Jackson v. Kimel

• Decision Date: 30 April 1993
• Docket Number: No. 91-2396,91-2396
• Citation: 992 F.2d 1318
• Parties: 143 L.R.R.M. (BNA) 2203, 61 Fair Empl.Prac.Cas. (BNA) 1111, 61 Empl. Prac. Dec. P 42,233, 61 USLW 2685, 125 Lab.Cas. P 10,664, 8 IER Cases 859 Crystal R. JACKSON, Plaintiff-Appellant, v. Randy KIMEL; AT & T Technologies, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1318

992 F.2d 1318

143 L.R.R.M. (BNA) 2203, 61 Fair

Empl.Prac.Cas. (BNA) 1111,

61 Empl. Prac. Dec. P 42,233, 61 USLW 2685,

125 Lab.Cas. P 10,664, 8 IER Cases 859

Crystal R. JACKSON, Plaintiff-Appellant, v. Randy KIMEL; AT & T Technologies, Inc., Defendants-Appellees.

No. 91-2396.

United States Court of Appeals Fourth Circuit.

Argued Oct. 26, 1992.

Decided April 30, 1993.

Robert J. Lingle, Moore & Brown, Melvin F. Wright, Jr., Wright, Parrish, Newton & Rabil, Winston-Salem, NC, argued (B. Ervin Brown, II, Moore & Brown, Winston-Salem, NC, on brief), for plaintiff-appellant.

Max Daniel McGinn, Brooks, Pierce, McLendon, Humphrey & Leonard, Greensboro, NC, argued (William P.H. Cary, Brooks, Pierce, McLendon, Humphrey & Leonard, R. Cameron Cooke, Walker, Warren, Blackmon, Younce, Dowda, White, Cooke & Tisdale, Greensboro, NC, on brief), for defendants-appellees.

Before PHILLIPS, WILKINS, and WILLIAMS, Circuit Judges.

OPINION

WILLIAMS, Circuit Judge:

Crystal R. Jackson filed suit in North Carolina state court asserting a claim for intentional infliction of emotional distress against her former supervisor, Randy Kimel, as well as claims premised on principles of respondeat superior and negligent retention against her former employer, AT & T Technologies Corporation. Jackson contended that Kimel coerced her into having sexual intercourse with him by threatening to withhold assistance with certain work-related problems and by impliedly threatening to terminate her employment.

AT & T successfully removed the case to federal district court on the ground that Jackson's claims were preempted by § 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1988). Finding that Jackson had failed to exhaust the grievance procedures provided in the collective bargaining agreement and that she was unable to satisfy any of the three exceptions to the exhaustion requirement, the district court granted summary judgment to Defendants on all claims. ¹ Jackson appeals both the removal to federal court and the grant of summary judgment.

We conclude that Jackson has failed to proffer sufficient evidence to survive summary judgment on her respondeat superior and negligent retention claims against AT & T. ² We also conclude, however, that Jackson has put forward sufficient evidence to survive summary judgment on her claim of intentional infliction of emotional distress against Kimel, and that § 301 does not preempt this claim. Accordingly, we affirm the grant of summary judgment to AT & T, reverse the grant of summary judgment to Kimel, and remand to the district court for proceedings consistent with this opinion.

I.

Crystal Jackson was employed by AT & T from May 1973 to February 1987. Throughout her employment she was covered by the terms of a collective bargaining agreement between AT & T and the Communication Workers of America. Jackson's first contact with Randy Kimel was through her position as a union representative. In May 1979, Jackson asked for a three-month personal leave of absence in order to go to Texas and retrieve her son from her estranged husband. Jackson's poor attendance record made her ineligible for personal leave for family reasons. According to Jackson, Kimel assisted her in obtaining a leave of absence under the attendance policy ostensibly to seek employment with AT & T in Texas, even though her actual purpose was to recover her son. Jackson says that around this time period Kimel also assisted her in selecting an automobile for purchase.

In August 1979, Kimel invited Jackson to his home to meet his wife and show his wife Jackson's new car. Kimel's wife was not present when Jackson arrived, and it was on this visit to Kimel's home that Kimel and Jackson first had sexual relations. According to Jackson, Kimel stressed to her how he had assisted her in getting the leave of absence and purchasing her car and that she was indebted to him. Jackson alleges that she resigned from her position as a union representative and later transferred to another department to avoid contact with Kimel. Kimel then transferred to a supervisory position in the same department as Jackson. Jackson also alleges that Kimel stared at her at work, did not allow other employees to talk to her, sent other female employees to solicit sexual favors for him, and that others at AT & T were aware that she and Kimel were having an affair. Jackson never complained to anyone in AT & T management about Kimel's alleged actions.

