Is Assault by your Supervisor Covered

Iowa Injured Worker Punched

In Iowa an intentional act of violence at work can be covered under the Iowa Workers’ Compensation Act. It all depends on whether or not the incident is one that is incident to the work. Let’s say you work as a bouncer in a bar. It getting punched or pushed sort of goes with being a bouncer. On the other hand let’s say the bartender’s boyfriend comes into the bar while she is working, accuses her of flirting with a customer and then punches her. That is a personal matter, not likely to be incidental to the employer’s business. In each of these cases you may also have a claim against the aggressor. If you collect from the aggressor or an insurance company, then you will have to pay back any workers’ compensation benefits, but you get to keep the rest.

In Steak ’N Shake v. Spears, Florida’s Fifth District Court of Appeal grappled with when an employee may bypass workers’ compensation exclusivity and pursue a tort claim for emotional distress. The decision illustrates evolving limits on unusually emotional or nonphysical harm claims in employer-employee contexts in Florida. JD Supra

Attorney Lombardi’s Commentary

This is an odd case for a lawyer from Iowa to comment on. Iowa has workers’ compensation benefits, but the statute was watered down and workers today have only limited rights. The Industrial Commissioner bends over backwards to do everything except to interpret the statute liberally in favor of awarding benefits. Even if he says it, he doesn’t really mean it. This Florida case is about “dual capacity” claims under the Florida work comp statute. In Iowa the approach is simply to say, no case. As an example of the type of case I am referring to, take sexual harassment in the workplace. Someone suffering the torment of being sexually harassed at work is being injured at work. An employee tells management about his supervisor having sex with a subordinate, the super finds out, punches him in the chest and the poor guy reporting the claim dies. The entire case is bizarre, but it does happen at work and at the hands of the supervisor over whether work policies were being violated.

Let us look at two types of what can be considered intentional tort claims that happen at work.

In Iowa, the case of Estate of Harris v. Papa John’s Pizza, 679 N.W.2d 673 (Iowa 2004), established that the Iowa Workers’ Compensation Act does not provide the exclusive remedy for injuries resulting from sexual harassment. Here are some excerpts from the case. Do not just rely on these excerpts, read the entire case, which I have linked above.

• Dispute Synopsis: The estate of Harris sued Papa John’s for retaliation and negligent supervision. Michael Harris was an employee at Papa John’s Pizza. Harris’s supervisor, Robert Shields, punched him in the chest, resulting in Harris’s death. Harris reported a violation of the company’s sexual harassment policy.
• STREIT, Justice.

  The facts of this case are as tragic as they are bizarre. An employee of a pizza restaurant told management his supervisor had sex with a subordinate. When his supervisor found out, he punched the employee in the chest. The employee died from the blow, a so-called “chest shot.”

  The employee’s estate sued the pizza company, alleging retaliation and negligent supervision. The retaliation claim was premised upon the theory the employee was punished for reporting a violation of the company’s sexual harassment policy. The district court dismissed both counts on summary judgment.

  Because we find the “chest shot” may constitute an adverse employment action attributable to the pizza company, we reverse the district court’s dismissal of the retaliation claim. We affirm dismissal of the negligent supervision claim, however, because it is preempted by the Iowa Workers’ Compensation Act.

• On October 30, 2001, the Estate sued Papa John’s. The suit alleged Papa John’s (1) violated the Iowa and Federal Civil Rights Acts, insofar as it retaliated against Harris for reporting a violation of its sexual harassment policy; and (2) negligently supervised its employees, resulting in Harris’s death. The Estate also sued Shields for battery, but this count of the petition is not before us.

• 1. Adverse Employment Action Attributable to Papa John’s

  The retaliation provision of Title VII states:

  It shall be an unlawful employment practice for an employer to discriminate against any of his employees … because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter.

