Yet Another Sexual Harassment Case

Equality for all! Gladly the jury was open-minded and didn't throw this case out just because the victim was a man and not a woman. 

Not every case of sexual discrimination or harassment involves a man mistreating a woman (though a lot of them do). In 2014, a Texas jury awarded $567,000 to 51-year-old former police constable James Gist after it found a supervising constable, Pam Matranga, sexually harassed him for nearly five months.

Gist accused Matranga of making suggestive comments and advances, as well as pressing his head between her breasts. Gist’s attorney told the Houston Chronicle, that in addition to awarding his client $200,000 more than he asked for, the jury wasn’t swayed by the atypical gender dynamics of the case.

“They rejected this whole notion that you get away with it because you are a female,” Griffin said.

Quesadilla Bites Back: Restaurant Waiter’s Choking Was Not Actual Risk of Employment (Virginia)

Who knew quesadillas could be so dangerous to one's esophagus? The restaurant did not make him eat the quesadilla so they should not have to be responsible, unless of course, if there was a foreign object that he ate. 

Affirming the bizarre reasoning of the state’s Workers’ Compensation Commission, in July the Court of Appeals of Virginia, in a divided opinion, affirmed a denial of benefits to a restaurant host/waiter who injured his esophagus while attempting to swallow a bite of quesadilla that he was tasting in order to be able to make recommendations to the restaurant’s patrons later in his shift. Agreeing that the injury occurred in the course of the waiter’s employment, but finding that it did not result from an actual risk of the employment, the appellate court stressed that Virginia uses the actual risk doctrine, which the court said excludes an injury that comes from a hazard to which the employee would have been equally exposed apart from the employment. It did not matter, said the court, that the waiter ate the quesadilla to be a better waiter; that only established the injury occurred during the course of the employment. The commission was right to conclude the injury did not arise out of an actual risk of the employment. The quesadilla was not a hazard or danger, much less one peculiar to the restaurant, stated the appellate court. Most courts would say that instead of describing the “actual risk” doctrine, the Virginia court here utilized the standards of the “increased risk” doctrine.

Say No to Carpooling

I'm glad this case turned out the way it did for the money-hungry employee who needs some anger management. I hope he was terminated from the workplace


In March, a special Workers' Compensation Appeals Panel of the Supreme Court of Tennessee, quoting Larson’s Workers’ Compensation Law, affirmed a decision by a state trial court that had dismissed a truck driver’s complaint against a former employer to recover for workers’ compensation benefits where it appeared that the injured driver became angry at his driving partner, stopped the vehicle in a remote location, got out of the truck, and set upon a personal mission to obtain an object with which to assault his driving partner. The court acknowledged a conflict in evidence—the injured driver claimed that he had sustained injuries as he tried to reenter the truck after his driving partner indicated he was going to leave the driver in the Arizona desert—but noted that the trial court had found the injured driver's testimony not to be credible.

Serious Injuries Caused by Employee’s Attempt “to Ride” Escalator Rail at Annual Sales Meeting Found Compensable (North Carolina)

What a trip to remember! As if it wasn't embarrassing enough for her to remember that she rode the escalator, but she was willing to sit through all of the court hearings regarding it? I guess it paid off..

A North Carolina appellate court recently affirmed a decision by the state’s Industrial Commission that awarded extensive workers’ compensation benefits to an office manager who fell some 25 to 30 feet to a hard surface while trying “to ride” the railing of an escalator following a “festive” gathering for dinner and drinks associated with the employer’s annual sales meeting. The manager worked in Texas and had traveled to Charlotte, NC to attend the four-day meeting, during which various workshops and business meetings were scheduled. The employer had provided alcoholic drinks before dinner, had served wine during the dinner, and paid for drinks in the bar following dinner. At the time of the accident, a group of employees, including the office manager, had begun the return walk to the hotel in which they were staying. The manager climbed onto the escalator railing and attempted to ride it down to the next floor, but fell and sustained serious injuries. A blood alcohol test at the hospital revealed that her blood alcohol level was “sufficient to cause a lack of inhibitory control that contributed to the accident.” The employer contended the injury was the result of a deviation from the employment and/or that the injury did not arise out of and in the course of the employment, but the appellate court, following earlier precedent, held that the claim fell within the "well-established" rule set “that a traveling employee will be compensated under the Workers' Compensation Act for injuries received while returning to his [or her] hotel….”

Snake-handling School Official and School Board Are Immune From Tort Liability for Brandishing Serpent in Office (Kentucky)

I would probably react the same way the teacher did, due to my fear of any reptile if it is brought close to me. If the assistant principal did not walk into the classroom with it or create fear in the students, then maybe the teacher was over reacting.

