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Travis Pruitt & Associates12/1/2005
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Phipps, Judge, concurring specially.
I concur in the judgment and with the majority's conclusion that the actions attributed to Taylor were entirely personal to him and were not within the scope of his employment with TPA. I disagree, however, with that part of Division 1 of the majority opinion that states that Wiley v. Ga. Power Co., 134 Ga. App. 187 (213 SE2d 550) (1975), overruled on other grounds, Ga. Power Co. v. Busbin, 242 Ga. 612, 615 (250 SE2d 442) (1978); Newsome v. Cooper-Wiss, Inc., 179 Ga. App. 670 (347 SE2d 619) (1986); Trimble v. Circuit City Stores, 220 Ga. App. 498 (469 SE2d 776) (1996); and Mears v. Gulfstream Aerospace Corp., 225 Ga. App. 636 (484 SE2d 659) (1997) should be overruled. A majority of judges must concur in a decision to overrule a prior decision of this court. OCGA ยง 15-3-1 (d). Because the court is equally divided on the issue of whether those cases should be overruled, the cases are not overruled and remain binding precedent. See id; see also Moak v. State, 222 Ga. App. 36, 43 (473 SE2d 576) (1996) (Birdsong, concurring specially). The majority opinion, however, is not binding precedent. Court of Appeals Rule 33 (a).
I also disagree with the majority opinion because it is not necessary to overrule those cases; they are distinguishable from this case.
In Wiley, the employer knew that one of its supervisors was sexually molesting the plaintiff and retained him, allowing him to continue to harass and abuse her until she (not he) was ultimately terminated. The supervisor's actions were clearly outside the scope of his employment, but issues of fact remained as to whether the employer was liable for ratifying those actions. Wiley, supra at 192-193 (4).
In Newsome, the employer knew of previous problems with a supervisor who allegedly subjected his secretary to sexual harassment. The secretary was fired one month after she reported the harassment for being a "chronic complainer"; the supervisor was retained. Relying on Wiley, this court held that material issues of fact remained about whether the employer had ratified the supervisor's alleged misconduct. Newsome, supra at 673 (4).
Trimble and Mears merely stated that an employer cannot be vicariously liable for an employee's intentional harassment of another employee unless the employer ratified the employee's actions. Trimble, supra at 501; Mears, supra at 641 (2) (c). Trimble did not analyze the issue of ratification or attempt to apply it to the facts of the case. In Mears, this court found no evidence that the employer had ratified the employee's alleged sexual harassment. Mears, supra.
Unlike the employers in Wiley and Newsome, TPA responded promptly when informed of Taylor's actions. At Hooper's request, TPA allowed Taylor to remain employed. As a condition of that continued employment, Taylor was precluded from communicating with Hooper, except through his supervisor. When he violated that condition, Taylor was terminated. Under the circumstances, summary judgment was appropriate on the issue of ratification.
In addition, the cases should not be overruled because the facts in Wiley and Newsome demonstrate the need for the continued viability of a claim that an employer ratifies an employee's acts of sexual harassment in certain circumstances. In Piedmont Hosp., Inc. v. Palladino, 276 Ga. 612 (580 SE2d 215) (2003), the Georgia Supreme Court effectively held that no employer could ever be held liable for an employee's sexual misconduct, no matter how closely connected such conduct may be with the employee's duties. Id. at 617 (Carley, J., dissenting). The majority seeks to take that ruling one step further by effectively precluding
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