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CREMEN v. HARRAH'S MARINA HOTEL CASINO

February 22, 1988

Margaret E. Cremen, Plaintiff
v.
Harrah's Marina Hotel Casino, Defendant/Third Party Plaintiff v. Local 54, Hotel Employees & Restaurant Employees International Union AFL-CIO, and Hotel and Restaurant Employees and Bartenders International Union Welfare Fund, Third Party Defendants



The opinion of the court was delivered by: GERRY

 Plaintiff Margaret E. Cremen brought this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII") and various state tort law theories, against her former employer, Harrah's Marina Hotel Casino ("Harrah's"). Harrah's has, in turn, joined Local 54, Hotel Employees & Restaurant Employees International Union AFL-CIO, and the Hotel and Restaurant Employees and Bartenders International Union Welfare Fund ("Local 54") as third party defendants. *fn1"

 FACTUAL BACKGROUND

 Cremen was hired by Harrah's on April 23, 1984 to work as a cocktail server in the casino's public showroom. As part of her preparation for the job, plaintiff was required to complete a two week training course. One of the trainers Harrah's employed was a Mr. Bernard Morris. Morris also served as maitre d'hotel in the showroom, and in that position exercised supervisory control over Cremen and the other cocktail servers.

 According to plaintiff's deposition and complaint, Morris told the cocktail server trainees that he would be calling them "sweethearts and babies and his girls" and might periodically hold their hand or put his arm around them, but that there would be "nothing to it." Cremen Dep. at 52. On May 2, 1984, plaintiff was asked by Morris to report to his office after the other cocktail servers had been dismissed for the day.

 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.

 LEGAL ANALYSIS

 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. *fn2"

 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. 243217 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. ...


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