Daniels v. Russell et al
Filing
71
MEMORANDUM OPINION AND ORDER denying as moot defendant Oxford House, Inc.'s 53 MOTION to Strike Exhibits A through E attached to plaintiffs' summary judgment response; granting defendant Oxford House, Inc.'s 38 MOTION for Summa ry Judgment to the extent that it seeks a determination as a matter of law that Oxford House is not vicariously liable for the intentional torts perpetrated upon plaintiffs by Russell and denied is all other respects. Signed by Judge John T. Copenhaver, Jr. on 5/3/2011. (cc: attys and to Ms. Winkler at the following addresses, by certified mail return receipt requested: P.O. Box 43 1105, Alum Creek, WV 25003 and 9th Street Apt. 2, Huntington, WV 25701) (mkw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
CANDINA DANIELS,
Plaintiff
v.
Civil Action No. 2:10-0539
ANTONIO RUSSELL and
OXFORD HOUSE, INC.,
a Maryland Corporation, and
JOHN DOE, unknown person
or persons,
Defendants
CORSIA RAMEY,
Plaintiff
v.
Civil Action No. 2:10-0540
ANTONIO RUSSELL and
OXFORD HOUSE, INC.,
a Maryland Corporation, and
JOHN DOE, unknown person
or persons,
Defendants
KIMBERLY SKEENS
Plaintiff
v.
Civil Action No. 2:10-0541
ANTONIO RUSSELL and
OXFORD HOUSE, INC.,
a Maryland Corporation, and
JOHN DOE, unknown person
or persons,
Defendants
BARBARA WINKLER
Plaintiff
v.
Civil Action No. 2:10-0542
ANTONIO RUSSELL and
OXFORD HOUSE, INC.,
a Maryland Corporation, and
JOHN DOE, unknown person
or persons,
Defendants
MEMORANDUM OPINION AND ORDER
Pending are the motions by defendant Oxford House, Inc.
(“Oxford House”), for summary judgment, filed February 22, 2011,
and to strike Exhibits A through E attached to plaintiffs’
summary judgment response, filed March 16, 2011.
Respecting the motion to strike, Oxford House asserts
that the referenced exhibits are inadmissible for a number of
reasons.
Inasmuch as the court does not expect to rely upon the
challenged documents in adjudicating the dispositive motion, it
is ORDERED that the motion to strike be, and it hereby is, denied
as moot.
I.
Plaintiffs Candina Daniels, Corsia Ramey, and Kimberly
Skeens are West Virginia residents.
2
Defendant Antonio Russell’s
citizenship appears to be unknown at this time.
appear that he has been served with process.
It does not
Oxford House is a
Delaware corporation with its principal place of business in
Maryland.
The Oxford House concept appears to be a novel one.
is explained in the affidavit of Kathleen Gibson, its Chief
Operating Officer:
Oxford House, Inc. is a . . . not for profit
corporation . . . . Oxford House is a network of
approximately 1400 houses nationwide that provides
housing for recovering alcoholics and drug addicts. . .
. Each Oxford House is democratically run, financially
self-supporting, and expels any resident who resumes
the use of drugs and alcohol while residing in an
Oxford House. . . . Oxford Houses are not residential
treatment facilities and there is no staff residing at
an Oxford House or in charge of operating an Oxford
House. . . . Each Oxford House is self-run, meaning
that the residents are in charge of running the house
and making all the decisions pertaining to each Oxford
House on a democratic basis. . . .
Oxford House employs persons to open and establish
Oxford Houses in various states. It hires residents or
former residents of Oxford Houses. The prospective
employee must have been a resident of an Oxford House
and must have lived in an Oxford House without
incident. This means that the individual must not have
been asked to leave an Oxford House because of resumed
alcohol or drug use, or failure to pay rent, or for
engaging in disruptive behavior.
(Aff. of Kathleen Gibson ¶¶ 2-3).
In 2005, Russell was hired by Oxford House as an
outreach worker in North Carolina.
3
Kathleen Gibson was the
It
Oxford House state coordinator for North Carolina at the time.
