In 2024, Kilgore & Kilgore lawyer, W. D. Masterson, argued for Cameron Sullivan in a workplace sexual assault lawsuit that involved unquestionably grotesque behavior by Sullivan’s supervisor, David Holloway. Holloway allegedly “walked up to Sullivan and groped his penis” during a meeting at which 15 or more other people were present.
The legal question before the Northern District of Texas court, however, was not whether Holloway’s behavior was outrageous. It was about whether the gravamen, or essence, of the lawsuit was sexual harassment or sexual assault. To us, the question of exactly which Texas law was broken may seem trivial. But it made a big difference for Sullivan in court.
On May 8, 2024, the District Court denied the employer’s motion to dismiss Sullivan’s assault claim, finding that, at its heart and for all the other things alleged, the lawsuit was about an assault. His assault claim, therefore, was not pre-empted by the Texas Commission on Human Rights Act (TCHRA). The distinction made a big difference in the remedy available to Sullivan, which could be financially significant.
The decision in this matter, known as Sullivan v. OTR Wheel Eng’g, is now cited for the legal principle that a single instance of unwanted touching cannot be brushed aside as workplace sexual harassment (for which the penalties may be small due to damages caps). It was assault, for which the civil penalties are not similarly limited, meaning that the penalties could be much higher. Sullivan v. OTR Wheel Eng’g is a prime example of why experienced lawyering is lawyering at its best. The employment lawyers at Kilgore & Kilgore know the law. Sometimes we even have the chance to shape it.
Employment Lawyers at Kilgore Law Defend Employee Rights Against Workplace Assault and Sexual Harassment
What happens in a hostile work setting can be confusing and humiliating. It is not what anyone expects when going to work. Employees in such situations second-guess themselves. Call us when you need help. We will help you sort out the details and consequences. If you are facing a hostile work environment, sexual harassment, sexual assault, supervisory misconduct, discrimination, or retaliation, reach out to us. We want to hear from you. Click this link Contact Kilgore & Kilgore. Or call us at (214) 969-9099.
After the Incident, Sullivan Made an HR Complaint
According to the Amended Complaint, Sullivan worked for OTR Wheel Engineering as a Wheel Technician. In the days following the public groping incident, he confided in coworkers, filed a police report, told a supervisor what happened, and discussed the incident with Human Resources. The Director of the Human Resources Department assigned someone to investigate his complaint. But then things took an odd turn. How HR handles assault claims is an important element in court decisions on workplace misconduct.
Court Decision on Workplace Misconduct and Workplace Assault
Human Resources waited four days before contacting Sullivan, who “felt like he was in a hostile environment.” At the conclusion of the investigation, Human Resources told Sullivan that they allegedly could not substantiate his claim. Those who witnessed the incident:
- claimed to have been intimidated by Holloway; or
- were never interviewed; or
- never saw anything.
Sullivan was expected to continue to report to Holloway. He stopped reporting to work, and OTR Wheel terminated his employment. Sullivan then filed a lawsuit that included claims for discrimination, retaliation, harassment, and hostile work environment under the Texas Labor Code, specifically the TCHRA. He also made a claim for common law assault. OTR Wheel moved to dismiss the assault claim, which was potentially the most legally troublesome.
Was it Sexual Harassment or Sexual Assault?
The Northern District’s decision walks carefully through the nature of workplace sexual harassment. In general, sexual harassment is divided into two big categories – quid pro quo (“this for that”) harassment and hostile environment harassment.
The classic example of quid pro quo harassment – “If you have sex with me, I’ll give you a promotion” – is now rare. Enforcement and workplace sexual harassment vs assault training seems to have mostly worked with respect to this kind of workplace behavior. In its decision, the Court notes that Holloway did not offer Sullivan anything for sexual favors.
The hostile work environment issue is somewhat more complicated, particularly given the seemingly peculiar handling of the HR investigation. Nonetheless, the creation of a hostile work environment seems, by definition, to involve more than a single incident. As the Court notes in the decision, “There are no allegations regarding sexual comments or actions prior to the alleged assault, and Plaintiff does not allege any pattern of behavior.”
For these reasons, the decision finds that the gravamen of Sullivan’s lawsuit was the assault claim. Texas generally treats civil and criminal complaints of assault similarly, except for the fact that the former may lead to money damages, including compensatory and punitive damages. The latter points to criminal prosecution. Either form of assault requires intent on the part of the perpetrator and contact, or fear of unwelcome contact, that causes offense or harm to the victim. Clearly, Holloway intended to touch Sullivan who found the contact offensive or harmful.
Legally Speaking, Why it Matters that the Groping Incident was an Assault
The TCHRA generally follows Title VII of the federal Civil Right Act, including its provisions regarding workplace sexual harassment. There are, however, a few strange wrinkles.
The first of these, under the Texas Supreme Court’s decision in Waffle House v. Williams, “[w]here the gravamen of a plaintiff’s case is TCHRA-covered harassment, the [TCHRA] forecloses common- law theories predicated on the same underlying sexual-harassment facts.”
In Waffle House, the common-law theory at issue was negligence. In Sullivan, it is common law assault. The rule is the same. If the essence of a lawsuit is sexual harassment, a plaintiff may not bring an assault claim. It is either one or the other, not both.
The second of these is that the Texas legislature has chosen to limit the damages that a plaintiff may recover for sexual harassment. The key factor is the number of employees that an employer has. Under the Texas Labor Code, damages are limited to:
- $50,000 in the case of a respondent that has fewer than 101 employees;
- $100,000 in the case of a respondent that has more than 100 and fewer than 201 employees;
- $200,000 in the case of a respondent that has more than 200 and fewer than 501 employees;
It continues, up to a maximum of $300,000 for employers with more than 500 employees. OTR Wheel Engineering appears to be a relatively small employer.
Cameron Sullivan lost a lot because of the groping incident. He was publicly humiliated by his supervisor, gaslighted by Human Resources, and ultimately forced out of his job. He has had to dance through a proverbial legal mine field to get to a situation where he could be justly compensated. Fortunately, he had help. And you will too when you contact Kilgore Law with your employment sexual harassment and sexual assault questions.
Kilgore Law Has Answers to Your Employment Questions About Workplace Harassment and Assault
Fortunately, our Texas employment lawyers may be able to help you. We have extensive experience with workplace misconduct, employee rights, and sexual harassment and assault claims. Contact us if you believe that you have been on the receiving end of workplace problems. Reach out to us for a free review of the facts of your case. Click here to get the conversation started contact Kilgore & Kilgore. Fill out the form and we will contact you to discuss your claim. Or call us at (214) 969-9099.