Personal Liability of Supervisors in Colorado
January 1, 1997
By: Brent T. Johnson
I. INTRODUCTION
Individuals alleging discrimination or other wrongful treatment in the workplace frequently sue both the employing company and their supervisors. Claims against supervisors may be made because plaintiffs seek to impute the supervisors' actions to the company. However, claims are also made against supervisors in their individual capacities.
Some laws prohibit plaintiffs from suing their supervisors in an individual capacity. In other instances, however, personal liability is a realistic threat. Therefore, it is important as supervisors to protect yourselves from personal liability and to help other supervisors in your company do the same.
I will be addressing recent developments in federal and state law regarding the personal liability of supervisors. I will conclude by offering suggestions for supervisors to protect themselves from incurring personal liability.
II. FEDERAL EMPLOYMENT STATUTES
There are several federal statutes barring discrimination and other wrongful actions against individuals in the employment context. I will be speaking about the potential for personal liability under the following federal statutes, as well as under related state statutes and common law theories: (i) Title VII of the Civil Rights Act of 1964 ("Title VII"); (ii) the Americans with Disabilities Act of 1990 ("ADA"); (iii) the Age Discrimination in Employment Act of 1967 ("ADEA"); (iv) the Fair Labor Standards Act of 1938 (the "FLSA"); and (v) the Family Medical Leave Act of 1993 (the "FMLA").
Pursuant to Title VII, it is unlawful for employers to discriminate on the basis of an individual's race, color, sex, religion or national origin. 42 U.S.C. § 2000e et seq.
1. Who is an "Employer" Under Title VII?
Title VII defines an "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees. . . and any agent of such person." 42 U.S.C. § 2000e(b). The statute's definition of "person" includes individuals and corporations. Id. at § 2000e(a). However, the statute does not define "agent."
Therefore, courts have struggled with whether to allow plaintiffs to pursue claims against persons in supervisory positions in their individual capacities, or whether to limit liability to imputing the supervisors' actions to the company.
2. The Split in Federal Circuit Court Decisions
Some courts have found "agents" personally liable for discrimination under Title VII. See e.g., Paroline v. Unisys Corp., 879 F.2d 100 (4th Cir. 1989) aff'd in pertinent part, 900 F.2d 27 (4th Cir. 1990) (en banc); Kauffman v. Allied Signal, Inc., 970 F.2d 178 (6th Cir. 1992) cert. denied, 113 S.Ct. 831 (1992). For example, in Paroline, supra, the court held that the imposition of individual liability against a supervisor is justified if, as the employer's agent, the supervisor exercises significant control over the plaintiff's hiring, firing and conditions of employment. Id. at 106.
In holding supervisors personally liable, courts have reasoned that since Title VII speaks with such clarity in stating than an employer, "means a person. . . who has fifteen or more employees. . . and any agent of such person," there is no need to look beyond the statutory language to define Congressional intent. Goodstein v. Bombardier Capital, Inc., 889 F.Supp. 760, 764-65 (D.Vt. 1995). Courts have also held that personal liability is justified because the definition of "employer" and of "agent" should be liberally construed to accomplish the remedial purpose of Title VII. Domm v. Jersey Printing Co., 871 F.Supp. 732, 738 (D. N.J. 1994).
The level of supervisory authority required to trigger individual liability under Title VII is generally described as that which would qualify that individual as an "employer"; that is, in jurisdictions recognizing individual liability under Title VII, the supervisor named must serve in a supervisory position and exercise significant control over the plaintiff's hiring, firing, and work assignments. Paroline v. Unisys Corp., 879 F.2d 100, 104 (4th Cir. 1989) aff'd in pertinent part, 900 F.2d 27 (4th Cir. 1990) (en banc). For example, in Ball v. Renner, 54 F.3d 664, 668 (10th Cir. 1995), the Tenth Circuit stated that the
principle applied by all courts that hold Title VII liability may be imposed on `agents' as though they were themselves `employers,' [is] that those agents must be the equivalent or near-equivalent of true employers: persons who exercise employer-like functions vis-a-vis the [claiming] employees. . . .
