Fields v. Cummins Employees Federal Credit Union

• Decision Date: 06 July 1989
• Docket Number: No. 16A04-8703-CV-00085,16A04-8703-CV-00085
• Citation: 540 N.E.2d 631
• Parties: 53 Fair Empl.Prac.Cas. (BNA) 1613 Sue FIELDS, Appellant (Plaintiff), v. CUMMINS EMPLOYEES FEDERAL CREDIT UNION and Joseph P. Taylor, Appellees (Defendants).
• Court: Indiana Appellate Court

Page 631

540 N.E.2d 631

53 Fair Empl.Prac.Cas. (BNA) 1613

Sue FIELDS, Appellant (Plaintiff), v. CUMMINS EMPLOYEES FEDERAL CREDIT UNION and Joseph P. Taylor Appellees (Defendants).

No. 16A04-8703-CV-00085.

Court of Appeals of Indiana,

Fourth District.

July 6, 1989.

Karon E. Perkins, Columbus, for appellant.

James S. Cunning, Jan P. Abbs, Ice, Miller, Donadio & Ryan, Indianapolis, for appellee Cummins Employees Federal Credit Union.

Richard S. Eynon, Columbus, for appellee Joseph P. Taylor.

MILLER, Judge.

Sue Fields brought common law tort actions against her employer, Cummins Employees Federal Credit Union, and her supervisor, Joseph P. Taylor. Fields alleged that Taylor subjected her to sexual harassment, batteries, and intentional interference with her advantageous business relationship. Fields also alleged that her employer knew of Taylor's conduct and negligently retained Taylor as a supervisor. The defendants removed Fields's suit to federal district court and that court remanded the cause to state court "upon the grounds that this cause was removed improvidently and without jurisdiction, in that plaintiff asserts claims under state law and not under Title VII." Following discovery and before trial, both defendants moved for and were granted summary judgment. Fields now appeals and argues summary judgment in favor of the defendants was erroneous because (1) Fields's complaint is not barred by the Indiana Worker's Compensation Act's exclusive remedy provision; (2) her cause of action is not preempted by either Title VII or the Indiana Civil Rights Act and (3) Fields has stated a claim for damages arising from common law torts against both Cummins and Taylor.

We affirm the judgment in favor of Cummins, reverse the judgment in favor of Taylor and remand.

FACTS

Cummins Employees Federal Credit Union (Cummins) is a federally chartered credit union providing financial services to its members. Cummins maintains branches in cities where Cummins Engine Company facilities are located and has three branches in Columbus, Indiana known as Union Street, National Road, and Walesboro. Sue Fields has been an employee of Cummins since 1971 and since 1979 has been assigned to the Union Street Branch. Fields worked in various jobs and received a number of promotions, including her promotion from Loan Officer to Loan Supervisor on November 1, 1983. Joseph P. Taylor was employed by Cummins from September 1972 through August 7, 1984. In March 1981, Taylor was promoted from Manager of the Walesboro Branch to Director of Operations. Taylor moved to the Union Street Branch, and became Fields's supervisor there. Taylor remained at the Union Street Branch until his discharge.

Fields alleged in her complaint that Taylor subjected her to sexual harassment and batteries including:

"a. Statements that he would give her a better performance review if she would go to bed with him.

b. Repeated requests to go to bed with him, including showing up at her front door one morning.

c. Constant unauthorized touching of the plaintiff on her back, buttocks, and shoulders and attempts to kiss plaintiff.

d. Repeatedly coming into her office and telling plaintiff that she should ask for the afternoon off and that she could have the afternoon off if she would spend it with him.

e. Repeatedly stating that plaintiff could be promoted to loan supervisor if she would sleep with him."

(R. at 12)

In her deposition, Fields described the circumstances surrounding each of the above allegations. Fields also stated that Taylor's July 18, 1984 performance evaluation of her was lower than her previous ratings and Taylor told her, when reviewing his evaluation, that his rating would be higher if she "went to bed" with him.

I. Indiana Worker's Compensation Act

Cummins and Taylor argue that Fields's cause of action is barred by the exclusive remedy provision of the Indiana Worker's Compensation Act because the acts Fields complains of meet the three requirements of, and fall under, the Worker's Compensation Act and Fields has failed to pursue her remedy under the Act. Fields concedes that Taylor's acts arose in the course of her employment with Cummins but challenges the defendants' assertions that her injuries were either by accident or arose out of her employment.