Russell filled a vacancy created after Ms. Gibson terminated an
outreach worker for having a relationship with a female Oxford
House resident.
Ms. Gibson asked Russell if he had ever had an
inappropriate relationship with a female either before or after
he was himself an Oxford House resident.
contrary.
He assured her to the
Ms. Gibson hired him based upon:
an outstanding record of being active with the
Winston-Salem, North Carolina chapter of Oxford Houses
as well as his activity in assisting Oxford House on a
state level. He also had excellent credentials as a
result of his work on a special project for the North
Carolina Department of Vocational Rehabilitation.
(Id. ¶ 4).
She did not conduct a criminal background
investigation on Russell.
In 2007, Oxford House was awarded a contract by West
Virginia to seed its homes in the state.
Russell was reassigned
to that task, with primary responsibility to open houses in the
Charleston, Huntington, and Parkersburg areas.
success.
He achieved some
For example, in June 2007 he opened an Oxford House
located in Dunbar (“Oxford House Dunbar”).
Oxford House Dunbar
was restricted to female residents only.
Daniels, a parolee at the time, resided at Oxford House
Dunbar for six days in July 2008.
4
Skeens stayed there from April
to May 2008.
She was asked to leave after she wrote an
unauthorized check from the house account.
January 2008 and left the next month.
Ramey arrived in
Oxford House asserts that
she was “continually behind in her rent, and left the house
without notice, and with her rent in arrears.”
(Id. ¶ 6).
Oxford House maintains a “a strict written policy
against sexual harassment and sexual misconduct among its
employees.”
(Id. ¶ 9).
Ms. Gibson recounts one provision of the
policy providing, inter alia, as follows: “The practice of
[employee] involvement with members of Oxford Houses for sexual
contact is discouraged especially where Oxford House members
possess less than one year of sobriety.”
(Id.)
While the meeting minutes of Oxford House Dunbar
reflect no contemporaneous complaints by Daniels, Skeens, or
Ramey about Russell, plaintiffs now allege disturbing versions of
abuse and harassment inflicted upon them by him during their
respective stays.
Daniels’ account is as follows:
Russell sexually abused and sexually harassed females
while they were housed at the Dunbar House. During the
latter part of July, 2008, Defendant Russell, upon
meeting me for the first time at the Men's Center, he
immediately gave me a hug, kissed my check and told me
I was cute. Later this day, Defendant Russell
telephoned the Oxford House and started talking to me
in a sexual manner. The second incident happened in my
bedroom. He had called early to see if anyone was home.
5
Defendant Russell came in, sat on my bed and began
fondling me and uttering sexually, vulgar words to me.
Defendant Russell then asked me when we were going to
"hook up" in a sexual manner. The last incident
occurred when I was in the shower when I heard someone
call my name out as I pulled the curtain back I saw
Russell standing in the bathroom, holding his erect
penis in his hand, talking to me in an inappropriate
sexual manner. I left the Oxford House that night.
(Pls.’ Ex. G. at 3).
She adds that “The sexual harassment and
sexual abuse . . . made me fearful to stay at the Oxford House. I
chose to leave to escape . . . Russell's abuse.”
(Id. at 7).
She also states in her affidavit the effects she experienced as a
result of Russell’s actions: “Since the sexually [sic] harassment
and sexual abuse . . . , I experience anxiety, insomnia,
depression, troubles with relationships and a fear of men.”
(Aff. of Candina Daniels ¶ 3).
Ms. Ramey offers a similar version of events respecting
Russell’s actions:
Russell sexually abused and sexually harassed females
while they were housed at the Dunbar House. He didn't
telephone me at . . . [Oxford] House. Russell
sexual[ly] harassed me while I was alone in the house.
Russell followed me down to the laundry room and
grabbed my buttocks and pushed me against the washer
and said "you have a nice ass." I could feel his erect
penis against my back. In the downstairs bedroom where
I was staying, I had locked the door to take a shower.
