Gantt v. Security USA resulted in a $2.25 million jury verdict for Ms. Gantt. See details in  
SexandWorkplaceViolence and GanttvSecurityUSA.

MARYLAND LAW FRIDAY COVER STORY



Dominique's nightmare
Dawn V. Martin, the Alexandria-based attorney who represents Dominique Gantt, wants the
Supreme Court to hear her story. Martin is seeking to hold Security U.S.A. Inc. (a private
company under contract with the government to provide security for federal buildings) liable
for the emotional distress Gantt suffered as a result of being abducted by an estranged
boyfriend, as well as for the government contractor's failure to protect her from sexual
harassment.
- Ann W. Parks                               



Volume: 5   Number: 25_friday

July 30, 2004
Dominique's nightmare

How far does the law go to protect an employer?

By ANN W. PARKS
Daily Record Assistant Legal Editor


                                                         
            Photo by Maximillion Franz
In December 1996, Dominique Gantt, a 25-year-old security guard, had a dream that her
estranged boyfriend shot her while driving down a parkway.

Days later, her nightmare came within a trigger-pull of coming true.


Dominique Gantt, left, and attorney Dawn V. Martin, have asked the Supreme Court to
decide whether Gantt can sue her employer on allegations that her supervisor, who was
friendly with Gantt's former boyfriend, violated a protective order and refused to call police
when told the man had abducted Gantt at gunpoint.
--------------------------------------------------------------------------------
Her eight-year relationship with Gary Sheppard had begun to sour a year or two earlier,
and by 1996 Gantt found herself wondering how she was going to get out. Behavior that
had started with pushing had escalated to the point where Sheppard was beating her with
his fist, she said.

"It just got worse," she said. "I knew it was going to happen again."

So one day, the Lanham resident came home from her job with Security U.S.A. Inc. (a
private company under contract with the government to provide security for federal
buildings), grabbed her son a pushing had escalated to the point where Sheppard was
beating her with his fist, she said.

"It just got worse," she said. "I knew it was going to happen again."

So one day, the Lanham resident came home from her job with Security U.S.A. Inc. (a
private company under contract with the government to provide security for federal
buildings), grabbed her son and a few belongings, and drove to her family's home in
Charles County.

On the way, she stopped at the Charles County Courthouse and obtained a restraining
order directing Sheppard to stay away from her.

Returning to work at the Internal Revenue Service in Lanham the next day, Gantt provided
Security U.S.A. Project Manager Earl Wood with a copy of the order. All supervisory
personnel were informed, in turn, that Gantt was not to be assigned to an outside post.

"I went through the chain of command," Gantt said. "I did everything that I was supposed to
do."

So when Sheppard showed up at the IRS building on the morning of Saturday, Dec. 7, 1996
- brandishing a shotgun under his trench coat - the idea that he could successfully abduct
Gantt from the grounds of a federal building, escape unhindered to Delaware and subject
her to six hours of assault and rape should never have been more than a bad dream.

But it happened.

'He just wants to talk'

Dawn V. Martin, the Alexandria-based attorney who represents Gantt, wants the Supreme
Court to hear her story. The story is not about Sheppard - who, responding to Gantt's
desperate promises to reconcile in order to save her life, drove her back to Maryland after
the ordeal and is now serving 20 years in jail.

Martin is seeking to hold Security U.S.A. liable for the emotional distress Gantt suffered as a
result of Sheppard's actions, as well as for the government contractor's failure to protect
her from sexual harassment.

"In Dominique's case, she had specifically informed Wood that Sheppard presented a
danger to her," Martin says. "He instructed all supervisors not to put Dominique on an
outside post."

So how did Gantt end up, on the morning of Dec. 7, guarding the entrance to an
underground garage - a place where Sheppard could easily find her? And how was
Sheppard able to escape with her, especially since two of her fellow security guards
witnessed and reported the abduction at gunpoint?

"Angela Claggett, Gantt's supervisor, repeatedly violated the protective order," Martin says.
Less than an hour before the attack, Gantt begged Claggett to be moved inside, according
to court filings; yet Claggett ignored those pleas as well as a reminder by another
supervisor, Sgt. Willie Jones. "She specifically ordered Dominique to Post 9, where she was
not supposed to be."

