An employer can be sued for a supervisor’s murder and rape of one of its employees, which took place while the employee was with the supervisor at an out-of-state wedding, the Seventh Circuit Court of Appeals held in the recent case of Anicich v. Home Depot, 2017 U.S. App. LEXIS 5202. The liability hinged on the supervisor’s authority over the victim. Even though the crimes took place outside of work hours and off the employer’s premises, the Seventh Circuit held that use of the supervisor’s supervisory authority was analogous to the use of the employer’s chattel off the premises.
The victim was Alisha Bromfield. The victim’s mom, Sherry Anicich, filed suit against three defendants, Home Depot U.S.A., Inc., Grand Service, LLC, and Grand Flower Growers, Inc., which managed garden centers for Home Depot stores in Illinois. Plaintiff’s complaint alleged that Defendants jointly employed a male supervisor, Brian Cooper, with a known history of sexually harassing, verbally abusing, and physically intimidating his female subordinates. The harassing conduct took place for more than five years, which ultimately culminated in the murder and rape of Alisha.
As the Seventh Circuit stated, “This tragic case tests the scope of Illinois employers’ tort liability for intentional torts committed by their supervisory employees against other employees where the employer has been negligent.” Anicich p.1. The Seventh Circuit determined the Plaintiff had a cause of action against Alisha’s employers for the negligent retention and supervision of Cooper.
The Case of Murder and Rape.
The facts are horrific.
Alisha worked for Grand Flower Growers, which managed garden centers for Illinois Home Depot stores.
Cooper was her regional manager and a known harasser.
The story begins before Alisha was ever hired. Prior to harassing Alisha, Cooper harassed another employee named Jessica. He introduced Jessica as his girlfriend, made comments about his genitals to her, and rubbed himself against her. Jessica complained to her group leader, who told her that other employees had complained about Cooper and that even the group leader herself felt uncomfortable working with him. Cooper became increasingly loud and abusive with Jessica, yelling and swearing at her.
Eventually, Jessica quit.
Thereafter, Cooper began harassing Alisha. He would call her his girlfriend, began swearing and yelling at her, calling her names like “bitch,” “slut,” and “whore” in front of customers and later would throw and slam things. Cooper became increasingly controlling of Alisha’s time away from work. He would call and text her outside of work, pretending he wanted to talk about a work-related issue. He required Alisha to come with him on business trips, once insisting that they share a hotel room.
During her last year working for the defendants, Alisha became pregnant. Cooper showed his displeasure. When Alisha was about seven months pregnant, Cooper asked her to go to his sister’s wedding in Wisconsin with him. She refused. Then, he threatened to fire her or reduce her hours if she did not go. She went. After the wedding, Cooper took Alisha to the hotel room he had rented for the two of them. He again asked her to be in a relationship with him. She refused. Cooper then strangled her to death, killed her unborn child, and raped her corpse.
What makes this case different from most cases involving an intervening criminal act by a co-worker is that, according to the allegations in the complaint, the employers knew Cooper was a harasser and had harassed Alisha.
Cooper’s behavior toward female employees in general and Alisha in particular was known to other supervisors and senior management.
Alisha complained repeatedly about Cooper to other supervisors and managers in the defendants’ hierarchies. She told her group leader that she did not want to be left alone with him. One Home Depot manager saw Alisha crying after Cooper denied her a break.
Another sent Cooper home after he called Alisha a “slut” and a “whore” in front of customers. Defendants ordered him to take anger management classes, but he did not complete the course. Cooper confronted his human resources manager about the requirement, and was ordered to attend additional anger management classes, but neither employer followed up to make sure he did so.
Defendants’ managers told Alisha that they knew about Cooper’s behavior. Yet, he remained Alisha’s supervisor.
The Seventh Circuit Applied Illinois Law to Find a Cause of Action Against the Employers.
Alisha’s mother, as the administrator of the estates of Alisha and Alisha’s unborn daughter, sued the employers, for negligent supervision and retention of Cooper.
The district court determined that the employer had no duty to control its supervisor for actions that happened outside of work and occurred away from the employer’s premises and dismissed the claim. The Seventh Circuit disagreed.
The Seventh Circuit held that Illinois law permits recovery from employers whose negligent hiring, supervision, or retention of their employees causes injury. While there is no Illinois case directly on point, the Seventh Circuit analyzed the existing law and opined that liability under these facts comported with the exceptions to the general rule that there is no duty to prevent the criminal acts of another.
The general rule in Illinois tort law is that one person has no duty to prevent the criminal acts of another. Simmons v. Homatas, 236 Ill.2d 459 (2010). But Illinois courts recognize several exceptions that limit the general rule, including an exception where an employer violated the duty to act reasonably in hiring, supervising, and retaining their employees. Van Horne v. Muller, 185 Ill.2d 299 (1998). “Illinois law recognizes a cause of action against an employer for negligently hiring, or retaining in its employment, an employee it knew, or should have known, was unfit for the job so as to create a danger of harm to third persons.” Van Horne.
