Chase v. Genesis Consolidated CV-99-50-JD 11/09/99 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Charlene Chase

v. Civil No. 99-50-JD

Genesis Consolidated Services, Inc. et al.

Penny Elliott

v. Civil No. 99-51-JD

Genesis Consolidated Services, Inc. et al.

O R D E R

The plaintiffs in the captioned cases both worked for the

same employer and bring the same claims against the same

defendants based on similar allegations of sexual harassment and

assault at work by their supervisor, defendant Andrew Oesch. The

defendant. Genesis Consolidated Services, moves to dismiss count

four of each complaint, asserting that an employer cannot be

vicariously liable under the Violence Against Women Act ("VAWA"),

, for the conduct of an employee. Because the

defendant's motion and the plaintiff's objection in each case is

substantially the same, the motions are addressed together in a

single order. Standard of Review

Since the defendant has filed its answer, the motion is

construed as one for judgment on the pleadings. "After the

pleadings are closed but within such time as not to delay the

trial, any party may move for judgment on the pleadings." Fed.

R. Civ. P. 12(c). When considering a motion for judgment on the

pleadings, the "court must accept all of the nonmoving parities']

well-pleaded factual averments as true and draw all reasonable

inferences in [their] favor." Feliciano v. Rhode Island,

(1st Cir. 1998). Judgment on the pleadings is not

appropriate "'unless it appears beyond doubt that the

plaintiff[s] can prove no set of facts in support of [their]

claim which would entitle [them] to relief.'" Santiago de Castro

v. Morales Medina,

(1st Cir. 1991) (guoting

Rivera-Gomez v. de Castro,

(1st Cir. 1988)).

Discussion

In both cases, the plaintiffs worked at a small market

called the Campton Cupboard where their supervisor was Andrew

Oesch. The defendant Genesis Consolidated Services contracted to

perform management and administrative duties for Campton Cupboard

during the period in guestion in the complaints, and as a result,

both of the plaintiffs and Oesch were employees of Genesis.

2 Both plaintiffs allege that they were subjected to verbal and

physical sexual harassment by Oesch while they worked with him at

the Campton Cupboard. Both of the plaintiffs quit their jobs

because of sexual harassment.

The plaintiffs both allege claims of discrimination under

Title VII, common law assault, intentional infliction of

emotional distress, and violation of the VAWA. The VAWA claim is

brought against both Genesis and Oesch. With respect to

Genesis's liability under the VAWA, the plaintiffs allege,

"Genesis is liable for misconduct of Oesch because the conduct

was committed by an agent of Genesis, acting within the scope of

his employment." Complaints at page 12. Genesis moves to

dismiss the VAWA claim against it in each complaint, contending

that an employer is not liable under the VAWA based on the

doctrine of respondeat superior or vicarious liability.

The VAWA establishes both a "right to be free from crimes of

violence motived by gender" and "a Federal civil rights cause of

action for victims of crimes of violence motivated by gender."

(b) and (a). The VAWA also provides a private

cause of action against a "person . . . who commits a crime of

violence motivated by gender." § 13981(c). The parties agree,

for purposes of the pending motions, that a corporation such as

Genesis is a "person" within the meaning of the statute. They

3 disagree as to whether Genesis may be liable under § 13981(c)

based on the conduct of its agent, Oesch, acting within the scope

of his employment.

Only one court appears to have addressed the guestion of

derivative corporate liability under § 13981. The United States

District Court for the District of Oregon, in an unpublished

decision, determined that the language of § 13981 (c) and its

legislative history did not suggest corporate vicarious

liability. See Grace v. Thomason Nissan,

at *17-18 (D. Or. July 7, 1999). That court held that the

"proper standard of corporate liability under § 13981(c) reguires

a showing that (1) the person who committed the gender-motivated

crime of violence has final policymaking authority; (2) a final

policymaker ''ratified' a subordinate's unlawful conduct; or (3) a

final policymaker acted with deliberate indifference to the

subordinate's unlawful conduct." Id.