Other federal courts, however, have refused to impose personal liability on supervisors in Title VII claims. Miller v. Maxwell's Int'l., Inc., 991 F.2d 583, 587 (9th Cir. 1993) cert. denied, 114 S.Ct. 1049 (1994) (individual defendants cannot be held liable under Title VII); Cross v. State of Alabama, 49 F.3d 1490, 1504 (11th Cir. 1995); Grant v. Lone Star Co., 21 F.3d 649 (5th Cir.) cert. denied, 115 S.Ct. 574 (1994).
a. Prior Tenth Circuit Decisions
The United States federal courts are divided into eleven circuit court systems. Colorado is in the Tenth Circuit. Until July of 1996, the question of whether an individual supervisor could be held personally liable under Title VII under Tenth Circuit law was unclear.
In Sauers v. Salt Lake County, 1 F.3d 1122 (10th Cir. 1993), the Tenth Circuit adopted what was, and continues to be, the majority view among the circuits, that suits against supervisors must proceed only against those individuals in their official capacity and "individual capacity suits are inappropriate." Id. at 1125. The Sauers decision was based upon the Court's consideration of Title VII's remedial scheme:
The relief granted under Title VII is against the employer, not individual employees whose actions would constitute a violation of the Act. We think the proper method for a plaintiff to recover under Title VII is by suing the employer, either by naming the supervisory employees as agents of the employer or by naming the employer directly. Id. at 1125 (citation omitted).
In 1994, the Tenth Circuit again rejected a Title VII claim brought against a supervisor in his personal capacity. Lankford v. City of Hobart, 27 F.3d 477, 480 (10th Cir. 1994).
However, that same year, the Tenth Circuit decided Brownlee v. Lear Siegler Management Services Corp., 15 F.3d 976 (10th Cir. 1994). Brownlee was interpreted as indicating that personal liability could exist on the part of a supervisor as an "agent". See e.g., Ball v. Renner, 54 F.3d 664, 667 (10th Cir. 1995).
The Tenth Circuit further confused the issue in Ball v. Renner, 54 F.3d 664, 666-668 (10th Cir. 1995), by acknowledging the split in federal court decisions with respect to individual liability under Title VII, then stating that such liability was still an "open question."
b. Haynes -- Law from the Tenth Circuit
In July 1996, the Tenth Circuit Court of Appeals decided Haynes v. Williams, 88 F.3d 898 (10th Cir. 1996), which holds that supervisors cannot be held personally liable under Title VII:
[T]aken as a whole, the language and structure of Title VII continue to reflect the legislative judgment that statutory liability is appropriately borne by employers, not supervisors. Id. at 901.
See also Russell v. Midwest-Werner & Pfleiderer, Inc., 949 F.Supp. 792, 800 (D. Kan. 1996) (the Tenth Circuit's "established" rule is that personal capacity suits against supervisors are inappropriate).
In Haynes, the employee plaintiffs had worked with defendant Williams in the mental health unit of a prison facility operated by the Oklahoma Department of Corrections. Defendant Williams, the unit psychiatrist, was accused of Title VII violations. The lower court awarded compensatory and punitive damages against defendant Williams individually. However, the Tenth Circuit, held that, "personal capacity suits against individual supervisors are inappropriate under Title VII," and reversed the judgment. Id. at 901.
An apparently odd aspect of the Haynes decision is that plaintiff's claims against Defendant Williams were for sexual harassment and retaliation,1 yet were excluded under the general principle that individual capacity suits under Title VII are inappropriate. Id. at 898. Plaintiff had claimed that defendant Williams engaged in improper physical contact and verbal abuse toward her, actions which would seem to be characterized as independent or outside the scope of Williams' employment.2
Nevertheless, this protection from individual liability in a sexual harassment context was not novel. See Lankford v. City of Hobart, 27 F.3d 477, 48 (10th Cir. 1994) (sexual harassment claim against supervisor in individual capacity denied). In Ball v. Renner, 54 F.3d 664, 667 & n.5 (10th Cir. 1995), the court discussed the "reasoning" for prohibiting individual capacity suits against supervisors, even for sexual harassment claims:
[T]he very word `agent' carries the connotation of someone acting within his or her authority (although of course the exercise of that authority by engaging in sexual harassment involves the abuse of such authority -- in a sense creating the seemingly oxymoronic concept of the unauthorized exercise of authority. * * * Further thought demonstrates that such a seeming contradiction in terms is hardly revolutionary. Thus the essence of most 42 U.S.C. § 1983 liability involves the abuse of power by public officials --again the unauthorized exercise of authority.