In mid-December, the Court of Appeals of Kentucky affirmed a state trial court’s summary judgment in favor of a high school assistant principal and a county board of education in a civil action filed by a high school teacher/administrator (and her husband) that alleged intentional and malicious injury when an assistant principal entered the teacher’s office carrying a large snake. The teacher alleged that when she saw the snake, she jumped up out of her chair, started screaming, and ran into the concrete wall that was behind her chair. The teacher indicated the snake had its head up and its tongue out as if it was going to strike. She also alleged that she suffered injuries to her knees and heart, as well as post-traumatic stress syndrome. According to the teacher, the assistant principal just stood there and laughed and said that the teacher must be “a sissy” because she was afraid of “my friend.” The assistant principal countered that she took the snake to the school’s administrative offices because a student’s mother had brought it to school for a science class. The assistant principal added that she did not enter the teacher’s office, but remained in the doorway, and that the teacher had never communicated any fear of snakes. Agreeing with the trial court that the tort action was barred by the exclusive remedy provisions of the state’s workers’ compensation law, the appellate court held that the actions of the defendant principal did not amount to “willful and unprovoked physically aggression.” The court continued that there was no evidence that the assistant principal threatened to touch or had actually touched the teacher with the snake, or that she pushed or thrust the snake toward the teacher. Absent any such evidence of aggression or hostility, the assistant principal’s actions fell within the scope of her employment. Both the school district and the assistant principal enjoyed the immunity afforded by the state’s workers’ compensation law.

Drinking Binge and Two-Hour Nap Found to Be Deviation From Employment, Subsequent Fall Down Elevator Shaft Not Compensable (Utah)

Someone actually sued their employer for this? Common sense is definitely not common these days.

Citing Larson's Workers' Compensation Law, § 20.01, a Utah appellate court last January held that a painter was not entitled to workers' compensation benefits for severe injuries sustained when the employee fell into an elevator shaft after a drinking binge after lunch at the work site, followed by a two-hour nap in a closet. The court reasoned that while the employee was on the premises at the time of the injury and the injury occurred during the normal work day, the painter could not be said to have been furthering any business of his employer when he drank for two hours and then took the nap.

Benefits Awarded for Salad Bar Injury That Proved Fatal (Pennsylvania)

Injuries that occur during employee time seem to always have a gray area when deciding who is responsible. In this case, if the professor had left to just grab lunch, it probably would not be the responsibility of the university, but since he was having a meeting with a student, it counted as the employer's obligation. 

In August, a Pennsylvania appellate court affirmed an award of death benefits to the widow of a professor who died, apparently from a post-surgical infection associated with the treatment of a broken arm and shoulder that had been sustained in a fall at the salad bar of an off-campus restaurant. The professor had traveled to the restaurant to meet with a doctoral student. The employer contended the fall, and resulting death, did not arise out of and in the course of the employment, but the appellate court disagreed. The court acknowledged that injuries sustained during off-premises lunches were, indeed, ordinarily excluded from workers’ compensation coverage. Here, however, the student and professor met for what was anticipated to be a three-hour meeting over lunch. The two discussed the student’s upcoming defense of his dissertation for more than an hour when they decided to go to the restaurant’s salad bar to begin their lunch. While at the salad bar, the professor fell. The court concluded that there was sufficient evidence to support the Board’s finding that the professor was about the business of the employer at the time of the fall.

Exotic Dancer Shot in Strip Club Brawl Gets No Benefits; Dancer Was an Independent Contractor, Not an Employee (South Carolina)

Independent contractors do not receive the same benefits as employees. This puts them in a tough spot, but it is best to know of all conditions before enlisting as a contractor. This is a serious case where it could go south. 