The corporate defendant in this case. Genesis, urges the

court to follow the same reasoning and to dismiss the plaintiffs'

VAWA claims against it. The plaintiffs argue that an employer's

vicarious liability for its employees' actions under common law

and in Title VII actions should also apply in the VAWA context.

The plaintiffs also contend that because a corporation may be

liable for violation of the VAWA, but can only act through its

4 employees or agents, the civil remedy under the VAWA must be

available against corporations through vicarious liability.

In interpreting the meaning of a statute, the court begins

with the words of the statute itself, taken in the proper

context, and usually does not look beyond the statutory language

if the meaning is clear. See Lopez-Soto v. Hawavek,

(1st Cir. 1999); Goncalves v. Reno,

(1st Cir. 1998), cert, denied, 119 S. C t . 1140 (1999). When the

statutory language applicable to the issue in guestion is

ambiguous, being susceptible to more than one reasonable

interpretation, the court looks further to understand Congress's

intent. See Valerio v. Putnam Assoc., Inc.,

(1st

Cir. 1999). Because statutory interpretation reguires "more than

the application of syntactic and semantic rules to isolated

sentences[,] [e]ven plain meaning can give way to another

interpretation if necessary to effectuate Congressional intent."

Cablevision of Boston v. Public Improvement Comm'n,

(1st Cir. 1999). For that reason, the court examines a

statute's apparent plain meaning in light of any "undisputed

legislative history as a guard against judicial error." Greebel

v. FTP Software, Inc.,

(1st Cir. Oct. 8,

1999).

The statutory provision in guestion provides:

5 A person (including a person who acts under color of any statute, ordinance, regulation, custom, or usage of any State) who commits a crime of violence motivated by gender and thus deprives another of the right declared in subsection (b) of this section shall be liable to the party injured, in an action for the recovery of compensatory and punitive damages, injunctive and declaratory relief, and such other relief as a court may deem appropriate.

§ 13981(c). To be liable, the corporation, as the "person"

within the meaning of the statute, must have committed a crime

motivated by gender.1 The guestion presented in this case is

whether a corporate employer may be liable under § 13981(c) for

gender-motivated crimes committed by its employee.

The statute is silent with respect to vicarious liability.

Reference to the statute's legislative history shows that the

VAWA civil rights remedy was modeled on 42 U.S.C.A. § 2000e-2

(Title VII) and

, 1983, and 1985(3). Congress

intended § 13981(c) to complement existing civil rights remedies

and noted that "current law provides a civil rights remedy for

gender crimes committed in the workplace, but not for crimes of

violence motivated by gender committed on the street or in the

home," H.R. Conf. Rep. No. 103-711, at 385 (1994), reprinted in

1994 U.S.C.C.A.N. 1839, 1853. Section 13981(c) was to apply

1Since the parties agree for purposes of this motion that a corporation is a "person" within the meaning of the statute, the court does not address that issue.

6 "primarily against individuals who have committed a crime of

violence motivated by gender." S. Rep. No. 103-138 (Sept. 10,

1993),

.

Title VII, which provides civil rights remedies against

public and private employers, does not provide for claims against

individuals. See Prever v. Dartmouth College,

(D.N.H. 1997). Instead, Title VII includes a limited form of

derivative liability, based on agency principles, for

supervisors' discriminatory conduct. See Burlington Indus. Inc.

v. Ellerth,

(1998); Faraaher v. Boca Raton,

(1998). Section 1981, which protects against racial

discrimination in contracting, and § 1985(3), which provides a

remedy against conspiracies to discriminate, have been

interpreted to include derivative liability at least as to the

actions of private entities. See, e.g., Scott v. Ross,

(9th Cir. 1998) (construing § 1985(3)); Fitzgerald v.

Mountain States Tel, and Tel. Co.,

(10th Cir.

1995) (construing § 1981).

Section 1983 provides a remedy against persons, individuals

and entities, who act "under color of state law" to deprive

another person of rights protected by the Constitution. Collins

v. Barker Heights,

(1992). The language of §

1983 has been interpreted to permit only direct liability claims.

