Recent Developments from Around the States

The workers claimed they were exposed the toxic chemicals during the filming of a mock dust storm. The filmmakers used pyrolite, a substance containing crystalline silica, which has been linked to cancer and other medical problems. None of the workers was given any respiratory protective gear even though the use of pyrolite is regulated by federal and state health agencies.

The trial court sided with the defendants, holding that the workers' compensation exclusivity provision barred the entire action. On appeal, the plaintiff attempted to argued that injuries caused by a criminal battery are outside the domain of workers' compensation. However, the court found that the plaintiff failed to show that the use of the toxic substance constituted a battery. At worst, the court stated, the company's actions amounted to “indifference to the safety of the extras in the battle.”

CONNECTICUT

HIV an Occupational Disease for Corrections Officers

The Supreme Court of Connecticut held that HIV is an occupational disease for state department of corrections officers who work as part of an emergency response unit. Estate of Doe v. Department of Corr., 2003 WL 23515278 (Conn. May 11, 2004).

The officer, whose name was withheld for privacy reasons, worked at a state correctional facility from 1986-1991 as a member of a special team that responds to major prison disturbances. He was diagnosed with HIV in 1992, and died the following year of AIDS. His estate filed a claim for workers' compensation benefits in March 1993, alleging that his HIV was caused by contact with infected inmates. The claim was outside the 1-year limitation for work-related accidents, but was within the 3-year limitation period for occupational disease. However, the review board commissioner ruled that HIV is not an occupational disease and that the claim was thus time-barred. The review board later affirmed this claim, and the estate's appeal to the state appellate court was transferred to the Connecticut Supreme Court.

The court held that because HIV is so prevalent among prison inmates, a direct causal connection could be found between the officers' employment duties (including response to fights and medical emergencies in which contact with infected bodily fluids could occur) and the contracted disease. The court rejected the department of correction's argument that lack of previous infections among corrections officers proved that HIV was not an occupational disease, noting that nothing in the workers' compensation law required that the disease be usual or generally recognized. The dissenting opinion noted that the statistical rate of contracting HIV from a prisoner during an officer's contact with such prisoner was so low that the disease was not an increased hazard of employment.

IOWA

Fatal Chest Punch May Qualify As Adverse Employment Action

Iowa's highest court reinstated federal and state law claims against Papa John's Pizza brought by the estate of a teenaged employee who died as the result of a punch delivered by a supervisor. Estate of Harris v. Papa John's Pizza, 2004 WL 1059147 (Iowa May 12, 2004). The court held that a jury could reasonably conclude the punch was carried out for the plaintiff's reports about the supervisor's sexual relationship with another employee, rendering it an unlawful retaliation under Title VII of the 1964 Civil Rights Act and the Iowa Civil Rights Act.

Michael Harris worked as a pizza maker and deliveryman, and defendant Robert Shields was the assistant manager. According to the court, Shields had sex three times with a female subordinate in violation of company policy in December 2000. In January 2001, while visiting another Papa John's store near the one in which he worked, Harris told the assistant manager about the sexual relationship. Shields subsequently found out about the disclosure and called Harris. The two agreed to meet after midnight at their employer's store. According to a fellow employee, Harris agreed to endure the punch in order to “redeem their friendship.” He later suffered a cardiac arrhythmia and died.

Initially, the company denied workers' compensation benefits, arguing that the injury did not arise “in and out of the course and scope of … employment.” The estate then sued in state court, alleging violation of federal and state civil rights laws that prohibit retaliation for a report of a violation of a company's sexual harassment policy. The trial court granted summary judgment in favor of the defendant company on all counts. The supreme court, however, held that the estate presented evidence sufficient for a jury to conclude that Papa John's was liable for the punch. In light of the fact that a general manager told Harris to take care of the problem, the company was liable for the subsequent action. In addition, the court held that although the punch violated company policy the company would not be insulated from liability.

MASSACHUSETTS

Fired Employee May Only Recover Damages Incurred During 6 Months Prior to Filing Complaint

The Massachusetts Supreme Judicial Court held that a visually impaired mechanic who requested job accommodations over a 2-year period may only recover damages for discrimination endured during the 6 months prior to filing the complaint. Ocean Spray Cranberries Inc. v. Massachusetts Comm'n Against Discrimination, 808 N.E.2d 257 (Mass. May 12, 2004). The court thus upheld a lower court ruling against the state commission's assertion that the company committed a “continuing violation” for each day it failed to address the plaintiff's accommodation requests.

Plaintiff Richard Rapoza, who was nearly blind in one eye from a childhood illness, worked repairing small parts of machinery. In May 1993, he began requesting better lighting in his work area, later submitting a letter from his doctor affirming the need for such changes. Despite conversations with his supervisor and the human resources manager, the company did not make the changes. Rapoza was later fired after presenting letters from numerous additional doctors indicating the adverse health effects of his working conditions.

