AUSTIN, Texas (Legal Newsline) – The Supreme Court of Texas has overturned a decision by a court of appeals, paving the way for a plaintiff to move forward with a common law assault claim against her former employer, Steak N Shake.

The plaintiff, only identified as B.C., filed the appeal after the lower court ruled that the Texas Commission on Human Rights Act (TCHRA) was the exclusive remedy for sexual harassment lawsuits. The Supreme Court issued its ruling Feb. 24.

B.C. had sued both her employer, Steak N Shake and her assailant after an alleged sexual assault at the Frisco location in October 2011.

B.C. claimed that she was the sole server during an overnight shift alongside a cook and supervisor. She alleged she found the cook and supervisor drinking beers in the restaurant parking lot during a break and joined them.

Throughout the night, she continued to join them, including one trip with the supervisor to buy more cigarettes, she claims. However, later during the shift, the supervisor allegedly invited her to join him for a cigarette in the employee restroom because it was raining.

When she did, he allegedly attacked her but she was able to break free and ran from the restroom. She and her mother filed a complaint with the police and the restaurant the next day.

However, after conducting an internal investigation, Steak N Shake said it could not confirm B.C.’s account but did confirm there had been someone smoking in the employee restroom. As a result, the supervisor was not fired or moved to another location. The company offered the plaintiff the option of working at another location, but she chose to leave the job instead.

She sued the supervisor and the Steak N Shake, claiming the company was directly responsible for the alleged assault because the supervisor was acting in the capacity of vice principal of the restaurant. The company requested summary judgment, which was granted by the trial court.

In its decision, the trial court used Waffle House Inc. v. Williams, in which it said the TCHRA’s statutory remedy was the exclusive one that covered workplace sexual harassment.

Yet in its decision, the Supreme Court said it had found there were glaring differences between the Waffle House case and this one. It noted the severity and frequency of the assailant's conduct was different in each case. In Waffle House, there was a long-term report of bad behavior instead of a single, violent assault that the plaintiff in this case claimed.

Thus, B.C.'s lawsuit is not preempted by the TCHRA because of the assault claim.

“We determined, based on the evidence in the record, that the gravamen of Williams’s claim was actually sexual harassment and not assault,” the opinion stated. “While civil remedies against individual assailants have long existed under Texas common law, the TCHRA is a statutory scheme created to provide a claim for individuals against their employers for tolerating or fostering a workplace that subjects their employees to discrimination in the form of harassment.”

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