7 See Monell v. New York City Dep't of Social Servs.,

(1978). In Monell, the Supreme Court noted the original

language of § 1983 that provided in pertinent part, " ' [A]ny

person who . . . shall subject, or cause to be subjected, . . .

any person to the deprivation of any rights, privileges or

immunities secured by the Constitution of the United States,

shall . . . be liable to the party injured . . ." Id. The

Supreme Court said, "that language cannot be easily read to

impose liability vicariously on governing bodies solely on the

basis of the existence of an employer-employee relationship with

a tortfeasor." Id. at 692. Instead, the specific provision for

liability based on causing a person to "subject another to a tort

suggests that Congress did not intend § 1983 liability to attach

where such causation was absent."2 Id.

Section 13981(c) imposes liability on "[a] person . . . who

commits a crime of violence motivated by gender." (Emphasis

added.) The language of § 13981(c) is even more direct than the

language in § 1983 that the Supreme Court concluded could not be

2The Supreme Court also considered a proposed amendment to § 1983 that would have made a municipality liable for civil rights violations if the municipality was at fault or knowingly neglected its duty to provide protection. Monell,

n.57. The Court found that because the amendment was interpreted as providing a form of vicarious liability and was defeated. Congress did not intend to impose vicarious liability on municipalities.

easily read to impose vicarious liability based on an employment

relationship. Based on the plain language of the statute, which

is also informed by the purpose of the statute and its

legislative history, a corporation is liable under § 13981(c)

when it commits a gender-motivated crime of violence. Liability,

therefore, must be determined under the standard applicable to

corporate criminal liability.

The scope of corporate criminal liability depends on the

statutory definitions in the particular jurisdiction in which the

crime is charged. The crime referenced in the statute is not

limited to a particular jurisdiction or to a specific criminal

offense but instead is broadly defined to mean:

an act or series of acts that would constitute a felony against the person or that would constitute a felony against property if the conduct presents a serious risk of physical injury to another, and that would come within the meaning of State or Federal offenses described in section 16 of Title 18, whether or not those acts have actually resulted in criminal charges, prosecution, or conviction and whether or not those acts were committed in the special maritime, territorial, or prison jurisdiction of the United States. . . .

(d)(2)(A). Therefore, no particular criminal

code controls a corporation's criminal liability actionable under

§ 13981 (c) .

In the context of corporate criminal liability for

conspiracy to defraud the United States under

, the First Circuit held:

A corporation may be convicted for the criminal acts of its agents, under a theory of respondeat superior. But criminal liability may be imposed on the corporation only where the agent is acting within the scope of employment. That, in turn, reguires that the agent be performing acts of the kind which he is authorized to perform, and those acts must be motivated - at least in part - by an intent to benefit the corporation.

United States v. Cincotta,

(1st Cir. 1982) .

While it is possible for a corporation to be convicted of an

offense involving personal violence, some acts, such as rape, are

likely to be so far ultra vires that they could not have been

performed for the benefit of the corporation. See William M.

Fletcher, 10 Cyclopedia of Law of Private Corporations §§ 4954,

4959, (rev. ed. 1993). The court in Grace v. Thomasson Nissan,

supra, cited the standard of corporate criminal liability in §

2.07 of the Model Penal Code and reported that at least twenty-

one states have adopted a version of the section. See id. at

*16-17 & n.10. Section 2.07 provides in pertinent part:

(1) A corporation may be convicted of the commission of an offense if:

(a) . . . the offense is defined by a statute other than the Code in which a legislative purpose to impose liability on corporations plainly appears and the conduct is performed by an agent of the corporation acting in behalf of the corporation within the scope of his office or employment, except that if the law defining the offense designates the agents for whose conduct the corporation is accountable or the circumstances under which it is accountable, such

10 provisions shall apply; or

(c) the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting in behalf of the corporation within the scope of his office or employment.

