Walmart Not Liable for Employee’s Off-Duty Sexual Assault

By Joanne Deschenaux October 15, 2018
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A Walmart employee who was sexually assaulted by a co-worker after work hours and outside of the workplace could not proceed with her claims that Walmart negligently hired and retained the co-worker, a California appeals court ruled. She also could not go forward with her claim that Walmart was negligent in not warning her about the co-worker's criminal history, the court said.

The plaintiff was a customer service associate working the returns desk at a Walmart retail store in Orange, Calif. The co-worker stocked shelves and oversaw the alcohol and food aisles at the same store.

One night about 6 p.m., the plaintiff and the co-worker met at a nearby park during their meal break and smoked marijuana together. While at the park, the co-worker tried to "hit on" the plaintiff, but she rejected his advances.

[SHRM members-only toolkit: Preventing Unlawful Workplace Harassment in California]

Both workers clocked out at the end of their shifts at 11 p.m. The plaintiff stayed at the store for about 45 minutes to do some shopping, and the co-worker waited for her outside. When the plaintiff left the store, the co-worker followed her to her van in the Walmart parking lot, where he attacked and sexually assaulted her repeatedly. According to the plaintiff, the co-worker told her he was upset that she had rejected him earlier that day.

Following the attack, the plaintiff returned to the store, where fellow employees assisted her before taking her to the police station. Walmart fired the co-worker two days later, and he was convicted for the assault and sentenced to prison for 35 years to life.

The plaintiff sued Walmart, alleging that the retailer negligently hired and retained the co-worker and that Walmart was negligent in not warning her about his criminal history.

The trial court dismissed the lawsuit before trial, and the plaintiff appealed.

Negligent Hiring and Retention

An employer can be liable for negligent hiring or retention only when the employer knows or should have known facts that would alert a reasonable person that the employee "presents an undue risk of harm to third persons in light of the particular work to be performed," according to California case law.

Walmart had disciplined the co-worker in June 2012 after he made disrespectful or harassing comments to Walmart employees and customers. He also had two robbery convictions, one in 1982 and the other in 1994. Walmart was unaware of this criminal history.

In addition, the plaintiff and her co-worker were not in their workplace or on duty at the time of the sexual assault. They were also off duty during their meeting at the park. Furthermore, the motivation for the assault was the plaintiff's refusal to accept the co-worker's advances while at the park, and smoking marijuana that day was unquestionably outside of their employment duties, the court said.

Considering these facts, the appeals court held that the trial court was correct in ruling that the plaintiff could not proceed with her negligent hiring and retention claim.

Failure to Warn

The court first noted that it is not clear that a California employer ever has a duty to warn employees about a co-worker's criminal history. However, even if such a duty might exist in some cases, it clearly did not exist here because the co-worker's robbery convictions happened long ago and were not sex crimes and because there was no evidence that Walmart knew of the convictions, the court said.

Therefore, the trial court also was correct in dismissing the plaintiff's claim that Walmart should have warned her about the co-worker's criminal history, the court concluded.

Doe v. Walmart Stores Inc., Calif. Ct. App., No. G054660 (Sept. 27, 2018).

Professional Pointer: Because the assault was not related to the plaintiff's job, she also could not collect workers' compensation for her injuries.

Joanne Deschenaux, J.D., is a freelance writer in Annapolis, Md. 

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