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Rose Fonrose Louis worked at a Burger King restaurant in the Monmouth Mall in Eatontown, N.J. On August 29, 2008, Louis was working in a walk-in freezer when an assistant manager, Hany Salib, followed her into the freezer and proceeded to touch her breast and buttocks through her clothes, kissing her neck, and attempting to insert his tongue into her mouth. While she was in the freezer, Emad Ghaitey, the manager of the restaurant, opened the door, looked at both employees, and then left. When the door had been briefly opened, Salib ceased touching Louis, but later in the same day, Salib again touched her and kissed her in the freezer.
Louis did not report either incident on the day the two incidents occurred. However, the following day, Louis’s husband called to complain about how his wife had been treated. Louis’s husband then came to the restaurant the following day to provide more details of the alleged assault. Burger King had a written policy prohibiting workplace harassment which all employees received. Ghaitey followed the policy and reported the allegations to the district manager, who conducted an investigation. Salib was suspended, then transferred to another store, and eventually terminated when he did not report to work. Louis ceased her employment with Burger King two weeks after the alleged assault.
On September 10, 2008, Louis reported the two incidents to the local police, who arrested Salib and charged him with fourth-degree criminal sexual contact. Salib pled guilty to a down-graded charge of violating an ordinance.
In March 2009, Louis brought a workers’ compensation claim against QQR, (the restaurant owner), alleging workplace injuries and sexual assault. That case was settled for $7,500 on a Section 20 basis. Louis and her husband also brought a civil claim against Salib, Burger King Corporation, QQR, and Ghaitey. The claims against Burger King were dismissed and the claims against Salib were settled and dismissed.
The remaining defendants, QQR and Ghaitey, moved for summary judgment, arguing that the civil suit was barred by the exclusive remedy provision of the workers’ compensation act. The trial judge dismissed the suits, and Louis and her husband appealed. They relied on a 1988 federal case, Cremen v. Harrah’s Marina Hotel Casino, 680F. Supp. 150 (D.N.J. 1988) where the court held that the civil suit survived the workers’ compensation bar. The Appellate Division in this case held that the facts inCremen were distinguishable.
In Cremen, the employee lodged a verbal complaint against a supervisor employee who sexually assaulted her. . . She was assured by a Harrah’s employee in charge of investigating such allegations that the supervisor would be promptly dealt with. . . Harrah’s failed, however, to address the matter and the harassment continued. . . . When Harrah’s moved for summary judgment arguing that the Act barred the employee’s common-law claims, the district court denied summary judgment because Harrah’s was put on notice and failed to take action. . . As already pointed out, there are no facts showing that QQR or Ghaitey had any prior notice of Salib’s intentional actions, and when the complaint was brought to QQR’s attention, prompt action was taken and no further harassment occurred.
The Appellate Division held that this case was simply a matter of negligence. It felt that Ghaitey acted negligently in that he should have asked what was going on when he walked in to the freezer. To get past the workers ‘comp bar, Louis had to prove intentional conduct, but the court said that this sort of inaction cannot be equated with intentional harm. The court also held that QQR engaged in no conduct that could be deemed to be intentional. It acted consistent with its harassment policy once the claim was reported. Therefore, the workers’ compensation act barred the civil suit against both Ghaitey and QQR.
This case illustrates once again how strong New Jersey’s workers’ compensation bar remains. It is exceedingly difficult for a plaintiff to prove intentional harm. The case can be found atRose Fonrose Louis and Fritzner Louise v. Burger King Corporation, et. al., (A-1000-14T2, App. Div. December 4, 2015).
John H. Geaney, Esq., is an Executive Committee Member and a Shareholder in Capehart Scatchard's Workers’ Compensation Group. Mr. Geaney concentrates his practice in the representation of employers, self-insured companies, third-party administrators, and insurance carriers in workers’ compensation, the Americans with Disabilities Act and Family and Medical Leave Act. Should you have any questions or would like more information, please contact Mr. Geaney at 856.914.2063 or by e‑mail at email@example.com.