How Much Is A Kiss Worth?

In King v. McMillan, 2010 U.S. App. LEXIS 2308 (4th Cir. 2010), Judge Michael, writing for the panel, upheld a jury verdict of $50,000 in compensatory damages (remitted to that dollar number from the jury’s verdict of $175,000) and $100,000 in punitive damages in a battery claim where a former female deputy sheriff sued the sheriff for forcing her to kiss him. The court describes the incident as follows:

“At the end of the meeting [wherein the sheriff urged the plaintiff not to quit] McMillan [the then sheriff] asked King [the female deputy sheriff] for a hug, grabbed her around her waist, and pulled her down to sit on his lap. McMillan told King that he would not let her go until she gave him a kiss. King tried to give him a peck on the cheek, but McMillan insisted upon a ‘real kiss’... After McMillan forced a full kiss on King’s lips, she ran out of the room into a restroom, where she cried for about ten minutes. King submitted a letter of resignation several days later.”

The Fourth Circuit declined to disturb the judgment for $50,000 in compensatory damages as well as the $100,000 judgment for punitive damages.

Of further interest is the holding by the court allowing the testimony of other women describing their own experiences of harassment by the then sheriff. The could held that such testimony was relevant on the question of whether the sheriff’s conduct was because of the deputy’s sex, and whether the unwelcome conduct was sufficiently severe or pervasive to create a hostile work environment. Further, interestingly, the court approved the lower court’s instruction to the jury that the testimony of the other women was only relevant to the “severe or pervasive” element if the deputy “was aware of [the harassment described in the testimony] during the course of her employment.” Further, the court approve the lower court’s instruction to the jury that the incidents of harassment about which the deputy was unaware of during the course of her employment, could nonetheless be considered by the jury as relevant to the element of whether the sheriff’s conduct toward the deputy was because of her sex.

Finally, the court rejected the defense of the new sheriff, Sheriff Johnson, a woman, who contended that the district court erred in substituting her as a defendant in place of the former sheriff McMillan in plaintiff’s Title VII claim which had been filed against the sheriff in his official capacity. Sheriff Johnson interposed state law provisions which the court rejected on Supremacy Clause grounds, finding that to accept the new sheriff’s argument, “would permit states to draft laws defining state and local offices in such a way as to limit the liability of their occupants under federal law.”

The Supreme Court is currently considering a variation on this argument involving the intersection of Federal Civil Rule 23 and a state substantive statute sought to be enforced in federal court under diversity jurisdiction, a state statute that barred class action treatment of claims under it. Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 549 F.3d 137 (2nd Cir. 2008), cert. granted, 2009 U.S. LEXIS 3340 (May 4, 2009), Docket No. 08-1008.