Opinion
No. A-09-1198.
Filed July 13, 2010.
Appeal from the District Court for Douglas County: GREGORY M. SCHATZ, Judge. Affirmed.
Thomas B. Thomsen, of Sidner, Svoboda, Schilke, Thomsen, Holtorf, Boggy, Nick Placek, for appellant.
Mary Kay O'Connor and Pamela E. Olsen, of Cline, Williams, Wright, Johnson Oldfather, L.L.P., for appellees.
MOORE and CASSEL, Judges.
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
INTRODUCTION
For a short period of time, Troy D. Thies held employment with appellees, Wild West, Inc., doing business as Whiskey Creek Wood Fire Grill, and Fremont Steak Company, and engaged in sexual activity with his supervisor, the general manager hired by appellees. Some 3 years after quitting, Thies filed a complaint against his supervisor and appellees, seeking damages under several theories. The district court entered summary judgment in favor of appellees. Because the statute of limitations had expired on Thies' cause of action under the Nebraska Fair Employment Practice Act (NFEPA) and appellees were not vicariously liable for the acts of their general manager, we affirm.
BACKGROUND
At all times relevant, Maxwell Mitchell was the general manager at Whiskey Creek Wood Fire Grill (hereinafter Whiskey Creek) in Fremont, Nebraska. He hired and supervised employees on behalf of appellees. Thies was employed by appellees at the Fremont location from January 15, 2006, through early March — during which time he was 16 years old — and was supervised by Mitchell. Mitchell had the authority to change the terms and conditions of Thies' employment and to fire him; demote him; discipline him; and set his wages, hours, and duties of employment. During Thies' employment, he and Mitchell engaged in sexual activities — some occurring at the workplace and others taking place at Mitchell's apartment during nonwork hours.
On May 15, 2009, after Thies had attained the age of majority, he filed an amended complaint against appellees and Mitchell. Thies alleged that the six causes of action contained in the complaint arose out of the unlawful sexual harassment, contact, and assault of Thies by Mitchell during Thies' employment with appellees. He alleged that Mitchell's conduct created a hostile working environment. Thies' first cause of action alleged sexual harassment, contact, and assault, which he claimed was against his will and without his consent.
Thies' second cause of action was brought under the theory of respondeat superior. He alleged that he was subjected to unlawful employment practices by Mitchell related to the terms, conditions, and privileges of employment. Thies alleged that he was sexually harassed and assaulted by Mitchell under the color of authority that Mitchell held as a supervisor. Thies alleged that Mitchell's acts in sexually harassing and assaulting him were imputed to appellees and that appellees were vicariously liable to Thies for Mitchell's conduct.
Thies' third cause of action arose under the NFEPA and alleged that appellees deprived Thies of his rights, privileges, and immunities to be free from sexual harassment and discrimination as secured by Neb. Rev. Stat. §§ 20-148 (Reissue 2007) and 48-1104 (Reissue 2004). Thies alleged that Mitchell's conduct constituted a violation of § 48-1104 and that pursuant to § 20-148, appellees were vicariously liable and Thies was not required to exhaust his administrative remedies under the NFEPA, Neb. Rev. Stat. § 48-1101 et seq. (Reissue 2004). Thies further alleged that Mitchell's actions created a hostile work environment and that Thies was constructively discharged from his employment, for both of which appellees were liable to Thies for damages.
Thies' fourth cause of action was brought under the Nebraska Constitution. It alleged that appellees deprived Thies of his right to life, liberty, and the pursuit of happiness under article I, § 1, of the Nebraska Constitution and § 20-148. Thies alleged that Mitchell was liable and that appellees were vicariously liable.
Thies' fifth cause of action alleged breach of contract. Thies alleged that his employment by appellees constituted a contract between them, that Mitchell's actions as the general manager and supervisor constituted a breach of contract, that Thies' damages were proximately caused by the breach of employment contract, and that appellees were vicariously liable to Thies for Mitchell's conduct.