Claggett, according to court filings, was friendly with Sheppard. They had worked together
at another security firm, and he had confided in her about his relationship with Gantt.

On the day of the abduction, Gantt alleged, Claggett had even transferred a phone call
from Sheppard to her line at Post 9 in violation of the protective order.

Most damning, though, are the allegations of what Claggett did when another guard called
to tell her of the abduction.

"Claggett admitted ordering Officer Darren Harvey not to call the police," Martin asserts.
"She said, 'Don't call the police, he doesn't want to harm her; he just wants to talk to her.'
She was more concerned about him going to jail."

Claggett relented five to 10 minutes later and called the authorities herself, the lawyer says.
But by then, Sheppard and Gantt were gone.

The case

Martin claims the facts are undisputed. But Virginia attorney F. Nash Bilisoly - who is
opposing Gantt's petition for a writ of certiorari to the Supreme Court - says Oakland,
Calif.-based Security U.S.A. has denied Gantt's allegations concerning Claggett's actions.

"The only issue is whether [Gantt] can put on enough evidence to get to a jury," Bilisoly
said, since at this stage, the court has made no findings of fact.

"On summary judgment, they have to assume that everything took place," he explained.
"They never did get into the very specifics that she alleged."

Gantt filed suit against her employer in December 1999, alleging a variety of theories of
recovery for the physical and emotional injuries she suffered as a result of her abduction. In
January 2001, a federal judge in Greenbelt dismissed her federal constitutional sexual
harassment claim because, although it was patrolling government property, Security U.S.A.
was not a government actor.

Also dismissed were her common-law negligence-related claims, for which workers'
compensation provides the exclusive remedy.

"If there's any degree of negligence involved, boom! It falls squarely within the Workers'
Compensation Act," says Matt M. Paavola, legislative chairman of the Workers'
Compensation Committee of the Maryland Trial Lawyers Association.

Under Maryland law, the employer is immune from common law liability for injuries sustained
in the course of employment in more than 99 percent of cases, Paavola said.

That immunity, known as the exclusive remedy rule, does not apply if the employer
deliberately intended to injure the worker.

"This statute is very onerous; only in the clearest circumstances will courts find intentional
conduct outside the act," Paavola explained. "The clearest case is if an employer strikes
you."

Because of the intentional tort exception, the district court at first refused to dismiss Gantt's
claim for intentional infliction of emotional distress. But to prevail on that claim, Gantt had to
show the existence of intentional, extreme and outrageous conduct causing severe levels of
distress.

Under that standard, U.S. District Judge Deborah K. Chasanow ultimately concluded, even if
everything Gantt alleged were true, it was not enough to put her case before a jury.

While there was evidence to show Claggett acted intentionally in placing Gantt at an outside
post, the fear Gantt suffered prior to her abduction would not be severe enough to qualify
under the standard. On the other hand, the distress from the resulting abduction and rape
would likely be sufficient - but that conduct was Sheppard's, not Claggett's, Chasanow ruled.

Three-way split

Reviewing the case in January, a three-judge panel of the 4th U.S. Circuit Court of Appeals
issued three separate opinions. Judge Paul V. Niemeyer would have affirmed the lower
court ruling in full; Judge J. Michael Luttig would have reversed it almost entirely, with the
exception of the dismissal of the sexual harassment claim.

The swing vote (and thus, the majority opinion) came from Judge Diana G. Motz, who
concluded Gantt's claim for intentional infliction of emotional distress should be reinstated -
but only as to Claggett's actions in assignass=body>Most damning, though, are the
allegations of what Claggett did when another guard called to tell her of the abduction.

"Claggett admitted ordering Officer Darren Harvey not to call the police," Martin asserts.
"She said, 'Don't call the police, he doesn't want to harm her; he just wants to talk to her.'
She was more concerned about him going to jail."

Claggett relented five to 10 minutes later and called the authorities herself, the lawyer says.
But by then, Sheppard and Gantt were gone.

The case

Martin claims the facts are undisputed. But Virginia attorney F. Nash Bilisoly - who is
opposing Gantt's petition for a writ of certiorari to the Supreme Court - says Oakland,
Calif.-based Security U.S.A. has denied Gantt's allegations concerning Claggett's actions.

