Opinion
No. 2:01 cv 574
June 12, 2002
ORDER
Two motions are presently pending in the district court. Harrah's Entertainment, Inc. ("HEI") filed a summary judgment motion on November 13, 2001, and a related "Motion to Strike Affidavit, Statement of Facts and Response of Plaintiff" on March 15, 2002. For the reasons set forth below, the court GRANTS the summary judgment motion; the motion to strike is DENIED AS MOOT.
(See Dkt. Entry #5.)
(See Dkt. Entry # 30.)
I. BACKGROUND
On Sunday May 7, 2000, Bishop and some of her co-workers staffed an event called the Taste of Northwest Indiana. (See Compl. at ¶ 8.) The shindig took place in the parking lot of the Radisson Star Plaza in Merrillville, Indiana. (See id.) It was conceived as part of an effort to promote the Harrah's Casino located in nearby East Chicago, Indiana. At the time, Bishop was working as a bartender at the casino. (See id.) At some point during that afternoon, Vogelmeier and Underwood apparently made sexual advances which Bishop spurned. (See id. at ¶¶ 15-16.) Vogelmeier and Underwood apparently persisted, and Bishop alleges they sexually assaulted her.
As a result, Bishop initiated administrative proceedings culminating in the issuance of a Notice of Right to Sue, dated July 20, 2001. (See id. at Ex. A.) Bishop then commenced this action, by filing her complaint on October 17, 2001, in which she interposed five causes-of-action. Count I alleges that HEI's "failure to take prompt and appropriate action" amounts to a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Id. at ¶ 37.) Count II alleges Vogelmeier and Underwood assaulted Bishop; Count III charges them with civil battery; Count IV claims they falsely imprisoned her; and Count V pleads the tort of intentional infliction of emotional distress. On Counts II through V (both inclusive), Bishop pursues vicarious liability against HEI. This court can exercise federal question jurisdiction over the Title VII claim, see 28 U.S.C. § 1331; and supplemental jurisdiction over the tort claims, see 28 U.S.C. § 1367.
II. LEGAL STANDARD
The adjudicatory standard is familiar. Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). In disposing of a summary judgment motion, the district court generally draws from the facts all reasonable inferences in favor of the non-moving party. See Schroeder v. Hamilton School District, et al., 282 F.2d 946, 949 (7th Cir. Mar. 11, 2002). "The primary purpose of summary judgment is to dispose of claims that have no factual support, and therefore, the nonmovant must respond with affidavits or otherwise, "setting forth specific facts showing that there is a genuine issue for trial.'" Vukadinovich v. Bd. of School Ttees of N. Newton, 278 F.3d 693, 699 (7th Cir. 2002) (quoting FED.R.CIV.P. 56(e)); accord Albiero v. City of Kankakee, 246 F.3d 927, 928 (7th Cir. 2001). It is insufficient to hypothesize about a factual dispute. See Kuchenruether v. City of Milwaukee, 221 F.3d 967, 973 (7th Cir. 2000). Rather, the nonmovant must offer "definite, competent evidence to rebut the motion." EEOC v. Sears, Roebuck Co., 233 F.3d 432, 437 (7th Cir. 2000). Finally, in this District, the parties must organize the facts in a manner consistent with the governing local rule. See N.D.Ind. L.R 56.1.
III. DISCUSSION
HEI seeks summary judgment on all five counts. With regard to the Title VII claim, HEI argues it was not Bishop's employer during the relevant time period. In the alternative, HEI contends by failing to name HEI in the charge of discrimination she lodged with the Equal Employment Opportunity Commission ("EEOC"), Bishop did not exhaust the administrative remedies that act as a necessary precondition to a law suit in federal district court. With regard to the common law tort claims (Counts II through V), HEI argues it is not vicariously liable because it did not employ Vogelmeier and Underwood during the time period at issue in this action. Alternatively, HEI maintains even if Vogelmeier and Underwood were its employees, the alleged unwanted sexual advances (and subsequent sexual assault) were beyond the scope of the employment arrangement and therefore HEI is not vicariously liable.
