A. Ovan, Inc., headquartered in Rancho Cucamonga, California, hires Rhonda Piper

Question

A. Ovan, Inc., headquartered in Rancho Cucamonga, California, hires Rhonda Piper to work in its Riverside warehouse filling orders during the graveyard shift and Martina Stuart to be a door-to-door salesperson for the firm’s line of cosmetics. Rhonda, a lesbian, has a record of committing physical violence against people who insult her [including two convictions in Nevada for assault, both misdemeanors, in 2006]. She tends to keep to herself and has moved several times over the years. Martina is known by her family and friends for her hospitality. Unbeknownst to anyone, however, Martina has been diagnosed with Post-traumatic stress disorder following a mugging she endured while working at a convenience store in Fontana in which her attacker called her “an old hag”. As required by federal and state law, her diagnosis and treatment were not contained in her personnel file and were kept confidential from everyone she worked with. The mugging was, however, widely reported in local newspapers. During Rhonda’s first shift she punches a male custodian who complimented her appearance, whistled at her and asked her if she wanted to have breakfast with him. The punch results in the loss of two teeth. Three days later, Martina, who neglected to take her medication for PTSD that morning, becomes enraged at a customer who calls her a frumpy old woman with too much makeup. She shoves the customer to ground causing a deep cut in her scalp that required stiches. Ovan hires approximately one hundred employees each year [most at or near minimum wage]. Its policy on background checks is limited to a quick check of information contained on its application. Both victims sue Ovan. In light of what happened, what is the most important question you expect Ovan to have asked Rhonda and what is the most important question you expect it to have asked Martina in their employment applications [drawing from the list of legal Employment Inquiries published by the California Department of Fair Employment and Housing Fact Sheet posted in Course Documents]? What is the prima facie case for the cause of action the victims will allege? Analyze the facts to determine whether sufficient evidence exists to support each element of the prima facie case. What is Ovan’s best argument in defense of each case [i.e., focus on the level of personal interaction Rhonda and Martina have with other employees or customers after carefully reading the relevant section of the text]? If the cases went to court who do you think will win? Be sure to explain your answer.

Explanation / Answer

The most important question that Ovan could have asked Rhonda in the employment application was if she has faced any convictions or cases during her last jobs and why. Since none of these convictions were sealed or expunged, the records would have been readily available and accordingly he would have been able to give proper training to Rhonda on the HR processes of handling co workers or vendors if they insult her.

The most important question that Ovan could have asked Martina in the employment application was her experience of mugging and if there were any medical issues which will affect her performance adversely in the present job. As Ovan checked only the details mentioned in application by Martina, this issue was missed by him. The background check would have easily uncovered the mugging incident and a medical check up would have helped Ovan in analysing Martina’s medical conditions better so as to provide her better training on how to deal with customers.

The prima facie case for the cause of action which the victims will allege is “Employer’s liability for Employee Actions” because if the employer has been negligent in hiring and training of employees then the case can be filed against them for employee’s action.

There is sufficient evidence to support the prima facie case against employer because:

Ovan’s best argument for both Rhonda and Martina’s cases would be gross misconduct initiated by the customers which can be termed as harassment and so Rhonda and Martina had to take this extreme action in the heat of the moment. Since this harassment was directed at the employees so the response given was solely their responsibility. If the customer had complained to Ovan against the behaviour of employees then Ovan could have taken action but since harassment of employees was done by customers so Ovan is not responsible for the response they received. Ovan can also quote past work record of Rhonda and Martina in the company where other customers have not filed any complaint against them. The victims were solely responsible for the incident as they had adversely provoked the employees with their gross misconduct. No other victims have come forward so it is a standalone incident and Ovan is not responsible for it.

If the cases went to court then the victims would win the case against Ovan. Ovan had shown negligence in employee background check, employee training, job assignment as per strengths and weaknesses of employees and employee management. No proper medical check up and consulting was given to employees based on their medical history and no training was done for employees to follow the company processes and regulations. Since the incidents happened during employee hours in the organization due to gross negligence of employer and could have been easily avoided if proper precautionary action was taken by employer, the victims would be able to win the case

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