Russell had somehow entered my bedroom and came into
the bathroom where I was showering. As I looked out of
the shower to see what was making the noise in my room,
Russell was walking towards me with his penis erect
masturbating and making sexual comments and sexual
6
advancements. I screamed and he ran out of the room. On
another occasion, Russell entered my room when I was
lying on my bed. He approached me making sexual remarks
and fondled my body.
. . . .
He also requested me and another girl to have sex with
him.
(Id. at 12, 14).
Ms. Ramey at first was afraid to report the
incident but later informed her parole officer, Justin Gibson.
Ms. Ramey also noted how Russell’s actions have affected her:
“Since the sexually [sic] harassment and sexual abuse of
Defendant Russell, I experience anxiety and depression.” (Aff. of
Corsia Ramey ¶ 3).
Ms. Skeens’ account is similar.
She accuses Russell as
follows:
Antonio Russell sexually abused and sexually harassed
females while they were housed at the . . . [Oxford]
House. Our first meeting was when Russell was
transporting me to the Dunbar House. On the drive he
continuously rubbed my leg and asked me for a date. He
asked me out on a date on several different occasions.
Russell fondled my body on more than once and tried to
kiss me. One incident occurred in the kitchen of the
Dunbar House as I was preparing food. Russell pushed me
into the food pantry and began groping and kissing me.
He would often do this in front on [sic] my son. The
last incident occurred in a pharmacy parking lot when
Defendant Russell approached me and said, "You didn't
give me a hug before you left." He then hugged me and
began fondling my breasts.
(Id. at 21).
Ms. Skeens explained that she “had no way to keep .
. . [her] son with . . . [her] unless . . . [she] allowed Russell
7
to harass and abuse” her.
(Id. at 24).
In her affidavit, she
addresses the effects of Russell’s actions upon her:
When I think about being around Antonio Russell I get
nervous and sad. I try and block him out of my memory.
I have more trust issues with men than I used to. When
Antonio Russell tried to put me in the corner in the
kitchen and touch me, it brought back bad memories of
something that happened to me when I was 14.
(Aff. of Kimberly Skeens ¶ 4).
Prior to his employment with Oxford House, Russell had
attracted the attention of law enforcement on multiple occasions.
In addition to various traffic and registration offenses,
plaintiffs’ Exhibit F, accompanying their response to Oxford
House’s dispositive motion, includes the following information
about Russell’s criminal history:
Charge Date
Offense
Disposition
4-27-1986
Driving while impaired
Pled guilty
3-11-1989
Driving while impaired
Pled guilty
3-11-1989
Felony marijuana possession
Dismissed
5-20-1993
Intoxicated and disruptive
Pled guilty
1-30-1997
Assault on a female
Pled guilty
(Pls.’ Ex. F).
Counsel for Oxford House states Russell’s criminal
history “would not have impeded . . . [his] hiring as nearly 80%
8
of Oxford House members . . . have some sort of criminal
history.”
(Def.’s Mem. in Supp. at 6).
It is further observed
that the 1997 domestic battery conviction in particular “would
not, in any case, have been seen as a red flag.” (Id.)
In the spring of 2009, Oxford House undertook an
investigation of Russell based upon job performance complaints
about him from other Oxford Houses.
2009.
He was terminated in June
The deficiencies that led to his termination included (1)
a failure to send reports as directed, (2) allowing houses to
write insufficient funds checks, and (3) a failure to install
telephone service at another Oxford House facility for an
extended period.
The regional supervisor charged with the
investigation, John Fox, was never informed about any
inappropriate behavior with female residents.
Oxford House
contends such allegations played no role in Russell’s
termination.
On December 9, 2009, Daniels, Ramey, and Skeens
instituted separate actions in the Circuit Court of Kanawha
County against Russell and Oxford House.
Oxford House removed.
complaints.
On April 21, 2010,
On July 28, 2010, plaintiffs filed amended
The pleadings are a bit confusing.
The first three
counts are straightforward, alleging (1) intentional infliction
9
of emotional distress (“Count One”), (2) invasion of privacy
(“Count Two”), and (3) what appears to be negligent hiring,
retention, supervision, and training (“Count Three”).
The remainder of the pleadings then veer off.
