plaintiff, a white woman, what her feelings were on dating black men. (Morris is black). He stated that he felt a "projected warmth" from her. Plaintiff allegedly tried to leave, but Morris grabbed her and tried to kiss her. Morris supposedly stated that if plaintiff "wanted the job, to prove it." Despite plaintiff's pleas not to do anything and her efforts to leave, Morris put out the lights, forced plaintiff to the floor and sexually assaulted her. Complaint paras. 9-11. On May 3, 1984, plaintiff phoned Mr. Lathan Pridgen, Harrah's Affirmative Action Officer. Pridgen had previously given an orientation talk during training about sexual harassment on the job. Plaintiff did not at that time give her name, but reported that she'd been the victim of a sexual attack. Dep. at 91-92. Pridgen reportedly advised plaintiff that if she wanted to speak to him about it, she should report to his office when she returned to work.
The next day, May 4, 1984, plaintiff reported to Pridgen's office. According to plaintiff, Pridgen elicited a few details about the incident, and then asked her whether she wished to file a verbal or a written complaint. Plaintiff asked what the difference was, and was told that a written complaint would have to be brought to the attention of Morris' supervisors "and other people in the casino" whereas a verbal charge could be resolved informally between Pridgen and Morris. Dep. at 98. Plaintiff opted for the verbal complaint.
Morris, however, allegedly continued to harass plaintiff, both at work, where he attempted to hold her hand and put his arm around her, and at plaintiff's home, where he telephoned her repeatedly to apologize for hurting her. Upset by these continuing incidents, and dissatisfied by Harrah's response to the matter, plaintiff contacted her union shop steward on May 19, 1984. On May 21, 1984, the union contacted James Rafferty, Harrah's Industrial Relations Manager, and related plaintiff's charges against Morris to him. On May 27, 1984, Morris was suspended from employment. On June 1, 1984, Rafferty allegedly told plaintiff and the union's business agent that Harrah's had received complaints from other female employees of incidents of sexual harassment involving Morris.
On July 30, 1984, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that Harrah's had denied her rights under Title VII by reason of her sex. After receiving her right to sue letter from the EEOC, plaintiff commenced this action on December 19, 1984. In an amended complaint filed January 10, 1985, plaintiff, in addition to asserting a Title VII violation, also brought tort claims against Harrah's for battery (Amended Complaint, Count II), negligent hiring and retention (Id., Count III), and intentional infliction of emotional distress (Id., Count IV).
Harrah's moved for summary judgment on plaintiff's Title VII and pendent tort claims. In a Letter Opinion and Order dated January 9, 1987, this court denied the motion. As to the pendent state claims, we noted, inter alia, that we were "puzzled" by defendant Harrah's suggestion that plaintiff's state tort actions were barred by the New Jersey Worker's Compensation Act, N.J.S.A. § 34:15-1 et seq. However, we did "not rule out the possibility that defendant could support such an argument with more comprehensive briefing" and left Harrah's "free to renew its motion to dismiss the state claims on this basis." Letter Op. at 13. Harrah's has accepted this invitation and is again before us, seeking dismissal or, alternatively, summary judgment on plaintiff's pendent state claims, contending that plaintiff's alleged injuries are exclusively compensable under the Worker's Compensation Act.
As this motion is directed solely at plaintiff's pendent state claims, our inquiry is confined strictly to an examination of applicable or analogous state law. The New Jersey Worker's Compensation Act provides "compensation for personal injuries to, or for the death of, [an] employee by accident arising out of and in the course of employment." N.J.S.A. 34:15-7. Defendant Harrah's, citing the fact that New Jersey courts have historically applied exceedingly liberal constructions of the crucial terms "accident," "arising out of" and "in the course of" employment, argues vigorously that plaintiff's alleged injuries are compensable only under the provisions of the Worker's Compensation statute, and therefore cannot support actions sounding in the state tort law. Plaintiff, on the other hand, employs a pair of out-of-state cases, Pryor v. United States Gypsum Co., 585 F. Supp. 311 (W.D.Mo. 1984) and Cox v. Brazo, 165 Ga.App. 888, 303 S.E.2d 71 (1983), aff'd. per curiam, 251 Ga. 491, 307 S.E.2d 474 (1983) which stand for the proposition that allegations of sexual assault and harassment fall outside the purview of a worker's compensation scheme and thus may be pursued via traditional tort avenues. Plaintiff, arguing correctly that there exists no New Jersey case which is on its facts so directly on point as these cited authorities, urges this court to adopt their reasoning and rationale, and allow her state claims to proceed.
Both parties, we believe, are somewhat misfocused in their treatment of the issues presented by this motion. The real difficulty, as this court perceives it, lies not in determining whether plaintiff's injuries are covered by the New Jersey law of Worker's Compensation. "[New Jersey] courts have consistently held that the Workmen's Compensation Act is to be construed liberally so as to bring as many cases as possible within its coverage." Marshall v. Force Machinery Co., 123 N.J. Super. 497, 502, 303 A.2d 619, 621 (Law Div. 1973). Toward this end, the courts of this state have always defined the operational terms of the statute with great breadth. In Theodore v. Dover Board of Education, 183 N.J. Super. 407, 444 A.2d 60 (App.Div. 1982), the Appellate Division noted that "in the workers' compensation context, . . . the term 'accident' has traditionally been construed to include all work-related episodes and events resulting in injury, and indeed all unexpected injuries." 183 N.J. Super. at 415, 444 A.2d at 65. "Accidents" for worker's compensation purposes thus may even include assaults by co-workers or supervisory employees of a "willful or criminal nature." Meo v. Commercial Can Corp., 80 N.J. Super. 58, 62, 192 A.2d 854, 856 (App.Div. 1963), and all injuries which are occasioned by such assaults.