A. Title VII Claim
HEI seeks summary judgment on Bishop's Title VII claim arguing that HEI never employed Bishop. In the alternative, HEI contends that Bishop did not exhaust the applicable administrative remedies with respect to HEI. The court finds summary judgment is appropriate on both grounds.
Title VII proscribes employment discrimination and provides a remedy for victimized employees. Claims under Title VII must be brought against the person or entity who was the employer at the time of the allegedly discriminatory event(s). See Musikiwamba v. ESSI, Inc., 760 F.2d 740, 748 (7th Cir. 1985) ("Title VII was enacted to regulate the employer/employee relationship with regard to discrimination in employment."). Thus, a person or entity is not liable under Title VII unless they employed the plaintiff during the pertinent time period.
HEI asserts it never employed Bishop and can not be held liable, as a matter of law, under Title VII. According to HEI, another entity, Showboat Marina Casino Partnership, d/b/a "Harrah's East Chicago Casino," was Bishop's employer during the time period relevant in this litigation. In support of its position, HEI has produced the affidavit of Joseph A. Domenico. (See Def. Mem. at Ex. A ("Domenico Aff.").)
The court will hereafter refer to this entity as "Showboat Partnership."
Domenico is competent to provide testimony on the issue of whether Bishop was employed by Showboat Partnership. He avers that he has "personal knowledge of the facts" contained in the Affidavit. (Id. at ¶ 1) More importantly, he is currently the Senior Vice President and General Manager of Showboat Partnership. (See id. at ¶ 2.) Showboat Partnership operates the Harrah's Casino located in East Chicago, Indiana. Toward that end, Showboat Partnership employs the requisite casino personnel, including bartenders. (See id. at ¶ 5 ("Ms. Bishop . . . w[as], in fact, employed only by Showboat [Partnership].").)
In opposition, Bishop contends "HEI is a proper party to the lawsuit as it is the employer." (Pl. Mem. at 2.) In an attempt to create a triable issue of fact, Bishop produces her own affidavit stating "I am currently employed by [HEI] and . . . I work as a bartender in the casino operated by [HEI]." (Pl. Mem. at Ex. A ("Bishop Aff."), ¶ 2.) The court notes that Bishop's current employment is not relevant here; the only question before the court is whether HEI (or Showboat Partnership) employed Bishop on the date of the unwanted sexual advances. Nevertheless, the court will assume that Bishop believes that HEI was her employer on the date of the incident that gave rise to this action. Bishop's affidavit alone is insufficient to overcome a summary judgment motion. See Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002) ("It is well settled that conclusory allegations and self-serving affidavits, without support in the record, do not create a triable issue of fact."). To get around this problem, Bishop has attached four other exhibits.
First, Bishop offers a document entitled "Direct Deposit Advice." (See Pl. Mem. at Ex. B.) It is seemingly a payroll receipt for direct deposit, apparently issued by an entity called "Harrah[']s Operating Company, Inc." Is this document even relevant? Perhaps not, because no date appears on it. Thus the court can only hazard a guess as to whether the receipt relates to a pay period including May 7, 2000, in which case the exhibit would have relevance. If the document relates to another pay period its relevance is suspect. Even if the court assumes it is relevant, its probative value weighs in favor of HEI. HEI is primarily proceeding under the theory that it was not Bishop's employer during the time period in question. The fact that a payroll receipt has printed upon it the name of an entity ("Harrah[']s Operating Company, Inc.") distinct from HEI, makes it more likely that a business entity other than HEI was Bishop's employer on May 7, 2000.
As a corollary, HEI posits that Showboat Partnership employed Bishop on May 7, 2000. In effect, it is not material whether Showboat Partnership, Harrah's Operating Company, or some other entity was Bishop's employer on the date in question. All that really matters for this summary judgment motion is whether HEI was her employer.