An exotic dancer, who worked in various “strip” clubs in North and South Carolina, and who was shot and seriously wounded while performing at the Boom Boom Room Studio 54 in Columbia, South Carolina, was an independent contractor and not an employee of the club, held a divided Court of Appeals of South Carolina last September. Accordingly, she could not recover workers’ compensation benefits for her injuries. The 19-year-old dancer lived in Charlotte where she danced three or four nights each week at a local club. On two or three other nights a week, she traveled around the Carolinas to dance in other clubs, earning between $250 and $350 each night in cash. She had only danced at the Boom Boom Room on a couple of prior occasions. As explained by other exotic dancers who testified at a hearing, they often chose a city and a club to dance in on a particular night and travel there uninvited and unannounced. In keeping with that practice, the dancer presented herself at the Boom Boom Room and paid the required “tip-out” fee in cash to the club. She completed no paperwork. The club gave her a “rules sheet” and she went to the dressing room to put on her outfit. Then she danced. At some point during the night, an altercation broke out in the club. There was gunfire, and a stray bullet hit the dancer in the abdomen. She suffered serious injuries to her intestines, liver, pancreas, kidney, and uterus. Surgeons removed one kidney, and doctors informed her she may never be able to have children due to the injuries to her uterus. According to her testimony, extensive scarring from the gunshot wound left her unemployable as an exotic dancer. Both the single commission and the appellate panel denied the dancer’s claim based upon a finding that she was not an employee. She appealed, contending that the club managers “controlled” her by searching her when she arrived, requiring her to pay the “tip-out” fee, and directing her to the manager’s office, and then to the dressing room. She argued that she also danced only when she was told to dance. The club selected the music, set the hours, and determined the general environment. She further argued that the club furnished equipment, such as the stage for dancing, poles to assist the dancers, private rooms for V.I.P. dances, tables, chairs, and the like. The majority of the court indicated that under prior decisions it was clear that she was not an employee. She had discretion in how she danced. Moreover, the court indicated that the equipment furnished by the club was not significant. Important to the case was the fact that the club paid the dancer nothing at all. Indeed, she paid the club for the right to perform. This factor weighed heavily against an employment relationship. Finally, there was no showing that the club could fire the dancer. All the factors pointed to the conclusion that the dancer was not an employee, but rather an independent contractor.

Prosthetic Sparks a Suit at a Snack Food Company

When you think of discrimination towards transgender individuals, you tend to label them all the same (male-to-female and female-to-male), but there is such a thing as discrimination amongst transition types. See below:

In 2012, snack food employee Pauline Davis worked in what she believed was a welcoming environment for transgender employees. At the Lackawanna County, Pa., plant where she was employed, she worked alongside a male-to-female transgender individual who was openly wearing female clothing while he underwent hormone treatments.

Davis did not see any open discrimination or harassment of this co-worker, so she felt comfortable opening up about her own sexual identity. As Davis herself was contemplating gender reassignment surgery to become a male, she began wearing a prosthetic penis to her workplace.

Although the prosthetic was hidden beneath her clothing and had no bearing on her work ability, Davis mentioned it in confidence to several co-workers. The co-workers began gossiping about her throughout the company.

Shortly thereafter, the company, J&J Snack Foods, which is headquartered in New Jersey and is known for producing Icee, Luigi’s and Minute Maid Juice Bars, fired her for non-specific reasons. Davis filed suit against the company for sex discrimination, claiming although the company was supportive of a male undergoing sex-reassignment surgery, it did not offer the same support to a woman who was transitioning to a male.

While the original discrimination lawsuit was filed in January 2012 in Pennsylvania’s Middle District Court, there is little information about how the suit proceeded. This may indicate that an out-of-court settlement was reached or the case was later dropped.

Versace Sued After Ex Employee Reveal Secret Code Used To Identify Black Shoppers

A former employee revealed that Versace was using code "D410" whenever black shoppers were in the store. This is so wrong in this day & age and unacceptable, especially for such a well known designer. Something has to be done about such discrimination and forthcoming employees are the best way to bring awareness.

See video below:

Lesson: Just Do Your Job, People

Truck Driver Received No Benefits When Claimed Snakebite was Linked to Employment

This is pretty much common sense. A truck driver decides to mess around on company time and winds up in a messy situation, but wants his employer to compensate. Umm no. 

Story has it that the last words of many a Southern daredevil are, “Watch this!” Thank Goodness an Alabama logging truck driver lived to tell about it—although not without being comatose for several weeks and spending more than 30 days in an ICU unit—but in one of the most bizarre cases of the year workers’ compensation benefits were denied to a trucker who, while riding with co-workers in a company-owned vehicle at a remote work site, convinced his work mates to stop and try to capture a rattlesnake, whom they saw on the deserted highway, rather than just run over it. Finding that the snakebite occurred during the course of the driver’s employment, but did not arise from that employment, the appellate court discounted the truck driver’s argument that the attempt to capture the snake was at least tangentially connected to the employment. The court agreed that poisonous snakes might have been considered a hazard within the logging industry, but then added that the hazard could have been dealt with by killing—rather than capturing—the snake. The court concluded that the risk of being bitten was personal, that the connection with the workplace was too remote to support an award.

An Awkward One...

I can't wrap my head around how this could happen with so many people involved. Did not one person think this was wrong? 

Departing Employee Allowed to Sue Employer and Co-Workers Following Offensive, “Tea-Bagging” Incident (N.Y.)

