Balas v. Huntington Ingalls Industries, Inc., Civil Action No. 2:11-cv-347 (E.D. Va. January 18, 2012). Plaintiff Karen Balas sued her former employer, Huntington Ingalls Industries, alleging sexual harassment under Title VII of the Civil Rights Act of 1964 (“Title VII”), retaliatory termination under Title VII, wrongful discharge, assault and battery, and intentional infliction of emotional distress. For all of these claims, Balas alleged that her supervisor, Bradley Price, sexually harassed her and terminated her for opposing that harassment. The district court dismissed Balas’s claim of sexual harassment because she had not properly raised that issue with the Equal Employment Opportunity Commission (“EEOC”), as is required by Title VII. The federal court also dismissed Balas’s claims of wrongful termination and intentional infliction of emotional distress.
What remained were her claims of retaliatory termination and assault and battery. Huntington Ingalls moved for summary judgment as to these remaining claims. Balas filed her response to Huntington Ingalls’s motion, as well as her own motion for summary judgment on the claim of assault and battery. This note focuses on what the court did with the assault and battery claim.
By way of context, the court found that Balas and Price had developed a personal relationship at work in which they shared confidences and discussed personal issues that they did not share with other workers. For example, Balas told Price that she was getting a separate residence from her husband and wanted to date other men. Balas contended that Price also solicited sex from her and commented on her physical appearance.
After learning that Price had received custody of his son, Balas came to the office during her holiday vacation and dropped off some cookies for the child. When Balas returned from her vacation on January 4, 2010, Price hugged Balas in her workspace while she was rising from her chair. The hug was brief, and at the time Balas did not verbally object or indicate that the hug was unwanted.
Although the parties agreed about the actions involved in this incident, they disagreed considerably about how it was perceived: Huntington Ingalls asserted that the hug was motivated by Price’s gratitude for the cookies. Balas asserted that the hug stemmed from improper motives and that it surprised her. The parties agreed that the hug made Balas uncomfortable because she could not physically distance herself from Price. Balas testified that the hug was rude or insulting because it was difficult for Balas to pull away; however, there was no evidence that Balas objected to or otherwise attempted to avoid the hug, nor was there evidence that the hug was sexually suggestive.
In setting out a statement of Virginia law defining a “battery,” the district court looked to a recent Virginia Supreme Court decision, Simms v. Ruby Tuesday, Inc. In a concurring opinion, two of the nine Virginia Supreme Court justices wrote, “a battery consists of contact ‘done in a rude, insolent, or angry manner,’ Crosswhite v. Barnes, … (1924), ‘which is neither consented to, excused, nor justified.’ Koffman v. Garnett, … (2003).” (The district court edited out the quotation marks and the citations, but the text was the same.) The full quotation from the 1924 case, Crosswhite v. Barnes, stated the law of battery like this:
The law is so jealous of the sanctity of the person that the slightest touching of another, or of his clothes, or cane, or anything else attached to his person, if done in a rude, insolent or angry manner, constitutes a battery for which the law affords redress.
Against that backdrop, the district court found that there was no objective evidence that the hug was rude or insulting and ruled against Balas on the assault and battery claim. Going further, the court stated that “a simple hug, without more, is insufficient to constitute a battery, even where the parties to the hug have a history of potential sexual harassment.”
Obviously, not all hugs are benign and the simple hug that the court mentioned excludes a rude or insolent embrace. But whether conduct is considered objectively rude or insulting will depend upon the person making the judgment call. (For that matter, conduct that the Crosswhite court in 1924 contemplated as rude or insolent differs from what a court today would call rude or insolent.) In this sense, “objective” rudeness means conduct that your average joe would find rude. For the person being hugged, principles of personal space, hygiene, or etiquette may make a hug unwelcome or uncomfortable but unless there is evidence of the hugger’s bad motive, the hug is probably not a battery.