  42 U.S.C.A. § 2000e-3. Similarly, the Iowa Civil Rights Act (ICRA) states:

  It shall be an unfair or discriminatory practice for …

  Any person to discriminate or retaliate against another person in any of the rights protected against discrimination by this chapter because such person has lawfully opposed any practice forbidden under this chapter, obeys the provisions of this chapter, or has filed a complaint, testified, or assisted in any proceeding under this chapter.

  Iowa Code § 216.11(2) (2001). Title VII was designed to ensure equal opportunity in employment for all, regardless of sex. Pecenka v. Fareway Stores, Inc., 672 N.W.2d 800, 803 (Iowa 2003) (citing Phillips v. Martin Marietta Corp., 400 U.S. 542, 544, 91 S.Ct. 496, 497-98, 27 L.Ed.2d 613, 615 (1971)). The ICRA was modeled after Title VII, and therefore we have *678 consistently employed federal analysis when interpreting the ICRA. See id. Nonetheless, the decisions of federal courts interpreting Title VII are not binding upon us in interpreting similar provisions in the ICRA. Id.

• Although the parties continue to frame the issue in this bifurcated manner, we do not. The question before us is simply whether the chest shot is not, as a matter of law, an adverse employment action attributable to Papa John’s. When the facts of the case are viewed in a light most favorable to the plaintiffs and affording them all legitimate inferences, we conclude the chest shot could be construed as-an adverse employment action attributable to Papa John’s. See Phillips, 625 N.W.2d at 717-18 (setting forth standard of review for summary judgment rulings). We therefore reverse and remand for further proceedings.

  It is possible a jury would view the chest shot as a private matter — nothing more than a barbaric display of youthful machismo. Yet a more sinister interpretation of the facts is readily available, and it is for this reason the district court should have denied Papa John’s motion for summary judgment. Harris reported a violation of Papa John’s sexual harassment policy, was summoned to his workplace by his angry supervisor, Shields, at whose hands he ended up dead hours later. Shields killed Harris after Meeks, one of Papa John’s general managers with responsibility for the day-to-day operations of the Locust Street store, told him to take care of the problem. Although the chest shot violated company policy, the mere enactment of a policy will not necessarily insulate an employer from liability for the acts of its employees. See Gentry v. Exp. Packaging Co., 238 F.3d 842, 847 (7th Cir.2001). Put simply, a jury ought to decide whether Shields’s actions constituted adverse employment action attributable to Papa John’s.

  We see no reason why punching an employee for making a report of sexual harassment cannot constitute adverse employment action.

• Iowa Code § 85.20. Benefits are recoverable “for any and all personal injuries sustained by an employee arising out of and in the course of employment, and in such cases, the employer shall be relieved from other liability … for such personal injury.” Id. § 85.3(1) (emphasis added).

  An injury “arises out of and in the course of employment” when “there is a causal connection between the employment and the injury” and “the injury and the employment coincide as to time, place, and circumstances.” Thayer v. State, 653 N.W.2d 595, 599-600 (Iowa 2002) (injuries *681 occurring riding to work in van driven by coworker as part of company controlled van-pool program sustained “out of and in the course of employment”). The district court reasoned Harris’s injury was sustained “out of and in the course of employment” because (1) it occurred at his place of employment; (2) he was summoned by his manager to discuss a work-related issue; and (3) Shields was working at the time of the incident. For these same reasons, we agree with the ruling of the district court. In the present case, there is sufficient undisputed evidence to conclude Harris sustained his injury “out of and in the course of employment” to invoke the exclusivity provision of the statute.

  We see no reason to carve out an exception to the general rule of preemption in this case.

  Now, let us look at Nelson vs Winnebago Industries, Inc.

  Nelson v. Winnebago Industries, Inc., 619 N.W.2d 385 (Iowa 2000), is instructive. In Nelson, an employee claimed he was injured during a going-away party thrown for him at work. 619 N.W.2d at 386. His coworkers bound him with duct tape and carried him to a shower. Id. In the process, they dropped him. Id. The plaintiff sued his employer under two common law theories, false imprisonment and battery. Id. at 387. The employer claimed the exclusivity provision of the IWCA immunized it from common law claims. Id.

