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authoritative.
NO.
COA07-87
NORTH
CAROLINA COURT OF APPEALS
Filed: 15 April 2008
EVALYN
GONZALES,
Plaintiff,
v.
North Carolina Industrial Commission
I.C. File No. TA-16035
NORTH
CAROLINA STATE
UNIVERSITY,
Defendant.
Appeal by
defendant from decision and order entered 21 July 2006 by Commissioner Laura
Kranfield Mavretic in the North Carolina Industrial Commission. Heard in the Court of Appeals 15 October
2007.
Kennedy,
Kennedy, Kennedy & Kennedy, by Harvey L. Kennedy and Harold
L. Kennedy, for plaintiff.
Attorney
General Roy Cooper, by Tina Lloyd Hlabse, for defendant.
ELMORE,
Judge.
Dr. Shuaib
Ahmad, an employee of North Carolina State University (defendant or NCSU),
joined the faculty as an assistant professor in 1980. In 1986, Ahmad was promoted to associate
professor, and in 1991 he became a professor. Ahmad became the Director of the
Construction Facilities Laboratory on Centennial Campus in the 1996-97 academic
year.
During the
1987-88 school year, Ahmad sexually harassed Martha Brinson, NCSU’s Director of
Communications in the College of Engineering. On the day after the incident, Brinson
reported the conduct to her immediate supervisor, Jenna Rayfield. Rayfield referred Brinson to Dr. Larry
Monteith, who was, at that time, the Dean of the College of Engineering. Brinson went to Monteith that day and
reiterated her complaint. Although
Monteith suggested that Brinson file a formal complaint with Billie Richardson,
NCSU’s sexual harassment officer, she declined to do so. Her decision was based both on
Richardson’s dismissive attitude regarding her previous report of a “peeping
Tom,” and on a desire to protect her privacy. In 1988 or 1989, Dr. Downey Brill became
Dean of the College of Civil Engineering, and Brinson again reported Ahmad’s
conduct, calling Ahmad “a monster.”
Brill asked if Brinson had filed a report, and she told him that although
she had reported the incident before, she had not filed a formal complaint
because she wished the matter to remain confidential.
Kathy A. Wood
(plaintiff Wood)[Note 1] attended NCSU from 1993-98, majoring in civil
engineering and environmental engineering.
In May of 1996, Ahmad hired plaintiff Wood to serve as a research
assistant. Shortly thereafter,
Ahmad began to sexually harass plaintiff Wood. Despite Ahmad’s request that she
continue working with him, plaintiff Wood left her job in August of 1996 as a
result of the harassment. She
refused to have anything to do with Ahmad, including taking his class in
structural engineering, which, because the class was required, resulted in her
inability to continue in her curriculum.
Plaintiff Wood also reported Ahmad’s conduct to Leslie Dare, who was
NCSU’s sexual harassment officer at that time. After reporting Ahmad’s conduct,
plaintiff Wood discovered that Ahmad had harassed other students and employees
in the past.
Evalyn
Gonzales (plaintiff Gonzales) attended NCSU beginning in 1993. She graduated with a degree in
engineering, and, pursuant to her plan to attend graduate school, applied for a
job as a research assistant. Ahmad
contacted plaintiff Gonzales and offered her a job. Plaintiff Gonzales interviewed with
Ahmad, who “told her that he liked her because her skin color was the same as
his.” At some later point,
plaintiff Gonzales, who had also applied for other jobs, contacted Ahmad about
the job again. He told her that he
would discuss the position over coffee, and offered to pick plaintiff Gonzales
up at her apartment. Plaintiff
Gonzales instead offered to meet Ahmad on campus. Ahmad therefore met her on campus, where
plaintiff Gonzales got into his car and he told her that they could talk over
lunch.
Rather than
discussing plaintiff Gonzales’ job prospects, however, Ahmad instead pursued a
range of personal topics including his troubled marriage, whether plaintiff
Gonzales had a boyfriend, his knowledge of massage techniques, and the potential
for the two to go to the movies.
After lunch, rather than returning plaintiff Gonzales to campus, Ahmad
brought her to Lake Johnson and told her to take a walk with him. During the walk, Ahmad began to touch
plaintiff Gonzales inappropriately.
She objected, yelling “this isn’t okay!” Ahmad continued his advances, and
plaintiff Gonzales continued to object.
Ahmad then
abruptly changed the subject and took plaintiff Gonzales back to campus. They did not speak on the way back, but
as plaintiff Gonzales exited the car, Ahmad told her that he would instruct his
secretary to draft the paperwork needed to hire her as his research
assistant.
Plaintiff
Gonzales went immediately to her boyfriend’s office and told him what had
occurred. He told her to report the
matter. Shortly thereafter,
plaintiff Gonzales spoke with one of Ahmad’s former employees, Tony
Modesta. Modesta suggested that
plaintiff Gonzales should speak to plaintiff Wood. When plaintiff Gonzales contacted
plaintiff Wood, the two compared their experiences. Plaintiff Wood suggested that plaintiff
Gonzales write down what had happened, and told plaintiff Gonzales of another
woman that Ahmad had allegedly harassed.