Based on the provisions of § 2.07, a corporation may be liable in

nearly half of the states for the crime of an agent if the

criminal statute imposes such liability or if the crime was

committed under the authority or reckless tolerance of a

corporate board or by a high managerial agent acting within the

scope of his employment.

In general, the scope of corporate criminal liability,

suggested by § 2.07 of the Model Penal Code and by Cincotta, is

similar to the liability of government entities under § 1983 as

described by the Supreme Court:

[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.

Monell,

. In addition, at least as to suits

against state actors, the legislative history of § 13981(c)

indicates that liability under § 13981(c) was to be no broader

than the scope of § 1983. See S. Rep. No. 103-138 (Sept. 10,

1993). The standard used in § 1983 cases to distinguish an

11 entity's own actions, accomplished through its employees or

agents, from the individual actions of its agents and employees,

provides useful guidance for an analysis of § 13981 (c) corporate

liability. While some general principles of corporate liability

are apparent, the standard will necessarily develop further as it

is applied in particular factual circumstances.

A corporation is not liable under § 13981(c) simply because

its employee or agent committed a gender-motivated violent crime.

See Monell,

. Instead, a plaintiff must show that

the corporation itself committed the crime through an agent or

employee who was performing authorized acts, within the scope of

his employment, and who was motivated at least in part to benefit

the corporation. See Cincotta,

; see also Silva

v. Worden,

(1st Cir. 1997) (defining municipal

liability through policy or custom that caused injury in the §

1983 context). Authorization is attributable to the defendant

corporation only if the act or course of conduct was approved or

the policy, custom, or practice leading to the act was

established by corporate "officials whose acts may fairly be said

to be those of the [corporation]." Board of County Comm'rs of

Bryan County v. Brown,

(1997). To

constitute corporate policy or action, the actor must have "final

authority to establish [corporate] policy with respect to the

12 action ordered." Pembaur v. Cincinnati,

(1986). If the final corporate authority responsible for

corporate policy is informed of circumstances, conduct, or

activity by its agents or employees that involve gender-motivated

violent crime and remains deliberately or recklessly indifferent

to the conseguences, failure to act may constitute corporate

authorization of subseguent crimes. See, e.g., Bryan County,

(discussing municipal liability based on deliberate

indifference in hiring); Barreto-Rivera v. Medina-Vargas,

(1st Cir. 1999) (discussing deliberate indifference

in § 1983 supervisory liability context).

In this case, the plaintiffs' claims against Genesis are

based entirely on allegations of sexual harassment and assault by

Andrew Oesch. While the plaintiffs allege that Oesch was

Genesis's agent and was acting within the scope of his

employment, the complaints include no allegations that Oesch's

harassment was done on behalf of Genesis or that Genesis

authorized his conduct in any way. The allegations, therefore,

are insufficient to state claims of direct corporate liability

under § 13981(c). Accordingly, the plaintiffs' claims against

Genesis in Count Four of each complaint must be dismissed.

In their objections, the plaintiffs ask to be permitted to

amend their complaints to add allegations of direct corporate

13 liability if their claims based on vicarious liability were

dismissed. Ordinarily, leave to amend is to be "freely given

when justice so requires." Fed. R. Civ. P. 15(a). However, the

plaintiffs' requests to amend, included within their objections,

are not properly presented for consideration. Under our local

rules, "[m]otions, other than those submitted during trial, shall

be considered only if submitted separately from other filings and

only if the word 'motion' appears in the title." LR 7.1(a) (2).

Therefore, the plaintiffs' requests to amend are denied without

prejudice to file, if appropriate, motions to amend their

complaints.

Conclusion

For the foregoing reasons, the defendants' motions to

dismiss the VAWA claims against Genesis, Count Four, in each

complaint (document no. 11 in 99-51-JD and document no. 13 in

50-JD)) are granted.

SO ORDERED.

Joseph A. DiClerico, Jr, District Judge

November 9, 1999 cc: Edward M. Van Dorn Jr., Esquire David A. Garfunkel, Esquire Gerard J. Boyle, Esquire

14