Once known for her frying, Paula Deen is now known for her firing. On Sunday, the Food Network announced that it would not be renewing Deen’s contract. Public debate has followed about whether Deen’s deposition testimony last month that she used the N-word in the past justified the network’s action. That’s a business decision for the network, not a legal question. However, the lawsuit that Deen was testifying in is chock-full of legal questions of the kind that fascinate us at Suits by Suits – starting with questions of ratification, or when an employer can be held vicariously liable for the intentional wrongdoing of one employee towards another employee. Deen’s testimony is relevant to these questions.
Note that we are focused here on when an employer may be vicariously liable for intentional torts – specifically in this case, assault and battery – by one employee against another. We are not talking about when an employer may be liable for negligence by one employee against another – such as when the forklift operator accidentally runs over a co-worker and the co-worker sues the company. We are not talking about when an employer may be liable for statutorily-prohibited discrimination by one employee against another – which the U.S. Supreme Court had something to say about earlier this week. We are not talking about when an employer may be directly (rather than vicariously) liable for negligently hiring or retaining an employee who endangers other employees.
The lawsuit in which Deen testified was filed in March 2012 by Lisa T. Jackson, the former general manager of Uncle Bubba’s Oyster House. The restaurant is named after Deen’s brother, Earl “Bubba” Heirs. Heirs is a defendant in the lawsuit, along with Deen and a number of companies owned by Deen, Heirs and Deen’s sons. One of the companies owns the Oyster House but Jackson alleges that all of them together are what her lawyers call the “Paula Deen Family of Companies.”
Jackson alleges that Heirs assaulted her in the workplace – “plac[ing]” her “[o]n numerous occasions . . . in reasonable fear of bodily injury with the apparent ability to inflict such harm,” and that he battered her in the workplace – “by, among other actions, forcibly grabbing her face and kissing her and spitting upon her.” According to Jackson, the “Paula Deen Family of Companies” should pay for the damages that resulted from Heirs’ alleged assault and battery on her.
How can Jackson do that? How can she have the court find that the Deen companies are vicariously liable for Heirs’ assault and battery, assuming that she proves assault and battery? By proving that Heirs worked for Deen and the companies and that they ratified Heirs’ misconduct – that they knew of the misconduct and either expressly adopted it or implicitly approved of it.
Jackson’s lawyers probably hope that Deen’s deposition testimony gets them somewhat closer to proving these elements. For example, they may use the testimony that is quoted below to suggest that Deen and the companies would have tolerated just about any behavior or misbehavior by Heirs. However, the testimony (in our opinion) falls short of proving that Deen and the companies knew that Heirs assaulted and battered Jackson (assuming that that is true). If that proof exists, Jackson’s lawyers will have to go elsewhere to find it.
Q Did your brother come to live with you at one point?
A Yes, he did.
Q All right. And where were you living then?
A I was living at 1500 Edgerly at the time of our mother’s death. My brother was 16 at the time, and he was my responsibility to complete the job that mama and daddy started.
Q Okay. Now, do you still feel that responsibility?
Q Okay. Did Mr. Schumacher [the company’s accountant] ever tell you that he believed Bubba had a drinking problem?
A Possibly. Possibly.
Q Okay. On how many occasions did [Schumacher] communicate to you problems that he had or was aware of relating to Mr. Heirs.
A A couple of times maybe. He came to me one time to say he felt like the business would be better without Bubba, and my reply was well, that’s not an option, it’s my brother’s business. It was funded by Deen money and the business belonged to him.
Q Okay. Did – when was it, if you recall, that Mr. Schumacher told you he thought the business would be better off without Mr. Heirs?
A Oh, I don’t recall.
Q Was it while Lisa Jackson was still working there?
A Oh, without a doubt, yes.
Q Okay. Are you – now y’all hired a consulting firm to come in and evaluate the –
A Oh, yes, we did.
Q Okay. And do you think they did a good job?
A No, I do not.
Q Okay. And what, if any, investigation have you done to determine if it is your brother who is lying, as opposed to Miss Jackson and Mr. Schumacher and the people at [the consulting company] MackWorks?
A I’ve never said Mr. Schumacher was a liar.
A What I’m saying is he has been very gullible. . . . I’m sorry, I’m getting old, I’m slow. I know my brother. I know his character. If I ask him something, he would not lie to me, nor would I to him. There was nothing to investigate. Is he perfect? No. Am I perfect? No. Could somebody out there run my business better than myself? Absolutely, but it’s my business.
Q Did you ever consider the possibility that what the MackWorks people told Karl, that the problem at the restaurant was Bubba Hiers, that they were correct in that assessment?
A No. Did I think Bubba was doing everything spot on? No. No, I didn’t think that. But was he as bad as they were trying to make out? No, I know my brother better than that.