Moreover, the requirement that the episode occur "in the course of" employment to be compensable merely means that it must have happened within the period of employment, at a place where the worker might reasonably be, and while she was performing her duties of employment "or doing something incidental to it." Tocci v. Tessler & Weiss, Inc., 28 N.J. 582, 586-87, 147 A.2d 783, 785 (1959); Cavalcante v. Lockheed Electronics Co., 85 N.J. Super. 320, 204 A.2d 621 (Union Cty. Ct. 1964) aff'd. 90 N.J. Super. 243 217 A.2d 140 (App.Div. 1966). Finally, and most importantly, New Jersey courts employ a "positional risk" or "but for" test for determining whether an incident "arose out of" employment for the purposes of worker's compensation. An exceptionally liberal test of causal connection, the positional risk analysis requires only that the employment in some fashion physically facilitated the occurrence of the incident. Briggs v. American Biltrite, 74 N.J. 185, 376 A.2d 1231 (1977). Under this approach, assaults by co-employees have been held compensable "even if the subject of the dispute is unrelated to the work . . . if 'the work of the participants brought them together and created the relations and conditions which resulted in the clash.'" Martin v. J. Lichtman & Sons, 42 N.J. 81, 83, 199 A.2d 241, 242 (1964) quoting 1 Larson; Workmen's Compensation Law at 130 (1952). Thus, in Crotty v. Driver Harris Co., 49 N.J. Super. 60, 139 A.2d 126 (App.Div. 1958), the Appellate Division held that the widow of a worker who was robbed and murdered by a co-employee in a shed located on work premises was entitled to receive worker's compensation benefits, because the assault, under the positional risk test, "arose out of" the victim's employment:
While the employment may not have been the proximate cause of the fatal assault . . . it assuredly was a contributing factor, providing the murderer with the place and opportunity to assault and rob his victim. But for the employment, the assault and death would not have occurred when it did. The assault in this case was related to the employment [because it] brought the employee into contact with a vicious, criminal or hot-tempered person.
49 N.J. Super. at 72, 139 A.2d at 133. Similarly, in Doe v. St. Michael's Medical Center of Newark, 184 N.J. Super. 1, 445 A.2d 40 (App.Div. 1982), a case bearing some resemblance to the matter before us (and thus heavily relied upon by defendant Harrah's), a medical technologist who was sexually assaulted in her hospital dormitory was held to have injuries compensable under the Worker's Compensation Law because "if not for her employment, she would not have been in the place where she was injured because she would otherwise have had no right to live there." 184 N.J. Super. at 7, 445 A.2d at 44.
The precepts developed in the above cases reflect a consistent commitment, on the part of the New Jersey courts, to extend the salutory aspects of worker's compensation -- prompt and precisely measured recompense for employment-related injuries -- to the broadest possible spectrum of work situations. Applying these precepts to the facts before us, it is readily apparent that plaintiff's claimed injuries stemming from the alleged sexual assault and harassment are fully compensable under the provisions of the New Jersey Worker's Compensation Act.
The alleged May 2, 1984 incident and subsequent episodes all took place while Cremen was employed by Harrah's, and while she was performing employment duties or "doing something incidental" to them. Thus, the episodes occurred "within the course of" plaintiff's employment. Using the positional risk analysis, Cremen's employment, and most specifically, her subordinate position to Morris, brought her into contact with an allegedly "vicious and criminal" actor, who wielded his supervisory status and control to force sexual advances, all of which took place on work premises. Thus, the claimed injuries "arose out of" plaintiff's employment. Finally, the incidents and injuries plaintiff claims, ranging from actual physical assault to emotional distress, all fall within the broad definition of "accident" for the purposes of worker's compensation. The authorities plaintiff cites for the proposition that sexual assault and harassment cannot be compensable under worker's compensation are not, in this regard, persuasive. They are based, respectively, upon principles of Missouri and Georgia law, which apparently do not follow the same definitional standards for compensable incidents as does New Jersey.
Clearly then, plaintiff could pursue her non-federal claims for compensatory relief before the State Division of Worker's Compensation. But, as before stated, determining that this plaintiff's alleged injuries are covered by the Worker's Compensation Act does not reach the real difficulty posed by this motion. Rather, the difficult question is whether plaintiff's potential worker's compensation claim is her exclusive avenue for redress, or whether she may yet, alternatively or additionally, assert the state tort actions contained in Counts II through IV of her amended complaint.
Generally, where, as here, an employee's claimed injuries fall within the coverage of the worker's compensation law, the employee is barred from seeking further legal redress from an employer or co-employee. The "exclusivity" provision of the New Jersey Worker's Compensation Act, N.J.S.A. 34:15-8, provides in relevant part:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
The policy reasons behind the exclusive remedy feature were aptly set forth by the New Jersey Supreme Court in Dudley v. Victor Lynn Lines, Inc., 32 N.J. 479, 161 A.2d 479 (1960):
By accepting the benefits of the act, the employer assumes an absolute liability. He gains immunity from common-law suit, even though he be negligent, and is left with a limited and determined liability in all cases of work-connected injury. On the other hand, the employee forgoes his right to sue his employer for negligence, and to obtain the common law's measure of damages in cases where fault could be shown, but he gains a speedy and certain, though smaller, measure of damages for all work-connected injuries regardless of fault . . . The intention is to "substitute finite liability for the fortuities of the common law remedy."