Plaintiff
Gonzales also contacted a former professor, who referred her to Dare. Dare told plaintiff Gonzales to file a
formal complaint, and represented to plaintiff Gonzales “that she was the first
person to make a sexual harassment complaint with the University regarding Dr.
Ahmad.” Dr. Tony Mitchell, who
helped Dare in the investigation of both plaintiffs’ complaints, spoke with
Brill. Brill informed Mitchell of
the incident ten years before involving Brinson. Mitchell contacted Brinson, informed her
of the new complaints, and requested that she make a written record of her own
experience. Brinson provided Dare a
written complaint to assist in the investigation.
Through their
investigative efforts, Dare and Mitchell discovered at least eight additional
women who Ahmad had sexually harassed from 1986-97. As a result of the investigation,
Provost and Vice Chancellor for Academic Affairs Phillip J. Stiles told Ahmad
that he intended to fire Ahmad and that Ahmad had ten days in which “to make a
written request for either a specification of reasons or a
hearing.”
Although
Ahmad did not respond within the designated time period, NCSU did not fire
him. Instead, the university
allowed Ahmad to resign, agreed to pay him his salary for the balance of the
school year, and agreed “to place a ‘neutral’ letter of reference in [his]
personnel file.” After informing
both plaintiffs about the agreement, university officials refused to communicate
further with plaintiffs.
On 28 May
1999, plaintiffs filed tort claims against NCSU, alleging negligent infliction
of mental and emotional distress on Ahmad’s part and negligent retention and
supervision of Ahmad on NCSU’s part.
Deputy Commissioner George T. Glenn, II, filed a Decision and Order in
plaintiffs’ favor on 24 June 2005, and NCSU appealed to the Full
Commission. On 21 July 2006, the
Full Commission affirmed, with slight modifications, the Deputy Commissioner’s
Decision and Order. NCSU now
appeals to this Court.
Preliminarily,
we note the appropriate standard of review:
The standard of review for an appeal from the Full Commission’s decision under the Tort Claims Act shall be for errors of law only under the same terms and conditions as govern appeals in ordinary civil actions, and the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them. As long as there is competent evidence in support of the Commission’s decision, it does not matter that there is evidence supporting a contrary finding. The court’s duty goes no further than to determine whether the record contains any evidence tending to support the finding. Thus, when considering an appeal from the Commission, our Court is limited to two questions: (1) whether competent evidence exists to support the Commission’s findings of fact, and (2) whether the Commission’s findings of fact justify its conclusions of law and decision.
Simmons v.
Columbus Cty. Bd. of Educ., 171 N.C.
App. 725, 727-28, 615 S.E.2d 69, 72 (2005) (quotations and citations
omitted).
In its first
argument on appeal, NCSU avers that the Full Commission erred because there was
no competent evidence to support its finding of negligence. We disagree.
Specifically,
NCSU claims that the Full Commission erred in finding “that NCSU breached its
duty to plaintiffs and proximately caused plaintiffs’ alleged damages.” NCSU argues that although it might have
breached a duty to Brinson, there was no evidence to show that that breach
proximately caused injury to plaintiffs.
Accordingly, NCSU submits that “[p]laintiffs have erroneously attempted
to extrapolate and apply the duty owed to Brinson to their claims . . . [without
producing] any competent evidence that NCSU breached any duty owed to
them.”
NCSU
primarily argues that Ahmad’s earlier harassment of Brinson was not the
proximate cause of plaintiffs’ injuries.
This misses the point. It
was not Ahmad’s conduct towards Brinson that opens NCSU to liability. Rather, it was NCSU’s failure to
properly respond to the earlier harassment that was the proximate cause
of plaintiffs’ injuries.
This Court
has defined proximate cause as:
a cause which
in natural and continuous sequence, unbroken by any new and independent cause,
produced the plaintiff’s injuries, and without which the injuries would not have
occurred, and one from which a person of ordinary prudence could have reasonably
foreseen that such a result, or consequences of a generally injurious nature,
was probable under all the facts as they existed.
Loftis v.
Little League Baseball, Inc., 169 N.C.
App. 219, 222, 609 S.E.2d 481, 484 (2005) (citation and emphasis
omitted).
In this case, Brinson complained of Ahmad’s actions ten years prior to his harassment of plaintiffs. Nevertheless, NCSU took no corrective action. NCSU suggests that because Brinson refused to file a formal complaint, it could not move forward in an investigation. We find this suggestion implausible. With or without a formal complaint, numerous members of the university’s administration were aware of the allegations. The Full Commission found as fact, supported by expert witness Debra Ragan Jessup’s testimony, that NCSU failed to follow its own guidelines. NCSU claims that “[w]ithout substantiation of Brinson’s allegations, NCSU could not take any negative employment action against Ahmad.” Nevertheless, NCSU could and should have requested a written complaint, made written documentation of Brinson’s oral complaint, and conducted a further investigation to determine the veracity of the claim. Any of these actions could have forestalled Ahmad’s subsequent misconduct.
