Bennett v. Furr's Cafeterias, Inc.

• Decision Date: 28 October 1982
• Docket Number: Civ. A. No. 81-JM-1459.
• Citation: 549 F. Supp. 887
• Parties: Sheila BENNETT, Plaintiff, v. FURR'S CAFETERIAS, INC., and William Andrews, Defendants.
• Court: U.S. District Court — District of Colorado

549 F. Supp. 887

Sheila BENNETT, Plaintiff, v. FURR'S CAFETERIAS, INC., and William Andrews, Defendants.

Civ. A. No. 81-JM-1459.

United States District Court, D. Colorado.

October 28, 1982.

Leo Gemma, Jr. and Terry Tomsick, Denver, Colo., for plaintiff.

Carol Welch, Deana Willingham, Denver, Colo., for defendant Furr's.

William H. Hazlitt, Bonnie J. McClaren, Denver, Colo., for defendant Andrews.

MEMORANDUM OPINION AND ORDER

JOHN P. MOORE, District Judge.

This is a Title VII action in which the Plaintiff has asserted pendent claims for assault and battery and outrageous conduct. Defendants, Furr's Cafeterias, Inc., (Furr's) and William Andrews, have moved for summary judgment dismissing these state law claims as precluded by the Colorado Workmen's Compensation Act¹ and, with respect to the assault and battery claim, the applicable statute of limitations.² I conclude that the motions should be granted in part and denied in part.

In early February of 1980, the Plaintiff was hired by Defendant Furr's as a "management trainee." Defendant Andrews was her immediate supervisor. Ms. Bennett's complaint centers upon two incidents involving her and Defendant Andrews.³

The first of these incidents is alleged to have occurred in February of 1980 in connection with a three-day "inspection trip" to the Grand Junction Furr's Cafeteria. According to the Plaintiff,⁴ she and two male trainees left Colorado Springs in the company of Defendant Andrews on a Monday morning. The party arrived in Grand Junction late that afternoon and proceeded directly to the cafeteria, where they found the local management hard pressed for help. Andrews directed Plaintiff's colleagues to assist while he and Ms. Bennett (who had little or no training at the time) had something to eat. When it became apparent that the others would be occupied for a substantial period, Andrews suggested that he and Bennett pass the time "down the street." Bennett deposition at 39. Bennett concurred. The two had a drink at a local bar and returned to the cafeteria. Upon finding the trainees still busily engaged, Andrews told Bennett that he would take her to the motel at which the group was registered. According to Bennett, Andrews had no sooner parked at the motel when he began to make vigorous sexual advances, suggesting that they "go in her room and have a party for awhile ...." Bennett deposition at 39. Bennett demurred and proceeded to her room alone. Andrews then phoned Bennett, apologized, and added that she should not relate the incident as his family was well connected with Furr's and "nobody would ever believe you ...." Bennett deposition at 40. Although he continued to express an interest in her company, Bennett experienced no further physical difficulties with Andrews during the remainder of the trip.

The second incident is alleged to have occurred in May of 1980. According to the Plaintiff,⁵ Andrews appeared at the Colorado Springs cafeteria where she was in training and announced that they were to inspect a problem at the Pueblo cafeteria. Bennett apparently had no prior knowledge of the arrangement but was not surprised by the request since the matter was described as specific. Upon arriving at the cafeteria, Andrews introduced Bennett to the manager and, shortly thereafter, asked her to leave the meeting. Andrews emerged from the manager's office some 30 minutes later and, accompanied by Bennett, proceeded to inspect and adjust various items of equipment. The parties then ate lunch at the cafeteria and commenced the return trip to Colorado Springs. As they approached the city's outskirts, Andrews told Bennett that he wished to show her his "glider port." Without further ado, he proceeded down a road leading to the town of Yoder (situated 27 miles east of the main highway), where, upon engaging in a cursory inspection of the property, the parties (at Andrews' behest) decided to continue down a dirt road to see if some of the fences were down. This road had apparently not been cleared of snow, and, unfortunately, the car became stuck in a drift. Andrews' reaction to this predicament (again, according to Bennett) was one of amusement, followed by a forceful sexual assault upon Bennett. Bennett managed to elude his advances and started back up the road for help. Andrews joined her and allegedly made further physical advances while the two were walking and, later, while they waited at the car for the help they had contacted to arrive. The car was eventually freed, and the parties returned to Colorado Springs without further incident.