Thies' sixth cause of action was for negligent supervision. Thies alleged that appellees negligently failed to properly train and educate him with regard to acts of sexual harassment and assault, including the proper procedure for notifying appellees of Mitchell's conduct. Thies alleged that appellees failed to advise him of the wrongful and unlawful nature of Mitchell's acts. He claimed that the damages he suffered were proximately caused by appellees' failure to properly train, educate, and provide a proper procedure for notification of appellees of Mitchell's conduct.
Appellees raised a number of affirmative defenses in their amended answer, including that Thies' claims were barred by the applicable statutes of limitations and that Mitchell was acting outside the scope of his authority and not as an agent of appellees when he engaged in unlawful or inappropriate conduct. On August 7, 2009, appellees filed a motion for summary judgment.
Evidence showed that on January 15, 2006, Thies signed a statement which began, "I have received and read a copy of the Whiskey Creek . . . employee handbook that outlines policies and employee responsibilities." That document further stated that there was no contract of employment. Thies testified in a deposition that he signed the form at Mitchell's direction without reading the first sentence and that he did not recall receiving or seeing the handbook. Thies testified that no one discussed with him policies regarding harassment in the workplace.
When asked if Thies knew that it was not part of his job responsibilities to engage in sexual relations with Mitchell, Thies explained:
I knew deep down morally that, no, that was not right, but at the same time, it was my first job and he had that authoritarian control over me that I didn't want to disappoint him and that I didn't want to lose my job or anything like that. So in a way I kind of felt obligated to.
Thies understood that engaging in sexual relations with employees would not have been one of Mitchell's job duties. Thies believed that the first incidence of sexual contact occurred at Mitchell's apartment, the second at Mitchell's work office, the third at the apartment, and the fourth and fifth at work. At Mitchell's apartment, Mitchell gave Thies money for actions such as taking off his shirt and pants and ejaculating on Mitchell. At the office, Thies allowed Mitchell to perform oral sex on him in return for a carton of cigarettes and a full tank of gas. Thies testified that on two occasions at work, he and Mitchell engaged in some kind of sexual conduct; on two other occasions, Thies refused the advances. At other times, Mitchell called Thies to Mitchell's office, but Thies would say that he needed to get back to work. Thies testified that after those occasions in which he refused to participate in conduct with Mitchell, he was not fired and did not suffer a reduction in wages or a change in his employment. Thies testified that he was motivated to engage in the conduct with Mitchell because of the rewards and also his desire for continued employment.
At some point, Thies' father went to Whiskey Creek to inform them that Thies was resigning because his father took away Thies' car. Thies testified that he did not inform Whiskey Creek that he was quitting because he was scared of Mitchell. Appellees' regional vice president stated in an affidavit that the first report of inappropriate conduct by Mitchell was received on March 30, 2006 — which was after Thies quit — by a college-aged male employee at the Fremont location.
In answers to interrogatories, Thies stated that Mitchell told him that he had been in trouble in Texas for a type of child-related sex offense, that Thies believed a reasonable background search would have revealed the same, and that Mitchell should never have been hired to supervise minors in a restaurant setting. In appellees' answers to interrogatories, they assert that they requested and received a full background check on Mitchell and that no criminal, sexual, or inappropriate conduct was reported.
On November 9, 2009, the district court entered an order sustaining appellees' motion for summary judgment. The court noted that Thies had withdrawn his causes of action for breach of an employment contract and for violation of his rights under the Nebraska Constitution. The court found that Thies was time barred from bringing his action under §§ 20-148 and 48-1104 and that appellees were therefore entitled to judgment as a matter of law. The court determined that appellees were entitled to judgment as a matter of law as to Thies' claim under the doctrine of respondeat superior, because Thies did not offer any evidence that Mitchell's actions were within the course and scope of his employment. The court also determined that appellees were entitled to judgment as a matter of law on the claim of negligent supervision.
Thies timely appeals.
