Iowa justices allow Title VII claim for fatal punch.

A supervisor's punch that killed a subordinate was an adverse employment action, the Iowa Supreme Court has ruled, allowing the deceased employee's estate to file a Title VII claim against the employer. (Estate of Harris v. Papa John's Pizza, 679 N.W.2d 673 (Iowa 2004).)

"The facts of this case are as tragic as they are bizarre," Justice Michael Streit wrote for the majority. "An employee of a pizza restaurant told management his supervisor had sex with a subordinate. When his supervisor found out, he punched the employee in the chest. The employee died from the blow, a so-called chest shot."

The court concluded that the punch to the chest that caused Michael Harris to suffer cardiac arrhythmia was retaliation by his supervisor, Robert Shields, who had violated the company's sexual harassment policy by having sex with an employee.

Harris's estate filed a claim with Papa John's Pizza for workers' compensation benefits. The company's insurer denied the claim, stating that it could not determine that the injury had occurred in the scope of Harris's employment.

The estate then sued Papa John's, alleging that the retaliation violated Iowa and federal civil rights acts and that the company had negligently supervised its employees. The district court granted summary judgment to the company on both counts.

Papa John's Pizza "got summary judgment on the Title VII case because they convinced the district court that [the incident] was out of the scope of employment," said Dorothy O'Brien of Davenport, who represented Harris's estate.

"Then another district judge ruled that the negligence claim was preempted by workers' compensation. We said they couldn't have it both ways: They can't deny the workers' comp claim and then say [the negligence claim] was preempted by workers' romp exclusivity."

The state supreme court affirmed the dismissal of the negligence allegation but reinstated the retaliation claim. The court disagreed with the company's assertion that there was no evidence that it had retaliated against Harris.

"We see no reason why punching an employee for making a report of sexual harassment cannot constitute adverse employment action," Streitwrote. "Harris's death, after all, did result in termination of his employment. Far lesser punishments have supported a finding of retaliation."

Papa John's claimed that there was no evidence of sexual harassment because the employee had never complained about having sex with Shields, and therefore Harris had not engaged in protected activity when he reported the alleged harassment.

"Where there is no underlying harassment, Papa John's claims, there can be no retaliation," Streit wrote. "In the district court, however, Papa John's only argued whether Harris suffered adverse employment action; in a reply brief, Papa John's expressly permitted the court to assume Harris was engaged in protected activity."

Harris's actions clearly' were protected conduct, O'Brien said.

"Even if [the sexual activity] was totally welcome behavior but someone perceived that it might not have been, you can't go around killing people for reporting sex harassment," she said. "That would be an awful precedent, and it would be inconsistent with earlier cases by the Iowa Supreme Court that say that even if your complaint of sex harassment doesn't rise to the level of legal harassment, you still have an absolute right to report it and be protected from retaliation."

O'Brien hopes to go to trial by the end of the summer.