Next, Bishop produces a photocopy of the front-side of her identification badge for the year ending March 3, 2000. (See id. at Ex. C.) Printed on the badge are Bishop's photo, name ("Paula"), job title ("Bartender"), the validation dates, and the name "Harrah's East Chicago Casino." (Id.) "Harrah's East Chicago Casino" is the name under which Showboat Partnership was doing business at the time of the incident that gave rise to this litigation; the badge makes no reference to HEI. Thus, the identification badge, like the payroll receipt, lends no corroborative support to Bishop's assertion that HEI was her employer on May 7, 2000.
Bishop has also annexed selections from her Employee Handbook. (See id. at Ex. D ("Employee Handbook").) Page one announces the title of the document as "Harrah's East Chicago Casino: Employee Handbook." A footnote on that page refers to HEI; the court reprints here (pointing out that in the Employee Handbook, it appears in extremely small type, four-point or five-point):
The following trademarks used in this handbook are owned by [HEI]: Harrah's The Better People Place Bill's The Better People Copyright 1998, [HEI] (Employee Handbook at 1.) The title substantially supports HEI's position that Showboat Partnership was Bishop's employer. Bishop was issued a "Harrah's East Chicago Casino" handbook, which leads the court to conclude "Harrah's East Chicago Casino," which is merely a stage name for Showboat Partnership, was Bishop's employer at the time the handbook was issued. As for the above-quoted footnote, it is equally unavailing. First, the printed-type borders on minuscule. Thus, no reader could ever conclude it was meant to convey the identity of the entity issuing the handbook. Second, the footnote merely alerts the reader to the fact that certain graphics contained in the handbook are intangible property belonging to HEI. If the cover of a hospital's employee handbook has the words "What's Up Doc?," does that make Warner Brothers the employer of all persons to whom the handbook is issued? The question of what entity issued the handbook is distinct from the owner of the intellectual property used in the document. Page one, therefore, does not corroborate Bishop's affidavit. Bishop also draws the court's attention to page four, a note from Joe Domenico, which opens with the sentence, "I would like to personally welcome you to the family of Harrah's employees," and closes with "I'm glad you're on the Harrah's team!" At first glance, the word "Harrah's" gives pause to a reader familiar with the labyrinth currently confronting the court: it could stand for the "H" in HEI; or "Harrah's East Chicago Casino." The context, however, is revealing. The page is a "personal welcome" from Joe Domenico. Domenico, you may remember, is the Vice President and General Manager of Showboat Partnership, and it is uncontroverted that he "ha[s] never been employed by [HEI]." (Domenico Aff. at ¶ 2.) In his note, therefore, Domenico was laying down the welcome mat on behalf of Showboat Partnership. Last, Bishop points to page five of the handbook, entitled "Harrah's Entertainment, Inc." and contains the following statement:
Harrah's Entertainment, Inc. is the world's premier casino gaming company serving guests in all major U.S. gaming markets. Harrah's Entertainment, Inc. is a leader in the gaming industry because of our commitment to providing the very best service to our guests-guaranteed.
(Employee Handbook at 5.) That is certainly confusing. An employee handbook, issued by Showboat Partnership includes a naked reference to HEI. In the interest of clarity, the handbook should perhaps mention that HEI is a corporation affiliated with "Harrah's East Chicago Casino," but is not the employer of the employees receiving the handbook. Confusion aside, the overwhelming evidence to the contrary makes immaterial these isolated references to HEI, especially in light of Bishop's final attachment.
As her final exhibit, Bishop offers copies of her Form W-2 for the year 2000. In the space reserved for "Employer's name, address, and ZIP code," the following appears:
HARRAH'S EAST CHICAGO CASINO PAYROLL DEPT. ONE SHOWBOAT PLACE EAST CHICAGO IN 46312 (Id. at Ex. E.) This document is perhaps the one piece of evidence most clearly militating in favor of a finding that HEI was not Bishop's employer on May 7, 2000. The name of the employer is unambiguous: "Harrah's East Chicago Casino." As the court previously mentioned, see supra text accompanying note 3, "Harrah's East Chicago Casino" is merely a nom de guerre for Showboat Partnership.In her affidavit, Bishop states HEI was her employer on the date of the incident that gave rise to this action. Under the law of this Circuit, such an averment is insufficient to create the necessary triable issue of fact to survive summary judgment. See Patterson v. Chicago Ass'n for Retarded Citizens, 150 F.3d 719, 724 (7th Cir. 1998). Rather, the nonmoving party must corroborate the allegation with "support in the record." Hall v. Bodine Elec. Co., 276 F.3d 345, 354 (7th Cir. 2002). Bishop has produced nothing to suggest this court should deny summary judgment on this issue. Her only valuable piece of evidence, a few sentences in a twenty-five page employee handbook, gets engulfed by the evidence to the contrary. Thus, summary judgment in favor of HEI is appropriate on this issue.
