Sexual Harassment on the High Seas
Sexual Harassment on the High Seas
By: Alex Lauricella
Edited by: Bryan O’Neill
Russo v. APL Marine Servs., No. 2:14-cv-3184-ODW(JCGx),2015 U.S. Dist. LEXIS 128787 (C.D. Ca. Sept. 24, 2015).
The plaintiff, Valerie Russo, was employed as a cook aboard the international commercial vessel KOREA where she and co-defendant Captain Londagin met and developed a consensual sexual relationship. After a brief break they worked together again and rekindled the relationship. Shortly after the vessel left port and was on the high seas, the plaintiff ended the affair. According to Russo, Captain Londagin – among other things – slapped her on the buttocks. Londagin later terminated Russo’s employment, claiming that she exhibited aggressive and improper behavior. Russo filed suit in the California Superior Court alleging that her employer APL Marine Services (APL) and Captain Londagin violated California and federal maritime laws. Defendants removed the case to the U.S. District Court for the Central District of California and moved for partial summary judgment.First, the court found that Russo’s state constitutional, statutory, and common law claims (sexual harassment, retaliation, and wrongful termination) failed because they did not apply extraterritorially. Under the presumption against extraterritoriality, state laws do not have extraterritorial effect unless the statute clearly provides such intention. The applicable state employment law, the Fair Employment and Housing Act (FEHA), does not require that the parties be California residents, nor does it require that the facts giving rise to the action occur in California. However, citing several decisions, the court found that the extraterritorial effect of FEHA is determined by “the situs of both employment and the material elements of the cause of action.” Therefore, because the majority of Russo’s employment and all of the alleged misconduct took place in international waters, the court found that FEHA did not apply extraterritorially and granted summary judgment to defendants for those causes of action. The court then decided Russo’s sexual discrimination claim under the California Constitution on the same grounds as her state employment claims..Second, the court found that Russo’s claim for unseaworthiness failed because Captain Londagin’s alleged misconduct – i.e. slapping Russo on the buttocks – was not “evil, wicked, or savage and vicious in nature.” The unwelcomed sexual advances were not sufficient to sustain the claim. Thus, the court summarily adjudicated the claim in favor of APL.Third, the court denied summary judgment as to Russo’s claim for Negligent Infliction of Emotional Distress (NIED) because there was an issue of material fact. The standard for NIED under the Jones Act is the Zone of Danger test, which requires that if the plaintiff was not physically injured, she may recover only if she feared immediate harm. Russo claimed that she was so scared of Captain Londagin that she braced her stateroom door with a chair. The court found this evidence sufficient to assert a claim under the Jones Act and accordingly denied summary judgment.Finally, the court found that Russo’s claims for punitive damages failed because it had already dismissed her discrimination, harassment, retaliation, wrongful termination, and unseaworthiness claims, and further because her NIED and maintenance and cure claims do not provide for punitive damages.
