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Labor & Employment Law

: Jottings By An Employer's Lawyer

A 5th Circuit Nugget for Assault Claims

By Michael W. Fox, Esq.

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Of all the so called employment law torts, one of the most simple and sometimes most difficult to deal with on summary judgment is assault. I once had a case where we were able to get several causes of action dismissed on summary judgment, but not sexual harassment and an assault claim against an executive arising out of a conference call that was being conducted by the plaintiff and the executive over a speaker phone. Fortunately at trial we were able to prevail on all claims.

But if I had that case again today, I would have at least some good support for why the assault claim should never have gone to trial.

At the end of a First Amendment case brought by a professor who has been suspended from teaching duties (but was still being paid), the 5th Circuit affirmed summary judgment on his assault claim in the following paragraph:

This leaves only DePree?s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person ?(a) . . . acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.? [cite omitted] According to DePree, Niroomand ?aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ?son-of-abitch,? and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.? Appellee Niroomand contends that DePree?s apprehension was not reasonable. We agree. Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact. DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree?s face. No triable fact issue of an assault arose here.