As part of its motion, HEI also contends summary judgment is proper on the ground Bishop failed to exhaust administrative remedies against it. HEI asserts that Bishop lodged her charge of discrimination against "Harrah's Casino." According to HEI, Bishop was, in fact, lodging a discrimination against Showboat Partnership, not HEI. Since HEI was never mentioned in an EEOC charge, it believes this failure warrants judgment as a matter of law. Even though summary judgment is proper on the ground HEI did not employ Bishop during the relevant time period, the court, in the interest of thoroughness, will address the exhaustion of administrative remedies issue.
A person seeking the benefit of Title VII must satisfy all preconditions before filing suit. Strict adherence is necessary. See National R. Psgr. Corp. v. Morgan, No. 00-1614, slip op. at 5 (U.S. June 10, 2002) (" [S]trict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of justice."). This includes naming a party in a Charge of Discrimination before interposing a claim against them in federal district court. "Ordinarily, a party not named in an EEOC charge may not be sued under Title VII." Schellbaecher v. Baskin Clothing Co., 887 F.2d 124, 126 (7th Cir. 1989) (citing 42 U.S.C. § 2000e-5); Nolen v. South Bend Public Transp. Corp., 99 F. Supp.2d 953, 958 (N.D.Ind. 2000). The case law, however, recognizes an exception, where "an unnamed party has been provided with adequate notice of the charge, under circumstances where the party has been given the opportunity to participate in conciliation proceedings aimed at voluntary compliance." Schnellbaecher, 887 F.2d at 126-27; Eggleston v. Chicago Journeymen Plumbers' Local Union No. 130, 657 F.2d 890, 905 (7th Cir. 1981), cert. denied 455 U.S. 1017 (1982). This exception endeavors to estop a defendant in federal court from arguing the failure to exhaust administrative remedies where the defendant was apprised of the allegation(s) against it, and EEOC was afforded an opportunity to exercise its statutory power to conciliate. See Schnellbaecher, 887 F.2d at 126 (explaining "twofold" purpose for complying with the exhaustion requirement).
Bishop lodged a charge of discrimination against "Harrah's Casino," the nom de guerre of Showboat Partnership. Although Bishop does not overtly concede that "Harrah's Casino" and HEI are two separate entities (and therefore a charge of discrimination against one does not reel in the other), it is abundantly clear the two are distinct, notwithstanding Bishop's response which hopelessly blurs them. (Accord Def. Reply at fn.1.) What is more, nowhere does she suggest HEI or Showboat Partnership abused the limited liability form. Accord Abbott Labs v. CVS Pharmacy, Inc., et al., Nos. 01-4049 01-4050, slip op. at 6 (7th Cir. May 15, 2002) ("Unless it is possible to collapse the legal identities of the parties — and Abbott does not contend that the requirements for `piercing the corporate veil' and treating all CVS entities as a single person have been satisfied — each litigant is entitled to separate handling."). Bishop, therefore, by naming "Harrah's Casino" in her EEOC Charge of Discrimination exhausted administrative remedies against Showboat Partnership only, not HEI.
