JOHN M. GERRARD, District Judge.
This matter is before the Court on the motion to dismiss (filing 13) filed by defendant Werner Enterprises, Inc. For the reasons discussed below, the motion will be granted in part, with the remainder of the motion being denied.
Werner is a Nebraska corporation with its principal place of business in Nebraska. Defendant Drivers Management, LLC is a Delaware LLC based in Nebraska. Drivers is wholly owned by another Delaware LLC which, in turn, is wholly owned by Werner—in other words, Werner is Drivers' "grandparent" corporation. Filing 1-1 at ¶¶ 4-5; filing 10. In January 2013, plaintiff Charleen A. Pearce, an Alabama resident, began her employment with Drivers as a student truck driver. This case arises from the sexual harassment, culminating in an assault and battery, that Pearce alleges she suffered at the hands of a Werner employee, Robert Helvering.
Pearce alleges that Helvering has a history of sexually harassing female employees. Prior to being hired by Werner, Helvering was fired from his job at Union Pacific for multiple incidents of sexual harassment, including unwanted physical contact. Filing 1-1 at ¶¶ 6-17. Helvering disclosed this history of misconduct to Werner when it hired him.
Helvering continued his pattern of harassing behavior while employed at Werner. In 2008, Werner officials received an anonymous complaint that Helvering, who sometimes did his work as a dispatcher from his home, was "using his position to procure women while on the job." Filing 1-1 at ¶ 28. In 2011, Werner received complaints from two female drivers that they had been subjected to sexual harassment by Helvering. Filing 1-1 at ¶¶ 33-39.
Pearce alleges that from the outset of her employment with Drivers in 2013, she was subjected to sexual harassment and a
Cunningham and Pearce were on Helvering's "drivers board," which meant that he was responsible for routing their truck. Filing 1-1 at ¶ 55. Pearce alleges that Cunningham flirted with Helvering, who texted a photo of himself to Cunningham and asked her and Pearce for photos of themselves. Pearce alleges that Helvering also made vulgar comments to her and Cunningham. Filing 1-1 at ¶¶ 57, 59.
On March 4, 2013, Cunningham and Pearce were passing through Omaha, Nebraska. Helvering met them at Werner's cafeteria for lunch and made plans to take them out to dinner that night. Helvering told Cunningham that he would meet her at her hotel room, which she shared with Pearce, to discuss giving Cunningham more miles (which would result in increased compensation). Filing 1-1 at ¶¶ 60-61.
Later that day, Pearce alleges, Helvering entered her hotel room with his pants partially unzipped, and closed the door and locked the deadbolt. Helvering began talking to Cunningham about giving her more miles, and after telling her he could give her 5,000 more miles a week, he approached Cunningham and began kissing and groping her. Pearce alleges that Cunningham twice attempted to extricate herself, but that he continued to kiss and grope her, and so Pearce "began making noise to distract Helvering." Filing 1-1 at ¶¶ 62-66. Pearce alleges that Helvering then approached her and forcefully grabbed one of her breasts, and that after she pushed him back, he began approaching her again. Cunningham yelled at Helvering to stop and told Pearce to get outside, which she did. Filing 1-1 at ¶¶ 69-72. Cunningham and Helvering emerged from the hotel room approximately 20 minutes later. Cunningham told her that they still had to go to dinner with Helvering. Helvering then approached Pearce and forcefully grabbed her arm and pulled her close, then told her in a threatening manner that all they did in the hotel room was kiss and hug. Pearce alleges that she suffered scratches and bruises from Helvering's attack. Later that night, Pearce reported the incident to police and defendants' officials. Helvering was arrested, and his employment with Werner was terminated. Filing 1-1 at ¶¶ 73-79.
Pearce alleges that after returning to work from medical leave on March 20, 2013, she was again harassed by her new trainer. In April 2013 she took medical leave to obtain psychiatric treatment. She subsequently filed charges of discrimination with the United States Equal Employment Opportunity Commission (EEOC). On May 13, the EEOC notified Drivers of Pearce's charges. On May 15, Drivers terminated Pearce's employment. Filing 1-1 at ¶¶ 80-85.
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
Pearce asserts that Werner is vicariously liable for the alleged torts of its employee, Helvering, and brings Nebraska common law claims for battery, assault, and intentional infliction of emotional distress against Werner (counts I through III of Pearce's complaint). Pearce also asserts that Werner is directly liable for its own negligence in hiring, supervising, and retaining Helvering (count IV). And Pearce brings claims under various state and federal anti-discrimination statutes against Drivers, for sexual harassment, disability discrimination, and retaliation (counts V through XIV). Pearce's claims against Drivers are not before the Court at this time.
