Workers’ Compensation – ‘Arising Out Of’ – Sexual Harassment – Medical Treatment – 17 Years

Cagle v. Marriott/Guilford College (Lawyers Weekly No. 12-16-0174, 16 pp.) (Douglas McCullough, J.) Appealed from the Industrial Commission. N.C. App. Unpub. Click here for full-text opinion.

Holding: Even though the defendant-employer treated plaintiff’s sexual harassment claim as a workers’ compensation issue and paid her therapy expenses for 17 years, plaintiff’s sexual harassment by her supervisor did not arise out of her employment. Therefore, the Industrial Commission lacks jurisdiction over her claim.

We affirm the Commission’s dismissal of plaintiff’s claim for lack of subject matter jurisdiction.

Facts

Douglas Gilmore, plaintiff’s current supervisor, hired plaintiff to work in the Guilford College cafeteria in 1988. A few years later, Gilmore began making inappropriate sexual comments towards plaintiff, which he allegedly also made to other employees.

The sexual harassment escalated to Gilmore’s touching of plaintiff’s breasts several times a day over a two-year period. Plaintiff would tell Gilmore to stop, but he would just laugh and walk away.

On Nov. 2, 1993, Gilmore told plaintiff to accompany him into a private room. Once there, Gilmore allegedly ordered plaintiff to expose his penis and touch it. Plaintiff refused and left the room immediately.

Plaintiff developed depression and post-traumatic stress disorder, for which she sought treatment.

Defendants agreed to take care of plaintiff’s psychological treatment, medication and any time lost while out of work. Defendants elected to handle the case in the form of a workers’ compensation claim. Defendants filed a Form 19, Employer’s Report of Injury to Employee, on March 30, 1994, but plaintiff never filed a Form 18, Notice of Accident to Employer and Claim of Employee, Representative, or Dependent.

Defendants paid plaintiff benefits for 17 years until July 27, 2010, when they stopped paying even though plaintiff’s doctors recommended continued therapy due to the sexual harassment.

Defendants filed a Form 33, Request for Hearing with the Industrial Commission on Sept. 10, 2009. Plaintiff filed a Form 33R and a Form 33 on Jan. 28, 2010. On July 27, 2010, a deputy commissioner dismissed the case for lack of subject matter jurisdiction.

Discussion

Plaintiff complains that the Commission failed to distinguish between sexual harassment by a supervisor and by a co-worker. However, distinguishing between a supervisor and co-worker relationship is irrelevant to the case at hand. The pertinent issue is whether plaintiff’s injury arose out of and was in the scope of her employment as required by G.S. § 97-2(6).

Plaintiff contends defendants’ ratification of Gilmore’s actions, by keeping him employed as plaintiff’s supervisor, is one way for her to prove Gilmore’s actions were in the service of defendants. However, defendants correctly note that ratification is only applicable in situations to which the doctrine of respondeat superior applies, which is not the case here because defendants did not expressly authorize Gilmore’s actions, and his actions were not in furtherance of defendants’ business.

Plaintiff argues that her injury arose out of her employment, as well as in the scope of her employment. An injury occurring “in the course of” employment happens when an employee is injured doing something reasonably expected of her at the time, place, and under the circumstances of the employment.

Defendants concede that plaintiff’s injury occurred within the course and scope of her employment. However, an accident occurring during the course of employment, however, does not ipso facto arise out of it.

In Hogan v. Forsyth Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986), this court held the plaintiff’s alleged sexual harassment, consisting of her boss making inappropriate sexual advances and sexually derogatory remarks, was not covered by the Workers’ Compensation Act because the sexual harassment did not amount to a compensable offense under the Act. Our court held that sexual harassment did not arise out of the employment because “sexual harassment is not a risk to which an employee is exposed because of the nature of the employment but is a risk to which the employee could be equally exposed outside the employment.”

Furthermore, this court determined emotional injuries resulting from sexual harassment were not a “natural and probable consequence or incident of the employment.” We held that sexual harassment is a risk the public generally is exposed to and is “neither covered nor barred by the Act.” Sisk v. Tar Heel Capital Corp., 166 N.C. App. 631, 603 S.E.2d 564 (2004) (quoting Hogan). Moreover, Sisk involved a similar situation to the case at hand in that a Wendy’s employee argued her case differed from Hogan because she was harassed by her supervisor rather than just a coworker.

The case at bar is substantially similar to both Hogan and Sisk; thus, we must follow their reasoning in holding plaintiff’s claim is not covered by the Act, as we are bound by prior decisions of this court.

Since a challenge to subject matter jurisdiction may be made at any time, the doctrine of laches does not apply.

Even if defendants consented to treating this case as a workers’ compensation claim, an agreement to cover a claim under the Act cannot confer jurisdiction on the Commission.

Affirmed.