Horodyskyj v. Karanian

Opinion by Judge RULAND. Plaintiffs, Nestor Horodyskyj (employee) and his wife, Zoriana M. Morozewyeh-Horo-dyskyj, appeal from the summary judgment in favor of defendants, Richard Karanian (co-employee) and Argus Electric Service, Inc. (employer). Plaintiffs also appeal from the order awarding costs to these defendants. We affirm in part, reverse in part, and remand with directions. The employee worked as an apprentice electrician. The co-employee was his supervisor. The co-employee was also the owner and president of the employer. The employee alleged that, during his one year of employment, the co-employee subjected him to sexual harassment amounting to sexual assault and battery, intentional infliction of emotional distress, negligent infliction of mental distress, and invasion of privacy. Based on the theory that the employee was constructively discharged, plaintiffs also alleged a claim for violation of § 24-84-402, C.R.S.1999, which prohibits discriminatory or unfair employment practices. On behalf of the wife, the complaint alleged claims for loss of consortium based upon the injuries allegedly suffered by the employee. In addition, the claims asserted against the co-employee by both plaintiffs were also asserted against the employer based upon the doctrine of respondeat superior. As pertinent here, the trial court concluded that the claim for constructive discharge under the Anti-Discrimination Act should be dismissed based upon its finding that the employee's status was "at-will." The court then concluded that the provisions of the Workers' Compensation Act, § 8-40-101, et seq., C.R.S.1999, barred plaintiffs' other claims. Judgment in favor of defendants was therefore granted on the wife's claim for loss of consortium. Defendants were awarded costs in the amount of $6544.65. I. We first address and reject plaintiffs' contention that the affirmative defenses based upon the Workers' Compensation Act and the derivative defense based upon co-employee immunity were waived because such were not pleaded in defendants' answer. We agree that both legal theories constitute affirmative defenses. See Popovich v. Irlando, 811 P.2d 879 (Colo.1991)(co-employee immunity); Bigby v. Big 3 Supply Co., 937 P.2d 794 (Colo.App.1996)(exelusivity of the Act). Further, under C.R.C.P. 8(c), an affirmative defense may be deemed waived if it is not included in the answer. However, if an affirmative defense is asserted in a motion for summary judgment and responded to without objection, it is deemed incorporated into the answer. Trujillo v. Farmers Insurance Exchange, 862 P.2d 962 (Colo.App.1993). Here, in their motion for summary judgment, defendants asserted a defense based upon the Workers' Compensation Act to the sexual assault and battery claim. The parties argued the issue as if the defense had been raised against all of the tort claims. In addition, while the doctrine of co-employee immunity was not referenced by name in the summary judgment submissions, this doctrine was obviously relied upon by the trial court in its ruling. Under these circumstances, we view the issues as appropriate for review by this court. [335] IL. Plaintiffs contend that the trial court erred in ruling that the employee was barred from pursuing his tort claims against the employer and the co-employee because the Workers' Compensation Act (Act) provides the exclusive remedy. We agree as to the claims against the co-employee only. A. For injuries arising out of and in the course of employment, an employee surrenders any right to claim damages from the employer except for the remedies granted by the Workers' Compensation Act. Section 8-41-104, C.R.S.1999;, see also § 841-102, C.R.S.1999. The Act represents & legislative decision to establish exclusive remedies for injuries that are covered by that legislation. Colorado Compensation Insurance Authority v. Baker, 955 P.2d 86 (Colo.App.1998). A ruling that bars an employee's civil action in tort against an employer may seem to produce an unfair result in some circumstances. However, such a suit is barred only to the extent the employee is entitled to benefits under the Act, without regard to fault. The supreme court has described the purpose of the Act in providing benefits without regard to fault as "highly remedial and beneficent." In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 26 (Colo.1988). A determination whether the injury "arose out of" and "in the course of" the plaintiffs' employment requires resolution of separate issues. Popovich v. Irlando, supra. The two terms are not necessarily synonymous. In re Question, supra. Here, it is undisputed that the intrusive physical touching and offensive comments attributed to the co-employee occurred "in the course of" the employment. The more difficult issue was whether the acts "arose out of" that employment. An injury "arises out of" employment when there is a causal connection between the work conditions and the injury. To determine if the causal connection is sufficient, we must apply the "positional-risk," or "but for" test. See In re Question, supra. In applying the positional-risk test, the supreme court has divided willful assaults by co-employees into three categories: (1) those assaults that have some inherent connection with the employment, such as those resulting from a dispute about job duties or performance; (2) those assaults that are inherently private, such as those resulting from the claimant's domestic or private life that are imported into the workplace; and (8) those assaults that are neither, and may therefore be described as "neutral." See In re Question, supra. The court has used the same three categories in analyzing a claim of intentional infliction of emotional distress resulting from sexual harassment by a co-employee. See Popovich v. Irlando, supra. The supreme court in In re Question, supra, recognized that a willful assault on an employee by a co-worker falls in the first category to the extent a dispute arises out of enforced contacts which result from the duties of the job. Such assaults therefore arise out of the employment. Of importance here, the court further determined that a dispute may be deemed to arise out of the employment relationship, even if the dispute does not center upon work-related issues or otherwise have an inherent connection with employment. See In re Question, supra (fn. 8). The resulting injuries are compensable under the Act because the work brought the employees together and created the relation and conditions resulting in the dispute See also Moorhead Machinery & Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App.1996). Having analyzed the three categories of conduct, the supreme court in In re Question reached the following conclusion in regard to claims by employees against employers for assaults