In its motion to dismiss, Werner contends that the Nebraska Workers' Compensation Act (the Act), Neb.Rev.Stat. § 48-101 et seq., provides the exclusive remedy for all of Pearce's claims against Werner. So, Werner argues, Pearce's claims belong in front of the Nebraska Worker's Compensation Court, and must be dismissed for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1). Alternatively, Werner moves to dismiss Pearce's claims for assault, battery, and intentional infliction of emotional distress for failure to state a claim. Werner contends that on the facts alleged, it cannot be held vicariously liable for the intentional torts of Helvering.
The Court finds Werner's first argument unpersuasive, but finds merit in its second argument. On the facts alleged, Werner cannot be held vicariously liable for Helvering's alleged intentional torts (counts I through III). However, Pearce's negligence claim against Werner (count IV) will proceed, as will her claims against Drivers for gender and disability discrimination and retaliation under state and federal law (counts V through XIV).
The Act is an employee's exclusive remedy against an employer for an accidental injury arising out of and in the course of employment. Estate of Teague by and through Martinosky v. Crossroads Coop. Assoc., 286 Neb. 1, 834 N.W.2d 236, 243 (2013). And the Nebraska Workers' Compensation Court has exclusive jurisdiction in actions arising under the Act. See Abbott v. Gould, Inc., 232 Neb. 907, 443 N.W.2d 591, 593 (1989).
In her complaint, Pearce alleges that Drivers, not Werner, was her employer. Werner maintains, however, that it should be considered Pearce's "joint" or "special" employer in conjunction with Drivers. See, Daniels v. Pamida, Inc., 251 Neb. 921, 561 N.W.2d 568, 571-72 (1997) (special); White v. W. Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704, 708-09 (1980) (joint). In support, Werner has submitted certain evidentiary materials, including a declaration from one of its vice presidents describing the relationship between Werner and Drivers, a copy of a "Service Agreement" between Werner and Drivers, and a job description for Helvering's position with Werner. See filing 14. Werner contends that because the Worker's Compensation Court has exclusive jurisdiction
Werner's argument is without merit. This Court has federal question jurisdiction over Pearce's federal claims against Drivers, and supplemental jurisdiction over her remaining state-law claims against Drivers and Werner. See 28 U.S.C. § 1367(a). Indeed, those were the grounds Werner cited in removing this case to this Court. See filing 1. It also appears that the requirements for diversity jurisdiction are satisfied. See 28 U.S.C. § 1332.
Even if Pearce's claims are ultimately determined to fall under the exclusive provisions of the Act, that will not affect this Court's subject matter jurisdiction. See Cincinnati Indem. Co. v. A & K Const. Co., 542 F.3d 623, 624 (8th Cir. 2008). State law cannot be construed to enlarge or contract federal jurisdiction. Beach v. Owens-Corning Fiberglas Corp., 728 F.2d 407, 409 (7th Cir.1984). Werner's argument regarding the Act is therefore properly considered as a non-jurisdictional attack on the merits under Fed.R.Civ.P. 12(b)(6). See Cincinnati Indem., 542 F.3d at 624. As such, the Court will not consider matters outside the pleadings. See Fed.R.Civ.P. 12(d). And the facts alleged in Pearce's complaint do not show that Werner was Pearce's special or joint employer.
Under the doctrine of respondeat superior, an employer may be held vicariously liable for the negligence or intentional torts of its employee, provided the employee was acting within the scope of the employer's business. See, Reeder v. State, 254 Neb. 707, 578 N.W.2d 435, 439 (1998); Strong v. K & K Invs., Inc., 216 Neb. 370, 343 N.W.2d 912, 914-16 (1984). Pearce seeks to hold Werner vicariously liable for Helvering's intentional torts. To do so, Pearce must show that the relationship of master and servant (employer and employee) existed at the time of the injury and with respect to the particular transaction resulting in the alleged tort, and she must show that Helvering was acting within the scope of his employment. Strong, 343 N.W.2d at 915.
In determining whether conduct falls within an employee's scope of employment, the Nebraska Supreme Court has used the Restatement (Second) of Agency (1958) for guidance.
The third factor—Helvering's purpose in committing the alleged acts—is dispositive in this case. Generally speaking, courts have held that acts of sexual assault or harassment, such as Helvering's alleged attack on Pearce, do not fall within the scope of the tortfeasor's employment. See, e.g., Hansen v. Bd. of Trs. of Hamilton Se. Sch. Corp., 551 F.3d 599, 612-14 (7th Cir.
In other words, sexual misconduct such as that alleged here is generally held not to have been actuated, at least in part, by a purpose to serve the employer. That is not to say that this Court subscribes "to the blanket proposition that sexual assaults never come within the scope of employment." Doe v. Sipper, 821 F.Supp.2d 384, 388 (D.D.C.2011). Instead, the Court looks to the facts of each case. And in this case, Pearce has not alleged facts plausibly suggesting that Helvering's alleged conduct was in any way motivated by a desire to further Werner's interests. See, e.g., id. at 388-90; Hunter v. Countryside Ass'n For the Handicapped, Inc., 710 F.Supp. 233, 239 (N.D.Ill.1989). The Court therefore finds the Helvering's alleged acts fell outside the scope of his employment with Werner.
