• Walmart not Liable for Sexual Assault of Employee on Co-employee
  • October 9, 2018 | Author: Philip A. Toomey
  • Law Firm: Leech Tishman Fuscaldo & Lampl, LLC - El Segundo Office
  • On September 27, 2018, a California court of appeal held an employer is not an absolute guarantor of the safety of all persons with whom its employees may have incidental conduct, even in the case of sexual assault. The case is Doe v. Walmart (9/27/18, G054660).

    Both Jane Doe and Olin Martin were employed by Walmart. They occasionally worked together, but normally had different schedules. They would often go for extended periods of time without seeing one another. On one occasion when they shared a mutual work schedule, Doe stated she wanted to smoke some “weed” because she was having a “crappy day.” They met in a nearby park during their lunch break, and smoked marijuana together in his car.

    While they were at the park and smoking marijuana, Martin attempted to “hit on” Doe. She rebuffed his approaches. When he seemed upset because she rejected him, she offered to pay for the marijuana she had used because she did not want to give him the “wrong impression.” They then both returned to work. From the time she returned from lunch until she finished her shift, Doe had no further contact with Martin.

    They both clocked out at 11 pm, but Doe stayed an extra 45 minutes to do some shopping. When she left the store, Martin followed her as she walked to her van in the back Walmart parking lot. Martin then sexually assaulted her.

    Walmart did an investigation and fired Martin two days later. The only prior discipline in Martin’s personnel file was a single year-old incident. A complaint had been made against him for disrespectful or harassing comments. Martin was counseled for the behavior.

    Doe sued Walmart. In her lawsuit, she claimed Walmart was negligent in hiring, supervising and retaining Martin. One part of her claim was that, unknown to Walmart, Martin had suffered two prior robbery convictions. Doe claimed Walmart should have discovered the two convictions, and then warned her about Martin’s past so she could have protected herself.

    Walmart filed a motion for summary judgment. In the motion, Walmart asserted that as tragic as the incident was, it had no legal duty for the assault of one employee on a co-employee in its parking lot after both employees had clocked out from their shifts. Since under relevant California law, and in the employment context, an employer can be liable for negligent hiring or retaining of an incompetent or unfit employee, Doe claimed the failure to investigate lead to a situation where either Martin was not adequately supervised, or she was not warned so she could take appropriate action to protect herself. Walmart responded that an employer’s duty is only breached when the employer knows, or should know, facts which would warrant a reasonable person to conclude the employee presented an undue risk of harm in light of the particular work to be performed. Walmart argued that since Martin was a replenishment clerk, there was no connection with that work and the sexual assault. The court agreed, finding Walmart could be liable only if hiring or retaining Martin created an undue risk of harm when viewed in light of the work a stock replenishment clerk performed. The court discounted the prior robbery convictions, since those convictions did not have any causal nexus between negligent hiring and retention and his subsequent sexual assault on Doe.

    In this ruling, an appellate court reaffirmed a basic proposition: an employer is not a blanket guarantor of the safety of all persons with whom their employees may have incidental dealings. Rather, liability for negligent hiring and supervision can be imposed only when the employer knows, or should know, that the employee, because of past behavior or other factors, is unfit for the specific tasks that he is to perform. And from a legal perspective, at least according to this decision, the employer will be liable only if it is reasonable under the facts to impose an obligation to more closely monitor any employee’s conduct. So while an employer still has a reasonable obligation to maintain a safe work environment, that obligation does not arise to the level of an absolute guarantee or an absolute duty to warn other employees of what is disclosed on, or what would have been disclosed, on a background investigation report.