Negligent Hiring - A teenage employee at KFC was sexually harassed by a co-worker, who it turned out, (1) was a registered sexual offender, (2) had a probation officer who visited the store, and (3) contrary to procedures, KFC did no investigation of his background

Hunter v. KFC, 01-1100

Plaintiff: H. Hube Dodd, II, Jaffe Strickland & Drennan, Birmingham

Defense: James J. Jenkins and Terri Olive Thompkins, Phelps Jenkins Gibson & Fowler, Tuscaloosa

Verdict: Defense verdict

Circuit: Tuscaloosa, 8-27-03

Judge: Thomas S. Wilson

Sharkeita Hunter, a teenager, started working in the Spring of 2000 as a cashier at the Tuscaloosa KFC on Skyline Blvd. The prior Fall in October, KFC had also hired Nedolandez Santos as a cook at the Skyline restaurant. On his employment application, Santos replied "N/A"when asked if he had ever been convicted of a felony. In fact, Santos had twice been convicted of sexual crimes and was registered with the State of Alabama as a sex offender.

Santos said nothing about this history. Although KFC had a policy of investigating further whenever a prospective employee answers "N/A" to questions about criminal history, that policy was not followed in this instance. Thus, Santos commenced his employment, KFC oblivious to his background.

Within a week of starting his employment, Santos sexually harassed his own supervisor. Additionally, Santosís probation officer visited him at the restaurant on several occasions. Yet, despite these apparent clues, KFC did nothing.

On 4-03-00 and soon after Hunter started, Santos commenced a course of sexually harassing behavior. It included inappropriate touchings and various sexual remarks. Among other things, Santos told Hunter that she had a nice butt, and he turned his words into action by placing his hand on Hunterís butt whenever she bent over. Santos also attempted to entice Hunter into a liaison by assuring her that he wouldnít tell her boyfriend if she wouldnít tell his girlfriend. Three days later, Hunter complained to her manager about the conduct.

The manager responded to Hunterís complaint by informing her that her complaint must be reduced to writing. Hunter complied with this requirement that same day and continued to work at the facility. A week later, Hunterís mother contacted the companyís corporate headquarters to inquire into what action was being taken.

A company representative stated that Hunterís complaint was being investigated and that in the meantime, it would be happy to accommodate Hunter. While Santos would stay at the same store, the teenager Hunter was instructed to report to a different store fifteen miles away. Hunter never worked at the other store.

Subsequently, KFC did conduct an investigation, corroborating Hunterís claims. In response, Santos was fired. Following the termination, Hunter was invited to return to work. She again declined the offer.

Hunter then commenced this litigation, targeting two defendants, Santos and KFC. During the course of the litigation, KFC prevailed on summary judgment regarding vicarious liability for Santosís intentional torts. The trial court reasoned that Santosí conduct had not furthered KFCís interests.

The case against KFC proceeded to trial on a theory of negligent hiring and retention. Namely, KFC made no investigation of Santosí past, despite several clear signals there could be a problem, (1) his answer on the employment form, (2) the pesky probation officer and (3) his harassing conduct of a supervisor. If Hunter prevailed against KFC, she sought damages for emotional distress.

Hunter also pursued Santos on an assault claim, seeking compensatory and punitive damages. Again in prison, he defended the case pro se. Court orders were required to direct his transportation to trial from Limestone Correctional.

KFC defended and cited that Santos had been a good employee, management having no reason to suspect that Santos might be a convicted sex offender. Then once a complaint was filed by Hunter, the store promptly investigated and terminated Santos.

Tried to a Tuscaloosa jury, the verdict was mixed. Hunter prevailed against Santos and took $500 in compensatory damages, another $50,000 in punitives. However on the negligence claim, KFC prevailed. The court subsequently entered a consistent judgment.