Count
Four appears to allege only satisfaction of the standard
governing an award of punitive damages.
The court does not
understand Count Four to qualify as a separate claim.
Count Five offers a litany of claims, which include the
causes of action pled in Counts One through Three and,
additionally, other claims such as “Violation of the West
Virginia Human Rights Act” and “Law of Agency,” along with legal
theories not constituting separate claims, such as “Doctrine of
Respondent [sic] Superior.”
general damage elements.
Counts One through Three.
Count Six appears to list only
Count Seven appears duplicative of
The court does not understand either
Counts Six or Seven to constitute stand-alone claims.
On August 12, 2010, the court consolidated these
actions for purposes of pretrial development and conferencing.
It reserved at that time the question of consolidating the cases
for trial.
On February 22, 2011, Oxford House moved for summary
judgment.
First, Oxford House asserts that it is not vicariously
10
liable for the intentional torts committed by Russell.
Second,
it contends that it is entitled to summary judgment respecting
that portion of Count Three alleging negligent hiring, retention,
and supervision of Russell by Oxford House.
II.
A.
Governing Standard
A party is entitled to summary judgment “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.”
Fed. R. Civ. P. 56(c).
Material facts are those
necessary to establish the elements of a party’s cause of action.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A genuine issue of material fact exists if, in viewing
the record and all reasonable inferences drawn therefrom in a
light most favorable to the non-moving party, a reasonable factfinder could return a verdict for the non-movant. Id.
The moving
party has the burden of showing -- “that is, pointing out to the
district court -- that there is an absence of evidence to support
11
the nonmoving party’s case.”
317, 325 (1986).
Celotex Corp. v. Catrett, 477 U.S.
If the movant satisfies this burden, then the
non-movant must set forth specific facts as would be admissible
in evidence that demonstrate the existence of a genuine issue of
fact for trial.
Fed. R. Civ. P. 56(c); id. at 322-23.
A party
is entitled to summary judgment if the record as a whole could
not lead a rational trier of fact to find in favor of the nonmovant.
Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Conversely, summary judgment is inappropriate if the
evidence is sufficient for a reasonable fact-finder to return a
verdict in favor of the non-moving party.
248.
Anderson, 477 U.S. at
Even if there is no dispute as to the evidentiary facts,
summary judgment is also not appropriate where the ultimate
factual conclusions to be drawn are in dispute.
Overstreet v.
Ky. Cent. Life Ins. Co., 950 F.2d 931, 937 (4th Cir. 1991).
A court must neither resolve disputed facts nor weigh
the evidence, Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th
Cir. 1995), nor make determinations of credibility.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
Sosebee v.
Rather, the party
opposing the motion is entitled to have his or her version of the
facts accepted as true and, moreover, to have all internal
conflicts resolved in his or her favor.
Charbonnages de France
v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).
12
Inferences that are
“drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.”
United
States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
B.
Oxford House’s Vicarious Liability for Russell’s Intentional
Torts
In Musgrove v. Hickory Inn, Inc., 168 W. Va. 65, 65,
281 S.E.2d 499, 500 (1981), the Supreme Court of Appeals of West
Virginia observed as follows:
An agent or employee can be held personally liable for
his own torts against third parties and this personal
liability is independent of his agency or employee
relationship. Of course, if he is acting within the
scope of his employment, then his principal or employer
may also be held liable.
Id. at 65, 281 S.E.2d at 500.
Subsequent decisions by the
supreme court of appeals elaborate on the rule stated in
Musgrove.
In Barath v. Performance Trucking Co., Inc., 188 W. Va.
367, 368, 424 S.E.2d 602, 603 (1992), plaintiff Barath was
attacked by David Cook Jr., who may have been an employee of
defendant Performance Trucking Company, Inc. (“Performance
Trucking”).
Cook's father, David Cook, Sr., was employed as
manager by Performance Trucking.
13
Just prior to the attack, a
witness heard the son state that his father had told him to
attack Barath the next time he encountered him.
