Beware Employees Who Wish to ‘Bend’ Policies
Bad Facts Make Bad Law
(And Employers Pay)
by Steven John Fellman
NATO Washington Counsel
Recently the U.S. Court of Appeals
for the 4th Circuit ruled that an employee was entitled
to have a jury decide
whether her employer was liable for intentionally inflicting
emotional distress on her. In the case of Gantt v. Security
USA the facts were very bad.
Dominique Gantt worked as a security
guard for Security USA, a private security company. She
was assigned to guard
an IRS facility in Lanham, Md. Gantt advised her employer
that she had obtained a protective order from a Maryland
court barring her former boyfriend, Gary Sheppard, from
abusing, threatening or contacting her anywhere … including
her home and her place of employment. In issuing the
protective order, the Maryland court found that Gantt
had been abused
and beaten by her former boyfriend. She brought a copy
of the protective order to work for examination by her
employer. Security USA then acted as a responsible employer.
The company project manager issued a notice to all company
supervisors directing that Gantt only be assigned to
inside posts so that Sheppard should not gain access
to her at
work.
Sheppard worked as a security guard
for another private security company, Wackenhut Services.
He was “weapon
qualified.” At Wackenhut he worked during the week
with Sgt. Angela Claggett. Claggett had a weekend job at
Security USA where she occasionally supervised Gantt. Claggett
was directed by Security management to move Gantt to an
inside location. Although Gantt told Claggett that Sheppard
had hit her and threatened to kill her and had tried to
break into Gantt’s mother’s house, Claggett
testified that she believed that Sheppard and Gantt “needed
to talk.” When Sheppard called Gantt at work, Claggett
put him through to Gantt even though she knew about the
protective order. Gantt told Sheppard that she didn’t
want to talk to him and hung up. At a later date, Claggett
assigned Gantt to an outside location. Gantt protested
that she was afraid and that the company had ordered that
she only be assigned inside locations, but Claggett refused
to change the assignment, forcing Gantt to guard an outside
location. Further when Sheppard called, Claggett again
forwarded the call to Gantt asking that Gantt just talk
to Sheppard. Gantt again hung up on Sheppard. Gantt called
Claggett and told her that Sheppard had called her and
had been mean to her. She again requested to be transferred
inside. Claggett again refused.
Within a short period of time, Sheppard arrived at
the IRS facility and found Gantt at her outside post.
She
tried to run away, but he ran after her with a shotgun
and caught
her and forcibly dragged her away. Several other guards
witnessed Sheppard’s actions and went to Claggett
and recommended that they call the police. Claggett
refused to call the police saying that Sheppard just
wanted to
talk to Gantt and that he did not want to hurt her.
Eventually after 5 or 10 minutes elapsed, Claggett
did call the police.
However, Sheppard had dragged Gantt into his van and
had driven away. Sheppard beat Gantt, raped her and
threatened
to kill her. Eventually she escaped. Sheppard was arrested
and convicted of kidnapping, rape and violation of
the restraining order. He was sentenced to 20 years
in jail.
Gantt sued Security USA for harassment
and intentional infliction of severe emotional distress.
The district
court found that Gantt had not perfected her harassment
claim
and that she had not properly stated a cause of action
for harassment. The district court dismissed the
intentional infliction of emotional distress claim on
a motion
for summary judgment.
The court of appeals agreed with the
district court on the harassment issue. However, the
court of appeals
reversed
the district court’s dismissal of the intentional
infliction of emotional distress claim and ruled
that there were basically two separate periods
when Gantt could have
experienced emotional stress. The first period
was when Claggett made her guard an outside location
before Sheppard
arrived. The second period was after Sheppard arrived
and kidnapped her.
The court of appeals consisted of
a panel of three judges, Paul V. Niemeyer, J. Michael
Luttig and
Diana Gribbon
Motz. Motz wrote the opinion of the court. All
three judges agreed
that there was a basis for claiming that the
employer had intentionally inflicted emotional distress
at least as
to the time that Gantt was assigned to guard
the
exterior location before Sheppard arrived. However,
each judge
had a different rational for this issue. Finally,
one judge
found that the acts of Claggett, in direct contravention
to the employers’ direction, could not be imputed
as the acts of the employer. Another judge concluded that
the matter was possibly a workman’s compensation
claim.
For theatre owners, the bottom line is clear.
If a case of this nature goes to the jury, the
employer
will lose.
Faced with a fact pattern as described above
and a
court of appeals ruling that the case must go
to trial, most
counsel and insurance carriers will recommend
that the employer settle, if possible.
What happened in this case is that
the court looked at a horrific fact pattern and an innocent
woman
who was
raped and beaten. Who will compensate the victim?
The government
certainly will not provide compensation. The
man who kidnapped her and raped her is in jail
with
a 20-year
term and probably
has no means to compensate the victim. So the
choice is simple, either the victim gets nothing
or the
employer pays. The court of appeals said, “Let a jury decide.”
The lesson from this case is that
all supervisors must understand that when management
gives
them an order
to protect an employee in this type of situation,
that order
is cast in stone and no employee has discretion
to “bend” the
order. Exhibitors must emphasize to supervisors
that there are certain company policies that
are absolute. The company
antidiscrimination policy and anti-harassment
policy are examples. Management must understand
that no matter what
policies are included in the employee handbook,
unless those policies are vigorously enforced
by management, they
are not worth the paper on which they are written. 