"The only issue is whether [Gantt] can put on enough evidence to get to a jury," Bilisoly
said, since at this stage, the court has made no findings of fact.

"On summary judgment, they have to assume that everything took place," he explained.
"They never did get into the very specifics that she alleged."

Gantt filed suit against her employer in December 1999, alleging a variety of theories of
recovery for the physical and emotional injuries she suffered as a result of her abduction. In
January 2001, a federal judge in Greenbelt dismissed her federal constitutional sexual
harassment claim because, although it was patrolling government property, Security U.S.A.
was not a government actor.

Also dismissed were her common-law negligence-related claims, for which workers'
compensation provides the exclusive remedy.

"If there's any degree of negligence involved, boom! It falls squarely within the Workers'
Compensation Act," says Matt M. Paavola, legislative chairman of the Workers'
Compensation Committee of the Maryland Trial Lawyers Association.

Under Maryland law, the employer is immune from common law liability for injuries sustained
in the course of employment in more than 99 percent of cases, Paavola said.

That immunity, known as the exclusive remedy rule, does not apply if the employer
deliberately intended to injure the worker.

"This statute is very onerous; only in the clearest circumstances will courts find intentional
conduct outside the act," Paavola explained. "The clearest case is if an employer strikes
you."

Because of the intentional tort exception, the district court at first refused to dismiss Gantt's
claim for intentional infliction of emotional distress. But to prevail on that claim, Gantt had to
show the existence of intentional, extreme and outrageous conduct causing severe levels of
distress.

Under that standard, U.S. District Judge Deborah K. Chasanow ultimately concluded, even if
everything Gantt alleged were true, it was not enough to put her case before a jury.

While there was evidence to show Claggett acted intentionally in placing Gantt at an outside
post, the fear Gantt suffered prior to her abduction would not be severe enough to qualify
under the standard. On the other hand, the distress from the resulting abduction and rape
would likely be sufficient - but that conduct was Sheppard's, not Claggett's, Chasanow ruled.

Three-way split

Reviewing the case in January, a three-judge panel of the 4th U.S. Circuit Court of Appeals
issued three separate opinions. Judge Paul V. Niemeyer would have affirmed the lower
court ruling in full; Judge J. Michael Luttig would have reversed it almost entirely, with the
exception of the dismissal of the sexual harassment claim.

The swing vote (and thus, the majority opinion) came from Judge Diana G. Motz, who
concluded Gantt's claim for intentional infliction of emotional distress should be reinstated -
but only as to Claggett's actions in assigning Gantt ton summary judgment, they have to
assume that everything took place," he explained. "They never did get into the very
specifics that she alleged."

Gantt filed suit against her employer in December 1999, alleging a variety of theories of
recovery for the physical and emotional injuries she suffered as a result of her abduction. In
January 2001, a federal judge in Greenbelt dismissed her federal constitutional sexual
harassment claim because, although it was patrolling government property, Security U.S.A.
was not a government actor.

Also dismissed were her common-law negligence-related claims, for which workers'
compensation provides the exclusive remedy.

"If there's any degree of negligence involved, boom! It falls squarely within the Workers'
Compensation Act," says Matt M. Paavola, legislative chairman of the Workers'
Compensation Committee of the Maryland Trial Lawyers Association.

Under Maryland law, the employer is immune from common law liability for injuries sustained
in the course of employment in more than 99 percent of cases, Paavola said.

That immunity, known as the exclusive remedy rule, does not apply if the employer
deliberately intended to injure the worker.

"This statute is very onerous; only in the clearest circumstances will courts find intentional
conduct outside the act," Paavola explained. "The clearest case is if an employer strikes
you."

Because of the intentional tort exception, the district court at first refused to dismiss Gantt's
claim for intentional infliction of emotional distress. But to prevail on that claim, Gantt had to
show the existence of intentional, extreme and outrageous conduct causing severe levels of
distress.

Under that standard, U.S. District Judge Deborah K. Chasanow ultimately concluded, even if
everything Gantt alleged were true, it was not enough to put her case before a jury.