The supreme court of appeals concluded that the witness
account, along with the facts that (1) Performance Trucking had
been the victim of a labor strike, and (2) that Barath was
involved in the strike as a union member, counseled against
granting summary judgment:
While the evidence on this point was exceedingly
indirect, this Court believes that it did suggest that
union unrest might have caused financial losses to
Performance Trucking . . . that David Cook, Sr., as
manager of the company, was aware of and felt the
losses and had developed animosity toward the
appellant, and as a consequence had directed his son to
“beat” the appellant. Overall, it is suggested, but
certainly not proven, that David Cook, Jr., who might
have been an employee of Performance Trucking Co.,
Inc., at the time of the battery in this case, might
have been acting within the scope of his employment at
the time of the battery.
Id. at 371, 424 S.E.2d 602, 424 S.E.2d at 606.
In Foodland v. West Virginia Department of Health and
Human Resources, 207 W.Va. 392, 532 S.E.2d 661 (2000), a grocery
store was penalized by a regulating state agency after a store
employee perpetrated a fraud against a welfare benefits program
in which the store participated.
The employee was fired after
the theft and Foodland received no benefit from the fraud.
14
The supreme court of appeals discussed “scope of
employment” as follows:
“Scope of employment” is a relative term and requires a
consideration of surrounding circumstances, including
the character of the employment, the nature of the
wrongful deed, the time and place of its commission and
the purpose of the act.
In general terms, it may be said that an act is
within the course of the employment, if: (1) It is
something fairly and naturally incident to the business
and (2) it is done while the servant was engaged upon
the master's business and is done, although mistakenly
or ill-advisedly, with a view to further the master's
interests, or from some impulse or emotion which
naturally grew out of or was incident to the attempt to
perform the master's business, and did not arise wholly
from some external, independent and personal motive on
the part of the servant to do the act upon his own
account.
Id. at 397, 532 S.E.2d at 665 (emphasis supplied).
This analysis
led to the following conclusion:
Employee theft is certainly not naturally incident to
the owner's business and even though the act was done
while the cashier was engaged in the owner's business,
the theft was not done with a view to further the
owner's interests. The theft arose from a personal
motive on the part of the cashier to further her own
interests. Under these circumstances, the employee's
theft from the WIC program simply does not fit within
her scope of employment.
Id.
The present action bears a much stronger resemblance to
Foodland than Barath.
Unlike the situation in Barath, Russell’s
acts lack even the most minimal connection to Oxford House’s
15
business.
Oxford House’s policies condemn sexual misconduct by
employees.
That type of misconduct is certainly not naturally
incident to Oxford House’s mission.
It is immaterial that
Russell may have perpetrated some of his misdeeds during work
hours.
His misconduct was not performed with any intention to
further Oxford House’s interests.
Inasmuch as Russell’s actions were motivated by a
personal desire on his part to abuse and harass the female
residents of Oxford House Dunbar, they do not fall within the
scope of his employment.
The court, accordingly, ORDERS that
Oxford House’s motion for summary judgment be, and it hereby is,
granted insofar as it seeks a determination as a matter of law
that Oxford House is not vicariously liable for the intentional
torts perpetrated upon plaintiffs by Russell of which it has not
been shown to have been aware until after all three plaintiffs
had left Oxford House Dunbar.
C.
Oxford House’s Liability for Negligent Hiring, Retention,
and Supervision
The supreme court of appeals has recognized a claim for
negligent hiring, which may or may not equate with negligent
retention.
See, e.g., McCormick v. West Virginia Dept. of Public
16
Safety, 202 W. Va. 189, 193, 503 S.E.2d 502, 506 (1998) (“There
can be no doubt that this court has recognized a cause of action
based upon a claim of negligent hiring (or negligent retention) .
. . .”) (citing State ex rel. West Virginia State Police v.
Taylor, 201 W. Va. 554, 560 n. 7, 499 S.E.2d 283, 289 n. 7
(1997)).