ASSIGNMENTS OF ERROR
Thies assigns that the district court erred in (1) granting appellees' motion for summary judgment, (2) determining that the statute of limitations embodied in § 48-1118 applied, (3) refusing to apply the 4-year statute of limitations of Neb. Rev. Stat. §§ 25-207 and 25-212 (Reissue 2008), (4) failing to determine that acts of sexual assault committed by a supervisor upon an employee created vicarious liability upon the employer, and (5) determining that sexual assault and sexual harassment by a supervisor upon an employee under his supervision is not conduct within the scope of the employment or the supervisor.
However, Thies' brief contains only two arguments: one regarding the statute of limitations and the other asserting that appellees should be vicariously liable for Mitchell's acts of sexual assault. We do not consider those assignments of error that have not been specifically argued. See In re Interest of Hope L. et al., 278 Neb. 869, 775 N.W.2d 384 (2009) (in order to be considered by appellate court, alleged error must be both specifically assigned and specifically argued in brief of party asserting error).
STANDARD OF REVIEW
Which statute of limitations applies is a question of law that an appellate court must decide independently of the conclusion reached by the trial court. Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006).
Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Ballard v. Union Pacific RR. Co., 279 Neb. 638, 781 N.W.2d 47 (2010).
In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence. City of Fremont v. Kotas, 279 Neb. 720, 781 N.W.2d 456 (2010).
ANALYSIS
Statute of Limitations.
We first determine, as a matter of law, which statute of limitations is applicable. Thies contends that the 4-year statute of limitations found in §§ 25-207 and 25-212 applies, while appellees claim the applicable statute of limitations is that found in § 48-1118. In determining which statute of limitations applies to any given cause of action, we bear in mind that a special statute of limitations controls and takes precedence over a general statute of limitations, because the special statute is a specific expression of legislative will concerning a particular subject.
Wendeln v. Beatrice Manor, supra.
Thies argues that this is a sexual assault case governed by the statute of limitations found in §§ 25-207 and 25-212. The essential nature of a proceeding may not be changed, thereby lengthening the statute of limitations, merely by denominating it as something other than what it actually is. Wendeln v. Beatrice Manor, supra. To determine the nature of an action, a court must examine and construe a complaint's essential and factual allegations by which the plaintiff requests relief, rather than the legal terminology utilized in the complaint or the form of a pleading. Id. Thies' complaint alleged a cause of action for sexual assault against Mitchell, but not against appellees. He also alleged that Mitchell's conduct constituted a violation under the NFEPA for which appellees were vicariously liable. Section 48-1118(2) provides, "A written charge of violation of the [NFEPA] shall be filed within three hundred days after the occurrence of the alleged unlawful employment practice. . . ." There is no dispute that Thies did not bring a NFEPA claim within 300 days.
In Adkins v. Burlington Northern Santa Fe RR. Co., 260 Neb. 156, 615 N.W.2d 469 (2000), the complainant brought a NFEPA claim pursuant to § 20-148. The Nebraska Supreme Court reasoned that the Legislature enacted § 48-1118(2) as the statute of limitations for employment discrimination claims and that the catchall limitations period in § 25-212 was for any action for which the Legislature had not enacted a more specific statute of limitations. The court therefore determined that NFEPA actions brought under § 20-148 were governed by the 300-day statute of limitations found in § 48-1118(2) of the NFEPA rather than the 4-year catchall limitations period in § 25-212.
We also conclude that the statute of limitations is not tolled under Neb. Rev. Stat. § 25-213 (Reissue 2008) due to Thies' minority. Thies argues that § 25-213 would toll the statute of limitations in a sexual assault case, but then states that "[t]his is not necessary in this case because this lawsuit was started by the next friend of . . . Thies, his father." Brief for appellant at 15. But as we determined above, the relevant cause of action against appellees was a cause of action under the NFEPA, not a sexual assault cause of action. Section 25-213 lists the types of actions, with certain exceptions, in which the statute of limitations is tolled: "[A]ny action mentioned in Chapter 25, the Political Subdivisions Tort Claims Act, the Nebraska Hospital-Medical Liability Act, the State Contract Claims Act, the State Tort Claims Act, or the State Miscellaneous Claims Act. . . ." Claims brought under the NFEPA are not included among those subject to the tolling provision. Applying the legal principle of expressio unius est exclusio alterius — that the expression of one thing is the exclusion of the others — the specified claims to which the tolling provision of § 25-213 applies excludes application to those claims unmentioned by the statute. See, generally, Chapin v. Neuhoff Broad.-Grand Island, Inc., 268 Neb. 520, 684 N.W.2d 588 (2004). See, also, 54 C.J.S. Limitations of Actions § 112(b) at 153 (1987) ("[g]enerally, where a statute giving a right of action limits the time for commencing such actions, minors are not excepted from the limitation unless expressly mentioned as excepted").