The court held that viewing the violations as did the commission, as discrete “each day” violations, would “eviscerate the purpose of a statutory limitations period.” In addition, the court noted that the plaintiff was on adequate notice that the company would not accommodate his requests, rendering the day by day theory of discrimination untenable.

MINNESOTA

Proper Inquiry in Sexual Harassment Claim Is Whether Advances Were Unwelcome, Not Whether Participation Was Voluntary

The state court of appeals reinstated a saleswoman's Minnesota Human Rights Act sexual harassment claim, ruling that the trial court improperly declared summary judgment in favor of the defendant based on the plaintiff's voluntary participation in a sexual affair. Miles v. DDF Inc., f/k/a UCC Total Home d/b/a/ DirectBuy of Minneapolis, 2004 WL 1049286 (Minn.App. May 11, 2004).

The alleged harassment occurred while the plaintiff, Kelly Miles, worked for a company jointly owned by defendant Darryn Fossand. Fossand served as the company president while his wife, the co-owner, served as its treasurer and secretary. Within a few months of Miles' arrival at the company, Fossand began making sexual advances that the plaintiff alleged were initially unwelcome. Shortly thereafter, the two began an affair. The plaintiff made hotel reservations in order to have sex with the defendant, and the two met for dinner and discussed marriage. A day after Miles ended the affair, the defendant's wife had her fired. The district court held that the allegation of sexual harassment was not credible even in light of evidence of threatened loss of job given that the plaintiff arranged and paid for the hotel and neglected to complain to any supervisor about the defendant's actions.

The court of appeals overturned, following the U.S. Supreme Court decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In that case, the Supreme Court held that voluntary sexual activity on the part of the plaintiff is not a defense to a sexual harassment claim. The plaintiff must instead make out a prima facie case of harassment by showing that the conduct was unwelcome. Thus the trial court ruled that the lower court made improper credibility claims in dismissing the claim due to voluntary sexual activity on the part of the plaintiff.

CALIFORNIA

State Court Decertifies Class, Tells Movie Extras They Must File for Benefits Under Workers' Compensation

The California Court of Appeal held that movie extras working for a 2001 remake of Planet of the Apes must seek worker's compensation benefits for injuries arising out of the movie makers apparent use of toxic substances during filming, thus dismissing an attempt by the workers to litigate as a class. Clark v. Fox Entertainment Group Inc., 2004 WL 1045705 (Cal.App. 2 Dist., May 10, 2004).

The workers claimed they were exposed the toxic chemicals during the filming of a mock dust storm. The filmmakers used pyrolite, a substance containing crystalline silica, which has been linked to cancer and other medical problems. None of the workers was given any respiratory protective gear even though the use of pyrolite is regulated by federal and state health agencies.

The trial court sided with the defendants, holding that the workers' compensation exclusivity provision barred the entire action. On appeal, the plaintiff attempted to argued that injuries caused by a criminal battery are outside the domain of workers' compensation. However, the court found that the plaintiff failed to show that the use of the toxic substance constituted a battery. At worst, the court stated, the company's actions amounted to “indifference to the safety of the extras in the battle.”

CONNECTICUT

HIV an Occupational Disease for Corrections Officers

The Supreme Court of Connecticut held that HIV is an occupational disease for state department of corrections officers who work as part of an emergency response unit. Estate of Doe v. Department of Corr., 2003 WL 23515278 (Conn. May 11, 2004).

The officer, whose name was withheld for privacy reasons, worked at a state correctional facility from 1986-1991 as a member of a special team that responds to major prison disturbances. He was diagnosed with HIV in 1992, and died the following year of AIDS. His estate filed a claim for workers' compensation benefits in March 1993, alleging that his HIV was caused by contact with infected inmates. The claim was outside the 1-year limitation for work-related accidents, but was within the 3-year limitation period for occupational disease. However, the review board commissioner ruled that HIV is not an occupational disease and that the claim was thus time-barred. The review board later affirmed this claim, and the estate's appeal to the state appellate court was transferred to the Connecticut Supreme Court.

The court held that because HIV is so prevalent among prison inmates, a direct causal connection could be found between the officers' employment duties (including response to fights and medical emergencies in which contact with infected bodily fluids could occur) and the contracted disease. The court rejected the department of correction's argument that lack of previous infections among corrections officers proved that HIV was not an occupational disease, noting that nothing in the workers' compensation law required that the disease be usual or generally recognized. The dissenting opinion noted that the statistical rate of contracting HIV from a prisoner during an officer's contact with such prisoner was so low that the disease was not an increased hazard of employment.