Bishop attempts to avoid summary judgment by invoking the aforementioned exception. In support of her position, Bishop offers two documents. (See Pl. Resp. at 5.) They are letters from Bishop's counsel, addressed to Domenico. (See id. at Exs. A B.) Bishop points to these letters to show "HEI . . . had ample notice of Ms. Bishop's charges pending before the EEOC." (Pl. Resp. at 5) The undisputed facts in the record render Bishop's argument incurably defective. Domenico stated in his affidavit that he "ha[s] never been employed by [HEI]." (Domenico Aff. at ¶ 2.) Domenico's assertion is unchallenged, leaving the court with no alternative but to accept it as fact. See N.D.Ind.L.R 56.1(b) ("In determining the motion for summary judgment, the court will assume that the facts as claimed and supported by admissible evidence by the moving party are admitted to exist without controversy, except to the extent that such facts are controverted in the "Statement of Genuine Issues.'"). By mailing the two letters to Domenico, Bishop provided HEI with nothing.
Although Bishop neglects to specifically reference it, her strongest piece of evidence may be the eight-page letter (plus various attachments) tendered to EEOC in response to her Charge of Discrimination. (See Def. Reply at Ex. 1.) This correspondence was signed by Gerald A. Einsohn, who revealed himself to be "Associate General Counsel/Counsel for the Employer." (Id. at p. 8.) Curiously enough, the letter was printed upon letterhead featuring the name Harrah's Entertainment, Inc. prominently centered on the front page. In the upper left corner of the first page appears the following pre-printed moniker: "Gerald A. Einsohn Associate General Counsel." (Id. at p. 1.) It is true Einsohn's letter is very misleading. First, he tendered a response on HEI letterhead, with his name printed centimeters from the HEI logo. This alone would suggest Einsohn was acting in his capacity as an agent of HEI. Second, he augmented this misconception by referring to the "Employer" throughout his letter. Even though he frequently used this capitalized word (suggesting it conveyed a defined meaning), he never explicitly defined "Employer." If he had done so, this court could have saved considerable time (and ink). Bishop's subsequent actions indicate her reliance upon Einsohn's letter. Bishop, up to that point, was proceeding against Showboat Partnership; HEI agrees. (See id. at p. 1 (referencing "Paula Bishop v. Showboat Marina Casino Partnership").) Then, Einsohn released his letter, and suddenly Bishop charted a new course, naming HEI and not Showboat Partnership in her complaint. In fairness to Einsohn, he did indicate "the proper legal entity, as cited above, is still Showboat Marina Casino Partnership." (Id.) Yet, even assuming Einsohn's letter was confusing, governing case law indicates summary judgment in HEI's favor is appropriate.
But see Ware v. Harrah's Entertainment, Inc., No. 2:00 CV 503, Order of Apr. 15, 2002, at n. 7. In Ware, this same court concluded "the [Einsohn's EEOC response] letter create[d] no conflict in the evidence regarding the identity of Ware's employer." Id. Slightly different language in each letter produced different conclusions.
In Schnellbaecher v. Baskin Clothing Co., two employees filed EEOC charges of discrimination against Baskin. The charges did not name HSSI, Baskin's parent corporation. 887 F.2d at 125. HSSI determined Baskin's personnel policies, both entities had the same attorneys, "and thus HSSI had notice of the charges against Baskin." Id. EEOC subsequently issued Right To Sue letter, and the plaintiffs filed Title VII claims in federal court against both HSSI and Baskin. See id. at 126. HSSI sought judgment as a matter of law, the district court obliged, and the Court of Appeals affirmed. See id. at 126-27. Judge Kanne explained dismissal of HSSI was proper because "[a]lthough HSSI had notice of the charges against Basking, it did not thereby have any notice of the charges against it, nor did it have any opportunity to conciliate on its own behalf." Id. at 127 (emphasis in original) (citations omitted). Bishop's case is strikingly similar. HEI and Showboat Partnership share ownership commonalities (the specifics of which the record does not reveal). (Accord Domenico Aff. at ¶ 2 (" [HEI] is a business corporation affiliated with, but separate and distinct from Showboat [Partnership].").) At the time of his letter, Einsohn was apparently a lawyer for both entities, and although he may have been acting only as an agent of Showboat Partnership, his letter provided HEI with constructive notice of the EEOC charge lodged against Showboat Partnership. Most importantly, like Schnellbaecher, nothing in the record suggests HEI and EEOC had notice of Bishop's discrimination claim against HEI. In fact, Einsohn admitted just the opposite when he placed "Paula Bishop v. Showboat Marino Casino Partnership" in the heading of his letter. With Schnellbaecher controlling, HEI deserves summary judgment on this issue.
