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People's Law Guide

 

Florida Appellate Court Sides With Employee

Peter Maverick
Website

08/22/12

FLORIDA APPELLATE COURT SIDES WITH EMPLOYEE THAT COMMON LAW CLAIM FOR SEXUAL BATTERY IS DISTINCT FROM STATUTORY SEXUAL HARASSMENT

Plaintiff was employed as a receptionist at a hair salon. She filed a lawsuit against the shop alleging that its owner touched her in a sexual manner on multiple occasions, causing her physical and emotional harm. Her complaint included claims against the shop for negligent retention and supervision, vicarious liability, and a claim against the owner for battery.

The employer and owner moved to dismiss the complaint, asserting that the complaint was actually a sexual harassment complaint; and as such, the plaintiff was required to comply with the pre-suit procedures set forth in federal and state law. The trial court agreed and granted the defendants' motion to dismiss. In addition, the trial court granted the defendants' motion for attorney's fees and costs and declared the complaint frivolous and without any basis in law.

The plaintiff-employee appealed and won.

Florida law permits multiple causes of action to co-exist. Florida Rule of Civil Procedure 1.110(g) states that "[a] pleader may set up in the same action as many claims or causes of action or defenses in the same right as a pleader has, and claims for relief may be stated in the alternative if separate items make up the cause of action, or if 2 or more causes of action are joined." It further provides that "[a] party may also state as many separate claims or defenses as that party has, regardless of consistency and whether based on legal or equitable grounds or both."

In this case, the plaintiff alleged that she was battered by the owner of the business, and that the battery resulted from the defendant hairstyling shop's negligent retention and supervision of its employees, and that the shop was vicariously liable for the acts of its employ7ees. The fact that the complaint alleged a "hybrid" of facts supporting both common law tort violations and statutory sexual harassment violations is permissible. The court explained that if, upon completion of the EEOC administrative process the plaintiff then chooses to seek amendment of her complain to add statutory sexual harassment claims, that is her prerogative. Meanwhile, the plaintiff is free to file a complaint setting forth claims based on common law torts, as opposed to statutory violations. Therefore the trial court erred in dismissing the employee's complaint and in awarding defendants' attorney's fees because the plaintiff's claim was not frivolous and in fact had a sound basis under the law.

Attorney Peter Maverick represents management and business owners in employment and labor law. Mr. Maverick has successfully represented many businesses in court as well as in responding to threatened legal action. This article is intended for information purposes only and is not legal advice. This article is not a substitute for legal advice tailored to a particular client's situation. Peter T. Maverick can be reached at: Website: www.mavricklaw.com; Telephone: 954-564-2246; Address: 1620 West Oakland Park Boulevard, Suite 300, Fort Lauderdale, Florida 33311; Email: pmavrickesq@yahoo.com.

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