IOWA

Fatal Chest Punch May Qualify As Adverse Employment Action

Iowa's highest court reinstated federal and state law claims against Papa John's Pizza brought by the estate of a teenaged employee who died as the result of a punch delivered by a supervisor. Estate of Harris v. Papa John's Pizza, 2004 WL 1059147 (Iowa May 12, 2004). The court held that a jury could reasonably conclude the punch was carried out for the plaintiff's reports about the supervisor's sexual relationship with another employee, rendering it an unlawful retaliation under Title VII of the 1964 Civil Rights Act and the Iowa Civil Rights Act.

Michael Harris worked as a pizza maker and deliveryman, and defendant Robert Shields was the assistant manager. According to the court, Shields had sex three times with a female subordinate in violation of company policy in December 2000. In January 2001, while visiting another Papa John's store near the one in which he worked, Harris told the assistant manager about the sexual relationship. Shields subsequently found out about the disclosure and called Harris. The two agreed to meet after midnight at their employer's store. According to a fellow employee, Harris agreed to endure the punch in order to “redeem their friendship.” He later suffered a cardiac arrhythmia and died.

Initially, the company denied workers' compensation benefits, arguing that the injury did not arise “in and out of the course and scope of … employment.” The estate then sued in state court, alleging violation of federal and state civil rights laws that prohibit retaliation for a report of a violation of a company's sexual harassment policy. The trial court granted summary judgment in favor of the defendant company on all counts. The supreme court, however, held that the estate presented evidence sufficient for a jury to conclude that Papa John's was liable for the punch. In light of the fact that a general manager told Harris to take care of the problem, the company was liable for the subsequent action. In addition, the court held that although the punch violated company policy the company would not be insulated from liability.

MASSACHUSETTS

Fired Employee May Only Recover Damages Incurred During 6 Months Prior to Filing Complaint

The Massachusetts Supreme Judicial Court held that a visually impaired mechanic who requested job accommodations over a 2-year period may only recover damages for discrimination endured during the 6 months prior to filing the complaint. Ocean Spray Cranberries Inc. v. Massachusetts Comm'n Against Discrimination, 808 N.E.2d 257 (Mass. May 12, 2004). The court thus upheld a lower court ruling against the state commission's assertion that the company committed a “continuing violation” for each day it failed to address the plaintiff's accommodation requests.

Plaintiff Richard Rapoza, who was nearly blind in one eye from a childhood illness, worked repairing small parts of machinery. In May 1993, he began requesting better lighting in his work area, later submitting a letter from his doctor affirming the need for such changes. Despite conversations with his supervisor and the human resources manager, the company did not make the changes. Rapoza was later fired after presenting letters from numerous additional doctors indicating the adverse health effects of his working conditions.

The court held that viewing the violations as did the commission, as discrete “each day” violations, would “eviscerate the purpose of a statutory limitations period.” In addition, the court noted that the plaintiff was on adequate notice that the company would not accommodate his requests, rendering the day by day theory of discrimination untenable.

MINNESOTA

Proper Inquiry in Sexual Harassment Claim Is Whether Advances Were Unwelcome, Not Whether Participation Was Voluntary

The state court of appeals reinstated a saleswoman's Minnesota Human Rights Act sexual harassment claim, ruling that the trial court improperly declared summary judgment in favor of the defendant based on the plaintiff's voluntary participation in a sexual affair. Miles v. DDF Inc., f/k/a UCC Total Home d/b/a/ DirectBuy of Minneapolis, 2004 WL 1049286 (Minn.App. May 11, 2004).

The alleged harassment occurred while the plaintiff, Kelly Miles, worked for a company jointly owned by defendant Darryn Fossand. Fossand served as the company president while his wife, the co-owner, served as its treasurer and secretary. Within a few months of Miles' arrival at the company, Fossand began making sexual advances that the plaintiff alleged were initially unwelcome. Shortly thereafter, the two began an affair. The plaintiff made hotel reservations in order to have sex with the defendant, and the two met for dinner and discussed marriage. A day after Miles ended the affair, the defendant's wife had her fired. The district court held that the allegation of sexual harassment was not credible even in light of evidence of threatened loss of job given that the plaintiff arranged and paid for the hotel and neglected to complain to any supervisor about the defendant's actions.

The court of appeals overturned, following the U.S. Supreme Court decision in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986). In that case, the Supreme Court held that voluntary sexual activity on the part of the plaintiff is not a defense to a sexual harassment claim. The plaintiff must instead make out a prima facie case of harassment by showing that the conduct was unwelcome. Thus the trial court ruled that the lower court made improper credibility claims in dismissing the claim due to voluntary sexual activity on the part of the plaintiff.