Labor & Employment Law Daily Virgin America may be liable for sexual assault by executive at conference
Friday, October 26, 2018

Virgin America may be liable for sexual assault by executive at conference

By Lisa Milam, J.D.

Virgin America (and its parent company, Alaska Airlines) may be liable for an assault perpetrated by its “director of loyalty” at a professional conference, a federal court in California held, rejecting the company’s motion to dismiss tort claims against the company brought by his alleged victim, the female vice president of a market research firm. The plaintiff plausibly alleged the assault was carried out within the scope of the executive’s employment, and that Virgin had reason to know he had engaged in similar misconduct in the past. However, the Texas resident’s statutory claims under California’s Unruh and Bane Acts, arising from an assault that took place in Canada, were dismissed with leave to amend (Doe v. Virgin America, Inc., October 22, 2018, Ryu, D.).

A “key player.” The plaintiff was vice president of Research Now, a market research firm. In that role, she was responsible for “building and maintaining key strategic relationships” with airline executives. To that end, she attended a professional conference in Toronto: a meeting of “professionals in the travel and loyalty sector from around the world.” In preparation for the event, she and her boss identified Virgin’s director of loyalty as a “key player” with whom she should meet—Virgin being an important “major client” of the firm. So at a conference-related party one evening, the plaintiff approached the Virgin executive and introduced herself. Later, the executive approached the plaintiff on the dance floor, “noticeably drunk,” and spilled a drink on her.

Assault. When the plaintiff returned to her hotel by taxi, she found him waiting for her in the lobby. He followed her into the elevator and began kissing her “aggressively,” and would not stop. When the elevator stopped at his floor, he tried to pull her from the elevator by her neck and hair. She resisted, and he got back on the elevator to continue the assault. Then he followed her off the elevator to her room. When they reached her door, he grabbed her by the neck and tried to follow her into the room. She fought him off, yelling out several times, until he finally walked away. The plaintiff was left “shaking and terrified” and she subsequently quit her job—it required regular solo travel and, ever since the attack, she had been experiencing significant anxiety while traveling, “particularly in elevators.”

Lawsuit. She sued Virgin Airlines under a respondeat superior theory—a doctrine that is interpreted broadly under California law—alleging negligent supervision and retention, intentional infliction of emotional distress, negligent infliction of emotional distress, assault, and battery. Her FEHA claim was dismissed; she conceded she could not state a claim against the airline defendants. (The court severed her claims against her assailant, which are proceeding in a separate case with the airline executive as the sole defendant.) The airline defendants moved to dismiss, but the court found her complaint alleged sufficient facts at the pleading stage to support her claim that the assailant was acting within the scope of his employment when he assaulted his “professional acquaintance.”

Scope of employment. The corporate defendants contended they could not be vicariously liable for the executive’s conduct because sexual assault falls outside the scope of employment, and is not an outgrowth of that employment. His conduct in the hotel after hours served no purpose for the airline as a matter of law, Virgin asserted. However, the plaintiff countered that he was in attendance at the conference “in furtherance of, and for the benefit of, Virgin’s business” and also, Virgin expected him to attend networking events with key partners, such as the plaintiff; and the assault was “incidental to the professional networking and relationship-building that Virgin expected of him.” That was the nexus to his employment.

Professionally vulnerable. Moreover, the plaintiff claimed, her assailant knew that, as a key executive at Virgin, she would have to make nice with him, so she would be “reluctant to react in a way that could harm her company’s relationship with a major client.” He was “intent on exploiting [her] professional vulnerability” and took advantage of that professional power imbalance when he assaulted her. While the vulnerability of the victim is not ordinarily a factor in determining whether a private employer is liable, the court said, these allegations on this point go to the question of whether Virgin should be required to bear the loss.

Cost of doing business? Alcohol is regularly consumed at such events, conduct which was “tolerated and ratified, if not encouraged, by Virgin,” according to the plaintiff. She contended that the risk of tortious injury from such conduct was “inherent in the working environment.” The court agreed that the circumstances of the networking event were “not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer’s business.” Therefore, she could pursue her claims against the airline defendants under a respondeat superior theory.

Knowledge of past conduct. The plaintiff also asserted that her assailant’s conduct was foreseeable to Virgin, yet the company did nothing to prevent the attack, even though his “predatory acts” are carried out during the course of his employment. She contended that Virgin was “well aware” of its executive’s propensity for “lewd and drunken behavior” and had actual knowledge he had sexually assaulted business associates in the past. She cited a previous occasion when he groped two women at a professional event, after which two other Virgin employees apologized the next day for his conduct, noting that their colleague “had issues with drinking and respecting boundaries with women.” In light of this history, Virgin could have, and should have, done more to supervise and discipline the executive—and to protect the plaintiff.

Statutory claims dismissed. The plaintiff also asserted violations of the Unruh and Bane Acts, but these state-law provisions do not apply extraterritorially, so the defendants successfully argued that as a Texas resident, she could not claim rights under these California statutes based on conduct that took place in Canada. Because the complaint did not point to specific conduct by the airlines that took place within California (aside from maintaining corporate headquarters there), these claims were dismissed. The plaintiff did cite in-state conduct by the airline defendants at the hearing, though—noting the defendants made the decision in California to send him to the event in Canada—and the court allowed her to amend her pleadings accordingly. The court would not address whether these factual allegations would be enough to state viable claims under these statutes; nor would it reach the defendants’ due process and conflict of law arguments here.

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