See also Russell v. Midwest - Werner & Pfleilderer, Inc., 949 F.Supp. 792, 800 (D. Kan. 1996) (denying personal capacity suit under Title VII against supervisor who allegedly sexually harassed plaintiff, resulting in her constructive discharge); and more recently, Rubidoux v. Johnston, 954 F.Supp. 1477, 1480 (D. Colo. 1997) (Title VII claims of quid pro quo and hostile work environment sexual harassment against supervisors individually were properly dismissed).
3. Why Individual Liability Under Title VII is Inappropriate
Federal courts outside Colorado have also refused to impute individual liability to supervisors for Title VII violations for varying reasons, including:
1. The 1991 Amendments to Title VII cap damages recoverable by plaintiffs based on the size of the employer's workforce. However, the Amendments do not address or list "individuals" in any of the limitation provisions or in the exemption for small employers. See Miller v. Maxwell's Int'l. Inc., 991 F.2d 583 (9th Cir. 1993) cert. denied, 114 S.Ct. 1049 (1994).
2. In passing the 1991 Amendments, Congress did not repeal the exemption from Title VII coverage for defendants with less than fifteen employees. Therefore, Congress contemplated that only employer-entities could be held liable. See Tomka v. Seiler Corp., 66 F.3d 1295 (2nd Cir. 1995).
3. The inclusion of "agent" in Title VII and other anti-discrimination statutes was included simply to provide respondent superior liability3 for the employing entity. See Birbeck v. Marvel Lighting Corp., 30 F.3d 507, 510 (4th Cir.) cert. denied, 115 S.Ct. 666 (1994).
4. The 1991 Amendments do not address the apportionment of damages under the caps between employer and the offending employee. If Congress had intended individual liability, it would have better directed the allocation of liability. See Schaffer v. Ames Dept. Stores, Inc., 889 F.Supp. 41 (D. Conn. 1995).
5. The relief granted under Title VII is against the employer, not individual employees. Burnett v. Tyco Corp., 932 F.Supp. 1039, 1041 (W.D. Tenn. 1996).
4. Middlemist -- Most Recent Law from the Colorado Court of Appeals
A recent decision from the Colorado Court of Appeals, Middlemist v. BDO Siedman, LLP, 97 CJ C.A.R. 2117 (Oct. 2, 1997), also refused to allow an individual capacity suit under Title VII.4 In Middlemist, the plaintiff, a CPA at BDO Siedman, sued BDO and Collins, a partner and her immediate supervisor at BDO. The Colorado Court of Appeals relied upon Sauers and Haynes and dismissed plaintiff's claims against Collins individually. Id.
B. ADA
The ADA prohibits discrimination against "qualified individuals with a disability" with respect to application procedures, hiring, advancement, termination, training, compensation, and other terms, conditions and privileges of employment. Such discrimination is forbidden by any "covered entity," defined as "an employer, employment agency, labor organization, or joint management committee." 42 U.S.C.A. § 12111(a)(2).
The ADA explicitly incorporates Title VII remedies, recognizing the parallel nature of the two statutes. Stephens v. Kay Management Co., Inc., 907 F.Supp. 169, 171 (E.D. Va. 1995). Accordingly, decisions interpreting Title VII provide useful assistance in interpreting similar ADA provisions regarding the extent to which a supervisor may be held personally liable for employment decisions. Id.; see also Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377 (8th Cir. 1995) (using Title VII and ADEA to interpret a state statute similar to ADA); and EEOC v. AIC Security Investigations, Ltd., 55 F.3d 1276, 1280 (7th Cir. 1995) (courts apply arguments regarding individual liability under Title VII, the ADA, and the ADEA interchangeably). As discussed above, the majority of federal courts, as well as the Tenth Circuit, now deny individual capacity suits under Title VII.
In addition, federal courts expressly addressing the issue of individual liability under the ADA have rejected individual liability claims. Davoll v. Webb, 943 F.Supp. 1289, 1295 (D. Colo. 1996) (no individual liability under the ADA); Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996) (the ADA does not provide for individual liability, only for employer liability); EEOC v. Security Investigations, Ltd., 55 F.3d 1276, 1282 (7th cir. 1995) (individuals who do not independently meet the ADA's definition of "employer" cannot be held liable under the ADA); Butler v. City of Prairie Village, 961 F.Supp. 1470, 1475 (D. Kan. 1997) (interpreting Haynes and similarity of definition of "employer" under Title VII and the ADA as requiring dismissal of individual capacity suit under the ADA); and Cerrato v. Durham, 941 F.Supp. 388, 395 (S.D.N.Y. 1996).
