Employee not required to arbitrate myriad of claims ‘related to and arising from’ coworker’s sexual assault
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Tuesday, July 14, 2020

Employee not required to arbitrate myriad of claims ‘related to and arising from’ coworker’s sexual assault

By Marjorie Johnson, J.D.

The employee’s claims relating to and arising from the sexual assault existed independent of the employment relationship because they could be "maintained without reference to the contract or relationship at issue."

A former sales and marketing manager for Capital Grille won’t be forced to arbitrate a myriad of claims relating to and arising from a male coworker’s sexual assault since they existed independent of the employment relationship, and because the ongoing verbal and physical harassment culminating in the assault—as well as retaliation or other detrimental acts against her based on the unlawful conduct—was not a foreseeable result of her employment. Affirming denial of the employer’s bid to compel arbitration, an Ohio Court of Appeals also refused to force her to arbitrate any employment-related claims since there was no indication that she ever signed the arbitration agreement or otherwise manifested assent to it. Moreover, the employer waived any right to enforce the agreement by firing her for alleged workplace profanity without following its dispute resolution procedures (Crider v. GMRI, Inc., July 9, 2020, Blackmon, P.).

The employee was hired by Capital Grille in February 2016. Documents contained within the applicant tracking system indicated that during the hiring process she received a copy of the employer’s dispute resolution process, which required that disputes which "involve the matters subject to the agreement be submitted to mediation or arbitration pursuant to the arbitration agreement rather than to a judge or jury in court." However, there was no indication that she ever signed an acknowledgment form or other provisions outlined in the agreement.

Harassment leads to assault. At some point during her tenure, the employee was purportedly subjected to repeated instances of sexual harassment from a male coworker, including crude and vulgar comments and inappropriate touching. Though she immediately reported the conduct to her supervisor and the regional manager, the coworker was never reprimanded. On November 15, 2018, he purportedly refused to leave her office when asked to do so, then "wrapped his arms around her chest in a bearhug" and "began running his hands down her thighs." Despite reporting the incident to her supervisor, the coworker was permitted to continue working that evening.

Fired within days of police report. That same day, she filed a police report accusing the coworker of gross sexual imposition and he was subsequently charged with disorderly conduct in connection with this incident. On November 19, the regional manager advised the employee that she was being investigated for using profanity at the workplace, a charge that she denied. On November 26, the manager instructed her to meet her at a coffee shop to discuss her job. When she arrived, he advised her that she had been terminated.

Trial court won’t compel arbitration. The employee subsequently brought this lawsuit against the employer and the regional manager asserting claims for assault and battery, negligent hiring and retention, negligent and intentional infliction of emotional distress, wrongful termination, hostile work environment, negligent failure to provide a safe work environment, unlawful retaliation, and aiding and abetting in the coworker’s unlawful conduct. In response, the defendants filed a motion to dismiss or stay proceedings pending arbitration, which the trial court denied.

Assault and related claims. In affirming the trial court’s ruling, the Ohio appeals court took guidance from an earlier case involving a plaintiff who brought a myriad of claims related to her alleged rape by her supervisor. In that case, the appeals refused the employer’s bid to compel arbitration, reasoning that the action was not within the scope of the parties’ mandatory arbitration agreement since the claims relating to and arising from the sexual assault existed independent of the employment relationship. Furthermore, the claims "were not a foreseeable result of the employment."

The same analysis applied here. The employee alleged that her male coworker constantly subjected her to unwanted verbal and physical conduct that culminated in his entering her office and sexually assaulting her. Furthermore, her employer purportedly had actual or constructive knowledge that he posed a hazard, but took no action as his conduct escalated. She also claimed that the defendants retaliated against her by terminating her and that they aided, abetted, incited, compelled, and coerced others to engage in unlawful and discriminatory actions against her. Finally, she claimed that the employer negligently and intentionally inflicted emotional distress upon her, created a hostile work environment, and failed to provide a safe work environment.

Independent and not foreseeable. Based on these allegations, the employee’s claims relating to and arising from the sexual assault existed independent of the employment relationship because they could be "maintained without reference to the contract or relationship at issue." In addition, the "ongoing verbal and physical contact culminating in sexual assault as well as retaliation, harassment, or other detrimental acts against [the employee] based on the unlawful conduct is not a foreseeable result of the employment."

Issue for court, not arbitrator. The court squarely rejected the employer’s contention that the arbitrator had the authority to determine arbitrability. The parties cannot be forced to arbitrate a dispute they have not agreed to submit to arbitration, and while the arbitrator may determine if an employment-related dispute is arbitrable, the initial determination of whether the particular claim is actually employment-related is a type of "gateway issue" to be decided by the court.

Employment-related claims. The court also rejected the employer’s urging that the employee be forced to arbitrate her employment-related claims. First, there was no evidence that the employee signed the arbitration agreement or otherwise manifested assent to it. Moreover, "under the totality of the circumstances," the employer proceeded directly to termination and did invoke any of the dispute resolution steps in the provision. Thus, by acting inconsistently with the terms of arbitration agreement, it thereby waived it.

The case is No. 108863.

Attorneys: Stefani Crider, pro se. Edward H. Chyun (Littler Mendelson) for GMRI, Inc. dba The Capital Grille.

Companies: GMRI, Inc. dba The Capital Grille

Cases: Arbitration Discrimination SexualHarassment StateLawClaims TortClaims OhioNews GCNNews

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