While there was evidence to show Claggett acted intentionally in placing Gantt at an outside
post, the fear Gantt suffered prior to her abduction would not be severe enough to qualify
under the standard. On the other hand, the distress from the resulting abduction and rape
would likely be sufficient - but that conduct was Sheppard's, not Claggett's, Chasanow ruled.

Three-way split

Reviewing the case in January, a three-judge panel of the 4th U.S. Circuit Court of Appeals
issued three separate opinions. Judge Paul V. Niemeyer would have affirmed the lower
court ruling in full; Judge J. Michael Luttig would have reversed it almost entirely, with the
exception of the dismissal of the sexual harassment claim.

The swing vote (and thus, the majority opinion) came from Judge Diana G. Motz, who
concluded Gantt's claim for intentional infliction of emotional distress should be reinstated -
but only as to Claggett's actions in assigning Gantt to an outside post, and the fear she
suffered prior to Sheppard's arrival. On the distress frt;P class=body>On the day of the
abduction, Gantt alleged, Claggett had even transferred a phone call from Sheppard to her
line at Post 9 in violation of the protective order.

Most damning, though, are the allegations of what Claggett did when another guard called
to tell her of the abduction.

"Claggett admitted ordering Officer Darren Harvey not to call the police," Martin asserts.
"She said, 'Don't call the police, he doesn't want to harm her; he just wants to talk to her.'
She was more concerned about him going to jail."

Claggett relented five to 10 minutes later and called the authorities herself, the lawyer says.
But by then, Sheppard and Gantt were gone.

The case

Martin claims the facts are undisputed. But Virginia attorney F. Nash Bilisoly - who is
opposing Gantt's petition for a writ of certiorari to the Supreme Court - says Oakland,
Calif.-based Security U.S.A. has denied Gantt's allegations concerning Claggett's actions.

"The only issue is whether [Gantt] can put on enough evidence to get to a jury," Bilisoly
said, since at this stage, the court has made no findings of fact.

"On summary judgment, they have to assume that everything took place," he explained.
"They never did get into the very specifics that she alleged."

Gantt filed suit against her employer in December 1999, alleging a variety of theories of
recovery for the physical and emotional injuries she suffered as a result of her abduction. In
January 2001, a federal judge in Greenbelt dismissed her federal constitutional sexual
harassment claim because, although it was patrolling government property, Security U.S.A.
was not a government actor.

Also dismissed were her common-law negligence-related claims, for which workers'
compensation provides the exclusive remedy.

"If there's any degree of negligence involved, boom! It falls squarely within the Workers'
Compensation Act," says Matt M. Paavola, legislative chairman of the Workers'
Compensation Committee of the Maryland Trial Lawyers Association.

Under Maryland law, the employer is immune from common law liability for injuries sustained
in the course of employment in more than 99 percent of cases, Paavola said.

That immunity, known as the exclusive remedy rule, does not apply if the employer
deliberately intended to injure the worker.

"This statute is very onerous; only in the clearest circumstances will courts find intentional
conduct outside the act," Paavola explained. "The clearest case is if an employer strikes
you."

Because of the intentional tort exception, the district court at first refused to dismiss Gantt's
claim for intentional infliction of emotional distress. But to prevail on that claim, Gantt had to
show the existence of intentional, extreme and outrageous conduct causing severe levels of
distress.

Under that standard, U.S. District Judge Deborah K. Chasanow ultimately concluded, even if
everything Gantt alleged were true, it was not enough to put her case before a jury.

While there was evidence to show Claggett acted intentionally in placing Gantt at an outside
post, the fear Gantt suffered prior to her abduction would not be severe enough to qualify
under the standard. On the other hand, the distress from the resulting abduction and rape
would likely be sufficient - but that conduct was Sheppard's, not Claggett's, Chasanow ruled.

Three-way split

Reviewing the case in January, a three-judge panel of the 4th U.S. Circuit Court of Appeals
issued three separate opinions. Judge Paul V. Niemeyer would have affirmed the lower
court ruling in full; Judge J. Michael Luttig would have reversed it almost entirely, with the
exception of the dismissal of the sexual harassment claim.