C. ADEA
The ADEA makes it unlawful for an employer to discriminate against employees on the basis of age with respect to their compensation, terms, conditions or privileges of employment. 29 U.S.C. 623(a).
Under the ADEA, an "employer" is any person, "engaged in an industry affecting commerce," with 20 or more employees. 29 U.S.C. 630(b). "Employer" also includes "any agent of such a person." Id.
Courts have routinely applied arguments regarding individual liability under Title VII, and the ADEA interchangeably. See e.g., EEOC v. AIC Security Investigations, Inc., 55 F.3d 1276 (7th Cir. 1995). Therefore, it is unlikely that based upon a Title VII analogy, individual liability claims against a supervisor would be upheld.
Further, federal courts outside Colorado's jurisdiction have refused to impose personal liability under the ADEA. Figueroa v. Mateco, Inc., 939 F.Supp. 106, 107 (D. P.R. 1996) (individual liability may not be imposed under the ADEA); Smith v. Lomax, 45 F.3d 402, 403-04 & n.4 (11th Cir. 1995) (holding Board of County Commissioners were not "employers" and therefore rejecting individual liability claims against Board members); Stults v. Conoco, Inc., 76 F.3d 651, 655 (5th Cir. 1996) (ADEA provides no basis for relief against supervisory personnel in their individual capacities); Miller v. Maxwell's Int'l., Inc., 991 F.2d 583, 587 (9th Cir. 1993) cert denied, 114, S.Ct. 1049 (1994) (the 9th circuit rejects personal liability under the ADEA); and Birbeck v. Marvel Lighting Corp., 30 F.3d 507 (4th Cir.) cert denied, 513 U.S. 1058 (1994).
D. FLSA
The FLSA establishes employment requirements relating to minimum wage, overtime compensation, child labor, and equal pay for work. 29 U.S.C. § 201 et seq.
The FLSA defines "employer" to include, "any person acting directly or indirectly in the interest of an employer in relation to an employee. . . ." Id. at § 203(d). "Person", in turn, is defined as any "individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons." Id. at 203(a).
Several courts have found that individuals with supervisory authority can be personally liable as an "employer" under the FLSA. See e.g., Bergstrom v. University of New Hampshire, 943 F.Supp. 130, 135 (D. N.H. 1996); Reich v. Circle C. Investments, Inc., 998 F.2d 324 (5th Cir. 1993); and Donovan v. Schoolhouse Four, Inc., 573 F.Supp. 185, 190 (W.D. Va. 1983) (supervisors personally involved in firings held liable for FLSA violation).
E. FMLA
The FMLA provides eligible employees with up to twelve weeks of unpaid leave to take care of qualified family problems, and ensures that after such leave, employees will be restored to their former position or an equivalent one. 29 U.S.C. § § 2612, 2614(a)(1). The FMLA limits its application to employers of 50 or more employees. 29 U.S.C. § 2611(4)(A)(i). Employers who violate the FMLA are liable for compensatory damages, back pay, and equitable relief. Id. at 2617(1)(A).
The definition of "employer" under the FMLA mirrors the FLSA, and includes, "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." Id. at § 2611(4)(A)(ii)(I).
To my knowledge, there are no circuit court opinions interpreting whether this statutory language regarding employers imposes individual liability on supervisors. The district courts, however, have reached conflicting conclusions. In Freemon v. Foley, 911 F.Supp. 326, 332 (N.D. Ill. 1995), the court held that the FMLA was most like the FLSA, and incomparable to Title VII, the ADEA, and the ADA. Id. at 332. Thus, the Freemon court held that "employer" under the FMLA included those persons who have some control over an employee's ability to take leave of absence and return. Accord Beyer v. Elkay Manufacturing Co., 1997 U.S. Dist. LEXIS 14459, at 10 (N.D. Ill. Sept. 19, 1997) (supervisors may be individually liable under the FMLA if they had some control over plaintiff's ability to take protective leave).
In contrast, the court in Frizzel v. Southwest Motor Freight, Inc., 906 F. Supp. 441, 449 (E.D. Tenn. 1995), relying upon Title VII, found that no individual liability exists for FMLA violations.
III. COLORADO STATUTES
A. The Colorado Anti-Discrimination Act
The Colorado Anti-discrimination Act (the "Act") also prohibits discrimination by employers on the basis of "disability, race, creed, color, sex, age, national origin, or ancestry" for purposes of hiring, discharge, promotion, demotion, or compensation. C.R.S. § 24-34-402(1)(a). In addition, the Act forbids "any person, whether or not an employer . . ."