Our supreme court has held that the Worker's Compensation Act excludes all rights and remedies of an employee against her employer for personal injury or death where the following three statutory jurisdictional prerequisites are met: (1) personal injury or death by accident; (2) personal injury or death arising out of employment; and (3) personal injury or death arising in the course of employment. Evans v. Yankeetown Dock Corp. (1986), Ind., 491 N.E.2d 969. An injury is "by accident" when "the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing." Id. quoting Inland Steel Co. v. Almodovar (1977), 172 Ind.App. 556, 565, 361 N.E.2d 181, 187. An injury "arises out of" the employment relation when it has been caused by employment related risks. An injury "arises 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 the injury occurred must be considered one for the claimant's benefit only. Id.

Fields asserts her claims are not barred by the exclusivity provision of the Worker's Compensation Act, IND.CODE Sec. 22-3-2-6, because the injuries complained of were not "by accident" and did not arise out of the employment.

Fields cites Eddy v. The Wickes Corp., No. IP 83-857-C, 1985 WL 361 (S.D.Ind., Nov. 20, 1985), (an unpublished memorandum decision involving a similar factual situation) for the proposition that although the initial assault may have been unexpected, the repeated assaults lost their unexpected characteristic and ceased to be accidental. We may consider federal decisions on the same or similar issue; however, this court is not bound by such authority. ¹ Here, we are required to reject the conclusions in Eddy, because of the decisions in Evans, supra and Hansen v. Von Duprin, Inc. (1987), Ind., 507 N.E.2d 573. ²

In Evans, the court quoted with approval the following language from Inland Steel Co. v. Almodovar (1977), supra, 172 Ind.App. at 565, 361 N.E.2d 181, 187:

As the Harvard Law Review article [Bohlen, "A Problem in Drafting of Workmen's Compensation Acts." 25 Harvard L.Rev., 328 (1912) ] quoted supra in the excerpt from Indian Creek [Coal, etc., Co. v. Calvert (1918), 68 Ind.App. 474, 119 N.E. 519] says "[t]he test as to whether an injury is unexpected and so if received on a single occasion occurs 'by accident' is that the sufferer did not intend or expect that injury would on that particular occasion result from what he was doing."

Evans, supra at 974. Fields would have us read this language as requiring an injury to result from a single occurrence in order to be considered accidental. However, this interpretation is not supported by the decision in Hansen.

In Hansen, the plaintiff "suffered numerous emotional and physical problems, including a gunshot wound inflicted by her former husband...." Id. at 574. As a result of the gunshot wound, she developed a fear of guns. Her immediate supervisor repeatedly played jokes on her by simulating the sound of gunfire by dropping books, or firing a cap pistol. He would also jab her in the ribs from behind as if holding a gun. She became increasingly anxious and depressed. Finally her supervisor made a comment which caused her to become hysterical. She left work and was unable to return due to a condition diagnosed as "severe anxiety and depressive syndrome." Id. The Industrial Board found the plaintiff's injury arose out of her employment, and was caused by various acts of her foreman, which did not occur on a single occasion, but was not an accident as defined under the Worker's Compensation Act. The Supreme Court reversed the Board's finding that the injury was not an accident, and held the Board's finding the injury arose out of the employment was supported by evidence of probative value. We see no distinction between the repeated harassment in Hansen and the harassment in this case. Therefore, we conclude Fields's injuries were "by accident."

Fields also claims her injuries did not arise out of the employment because there was no causal nexus between Taylor's acts and the employment. ³ An accident arises out of employment if it has its origin in a risk connected with that employment and flowed as a rational consequence from the employment. Creel v. Handleman Co. (1971), 148 Ind.App. 378, 266 N.E.2d 624. An accident arises out of employment when there exists some causal nexus between the injury complained of and the duties or services performed by the injured employee. A causal relation is established when the accident arises out of a risk which a reasonably prudent person might comprehend as incidental to the employment at the time of entering into it, or, when the facts show an incidental connection between the conditions under which the employee works and the injury. Evans, supra; Bowling v. Fountain County Highway Dept. (1981), Ind.App., 428 N.E.2d 80; Estey Piano Corp. v. Steffen (1975), 164 Ind.App. 239, 328 N.E.2d 240.

At this point, it is necessary to separate Fields's claims against Taylor from her claims against Cummins. An employee's claim against the employer may be covered by the exclusive remedy provision of the statute, I.C. Sec. 22-3-2-6, even though her claim against a fellow employee is not. Martin v. Powell, (1985), Ind.App., 477 N.E.2d 943.

Cummins asserts that Fields is estopped from arguing that her alleged injuries did not "arise out of" her employment because her cause of action against Cummins requires the existence of an employment relationship. Cummins argues that Fields's claims are, by definition,...