  We ruled the sole remedy for the employee was in workers’ compensation. Id. In pertinent part, we stated:

  We have found no case allowing a common-law suit against an employer for the acts of a supervising employee such as in this case. In fact, the general rule is that such suits are not permitted. When the person who intentionally injures the employee is not the employer in person nor a person who is realistically the alter ego of the corporation, but merely a foreman, supervisor or manager, both the legal and moral reasons for permitting a common-law suit against the employer collapse, and a substantial majority of modern cases bar a damage suit against the employer….

  …. Unless the employer has commanded or expressly authorized the assault, it cannot be said to be intentional from his standpoint any more than from the standpoint of any third person. Realistically, it to him is just one more industrial mishap in the factory, of the sort he has a right to consider exclusively covered by the compensation system.

Conclusion by the Iowa Supreme Court

We find the “chest shot” may constitute an adverse employment action attributable to Papa John’s, and therefore reverse the district court’s grant of summary judgment on the civil rights claims and remand for further proceedings. We affirm, however, the district court’s ruling that the Iowa Workers’ Compensation Act preempts the Estate’s negligent supervision claim. As a consequence, the Estate’s negligent supervision claim against Papa John’s may not proceed. Summary judgment on that issue was proper.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.

Now let us look back at the Florida case.

Background & Statutory Framework

• Under Florida law, most worker injuries must be channeled through the workers’ compensation system, barring ordinary tort suits against employers.

• However, Florida jurisprudence sometimes allows claims for intentional torts, “dual capacity” claims, or emotional distress in narrow circumstances.

• In Steak ’N Shake v. Spears, the court confronted a claim by an employee for emotional distress allegedly caused by workplace conduct, trying to avoid the workers’ comp scheme. JD Supra

Holding & Rationale

• The appellate court rejected the attempt to treat a purely emotional claim as a tort outside the workers’ compensation regime. JD Supra

• It emphasized that such claims must fall squarely within statutory exceptions, and emotional distress unaccompanied by physical injury or clear intentional tort will not suffice. JD Supra

• The opinion signals judicial pushback against stretching emotional harm theories beyond traditional bounds. JD Supra

Implications for Practice

1. Heightened barrier for emotional distress claims
   In Florida, plaintiffs must be wary: if their emotional harm theory does not fit within established exceptions (intentional tort, dual capacity, physical manifestation), it may be rejected.

2. Strategic structuring of claims
   Lawyers must carefully analyze whether alleged acts can be pled as intentional wrongs (battery, assault, outrage) or whether they must be subsumed in workers’ compensation.

3. Discovery and early motion practice
   Defense counsel should vigorously move to dismiss or for summary judgment on emotional distress claims lacking statutory footing.

4. Comparative lesson for other jurisdictions
   While Florida’s statutory landscape is particular, many states resist “free-floating” emotional distress claims beyond well-recognized schemes. This case reminds practitioners that the line between tort and statutory regime will be contested.

Lombardi’s Summary

Here is my point about an intentional or seemingly intentional injury at the workplace. These are complicated cases involving whether the injury event arose out of and in the course of the employment. They are not to be taken lightly; because of the complexity of the claims. Before you speak with the work comp adjuster, see a lawyer to discuss how to view what happened. Of course if the employee dies, then the next of kin should find a lawyer to discuss how to deal with what happened. Whatever you do, do not agree to settle without getting legal advice. Because if the adjuster wants to settle chances are he or she knows it is viable claim; and likely worth a whole lot more than what they are offering.

I had a client who was working as the night desk clerk in motel. A guy came in to rob the place and shot the client in the thigh. That is covered by workers’ compensation benefits. And we proved it. If you have questions contact me.

Steve Lombardi