Although not binding, we find guidance from federal court decisions determining that the statute of limitations applicable to causes of action brought pursuant to title VII of the Civil Rights Act of 1964 (Title VII) are not tolled by infancy. In Catone v. Brink, 488 F. Supp. 2d 214, 217-18 (N.D.N.Y. 2007), the appellate court stated, "Courts within the Second Circuit have never recognized infancy as a basis for equitable tolling in Title VII claims, nor is there any express statutory provision exempting minors from the statute of limitations." Similarly, in Ashton ex rel. Ashton v. Okosun, 266 F. Supp. 2d 399 (D. Md. 2003), the court determined that Title VII's 300-day limitations period would not be equitably tolled based upon an employee's status as a minor at the time of the alleged sexual harassment, because only the legislature could exempt a certain class of people from the effects of the statute of limitations.
We conclude that the more specific 300-day statute of limitations applies to Thies' cause of action under the NFEPA rather than the general statute of limitations found in §§ 25-207 and 25-212 and that the limitations period is not tolled by Thies' status as a minor at the time of the sexual acts. Because Thies filed his complaint well after the expiration of 300 days, the statute of limitations had run on Thies' NFEPA cause of action.
Vicarious Liability.
Thies argues that the acts of sexual assault perpetrated by Mitchell are imputed to appellees and that they should be held vicariously liable for the conduct of their supervisor. Under the doctrine of respondeat superior, an employer is held vicariously liable for the negligent acts of an employee committed while the employee was acting within the scope of the employer's business. Reeder v. State, 254 Neb. 707, 578 N.W.2d 435 (1998). Here, Thies has not asserted that Mitchell's conduct in sexually harassing or assaulting him was negligent. In order to sustain a recovery under the doctrine of respondeat superior, the relationship of master and servant must be shown to exist at the time of the injury and with respect to the particular transaction resulting in the alleged tort, and the servant must be shown to be acting within the scope of his employment. Strong v. K K Investments, 216 Neb. 370, 343 N.W.2d 912 (1984). The conduct of a servant is within the scope of employment if, but only if, it is of the kind he is employed to perform, it occurred substantially within the authorized time and space limits, and it is actuated, at least in part, by a purpose to serve the master. Id. Thies has alleged no facts to show that Mitchell's wrongful conduct was actuated in part by a purpose to serve appellees, and Thies testified that he understood that engaging in sexual relations with employees would not have been one of Mitchell's job duties. We conclude that the court properly entered summary judgment in favor of appellees on Thies' respondeat superior cause of action.
Thies also contends that case law developed under Title VII should be applied by Nebraska courts to sexual assault cases involving supervisors and employees. Because the NFEPA is patterned after Title VII, it is appropriate to look to federal court decisions construing similar and parent federal legislation. See Father Flanagan's Boys' Home v. Agnew, 256 Neb. 394, 590 N.W.2d 688 (1999). However, because Thies did not plead a cause of action under Title VII and his claim under the NFEPA is time barred, we need not further address this argument.
CONCLUSION
We conclude that Thies' cause of action under the NFEPA was barred by the 300-day statute of limitations. As to the issue of vicarious liability, appellees presented a prima facie case that Mitchell's actions did not occur in the course and scope of his employment, and Thies did not present evidence to rebut this prima facie case. Accordingly, we affirm the district court's grant of summary judgment in favor of appellees.
AFFIRMED.