Supreme Court Lets Stand Ruling Finding - No Constitutional Breach in Assault of Guard

The U.S. Supreme Court Oct. 4 let stand an appeals court's ruling that a Maryland security guard could sue her employer for intentional infliction of emotional distress for purposefully assigning her to an isolated location, despite the supervisor's knowledge that the security guard's estranged boyfriend--against whom she had a restraining order--had threatened her and she feared for her life (Gantt v. Security USA Inc. U.S., No. 03-1600, cert. denied, 10/4/04).

In a fractured opinion, a panel of the U.S. Court of Appeals for the Fourth Circuit ruled that while Dominique Gantt could proceed with the tort claim, she was unable to show that Security USA was a state actor for purposes of a Fifth Amendment equal protection clause claim. In addition, the court said, the employer should not be held liable for the emotional distress Gantt experienced from being kidnapped, assaulted, and raped after being assigned to the isolated location (356 F.3d 547, 20 IER Cases 1618 (4th Cir. 2004); 16 DLR A-5, 1/27/04).

In her petition to the Supreme Court, Gantt posed four questions:

When a private company is subject to the equal protection clause because it fulfills a government function, has the employer violated an employee's equal protection right by facilitating a non-employee's sexual harassment of her in the workplace?

Is a private security company, enforcing federal and state law on federal property, subject to the equal protection provision of the 14th Amendment of the Constitution?

Does tort law require that the tortfeasor intend the precise injuries suffered in order to be held liable for the injuries inflicted by the tortious conduct?

May a person who aids and abets another in gaining access to his victim be held liable for the emotional distress suffered by the victim who is kidnapped, raped, battered, and otherwise tortured by the other person?

Supervisor Was Friend of Attacker

According to the Fourth Circuit's January 2004 opinion, Gantt's protection order against Gary Sheppard prevented contact at her home or workplace and banned physical, telephone, or written contact. When she showed the order to her employer, the company agreed to assign her only to secured inside positions so that Sheppard could not get access to her at work. However, Gantt's supervisor, a friend of Sheppard's, forwarded phone calls from Sheppard to Gantt in an effort to reconcile the parties. Gantt refused the calls.

In December 1996, the supervisor assigned Gantt to an outside post. Gantt said she was afraid to work there and insisted she be allowed to work inside. The supervisor refused. Within 15 minutes, the supervisor forwarded a call from Sheppard to Gantt. After the call, Gantt again asked to work inside, and her request was refused. Sheppard then came to Gantt's workstation and abducted her at gunpoint. The abduction was reported to the supervisor, who told guards not to contact the police because Sheppard only wanted to talk to Gantt. For the next six hours, he raped and verbally and physically terrorized her, threatening to kill her. Finally, he released her and surrendered to police. He was convicted of kidnapping, rape, and violating a restraining order, and he was sentenced to 20 years imprisonment.

Employer a Private Actor, Fourth Circuit Finds

The Fourth Circuit agreed with the trial court's conclusion that the employer was "indisputably" a private actor not subject to liability under the equal protection clause. The court also agreed with the lower court that because there was no evidence that the employer deliberately intended to injure Gantt, workers' compensation was her only remedy for her injuries.

But the appeals court resurrected the emotional distress claim based on the assignment to the isolated location. There was evidence that the supervisor was aware that Gantt was in danger and feared for her life, but still assigned her to an unsecured outdoor post that left her vulnerable to the ultimate attack and abduction.

"The court artificially restricted the emotional distress caused by [the supervisor's] intentional conduct to the fear Gantt experienced while waiting at the post, ignoring the fact that Gantt testified that the hour she spent waiting in fear of [her boyfriend's] arrival had a longer-term emotional impact," Judge Diana Gribbon Motz wrote for the court.

In a dissent on the question of the resurrected emotional distress claim, Judge Paul V. Niemeyer said the workers' compensation act was the proper avenue for both intentional infliction claims because the supervisor was ranked too low for Security to be held responsible for her actions, especially since she acted in conflict with the company's direct orders. Niemeyer agreed that the Fifth Amendment and the emotional distress claim based on the actual assault and kidnapping should have failed.

In a second dissent, Judge J. Michael Luttig argued that both emotional distress claims should have survived. The judge said the evidence could lead a jury to conclude that the supervisor intentionally assigned Gantt to the outside station because she knew Sheppard was planning on coming to the workplace and that in fact, the supervisor orchestrated the reunion.

Gantt Argues Equal Protection Rights Breached

In her petition to the court, Gantt contended that federal law allows a worker sexually harassed by a non-employee to hold the employer liable. "Security USA, Inc., by and through its agents, particularly [the supervisor], deprived Dominique Gantt of her right to equal protection of the law, on the basis of sex, by allowing/facilitating Sheppard's sexual harassment in her workplace," she contended. The Fourth Circuit erred by concluding that Security USA was not a state actor, she argued, since its guards were performing public functions--functions that would otherwise be performed by federal or local police officers.

The court also erred by failing to consider her equal protection claims under the Fourteenth Amendment, she argued. In addition, she said, the Fourth Circuit's ruling was internally inconsistent. Judges Motz and Luttig determined that Security USA could be held liable for the emotional distress caused for the hour that Gantt was assigned to the isolated post before Sheppard arrived. "[H]owever, Judge Motz declined to apply the same reasoning to the emotional distress that Gantt experienced once she was assaulted, kidnapped, raped, and otherwise abused..."

"The opinion artificially separates events that are part of the same continuum, set in motion by [the supervisor]," she said. The court further erred by failing to apply the aiding and abetting doctrine to the supervisor's actions, she added.

The brief was filed by Dawn V. Martin, who heads her own law offices in Washington, D.C.

Decision Unworthy of Review, Employer Says

In its brief to the court opposing Supreme Court review, Security USA maintained that the case was unworthy of review by the justices because Gantt identified no issue of national importance.

"In this case, the ruling arose in an uncommon factual context, did not establish any rule of law affecting other cases and did not address an important issue of federal decisional, statutory, or constitutional law," the company said, arguing that it does not meet the high court's criteria for review. It added that Gantt's attempt to raise the issue of 14th Amendment liability for a private employer must fail, because Gantt did not properly preserve that issue for appeal.

F. Nash Bilisoly of Vandeventer Black in Norfolk, Va., filed the brief for Security USA.

Summaries of labor and employment law cases denied Supreme Court review appear in Section E .

By Victoria Roberts