Plaintiff alleged that on the night he worked his last shift with the employer—he had been hired for a position at another government agency—he was aggressively grabbed by a much larger co-employee, who picked up the plaintiff and forcibly threw him to the ground, at which point the co-employee held the plaintiff down and forced the plaintiff’s arms behind his back. Plaintiff alleged that at that same time, plaintiff’s supervisor came over and told the plaintiff that “he had a going away present for him.” According to the plaintiff, the supervisor then dropped his pants and got on his knees in front of plaintiff’s head, manipulated his genitals and placed his testicles on the back of plaintiff’s head, attempting to subject plaintiff to what plaintiff calls “tea bagging.” The court added that “tea-bagging” has been defined as a sexual act that involves an individual placing his testicles on the face of head of another person. Plaintiff also contended that the supervisor placed his unclothed penis on plaintiff’s head, that the several co-employees required plaintiff to stay in the position for several minutes, and allowed other employees, including another supervisor, to take pictures of the incident. The federal district court dismissed several of the counts in plaintiff’s complaint, but allowed the case to move forward.

Hoit v. Capital Dist. Transp. Auth., 2016 U.S. Dist. LEXIS 93576 (N.D. N.Y., July 19, 2016).

Should Employees be Warned Before a Security Drill? $360,000 Says Yes

It is important for employers to know that their employees are well-trained when dealing with dangerous situations, but they should also give them a "heads-up" or prepare them for one. This case shows how vital it is to ensure proper procedure on safety.

A California trial court erred when it ordered a new trial following a jury verdict awarding plaintiff $360,000 in damages where the plaintiff alleged that her employer planned and carried out a mock robbery during which she was approached by a man wearing a ski mask and sunglasses, who slammed a paper bag down on the counter and gave her a handwritten note saying “I have a gun. Put your money in the bag.” Plaintiff reached for a silent alarm, but the plaintiff alleged the man pounded on the counter and pointed to the message on the bag. She gave the man money, but when he left, she began shaking and crying hysterically. The “robber” was actually the employer’s district quality control manager, and the incident was staged by the employer as a security exercise. The California appellate court held there was sufficient evidence to support the jury’s finding regarding the plaintiff’s allegations that she had been assaulted and sustained emotional distress as a result of the incident.

See Lee v. West Kern Water District, 5 Cal. App. 5th 606, 81 Cal. Comp. Cases 966 (Oct. 24, 2016).

The Best Ones Come from Florida...

“Angry Thoughts” About Co-Worker Do Not Constitute Employee Misconduct (Fla.)

In today's day & age, any type of workplace violence and hostility need to be taken seriously, especially seeing what occurred in San Bernardino. It can definitely be a gray area and it's is important to get psychiatrists involved in cases such as these. 

Statements made by a workers’ compensation claimant to her attorney that she felt like “punching the lights” out of a co-worker, whom the claimant felt had intentionally caused the claimant injury at work, were not the sort of acts that constituted employee “misconduct,” justifying the termination of workers’ compensation benefits under § 440.15(4)(e), Fla. Stat., held a Florida appellate court. Claimant, who sustained two similar injuries when she was struck by a door opened by the same co-worker, admitted she harbored anger at the co-worker following the second incident. She received authorized medical care, was assigned some medical restrictions, and returned to work with accommodations. She subsequently sought authorization of a neurologist and a psychiatrist (as recommended by the authorized orthopedist) and payment of TPD benefits. At a hearing, the claimant’s attorney suggested that an emergency psychiatric hearing was necessary because “something bad might happen.” When the JCC asked for clarification, the attorney announced that the claimant had “discussed homicide and suicide, but not to the level where it’s Baker Actable.” That evening, the employer terminated the claimant, secured a “no trespass” order with the police, and later amended its defenses to the workers’ compensation claim, contending the claimant was ineligible for TPD benefits because she had been terminated for misconduct. The JCC rejected the misconduct defense and the appellate court agreed. Noting that a psychiatrist described the claimant’s expressions of anger as “blowing off steam,” as opposed to a declaration of an intent to inflict physical harm, the Court said it was one thing for the employer to terminate the employee, but quite a different matter to seek termination of her comp benefits. It had failed to meet its burden of proof that she was guilty of misconduct.

To be Noted:

Never Sue Anyone if They Have Footage Against You

A former employee’s claim that her former employer improperly discharged her in retaliation for filing a workers’ compensation claim was appropriately disposed of at the summary judgment level where the employee could not show that her employer’s explanations for discharging her—which were supported by a videotape—amounted to pretext. The bizarre video showed that the former employee verbally engaged a visitor at her employer’s hotel when he complained about a vending machine, that she taunted and dared the visitor to join her on her side of the counter to “discuss” the matter, and then blocked his attempt to exit the location. The video continued to show the former employee push the visitor into a wall, swatting and clawing at his face. They tussled for a few seconds, and the visitor slammed the former employee to the floor, kicked her twice, flung open the door, and then left. The employee subsequently filed a claim for her work-related injuries, but was fired when her supervisors viewed the videotape

See Witham v. Intown Suites Louisville Northeast, LLC, 815 F.3d 260 (6th Cir. 2016)