(I) To aid, abet, incite, compel, or coerce the doing of any act defined in this section to be a discriminatory or unfair employment practice;
(II) To obstruct or prevent any person from complying with the provisions of this [statute] . . .;
(III) To attempt, either directly or indirectly, to commit any act defined in this section to be a discriminatory or unfair employment practice;
C.R.S. § 24-34-402(1)(e).
An individual suing his or her employer under the Act may also bring suit under the federal anti-discrimination statutes.
The plain language of the Colorado Anti-Discrimination Act indicates that a supervisor, as a "person," could be subject to personal liability. However, I am not aware of any reported Colorado cases interpreting this statutory language to potentially impute personal liability.
Moreover, other states with similarly-worded statutes have recently denied individual capacity claims under those laws. For example, New Jersey has a similarly written state law prohibiting discrimination. In Tyson v. Cigna Corp., 918 F.Supp. 836, 840 (D. N.J. 1996), the court examined what constituted "aiding and abetting" another to commit an unlawful act. The court held that it was necessary to find that the defendant supervisor willfully and knowingly associated himself in some way with the unlawful act, and that he willfully and knowingly sought by some act to help make the unlawful acts succeed. Id. The court further held that it is necessary that a supervisor
affirmatively engage in discriminatory conduct in order to find individual liability. Mere inaction, passivity or acquiescence do not . . . give rise to the level of aiding or abetting. Id. at 841.
The court then declined to hold what kind of behavior constituted "affirmative engagement in discriminatory conduct", but did state that "generally speaking," the conduct must clearly evince the supervisor's subjective intent to engage in discriminatory conduct. Id. at 841.
In Tennessee, a state law similar to the Colorado Discrimination Act was also held not to provide a basis for individual liability. Burnett v. Tyco Corp., 932 F.Supp. 1039, 1043 (D. Tenn. 1996). However, the Tennessee court held that individual liability should be denied because the Tennessee law states that it provides for execution within the State of policies embodied in the Federal Civil Rights Act. Therefore, the court concluded that the Tennessee law "should be construed in the same manner as Title VII." Id.
A New York State law also contains similar language to the Colorado statute. In Cerrato v. Durham, 941 F.Supp. 388 (S.D.N.Y. 1996), the court held that an employee is not subject to suit individually under that law, "if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Id. at 396 (quoting Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 473 N.E.2d 11, 483 N.Y.S.2d 659 (N.Y. 1984)). The court looked at whether the plaintiff had alleged that the defendant supervisor reviewed plaintiff's performance, that the defendant had authority to hire or fire anyone, including plaintiff, and whether defendant was able to make recommendations which would affect plaintiff's status. The court viewed this evidence as part of its determination of whether plaintiff's termination rose to the level of "aiding or abetting" so as to render the supervisor personally liable. The court concluded the act of terminating the plaintiff was not "aiding or abetting", and to hold otherwise would subject all employees to individual liability because the corporation could only act through its agents. Id.
A New York court had refused to dismiss a claim against an individual supervisor brought under the same state law just three years prior in Bridges v. Eastman Kodak Co., 822 F.Supp. 1020 (S.D.N.Y. 1993). However, in Bridges, the supervisor had threatened plaintiff with termination, discipline or economic loss if she complained to upper management.
B. The Colorado Wage Claim Act
The Wage Claim Act, C.R.S. § 8-4-101 et seq. (the "Act"), requires employers to make timely payment of wages and provides for judicial relief when employers fail to pay wages due employees. See also Lee v. Great Empire Broadcasting, Inc., 794 P.2d 1032 (Colo.App. 1989).
Under the Wage Claim Act, an "employer" is defined as "every person, firm, partnership, association . . . and any agent or officer thereof, of the above mentioned classes, employing any person in Colorado. . . ." C.R.S. § 8-4-101(6).
In 1992, the Colorado Court of Appeals decided Cusimano v. Metro Auto, Inc., 860 P.2d 532 (Colo.App. 1992), and ruled that the Act imposes personal liability for unpaid wages on at least high ranking corporate officers based solely on their status as officers. That decision was overruled in 2003 by the Colorado Supreme Court, however, in Leonard v. McMorris, 63 P.3d 323 (Colo. 2003), which ruled that the Wage Claim Act does not impose personal liability upon individual officers or agents of an employer.