Moreover,
NCSU’s “pattern of ignoring complaints of sexual misconduct and threatening
behavior,” as the Full Commission noted in reference to the administration’s
dismissive attitude regarding the “peeping Tom” incident that Brinson reported
and the fact that the “peeping Tom” in question was allowed to haunt the NCSU
campus for sixteen years, “shows institutional indifference and a lack of
concern” on NCSU’s part. “[A]
person of ordinary prudence could have reasonably foreseen” that such
indifference could lead to unreported sexual misconduct and the eventual
injuries suffered by plaintiffs.
Id.
NCSU also
claims that the ten year time period is simply too long to allow a causal
connection. We agree that the time
lapse is troubling. However, the
Full Commission found that Ahmad continued to harass female students in the
intervening time, listing seven women by name in addition to plaintiffs. NCSU cannot, by turning a blind eye to
reported misdeeds, hope to escape liability based on subsequent victims’
failures to report later bad behavior. NCSU is correct that Ahmad might have
been exonerated had it conducted a proper investigation. However, having failed to take the
proper steps to investigate, NCSU should have reasonably foreseen that
“consequences of a generally injurious nature . . . [were] probable under all
the facts as they existed.”
Id.
We note
NCSU’s claim that expert witness Jessup’s testimony incorrectly relied on case
law from this Court. However, we
find NCSU’s characterization of Jessup’s testimony unpersuasive. Jessup testified as an expert in the
field of human resources that NCSU failed to follow its own sexual harassment
guidelines, that the guidelines themselves were defective in that they did not
require the immediate initiation of an investigation and follow up, and that
NCSU failed in its duty to properly disseminate its sexual harassment
policy. NCSU’s suggestion that
plaintiffs’ claims “hinge upon their interpretation of Hogan v. Forsyth
Country Club Co., 79 N.C. App. 483, 340 S.E.2d 116 (1986),” is simply
incorrect. Although Jessup’s
testimony did deal, in part, with that case, it was only for the proposition
that “the knowledge by an agent and/or manager was imputed to the
employer.”[Note 2]
NCSU’s
arguments regarding negligent supervision and negligent infliction of emotional
distress are essentially the same as its arguments above: that without a formal
complaint on Brinson’s part, no investigation could be pursued. We reject this contention as we did
above; Brinson’s failure to submit a formal complaint did not absolve NCSU of
responsibility.
NCSU next
attacks the Industrial Commission’s assertion of jurisdiction over plaintiffs’
claims of ratification. We agree
that the Industrial Commission overstepped its bounds by addressing this theory
of recovery; “the Tort Claims Act allows a suit against the State only for
ordinary negligence in the forum of the Industrial Commission.” Collins v. N.C. Parole Comm’n,
118 N.C. App. 544, 548, 456 S.E.2d 333, 336 (1995). However, having already held that the
Full Commission was correct in its determination of negligence, it is
unnecessary to address the issue of ratification. Accordingly, although the Industrial
Commission lacked jurisdiction over the ratification claim, the error was of no
consequence. We therefore modify
the decision and order to remove that part which addresses plaintiffs’ theory of
ratification, while leaving intact the remainder of the decision and
order.
Finally, NCSU
claims that the Full Commission abused its discretion in its award of
$150,000.00 to each plaintiff because there was no competent evidence on
damages. We
disagree.
“The amount
of damages awarded is a matter within the discretion of the Commission. The Commission’s order may not be
disturbed unless, in view of the Commission’s findings as to the nature and
extent of the injury, the award is so large as to shock the conscience.” Jackson v. N.C. Dep’t of Crime
Control & Pub. Safety, 97 N.C. App. 425, 432, 388 S.E.2d 770, 774 (1990)
(citation omitted). In this case,
plaintiffs presented expert testimony on the issue of damages from both Rosemary
Smith Nelson, Ph.D., and Dr. Gary Albrecht. The Full Commission was entitled to rely
on the evidence presented and accord it the weight that the Full Commission
deemed proper. We will not
substitute our judgment for the Full Commission’s. See Fennell v. N.C. Dep’t of Crime
Control & Pub. Safety, 145 N.C. App. 584, 589-90, 551 S.E.2d 486, 490
(2001) (“On appeal, this Court does not have the right to weigh the evidence and
decide the issue on the basis of its weight. The Court’s duty goes no further than to
determine whether the record contains any evidence tending to support the
finding.”) (quotations and citations omitted). There was “evidence tending to support
the finding” in this case.
Id. The Full
Commission therefore did not err in its award of damages.
We affirm the
Full Commission’s decision and order, modified to exclude the sections that
address plaintiffs’ claims of ratification, over which the Full Commission
improperly exercised jurisdiction.
Affirmed as
modified.
Chief Judge
MARTIN and Judge JACKSON concur.
1.
Wood is the plaintiff in a companion case, Wood v. North Carolina
State University, COA-07-88.
2. Because it does not appear that the Full Commission relied to any extent on Jessup’s testimony regarding Title VII of the Civil Rights Act of 1964, we decline to address NCSU’s arguments regarding that statute.