Employer liable for off-duty murder?

by McAfee & Taft
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Companies often assume they are not responsible for interactions between employees that happen off-site after hours and that are unrelated to their jobs. However, if a supervisor and a subordinate are involved and the employer failed to take appropriate action regarding workplace issues between the two leading up to the “off-campus” event, then a different outcome may result.

Employee targeted by her supervisor

In an Illinois lawsuit, the mother of a murdered employee made the following accusations against her daughter’s employer, Home Depot:

Brian Cooper worked as a regional manager for Home Depot in Illinois. Young female subordinates were often subjected by Cooper to sexual harassment. One such subordinate, Jessica, soon became one of Cooper’s targets. Cooper introduced Jessica to other employees as “his girlfriend,” made sexual comments in her presence, and rubbed against her. When Jessica brought his behavior to the attention of her group leader, the supervisor told Jessica that other employees had complained about Cooper in the past. When Cooper’s harassment and abuse of Jessica escalated with no action taken by Home Depot, she eventually quit her job.

After Jessica’s resignation, Cooper shifted his sights to Alisha Bromfield. His treatment of Alisha followed a then-familiar pattern. Cooper called her “his girlfriend,” yelled obscenities at Alisha in the presence of customers and co-workers, and threw garden center items in anger.

With Alisha, Cooper went one step further: he began controlling her time away from work. He called and texted Alisha when she was not working. These calls and texts were designed to “get her attention, to monitor her, and to pressure her to spend time with him ….. “ Cooper insisted that Alisha accompany him on out-of-town business trips. If he believed she was spending a lunch break during a workday with a man, Cooper denied Alisha the lunch break.

On several occasions, Alisha complained to Home Depot managers and supervisors about Cooper’s mistreatment of her. They acknowledged to Alisha they knew about Cooper’s misbehavior. At one point, his supervisors directed Cooper to participate in an anger management program, but he did not complete the course, and no one followed up with him. Astonishingly, Home Depot allowed Cooper to remain Alisha’s supervisor through all this.

This nightmare ended in a horrific tragedy at a Wisconsin hotel. At first, Alisha refused Cooper’s persistent invitation that she go with him to his sister’s upcoming wedding in Wisconsin. When he threatened to fire her or reduce her hours if she did not travel to the wedding with him, Alisha agreed to go. After the wedding, Cooper strangled Alisha to death in a hotel room he had rented for them.

The employer is targeted

As administrator of her estate, Alisha’s mother sued Home Depot on the grounds that the employer was negligent in its oversight and retention of Cooper as her daughter’s supervisor. Home Depot argued that the lawsuit should be dismissed because it was not legally responsible for criminal acts committed by Cooper off-duty and off-site. For a number of reasons, the court let the lawsuit stand, and a jury will ultimately decide whether Home Depot should be held liable for Cooper’s murder of Alisha.

First, the court observed an employer has a legally recognized duty to fire or demote employees on the basis of inappropriate language or sexual misconduct. That obligation arises by virtue of Title VII of the Civil Rights Act of 1964, as well as comparable state laws.

Next, although the murder did not occur on the employer’s premises nor did it occur within the scope of Cooper’s employment, he used his supervisory authority to carry out his misdeed. Specifically, Cooper threatened Alisha with discharge or reduced hours if she did not attend the Wisconsin wedding with him. According to the court, a jury could decide this amounted to a “tortious abuse of supervisory authority.”

Finally, the court found that a jury could conclude the possibility of Cooper harming Alisha was foreseeable to Home Depot. Cooper’s harassing and aggressive conduct towards female subordinates was known to management, and Cooper’s misbehavior in the workplace did nothing but escalate.

What does this mean?

Ultimately, an Illinois jury will decide whether Home Depot acted negligently when it kept Cooper employed as a supervisor and continued to allow him to oversee Alisha.

As an employer, do not assume that you are never responsible for events that occur between a supervisor and a subordinate, so long as it occurs after hours and off the employer’s property. If you are aware of bad behavior occurring in the workplace but fail to take reasonable actions to solve that situation, you may nonetheless be held liable for events that spill over “off-campus” and after hours.

Anicich v. Home Depot U.S.A., Inc., et al, No. 16-1693 (7th Cir. 3/24/17)

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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