IV. INDIVIDUAL LIABILITY UNDER COMMON LAW
Although supervisors may escape individual liability under federal and state statutes, they may still be found liable under one or more common law theories. The following list of such potential claims is not exclusive, but includes the most commonly-claimed bases for liability.
A. Defamation (Libel and Slander)
Defamation is defined as published communications that hold an individual up to contempt or ridicule in the community thereby causing the individual to incur injury or damage.5 The tort of defamation consists of two types of communication, libel and slander. Libel is usually a written communication while slander is generally an oral communication. At common law, the tort of defamation existed to redress and compensate individuals who suffered serious harm to their reputations due to the careless or malicious communications of others. A statement may be defamatory, "if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from association or dealing with him." Burns v. McGraw -Hill Broadcasting Co., Inc., 659 P.2d 1351, 1357 (Colo. 1983).6
Truth is a defense to a defamation claim. However, if a supervisor stated untruthfully that an employee was terminated for theft and communicated this to third parties (possible future employers), the supervisor could be individually liable to the employee for defamation.
B. Intentional Infliction of Emotional Distress
Colorado courts have recognized the tort of emotional distress by extreme and outrageous conduct. The elements of a claim for relief for intentional infliction of emotional distress are:
1. the defendant must have engaged in conduct that is considered extreme and outrageous;
2. the conduct must have been engaged in by the defendant with the intent of causing severe emotional distress, or with the knowledge that such emotional distress would probably result; and
3. the plaintiff must have actually suffered severe emotional harm as a result of defendant's conduct. A defendant's conduct may be found to be extreme and outrageous if it goes beyond the bounds of decency such that a reasonable member of the community, with knowledge of all the facts, would conclude that the defendant's conduct was indeed outrageous. Damages that may be recovered for intentional infliction of emotional distress include not only damages resulting from the distress, but also for any physical discomfort, inconvenience, illness or injury, medical expenses, loss of reputation, or loss of wages.
For example, if a supervisor stalked or harassed an employee, intending or knowing that his or her behavior would probably result in the employee's emotional distress, the supervisor could be liable for the intentional infliction of emotional distress.
C. Intentional Interference with Contractual Relations
Colorado courts also recognize an action against persons who intentionally and improperly interfere with or induce a third party (e.g., an employer) to breach a contract not terminable at will. Memorial Gardens, Inc. v. Olympian Sales & Management Consultants, Inc., 690 P.2d 207 (Colo. 1984). However, even a contract at will "is entitled to some protection from tortious unwarranted interference." Zappa v. Seiver, 706 P.2d 440, 441 (Colo. App. 1985).
The elements of this tort include:
1. the existence of a contract between the plaintiff and a third party;
2. knowledge by the defendant of this contract, or knowledge of facts that would lead him to inquire as to the existence of the contract;
3. intent by the defendant to induce a breach of contract with a third party;
4. action by the defendant that induces a breach of contract; and
5. damages to the plaintiff.
An officer or director of a corporation generally is not personally liable for inducing a company's breach of its contract if the officer or director is acting within the scope of his or her official duties. Cronk v. Intermountain Rural Elec. Ass'n, 765 P.2d 619, 623 (Colo.App. 1988). Yet, if the officer or director is motivated solely by a desire to induce a breach of contract by the company toward the employee, or to interfere with the contractual relationship between the company and the employee, such interference is improper. Id. (citation omitted).
Therefore, a supervisor who for personal reasons took actions which sabotaged the employee's employment relationship with his or her employer could be individually liable for tortious interference with contract. Zappa v. Seiver, 706 P.2d 440, 441 (Colo. App. 1985) (finding officer could be personally liable if motivated solely by desire to harass or retaliate against plaintiff).
D. Assault
Civil assault is:
1. an act by the defendant creating a reasonable apprehension in the plaintiff of immediate harmful or offensive contact to the plaintiff's person;
2. intent on the part of the defendant to cause the plaintiff to have apprehension of immediate harmful or offensive contact with the plaintiff's person; and
3. causation.
Courts apply a reasonable person test to determine if the apprehension of harmful or offensive contact is reasonable.
A typical assault charge may involve a supervisor sexually harassing an employee by threatening to touch or grope him or her. If the supervisor's conduct causes the employee to have a reasonable apprehension that the supervisor is going to immediately carry out his or her threats, the employee may have a valid assault claim.