To recover for a breach of that duty, a plaintiff must prove that: (1) the defendant-employer knew or should have known that an employee had a particular unfitness for his position so as to create a danger of harm to third persons; (2) that such particular unfitness was known or should have been known at the time of the hiring, retention, or failure to supervise; and (3) that this particular unfitness proximately caused the plaintiff’s injury. Van Horne. The Seventh Circuit determined that the Plaintiff pled sufficient facts to establish that the Defendants breached their duty to Alisha.
In this case, the Defendants offered three reasons why the Plaintiff did not state a claim under that theory. The Seventh Circuit rejected all three.
First, Defendants argued that allowing this case to go forward would extend Illinois law and that such an extension would create new and unjustifiable burdens for employers. The Seventh Circuit did not have to stretch far to find that the duty already exists. “Hostile or abusive work environments are forms of sex discrimination actionable under Title VII of the Civil Rights Act of 1964” and “sexual harassment is also actionable under the Illinois Human Rights Act.” Under these statutes, employers can be held liable for failing to discipline harassing employees. Thus, the Plaintiff was not asking the Court to impose any new obligations on employers to oversee their supervisory employees.
Second, the Defendants argued that those rules apply only when the employee is on the employer’s premises or using the employer’s chattel, and that neither was true when Cooper killed Alisha.
Illinois has adopted The Restatement (Second) of Torts, §317(a), which provides that employers have “a duty to exercise reasonable care” to control employees who are acting outside the scope of their employment if the employees are on the employers’ premises or using the employers’ chattels. Illinois has used this rule to limit employers’ liability for negligent hiring, supervision, or retention. Illinois has applied this rule to avoid holding an employer liable simply because the tortfeasor and the victim know each other through work. For example, in MacDonald v. Hinton, 361 Ill.App.3d 378 (2005), the premises requirement was not met where the murderer befriended the victim through work.
Undeniably, Cooper was not on the defendants’ premises when he killed Alisha, nor did he use their chattels. Nevertheless, the Seventh Circuit determined that he used something else the defendants gave him — supervisory authority over Alisha. He threatened to fire her or reduce her hours if she did not go with him to his sister’s wedding, threatening to take what the Supreme Court calls “tangible employment actions.” The Seventh Circuit Held that Cooper’s use of his supervisory authority was analogous to the use of chattel. Anicich, p. 12.
Third, Defendants argued that Alisha’s injury was not foreseeable to a person of ordinary prudence in the employer’s position. To succeed on a claim for negligent hiring, supervision, or retention, the plaintiff must demonstrate that the employee’s “particular unfitness … rendered the plaintiff’s injury foreseeable to a person of ordinary prudence in the employer’s position.” Van Horn.
The Seventh Circuit found Cooper’s “particular unfitness” was his harassing, controlling, and aggressive behavior toward his female subordinates. Under Illinois law, “In order to satisfy the foreseeability component, it is not necessary that a defendant must have foreseen the precise nature of the harm or the exact manner of occurrence; it is sufficient if, at the time of the defendant’s action or inaction, some harm could have been reasonably foreseen.” Regions Bank v. Joyce Meyer Ministries, Inc., 2014 IL App (5th) 130193 (2014); see also Rowe v. State Bank of Lombard, 125 Ill. 2d 203, 531 N.E.2d 1358, 1369, 126 Ill. Dec. 519 (Ill. 1988) (“[W]here a plaintiff’s injury results from the same risk, the existence of which required the exercise of greater care, foreseeability of what exactly could develop and the extent of the injury or loss will not limit liability.”). Thus, the Seventh Circuit reasoned, “Illinois courts can and have applied that rule to find foreseeable harms disproportionate to more predictable harms.” Anicich, p. 18
Liability for Employers After Anicich – supervisory control is chattel
The Anicich case should give employers pause for concern.
While the facts in the Anicich case are undoubtedly egregious, the Court’s reasoning did not rest on the horrific murder/rape of Alicia. The Court’s reasoning rested, in part, on what the employer knew and what the employer did and did not do. The employers were aware of the supervisor’s harassing conduct, went through the motions of sending the supervisor to anger management classes, but even then did not follow up to assure that the conduct had changed.
But, most importantly, the Court held that a supervisor’s use of the supervisory authority given to the supervisor by the employer is analogous to the supervisor’s use of an employer’s chattel for the purpose of finding an employer liable for an employee’s intentional torts occurring off of the employer’s premises. Anicich, p. 12-14. Employers’ potential liability for the criminal acts of their supervisors extends well beyond boundaries of the premises and property.
By giving, what can be described as a vile manager a second chance and a slap on the wrist, the employers allowed themselves to become liable for the supervisor’s future criminal acts off the employer’s premises. Employers must weigh whether it is worth the risk to provide a second chance or attempts at rehabilitation for a supervisor who has committed acts that are tantamount to sexual harassment or exhibit anger issues toward subordinates.
McKenna Storer provides a range of solutions for individuals facing workplace harassment issues. Our workplace harassment lawyers are here to assist with any of the following: sexual harassment in the workplace, verbal harassment in the workplace and third party sexual harassment in the workplace.