by co-employees: Under the 'butfor test, assaults by coworkers are compensable as long as they are not motivated by personal vengeance stemming from contact with the employee outside of the employment. In re Question, supra, 759 P.2d at 24. Thus, the employee who had been raped by a co336 employee was barred from bringing a tort action against her employer because the injury was compensable under the Act. Here, it is undisputed that it was because of the employment that the employee was subjected to the co-employee's alleged behavior. There was no indication that the employee and the co-employee even knew each other prior to employment. There was no allegation that the acts occurred outside the employment relationship or resulted from any contacts outside the employment relationship. Thus, because the sexual harassment did not fall in the second category of inherently private conduct, we perceive no error in the entry of summary judgment as to the employer. See In re Question, supra. To the extent that Ferris v. Bakery, Confectionery & Tobacco Union, 867 P.2d 38 (Colo.App.1993) and Stamper v. Hiteshew, 797 P.2d 784 (Colo.App.1990) are inconsistent with that conclusion, we decline to follow these decisions. In Ferris, a division of this court concluded that a tort claim for outrageous conduct could be maintained against an employer for sexual harassment by other employees because the claimant was a specific target of the conduct. However, as we read Im re Question, workers' compensation is the exclusive remedy against the employer for this type of conduct because work brought the employees together and created the conditions resulting in the inappropriate behavior. In Stamper, another division of this court determined that an intentional tort claim for sexual harassment could be maintained against a co-worker who also owned the business as a sole proprietorship. The division determined that this type of conduct was not properly characterized as a "neutral force" and, thus, did not arise out of the employment. To the extent that the validity of the claim was based upon the defendant's status as a co-worker, we agree with the result for reasons stated in Part II.B. of this opinion. To the extent, however, that the opinion may be read as holding that workers' compensation was not the exclusive remedy against the employer in the employment context, we disagree with the opinion. B. Under certain circumstances, the conduct of a co-employee also is protected by immunity. Kandt v. Evans, 645 P.2d 1300 (Colo.1982). However, we agree with plaintiffs that the trial court erred here in dismissing their tort claims against the co-employee based upon the doctrine. In Popovich v. Irlando, supra, 811 P.2d at 384, our supreme court stated: If the tortious conduct originates in matters personal to the tortfeasor ... then the tortious conduct does not arise out of employment and thus is not immunized ... by reason of the co-employee immunity rule, even though the injury to the victim . occurs within the seope of the victim's employment. Here, the allegations in the amended complaint satisfy the Popovich requirements and the factual disputes relative to those allegations may not be resolved via the summary judgment process. Hence, plaintiffs are entitled to proceed to trial on the tort claims against the co-employee. See Patel v. Thomas, 793 P.2d 632 (Colo.App.1990)(allegations of plaintiffs' complaint against the co-employee for various forms of on-the-job sexual harassment raised sufficient factual issues as to private nature of elements of relationship to preclude dismissal of complaint under exelusivity provisions of Act). IIL Plaintiffs contend next that the wife's claim for loss of consortium was erroneously dismissed. We agree only as to the co-employee. Because the wife's claim is derivative of the employee's claims, and because the employee's claims against the employer are barred by the exclusivity provision of the Act, the loss of consortium claim was also subject to summary judgment. See Pizza Hut of America, Inc. v. Keefe, 900 P.2d 97 (Colo.1995). Dismissal of the claim as against the co-employee was error for the reasons noted in Part ILB. of this opinion. [337] IV. As to the claim for discriminatory employment practices under the Anti-Discrimination Act, plaintiffs assert that the trial court's dismissal of this claim was also error. We disagree. The Anti-Discrimination Act provides that it is a discriminatory employment practice to "discharge" any person because of "sex." Section 24-834-402(1)(a), C.R.8.1999. This provision encompasses sexual harassment claims. Ferris v. Bakery, Confectionery & Tobacco Union, supra. However, the Anti-Discrimination Act does not provide a remedy to an employee for discriminatory conduct that does not result in an employment-related decision affecting the employee's pay, status, or tenure. Therefore, if an employee is subjected to verbal or physical abuse in the workplace on the basis of gender, but is not hired, fired, promoted, demoted, or compensated on that basis, the Anti-Discrimination Act provides no recourse. Brooke v. Restaurant Services, Inc., 906 P.2d 66 (Colo.1995). Here, plaintiffs assert that their allegations of constructive discharge due to a hostile environment are sufficient to support a claim under the Anti-Discrimination Act, even though the employee was not actually discharged. However, Brooke v. Restaurant Services, Inc., supra, specifically holds to the contrary. Further, even if we assume that a form of constructive discharge may suffice under the rule adopted in Colorado Civil Rights Commission v. State ex rel. School District No. 1, 30 Colo.App. 10, 488 P.2d 83 (1971), that rule does not apply here. It is undisputed that the employee quit because of the co-employee's conduct and that the co-employee did not act in a manner to cause "a prudent person to believe that his tenure had been terminated." Colorado Civil Rights Commission v. State ex rel. School District No. 1, supra, 30 Colo.App. at 16, 488 P.2d at 86. By reason of our resolution of this issue, it is unnecessary to address the parties' contentions relative to whether the Act applies to same-sex harassment. V. Because we have reversed the judgment of dismissal as to the co-employee, the award of costs may not stand. See Rossman v. Seasons at Tiara Rado Associates, 943 P.2d 34 (Colo.App.1996)(if underlying judgment is reversed, award of costs must be vacated). Thus, we need not consider this issue further. The judgment dismissing plaintiffs' tort claims against the co-employee is reversed, as is the award of costs, and the cause is remanded for further proceedings consistent with the views expressed in this opinion. That part of the judgment dismissing plaintiffs' other claims is affirmed. Judge KAPELKE concurs. Judge BRIGGS specially concurs.