Jackson testified at her deposition that she had sexual intercourse with Kimel approximately ten times, with the last time being either late 1984 or early 1985. Jackson alleges that Kimel coerced her into having sexual relations with him in order to protect her job. According to Jackson, Kimel said things like "as much as I've done for you, it would be a shame if you lost your job because of your attendance," (J.A. at 256), which she understood to mean that if she did not have sex with him she would lose her job.

According to Jackson's complaint, in late August or early September 1986, Kimel invited her to go away for the weekend with him to Grandfather Mountain. Jackson refused by telling Kimel that she could not find a baby-sitter for that length of time. In her deposition, Jackson testified that the real reason she did not want to go was that there was too much guilt and stress involved in their relationship. On September 10, 1986, Jackson, along with a union representative, confronted Kimel. Jackson told Kimel that she was not going to meet him anymore and threatened to report their prior affair to the company. Kimel begged her not to tell the company, replaced her supervisor whom she did not like, and told her that he would retire.

Kimel did, in fact, retire the next day. Jackson then took a disability medical leave in September 1986, and her employment with AT & T was terminated in March 1987 when she failed to report to company medical personnel as required by the Disability Plan. Jackson and the union filed a grievance about the termination, which was settled when AT & T agreed to pay Jackson severance pay. Jackson testified that although other employees may have known that she was having an affair with Kimel, she never complained to anyone in the Company about Kimel's actions (other than when she confronted Kimel), until she told the company doctor in December 1986.

II.

We review the grant of summary judgment de novo. United States v. Lee, 943 F.2d 366, 368 (4th Cir.1991). Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. If we determine, after reviewing the record in the light most favorable to Jackson, that AT & T and Kimel are entitled to judgment as a matter of law, then we must affirm the grant of summary judgment. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

In reviewing the grant of summary judgment, we can affirm on any legal ground supported by the record and are not limited to the grounds relied on by the district court. Service & Training, Inc. v. Data Gen. Corp., 963 F.2d 680, 685 & n. 10 (4th Cir.1992). Although the district court granted summary judgment on the basis of § 301 preemption, we will consider whether Jackson has proffered sufficient evidence to survive summary judgment on her state law claims before addressing whether the claims are preempted. This approach is consistent with Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1263 (4th Cir.1989), where we specifically held that "[t]he § 301 preemption inquiry is predicated on the existence of a colorable state cause of action." We affirm the grant of summary judgment as to Jackson's claims under respondeat superior and negligent retention against AT & T. We reverse the grant of summary judgment on Jackson's intentional infliction of emotional distress claim against Kimel.

A. Claims Against AT & T

Under North Carolina law, an employer may be held liable under the principles of respondeat superior for the tortious acts of its agents in only three situations: (1) when the agent's actions are expressly authorized by the principal; (2) when the action is committed within the scope of the agent's employment and in furtherance of the employer's business; or (3) when the agent's actions are ratified by the principal. Salley v. Petrolane, Inc., 764 F.Supp. 61, 63 (W.D.N.C.1991); Hogan v. Forsyth Country Club Co., 79 N.C.App. 483, 340 S.E.2d 116, 121 (1986).

First, Jackson has not alleged that AT & T expressly authorized Kimel's actions. In fact, AT & T had a written policy prohibiting any type of sexual harassment. With regard to the second situation, North Carolina courts have consistently held that sexual harassment and similar conduct are not in furtherance of the employer's business; rather, in most cases, the conduct is deemed to be for the perpetrator's own licentious purposes. Salley, 764 F.Supp. at 63; Hogan, 340 S.E.2d at 122. In addition, nothing in Jackson's allegations indicates that Kimel's alleged conduct was committed in furtherance of AT & T's business. Jackson, therefore, is left with only the third path for holding AT & T liable for Kimel's alleged tortious activities: demonstrating that AT & T ratified Kimel's conduct. To establish ratification, Jackson is required to show that AT & T "had knowledge of all material facts and circumstances relative to the wrongful act, and that the employer, by words or conduct, show[ed] an intention to ratify the act." Hogan, 340 S.E.2d at 122.

AT & T argues that Jackson has not put forward sufficient evidence to survive summary judgment on the issue of whether AT & T knew or should have known that Kimel was coercing Jackson into a sexual relationship. We agree. Jackson has alleged that other employees knew of her...