Bishop also sought to survive summary judgment on a "joint employer" theory. (See Pl. Resp. at 5-6.) Since her argument lacks legal support, the court will disregard it.
B. Intentional Tort Claims
HEI also seeks summary judgment on Counts II through V (both inclusive) of Bishop's complaint. Counts II through V charge Vogelmeier and Underwood with various intentional torts. Bishop looks to hold HEI liable for these alleged transgressions under a respondeat superior theory. HEI posits summary judgment in its favor because Vogelmeier and Underwood were not HEI employees during the relevant time period, and even if they were, the alleged unwanted sexual advances (and ensuing sexual assault) were not within the scope of employment.1. Employment Issue
In support of its position that Volgelmeier and Underwood were not employees of HEI during the relevant time period, HEI offers Domenico's Affidavit. He swears that at no time did HEI employ Vogelmeier or Underwood. (See Domenico Aff. at ¶ 6.) Immediately bubbling to the surface is the question of whether Domenico is competent to make such a statement. In this same Affidavit, Domenico claims he is the Senior Vice President and General Manager of Showboat Partnership, and "ha[s] never been employed by [HEI]." (Id. at ¶ 2.) If Domenico has not worked a single day for HEI, he has no personal knowledge of whether or not Vogelmeier and Underwood ever worked for HEI. Without personal knowledge, Domenico's Affidavit is worthless on this issue. Secondly, even if the averments in the Affidavit relating to Vogelmeier's and Underwood's employment relationship (or lack thereof) with HEI were made upon Domencio's personal knowledge, the law governing summary judgment in this Circuit, see, e.g., Hall, 276 F.3d at 354, requires corroboration. HEI has produced none. Since Domenico's Affidavit is the only sliver of evidence offered in support of its position, and the court is unable to credit it, summary judgment is not appropriate on this issue.
2. Respondeat Superior Issue
All agree Indiana law governs. Under Indiana law, "respondeat superior imposes liability, where none would otherwise exist, on an employer for the wrongful acts of his employee which are committed within the scope of employment." Stropes v. Heritage House Childrens Ctr., 547 N.E.2d 244, 247 (Ind. 1989); accord Sword v. NKC Hosps., Inc., 714 N.E.2d 142, 148 (Ind. 1999). The employer, or to use the common law phraseology, master, is not vicariously liable for tortious acts undertaken on the employee's, or servant's, own initiative. See City of Crawfordsville v. Michael, 479 N.E.2d 102, 104 (Ind.Ct.App. 1985). "However, an employee's wrongful act may still fall within the scope of his employment if his purpose was, to an appreciable extent, to further his employer's business, even if the act was predominantly motivated by an intention to benefit the employee himself." Stropes, 547 N.E.2d at 247; accord Gomez v. Adams, 462 N.E.2d 212, 223 (Ind.Ct.App. 1984).
Under Indiana law, when a trial court is faced with an issue of respondeat superior, summary judgment is difficult, although not impossible. If a sufficient nexus exists between acts authorized by the employment relationship, and unauthorized acts, then the unauthorized acts may subject the employer to liability. See Konkle v. Henson, 672 N.E.2d 450, 457 (Ind.Ct.App. 1996). "If some of the employee's actions were authorized, the question of whether the unauthorized acts were within the scope of employment is one for the jury." Id. "However, if none of the employee's acts were authorized, there is no respondeat superior liability and summary judgment is proper." Id.; accord Gomez, 462 N.E.2d at 224-25.
