, LLC, January 12, 2018, Tilley, N., Jr.).
Objected to harassment. The employee, who worked as a server in his employer’s dining area, asserted that he was continually sexually harassed by the head chef, his supervisor. Specifically, he claimed the chef made “sexual, lewd, and unwanted comments” towards him from July to December 2015. Though he confronted the head chef after the initial incident and told him that the comments were “unwanted and inappropriate,” the harassment continued.
Grabbed his buttocks. During one incident in August 2015, the chef approached him while he was plugging in an electrical cord, pointed to his own penis, and said, “while you’re down there, why don’t you plug this into your mouth?” Though the employee again implored him to stop the behavior, it continued and culminated on December 3. On that date, the chef approached him from behind, put his hand on his shoulders, and forced his knee between his buttocks. He also made lewd comments about his anus in front of another worker and again approached him from behind and grabbed his buttocks.
Two days off to “recover from the trauma.” After the employee reported the December 3 events to management, the general manager purportedly told him that he wanted him to be “made whole” and agreed to allow him to transfer so that he would not have to work near the chef. However, claiming that it was unable to transfer him to another property, the employer instead gave him two paid days off to “recover from the trauma” while allowing the chef to retain his supervisory role.
The employee brought this lawsuit alleging claims of Title VII hostile work environment and assault against both the employer and the chef. He also alleged a claim of negligent retention and supervision against just the employer. The employer moved to dismiss his tort claims against it, which he conceded were implausible. The chef moved to dismiss both his Title VII and assault claim. Because the employee conceded that he could not advance the Title VII claim against him individually, the sole issue was whether to dismiss the assault claim.
Jurisdiction proper. The court first determined that it had supplemental jurisdiction over his assault claim since the claims “derived from a common nucleus of operative fact” and thus the assault claim arose from the “same case or controversy” as the underlying Title VII claim.
Plausible assault and battery. Though the employee termed his claim “assault,” the court also addressed the associated tort of battery. Notably, an action for assault protects an individual’s “interest in freedom from apprehension of a harmful or offensive contact” while an action for battery protects an individual’s “interest in freedom from intentional and unpermitted contacts with his person.” The elements of assault are “intent, offer of injury, reasonable apprehension, apparent ability, and imminent threat of injury” while a battery results when the plaintiff is “offensively touched against his will.” Both require a showing of intentional conduct by the defendant.
Here, the employee asserted that the chef assaulted him by placing his knee in his buttocks and grabbing his buttocks—both without his consent. Moreover, he claimed that the incidents occurred after he explicitly told the supervisor that this conduct was unwanted. By asserting that, after he told him to stop such behavior, the chef both “forced his knee” between his buttocks and grabbed his buttocks on another occasion, he asserted sufficient facts to state a claim for battery. Moreover, the supervisor’s attempt to invoke a statute of limitations defense failed since the lawsuit fell within two years of the alleged incidents, which was well within North Carolina’s three-year statute of limitations for both assault and battery.
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