Plaintiff was appointed to the position of "Second Assistant Manager" for the Grand Junction Furr's Cafeteria in May of 1980 and resigned in July of 1980 for reasons which are a matter of dispute. On December 12, 1980, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC). Plaintiff was noticed of her right to sue early in July of 1981. The complaint in this action was filed on August 17, 1981, and avers that "in doing the things hereinafter alleged, Andrews was acting within the scope of his employment relationship with Furr's and was acting with the permission and consent of Furr's."

I

The bar of workmen's compensation extends only to actions founded upon injuries compensable under the Act. Sections 8-42-102 and 8-52-102, C.R.S.1973 (1981 Supp.); see, also, Packaging Corp. of America v. Roberts, 169 Colo. 316, 455 P.2d 652 (1969); Alexander v. Morrison-Knudsen Company, 166 Colo. 118, 444 P.2d 397 (1968), cert. denied, 393 U.S. 1063, 89 S.Ct. 715, 21 L.Ed.2d 706 (1969). An injury resulting from an act or omission of the employer is compensable "where the necessary employer-employee relationship exists and both the service being performed and the injury sustained arise out of and in the course of employment." (Citation omitted.) Johnson v. Industrial Commission of Colorado, 137 Colo. 591, 328 P.2d 384, 387 (1958); § 8-52-102, C.R.S.1973 (1981 Supp.). Cognizant of the Act's broad remedial objective, the Colorado courts have interpreted this standard of compensation to include injuries arising from the intentional acts of a co-employee,⁶ as long as the requisite degree of job relatedness is present. Kandt v. E.B. Evans, Colo., 645 P.2d 1300, The Brief Times Reporter, Vol. VI, p. 408 (S.Ct.1982); Ellis v. Rocky Mountain Empire Sports, Inc., 43 Colo.App. 166, 602 P.2d 895 (1979). As formulated by the Kandt court:

Co-employee immunity for intentional wrongs is strictly limited to injuries sustained where both the tort feasor and the victim are acting within the course of their employment. (Citation omitted.) Thus, the deterrent function of tort liability would be preserved as to those acts between employees not "arising out of and in the course of" the employment relation. Section 8-52-102, C.R.S.1973 (1981 Supp.).⁷

An injury "arises out of" the employment relation when it has been caused by employment related risks.⁸ An injury is suffered "in the course of" employment when "the time, place, and circumstances of the injury were not so remote from the purposes of the claimant's employment that the act in which he was engaged when injury occurred must be considered one for his benefit ... only."⁹

It is therefore apparent that, regardless of the manner in which Defendant Andrews' acts may be characterized, Plaintiff's state law claims will be barred as a matter of law only if there can be no question but that her injuries arose out of and in the course of her employment relationship with Furr's. The Colorado courts have repeatedly emphasized that determination of this issue is largely dependent upon the facts surrounding the injury in question. City and County of Denver, Etc. v. Industrial Comm., 196 Colo. 131, 581 P.2d 1162 (1978); Wisdom v. Industrial Commission, 133 Colo. 266, 293 P.2d 967 (1956); Deterts v. Times Publishing Company, 38 Colo.App. 48, 552 P.2d 1033 (1976); Alpine Roofing Co. v. Dalton, 36 Colo.App. 315, 539 P.2d 487 (1975). Of course, the facts of the instant matter have received little development. Moreover, those facts which appear of record are hardly favorable to the Defendants. Indeed, it would appear to lie outside the bounds of reason to propose that the sort of sexual assault and harassment heretofore described and the emotional trauma alleged to have been caused thereby result from risks inherent to the position of a "management trainee." While a somewhat closer case may be posed with regard to the "course" requirement, I find totally incredible Defendants' bland assertion that Bennett's actions (if any there were) leading to the alleged assaults lie within the course of her employment because she was obligated to go on inspection trips in the first instance. Deviation from the straight and narrow must, at some point, become so remote from the purposes of employment as to be of no tangible benefit to the employer, if anyone.

In my opinion, Defendants' assertions to the contrary rest upon a specious application of case authority. While it is true that an employee in "travel status" is normally acting in the course of employment from the time the employee leaves home until the time the employee returns,¹⁰ it is equally evident that this definition of the "course" requirement does not abrogate the need for casual relation between the action or occurrence resulting in injury and the purposes of the employment in question. Tatum-Reese Development Corp. v. Industrial Commission, 30 Colo.App. 149, 490 P.2d 94 (1971); Archer Freight Lines, Inc. v. Horn Transportation, Inc., 32 Colo.App. 412, 514 P.2d 330 (1973). Needless to say, the present record evinces substantial controversy regarding this threshold condition.

Defendants' reliance upon Kandt, supra, is equally misplaced. In that instance, the Plaintiff had received an award prior to filing suit for outrageous conduct against her employer and supervisor. Kandt's complaint did not assert that the...