Supervisor Who Placed Female Employee in Position Rendering Her Vulnerable to Sexual Advances Held Personally Liable for Fraud

Volume 2, Issue 17
November 1, 2003

While not controlling authority in Nevada, employers should be aware of a recent Supreme Court of Montana decision in which a supervisor was found to have committed fraud, rendering him personally liable for damages.

Kimberli Beaver was a seasonal wild lands firefighter for the Montana Department of Natural Resources and Conservation. Michael Ness was a unit fire supervisor, as well as Beaver's immediate supervisor. Ness and Beaver left on a work related trip to a neighboring county to complete some fire-related service contracts. Beaver expected to return home that same day and was unprepared to spend the night. However, at 8:30 p.m., Ness informed Beaver that they would be spending the night in order to finish their work the next morning. Ness also informed Beaver that he had already checked into a single room at the Tenderfoot Motel that had two single beds.

While in the room together, Ness attempted to give Beaver a "Chinese foot massage;" rubbed her shoulders and attempted to stick his hands underneath the back of her shirt, asking if she wanted her back rubbed; put his arms around her and forced her down on the bed, lying on top of her so that she was unable to free herself, and attempted to kiss her; and continually tried to stick his hand on Beaver's inner thigh. Beaver repeatedly told Ness that he needed to stop and go to his own bed.

After Beaver reported the incident, Ness was eventually terminated. Beaver obtained psychological counseling and was diagnosed with post-traumatic stress disorder. She subsequently filed a lawsuit against the Department and Ness. While the court found that the single incident of sexual assault did not amount to a hostile work environment under Title VII of the Civil Rights Act of 1964, it did find that Ness made false representations, engaged in deliberate planning in order to put Beaver in a position vulnerable to his sexual advances, and caused Beaver psychological harm. Based on these facts, the court found that Ness committed fraud.

This case is an important reminder to supervisors, managers, and executives that, while there may be no individual liability under Title VII, they can be personally liable for harassing conduct under state law causes of action, including intentional infliction of emotional distress and fraud.

Beaver v. Montana Dept. of Natural Res. and Conservation, No. 01-534, 2003 WL 22332373 (Mont. Oct. 13, 2003).

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.