Mignon Moore Hooper sued Travis Pruitt & Associates, P.C. TPA1 alleging that, while she was employed by TPA, she was the victim of an intentional tort when a co-employee, Michael Taylor, sexually harassed her at work. Hooper sought emotional distress and punitive damages from her employer, TPA, under various theories. She alleged in her complaint 1 that TPA is liable for the harassment inflicted on her by Taylor under the principles of respondeat superior or ratification; 2 that after she complained to TPA about the harassment, TPA’s negligence was a proximate cause of subsequent harassment because TPA continued to employ Taylor and failed to take appropriate action to prevent Taylor from continuing to harass her in the workplace, and 3 that TPA is liable for the harassment because it violated a duty to provide her with safe employment under OCGA § 34-2-10. The trial court denied TPA’s motion for summary judgment, and we granted TPA’s application for an interlocutory appeal. For the following reasons, we reverse. 1. Hooper alleged that shortly after she was employed by TPA, a co-employee, Taylor, made numerous unwelcome sexual advances toward her by telling her that she was beautiful; telling her that a dress she wore “showed off her butt;” touching her on the buttocks with a coat hanger; asking her at lunch with other employees “Would you like to show us how to eat a peter;” telling her that he understood she used to be a stripper which was untrue; following her from work to give her flowers; sending her notes and e-mails and calling her attempting to start an unwanted romantic relationship; asking her to take a trip and stay in a hotel with him, and calling her a bitch when she refused his advances. When Hooper complained to TPA’s president in March 1998 about Taylor’s alleged harassment, she requested that Taylor be reprimanded but specifically requested that he not be fired. The president reprimanded Taylor, told him not to contact Hooper, and warned him that, if he had further contact with Hooper, his job was in jeopardy. The president also told Taylor and Hooper that they were to have no further contact with each other at work except that, for business purposes only, they could communicate through their supervisor. Although Hooper subsequently asked TPA’s president to allow direct communication between her and Taylor for business purposes, the president refused. Nevertheless, Hooper testified that on several occasions between March and August 1998 Taylor directly contacted her in violation of the TPA ban against direct contact. She testified that she complained to her supervisor about Taylor’s contacts in violation of the ban, but TPA took no action. After Hooper complained to TPA’s president in August 1998 that Taylor continued to contact her, Taylor was terminated. TPA’s president testified that he terminated Taylor at that point because he violated the directive not to have any further contact with Hooper except through his supervisor. The president also testified that he terminated Hooper’s employment at that point because she admitted to him that she directly contacted Taylor in violation of the communication ban.
Hooper’s suit against TPA alleges as one basis for liability that TPA is responsible for Taylor’s alleged sexual harassment on the basis of respondeat superior. An employee injured at work by the intentional tort of a co-employee may assert a common law cause of action for damages where the intentional tort did not arise out of and in the course of the employment, and therefore no remedy for such conduct is provided by the Workers’ Compensation Act. Potts v. UAP-GA Ag. Chem., Inc. , 270 Ga. 14, 16-17 506 SE2d 101 1998. Although the sexual harassment alleged by Hooper was tortious conduct by nature intentional which occurred in the course of her employment by TPA, it did not arise out of the employment because Taylor’s alleged actions were directed at Hooper for purely personal reasons unrelated to the furtherance of TPA’s business and were not causally connected to a peculiar condition of the business. Murphy v. ARA Services, Inc. , 164 Ga. App. 859, 861-863 298 SE2d 528 1982. Accordingly, the same facts which establish that Hooper has a common law cause of action also establish that Hooper’s employer, TPA, cannot be held liable on the basis of respondeat superior for the alleged tortious conduct of her co-employee.