E. Battery
The intentional tort of battery is defined as:
1. an act by the defendant that brings about harmful or offensive contact to the plaintiff's person;
2. intent on the part of the defendant to bring about harmful or offensive contact to the plaintiff's person; and
3. causation.
Whether any given contact would be construed as harmful or offensive is determined by whether it would be considered harmful or offensive by a reasonable person of ordinary sensibilities.
For example, if a supervisor touches an employee in an offensive manner, or her actions could have give rise to a battery claim.
F. Possible Defense Under Workers' Compensation Law
Colorado Workers' Compensation Act, C.R.S. Title 8, Articles 40 to 47 (the "Act"), provides that recovery of workers' compensation benefits is an employee's exclusive remedy against an employer for tortious actions resulting in personal injury. C.R.S. § § 8-41-102, 8-41-301; see also Rodriguez v. Nurseries, Inc., 815 P.2d 1006, 1007 (Colo.App. 1991) (citations omitted). Thus, an employer who has complied with Colorado's Workers' Compensation Act is immune from common law claims for work-related injuries. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). The injured workers' co-employees are also immune. Middlemist, supra, at 2120 (citing Popovich, supra); Ventura v. Albertson's, Inc., 856 P.2d 35, 38 (Colo.App. 1992). Co-employee immunity includes supervisory personnel and even applies to intentional torts if those torts arose out of and in the course of employment. Kandt v. Evans, 645 P.2d 1300, 1303 (Colo. 1982); see also Arrington v. Michigan-Wisconsin Pipeline Co., 632 F.2d 867 (10th Cir. 1980) (willful or criminal acts are covered under the Act since they are just as unexpected and unforeseeable as industrial accidents from victim's point of view).
Thus, an employee's state common law claims could be barred by application of the Act's exclusive remedy provision. See e.g., Popovich v. Irlando, 811 P.2d 379, 384 (Colo. 1991)(considering effect of Workers' Compensation Act on claim against co-employee for intentional infliction of emotional distress based on sexual harassment and concluding that co-employee immunity is limited to injuries sustained where both tort feasor and victim are acting within the course of their employment); Ventura v. Albertson's Inc., 856 P.2d 35, 38 (Colo.App. 1992) (denying Plaintiff's claims for assault, battery and intentional infliction of emotional harm against store director and assistant store director individually due to exclusivity of plaintiff's workers' compensation claim); and Metcalf v. Metropolitan Life, Inc., 961 F.Supp. 1536, 1546 (D. Utah 1997) (relying upon exclusivity of workers' compensation law in denying claim for intentional infliction of emotional distress).
In Re Question Submitted by the United States Court of Appeals for the Tenth Circuit v. Martin Marietta, 759 P.2d 17 (Colo. 1988), addressed the exclusivity of the Act in relation to plaintiff's claim for sexual assault by a co-worker. The court applied a three part analysis to determine if plaintiff's injuries "arose out of and in the course of" her employment so as to trigger the Act's preclusion of her tort action. Id. at 19-20. An injury arises out of one's employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed the employee in the position where he or she was injured. Id. at 20. This "but for" analysis was broken down further by the court to an examination of a time element (whether plaintiff's work obligations caused her to be present at employer's place of business), a place element (whether the injury occurred at a place plaintiff reasonably was) and a "neutral force" element (whether the injury was caused by a neutral force). Id. at 22-23.
V. POTENTIAL CRIMINAL CONSEQUENCES
In addition to any civil liability supervisors may incur under the federal and state statutes or under state common law theories, supervisors may also face criminal charges for their actions towards employees. Some of the more common charges include:
1. Assault (state and local).
See e.g., C.R.S. § 18-3-202 through 204; and C.R.S. § 18-3-402 through 404 (sexual assault);
2. Battery (local - the Colorado statute does not differentiate between assault and battery);
3. Harassment - Stalking (state and local).
See C.R.S. § 18-9-111; and
4. Threats (state and local).
See e.g., C.R.S. § § 18-9-106 and 18-9-111(4).
VI. SUPERVISORS' LIABILITY TO INDEMNIFY THEIR EMPLOYERS
Note that the discussion of liability above is limited to supervisors' potential liability towards co-employees under federal and state statutes and Colorado common law. Irrespective of supervisors' liability to their co-employees, supervisors may be liable to their company if their actions result in the company incurring liability. Under these circumstances, the company which is held liable to an employee based upon a supervisor's wrongful actions may assert a claim for indemnification against the supervisor.