In Stropes, the Supreme Court of Indiana concluded summary judgment in favor of the employer was inappropriate. Stropes, a minor, was a patient at the Heritage House, which employed Robert Griffin as a nurse's aide. 547 N.E.2d at 245. Griffin's job responsibilities included feeding and bathing patients, as well as changing their bedding and clothing. On one occasion, Griffin entered Stropes' room, began changing the bed sheets, undressed him, and proceeded to molest him. See id. Stropes sought recovery against Heritage House on a respondeat superior theory. The Supreme Court of Indiana determined "Heritage's employee committed some acts unquestionably within the scope of his employment." Id. at 249. Griffin began the episode by performing a fully authorized act, stripping the sheets from Stropes' bed. See id. He was similarly authorized to undress Stropes and touch his genitals and other parts of his body when bathing him and changing his clothes. See id. As a result, the Court held the tortious acts were sufficiently related to the authorized acts, such that a jury should decide the respondeat superior issue.
In Konkle, the plaintiff was molested for a period of eight years by her minister. 672 N.E.2d at 453. In addition to her suit against the minister, she brought claims against the church, the local district of United Pentacostal Churches, and the international federation of Pentacostal Churches. Against the latter three, Konkle sought recovery under various theories, respondeat superior the important one for present purposes. These three defendants moved for summary judgment on the respondeat superior claim, asserting "that the acts committed by Henson were outside the scope of his employment." Id. at 456. Summary judgment was granted. In affirming, the Indiana Court of Appeals noted that "the acts of molestation perpetrated by Henson were not acts authorized by the Pentecostal Church." Id. at 457. Moreover, "[t]he unauthorized acts committed by Henson are not similar to his duties as a minister. Henson may have had access to Konkle because of his position as pastor, but he was not engaging in authorized acts or serving the interests of his employer at the time he molested Konkle." Id.
As the previous discussion illustrates
sexual assault is not per se determinative of the scope of employment question. A blanket rule holding all sexual attacks outside the scope of employment as a matter of law because they satisfy the perpetrators' personal desires would draw an unprincipled distinction between such assaults and other types of crimes which employees may commit in response to other personal motivations, such as anger or financial pressures.
Stropes, 547 N.E.2d at 249. With these principles in mind, it is clear summary judgment is appropriate in HEI's favor.
At the time of the incident, Vogelmeier, and Underwood were casino workers. In particular, Vogelmeier was employed as a Food Beverage Director; Food Beverage Supervisor was Underwood's title. (See Def. Reply at Ex. 1, p. 4.) Since the parties have not provided job descriptions for Vogelmeier and Underwood, the court will assume their responsibilities dovetailed with their titles. They were responsible for buying food and beverages; keeping adequate supplies for hungry and thirsty gamblers; training food service workers and bartenders; quality control; and customer satisfaction. The only organic objects a "Food Beverage Director" and a "Food Beverage Supervisor" should touch are fruits, vegetables, dairy products, and meat, not human beings. Unlike the hospital worker in Stropes, Vogelmeier and Underwood were not authorized to make contact with any human being for any reason. By Bishop's own account, on the day in question, May 7, 2000, Bishop, Vogelmeier, and Underwood were present in Merrillville to "serve food and beverages at the event in an effort to promote the company." (Compl. at ¶ 8.) In the continuum of Indiana decisions involving respondeat superior in the context of a sexual assault, this case is most analogous to Konkle, where the court ruled summary judgment was proper. Similarly, this court holds today that HEI is entitled to summary judgment.
IV. CONCLUSION
No employment relationship existed between Bishop and HEI during the period of time relevant to this action. Moreover, Bishop failed to exhaust the administrative requirements that act as a necessary precondition to filing a lawsuit against HEI. Bishop, therefore, is unable to maintain her Title VII claim against HEI. In addition, Vogelmeier and Underwood were acting outside the scope of an employment relationship when they engaged in their tortious conduct. Thus, Bishop is unable to sustain her state law claims against HEI.
Accordingly, the court GRANTS HEI's motion for summary judgment. The Clerk is hereby DIRECTED to enter a judgment in favor HEI (and against Bishop) stating as follows: "With respect to Harrah's Entertainment, Inc., Bishop shall take nothing by way of her complaint." The court DENIES AS MOOT HEI's motion to strike.