As an alternative theory of vicarious liability, Pearce asserts that Werner may be liable for Helvering's conduct under an "aided-by-agency" theory, as set forth in Rest.2d Agency § 219(2)(d). That section provides:
Rest.2d Agency § 219(2)(d) (emphasis supplied).
As can be seen from the emphasized language, subsection (2) consists of two clauses; the first addressing apparent authority and the second addressing what has come to be known as the "aided-by-agency" (or "aided-in-accomplishing") exception to the general rule of employer non-liability for torts of employees committed outside the scope of their employment.
There is a great deal of disagreement as to how broadly the aided-by-agency clause should be interpreted. The comments from the Restatement suggest a fairly narrow interpretation:
Rest. 2d § 219 cmt. e (citations omitted) (emphasis supplied). And, in fact, some courts have interpreted the "aided-by-agency" clause narrowly, reasoning that it was intended to address situations involving misrepresentation or deceit. See, e.g., Mahar v. StoneWood Transp., 823 A.2d 540, 545-46 (Me.2003).
Other courts have taken the clause at face value and given it a broad interpretation, so that it reaches cases of misconduct by supervisory employees where their "tortious conduct is made possible or facilitated by the existence of the actual agency relationship." Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
Some courts have considered and rejected such a broad interpretation of § 219(2)(d). See, e.g., Zsigo v. Hurley Med. Ctr., 475 Mich. 215, 716 N.W.2d 220 (2006). The Zsigo court reasoned that the general rule is that employers are not liable for the torts of their employees committed outside the scope of employment, but that § 219(2)(d) is phrased so vaguely and devoid of any limiting principles that it would be an exception so broad as to swallow the rule. Id. at 226-29. Still other courts have adopted the rule but only in extremely narrow circumstances, such as cases involving sexual misconduct by police officers who have abused their positions of trust and authority. See, e.g., Doe v. Forrest, 176 Vt. 476, 853 A.2d 48 (2004).
In the Restatement (Third) of Agency (2006), the American Law Institute (ALI) has distanced itself from § 219(2)(d), no trace of which appears in the new sections corresponding to § 219(2)(d). See, e.g., Rest 3d Agency §§ 7.03-7.08. As the comments explain:
Rest. 3d Agency § 7.08 cmt. b (emphasis supplied).
Further explanation for the ALI's changed approach—if it even is a change from what the ALI actually intended in § 219(2)(d)—can be found in its soon-to-be-finalized Restatement of Employment Law. The commentary found therein goes even further in disapproving of the broad interpretation of § 219(2)(d), and suggests that it may have been the result of a drafting oversight:
Rest. Of Employment Law § 4.03 Reporters' Notes cmt. f (Proposed Final Draft April 8, 2014) (emphasis supplied).
In this diversity case, the Court's task is to predict what the Supreme Court of Nebraska would make of § 219(2)(d). See Ashley Cnty., Ark. v. Pfizer, Inc., 552 F.3d 659, 665 (8th Cir.2009). The Supreme Court of Nebraska has, in the past, sought guidance from and approved several other sections of the Restatement (Third) of Agency. See, Elting v. Elting, 288 Neb. 404, 849 N.W.2d 444 (2014); Koricic v. Beverly Enterprises-Nebraska, Inc., 278 Neb. 713, 773 N.W.2d 145 (2009). This Court predicts that the Supreme Court of Nebraska would do likewise in this case. Section 219(2)(d) has proven contentious and difficult to apply, and has been disavowed by its creators. Existing Nebraska caselaw does not, under these circumstances, support the adoption of a broad exception to the requirement that an employee's torts be within the scope of their employment before the employer will be held vicariously liable.
In sum, the Court finds that Helvering's alleged intentional torts were committed outside the scope of his employment with Werner. The Court further finds that, under the circumstances of this case, the Supreme Court of Nebraska would not adopt the aided-by-agency rule. Werner therefore cannot be held vicariously liable for Helvering's intentional torts, and Pearce's intentional tort claims in counts I through III will be dismissed. Pearce's remaining claims, for negligence against Werner, and for gender and disability discrimination and retaliation against Drivers, will proceed. Pearce has requested leave to amend her complaint, and she may do so, if she chooses, on or before August 12, 2015. Accordingly,
IT IS ORDERED:
1. Werner's motion to dismiss (filing 13) is granted in part and denied in part, as set forth above.
2. Pearce may submit an amended complaint, if she so chooses, on or before August 12, 2015.