VII. PROTECTING AGAINST PERSONAL LIABILITY
Lawsuits have been and will likely continue to be brought against even the most careful individuals. Therefore, no one can ever ensure that they will not be the next target of a lawsuit. What you can do, however, is take certain steps now and in the beginning stages of any lawsuit to avoid or limit your liability. Most important is to understand the kinds of claims that can be brought, as discussed above, and avoid engaging in conduct which may give rise to a lawsuit. In addition, it is good practice to:
1. Be alert. Give constant consideration to your own actions, and to the actions of employees around you. Even if you do not personally discriminate or otherwise harm an employee, your knowledge of what occurred around you or under your supervision may later be alleged as the basis for your liability.
2. Follow your policies. This may include asking your supervisor and/or corporate counsel for interpretations of certain provisions. This suggestion also assumes that you have a policy manual. The lack of a written policy opens the door to arguments that no policy existed or that the policy was different than you allege. You may need to approach your supervisors and/or corporate counsel to confirm or even formulate written policy on important issues.
3. Re-visit your policies frequently. Federal and state laws are fluid. Policies that were legal one year may subsequently subject you to claims of personal liability.
4. Document. As a supervisor, you should have written documentation regarding your actions toward employees and applicants, and the reasons for those actions. In addition, lawsuits frequently are not resolved for years. You may need to refer back to these documents for details, dates and other relevant information; therefore, make sure your documents are detailed and complete.
5. Use common sense. Although using your common sense cannot be an excuse for ignoring legal requirements or prohibitions in the workplace, it is still one of your most valuable tools. If you suspect a situation or an employee may present a future problem, begin taking steps to ensure your actions comply with legal requirements and company policy, that the policy adequately addresses the situation, and that sufficient documentation is completed.
6. Build consensus whenever possible. In disciplinary and separation decision-making, consult with your supervisor and/or other policy makers. The outcome of any decision is less likely to be perceived as unilateral and outside the scope of your employment if it was made after building consensus and in accordance with policy.
7. If you are served with a lawsuit, do not panic, but do take immediate action. Your legal counsel may or may not be the same as the counsel for the company. Determine who will represent you, and tell them what has occurred. Do not stop communicating with your counsel after your initial contacts. Updating your counsel on developments as they occur is crucial to effective representation and a positive outcome.
Footnotes:
1 Title VII prohibits discrimination on the basis of sex, which includes a ban on sexual harassment. Harris v. Forklift Systems Inc., 510 U.S. 17, 114, S.Ct. 367, 370 (1993); Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 575 (10th Cir. 1990). Such sex discrimination can occur (i) where an employer's conduct creates a work environment hostile or abusive to women (hostile work environment theory); or (ii) where specific employment benefits are conditioned on sexual demands (quid pro quo theory). Harris, 114 S.Ct. at 370; Meritor Savings Bank v. Vinson, 477 U.S. 57, 65 (1986).
2 Sexual harassment is rarely, if ever, within the scope of employment. Hicks v. Gates Rubber Co., 833 F.2d 1406, 1418 (10th Cir. 1987).
3 Pursuant to the doctrine of responde at superior, an employer is vicariously liable for the tortious acts of his or her employee if those acts occurred within the scope of the employment relationship.
4 Dismissal of plaintiff's other claims against Collins individually was also upheld. Plaintiff's claim against Collins for violation of the FLSA failed on the basis that no claim had been asserted alleging Collins had an individual duty to pay or equalize plaintiff's pay and such an allegation was necessary to state a claim. Id. at 218. Dismissal of plaintiff's claim for unlawful retaliation was upheld since no specific factual allegations had been made supporting her claim against Collins for the alleged retaliation. Id. Plaintiff's claim against Collins for breach of her employment contract failed since there was no allegation of a contract in plaintiff's complaint, no claim was asserted against Collins for interference with contract, and all documentation regarding plaintiff's employment was between plaintiff and the partnership. Id.
5 Publication occurs when the defamatory statement is communicated to a third party.
6 At a minimum, a cause of action for defamation requires the publication of a false statement or defamatory fact. Churchey v. Adolph Coors Co., 759 P.2d 1336 (Colo. 1988).
This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.
Copyright © 1997 Fairfield and Woods, P.C., ALL RIGHTS RESERVED.
Comments or inquiries may be directed to:
Brent T. Johnson