The decision in McCormick further observed as follows:
[A] fair formulation of the inquiry upon which
liability for negligent hiring or retention should be
determined is: “when the employee was hired or
retained, did the employer conduct a reasonable
investigation into the employee's background vis a vis
the job for which the employee was hired and the
possible risk of harm or injury to co-workers or third
parties that could result from the conduct of an unfit
employee? Should the employer have reasonably foreseen
the risk caused by hiring or retaining an unfit
person?”
. . . .
[A] primary question in determining whether an employer
may be held liable, based on a theory of negligent
hiring or retention, is the nature of the employee's
job assignment, duties and responsibilities -- with the
employer's duty with respect to hiring or retaining an
employee increasing, as the risks to third persons
associated with a particular job increase.
Id. at 193, 503 S.E.2d at 506.
It was also noted in McCormick as
follows: “The obtaining of criminal history record information
has been an issue in a number of negligent hiring and retention
cases.”
Id. at 193 n.5, 503 S.E.2d at 506 n.5.
17
Oxford House did not conduct a preemployment
investigation of Russell.
That inquiry would have revealed
Russell was previously convicted of assaulting a female.
It
would also have revealed what plaintiffs characterize as “a
chronic disregard for authority.”
(Pls.’ Resp. at 11).
These
considerations give rise to a genuine issue of material fact
respecting negligent hiring.
The jury might ultimately find that hiring Russell did
not amount to negligence despite his prior criminal history.
Another genuine issue of material fact would then arise, however,
respecting the negligent supervision and retention claims.
The
jury would be entitled to consider whether the criminal history
might have at least triggered an obligation on Oxford House’s
part to more closely surveil Russell over the long term, which
might in turn have revealed his misconduct earlier or perhaps
prevented it had he known he was the subject of ongoing close
scrutiny.
For these reasons, the court concludes that Oxford
House is not entitled to judgment as a matter of law on
plaintiffs’ claims for negligent hiring, supervision, and
retention.
The court, accordingly, ORDERS that Oxford House’s
18
motion for summary judgment as to these claims be, and it hereby
is, denied.1
III.
Based upon the foregoing discussion, it is ORDERED that
Oxford House’s motion for summary judgment be, and it hereby is,
granted to the extent that it seeks a determination as a matter
of law that Oxford House is not vicariously liable for the
intentional torts perpetrated upon plaintiffs by Russell and
denied in all other respects.2
1
Plaintiffs’ response discusses their claims under the West
Virginia Human Rights Act. Oxford House did not move for summary
judgment on those claims. It devotes a single page to the matter
in its reply brief. The court concludes the discussion found
therein is an insufficient basis for judgment as a matter of law
at this time.
Oxford House also briefly asserts that it is entitled to
summary judgment on the question of damages. Inasmuch as that
matter is reserved to the fact finder, and that genuine issues of
material fact remain on the matter, the court concludes that
Oxford House is not entitled to judgment as a matter of law on
the issue.
2
The court notes that Barbara Winkler, plaintiff in the
third member action, is proceeding pro se. This follows her
counsel being permitted to withdraw as a result of her refusal to
assist them in prosecuting this action and her failure to retain
new counsel by the April 14, 2011, deadline imposed by the court.
Ms. Winkler was given until May 5, 2011, to respond to
Oxford House’s motion for summary judgment. The court need not,
however, await that response. Oxford House has received judgment
(continued...)
19
The Clerk is requested to transmit this written opinion
and order to all counsel of record and to Ms. Winkler at the
following addresses, by certified mail return receipt requested:
P.O. Box 43 1105
Alum Creek, WV 25003
9th Street Apt 2
Huntington, WV 25701
DATE:
May 3, 2011
John T. Copenhaver, Jr.
United States District Judge
2
(...continued)
as a matter of law respecting only its vicarious liability for
Russell’s misconduct. For the reasons stated supra, it is
unlikely that Ms. Winkler might offer any evidence that Russell’s
egregious misconduct somehow fell within the scope of his
employment. Should that be the case, Ms. Winkler may move for
reconsideration to present her evidence concerning that narrow
issue. In the event that Ms. Winkler does not appear for the
pretrial conference, the court will entertain a motion to dismiss
her claims without prejudice pursuant to Federal Rule of Civil
Procedure 41(b).
20
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