The swing vote (and thus, the majority opinion) came from Judge Diana G. Motz, who
concluded Gantt's claim for intentional infliction of emotional distress should be reinstated -
but only as to Claggett's actions in assigning Gantt to an outside post, and the fear she
suffered prior to Sheppard's arrival. On the distress from the abduction itself, Motz and
Niemeyer voted to affirm the lower court's ruling.

All three appellate judges focused on the exclusive remedy rule of the workers'
compensation law, and the intent-to-injure exception.

While Motz and Luttig treated Claggett's actions as those of the company - something
Security U.S.A. had not disputed - Niemeyer pointed out Claggett was disobeying a direct
order from the project manager, Wood.

But, like Motz, Niemeyer found no evidence that Claggett intended for Gantt to be abducted
or assaulted.

"The record shows that Claggett was intending to act, however clumsily, as counselor or
peacemaker, assuring Gantt that Sheppard only wt;The case

Martin claims the facts are undisputed. But Virginia attorney F. Nash Bilisoly - who is
opposing Gantt's petition for a writ of certiorari to the Supreme Court - says Oakland,
Calif.-based Security U.S.A. has denied Gantt's allegations concerning Claggett's actions.

"The only issue is whether [Gantt] can put on enough evidence to get to a jury," Bilisoly
said, since at this stage, the court has made no findings of fact.

"On summary judgment, they have to assume that everything took place," he explained.
"They never did get into the very specifics that she alleged."

Gantt filed suit against her employer in December 1999, alleging a variety of theories of
recovery for the physical and emotional injuries she suffered as a result of her abduction. In
January 2001, a federal judge in Greenbelt dismissed her federal constitutional sexual
harassment claim because, although it was patrolling government property, Security U.S.A.
was not a government actor.

Also dismissed were her common-law negligence-related claims, for which workers'
compensation provides the exclusive remedy.

"If there's any degree of negligence involved, boom! It falls squarely within the Workers'
Compensation Act," says Matt M. Paavola, legislative chairman of the Workers'
Compensation Committee of the Maryland Trial Lawyers Association.

Under Maryland law, the employer is immune from common law liability for injuries sustained
in the course of employment in more than 99 percent of cases, Paavola said.

That immunity, known as the exclusive remedy rule, does not apply if the employer
deliberately intended to injure the worker.

"This statute is very onerous; only in the clearest circumstances will courts find intentional
conduct outside the act," Paavola explained. "The clearest case is if an employer strikes
you."

Because of the intentional tort exception, the district court at first refused to dismiss Gantt's
claim for intentional infliction of emotional distress. But to prevail on that claim, Gantt had to
show the existence of intentional, extreme and outrageous conduct causing severe levels of
distress.

Under that standard, U.S. District Judge Deborah K. Chasanow ultimately concluded, even if
everything Gantt alleged were true, it was not enough to put her case before a jury.

While there was evidence to show Claggett acted intentionally in placing Gantt at an outside
post, the fear Gantt suffered prior to her abduction would not be severe enough to qualify
under the standard. On the other hand, the distress from the resulting abduction and rape
would likely be sufficient - but that conduct was Sheppard's, not Claggett's, Chasanow ruled.

Three-way split

Reviewing the case in January, a three-judge panel of the 4th U.S. Circuit Court of Appeals
issued three separate opinions. Judge Paul V. Niemeyer would have affirmed the lower
court ruling in full; Judge J. Michael Luttig would have reversed it almost entirely, with the
exception of the dismissal of the sexual harassment claim.

The swing vote (and thus, the majority opinion) came from Judge Diana G. Motz, who
concluded Gantt's claim for intentional infliction of emotional distress should be reinstated -
but only as to Claggett's actions in assigning Gantt to an outside post, and the fear she
suffered prior to Sheppard's arrival. On the distress from the abduction itself, Motz and
Niemeyer voted to affirm the lower court's ruling.

All three appellate judges focused on the exclusive remedy rule of the workers'
compensation law, and the intent-to-injure exception.

While Motz and Luttig treated Claggett's actions as those of the company - something
Security U.S.A. had not disputed - Niemeyer pointed out Claggett was disobeying a direct
order from the project manager, Wood.

But, like Motz, Niemeyer found no evidence that Claggett intended for Gantt to be abducted
or assaulted.

"The record shows that Claggett was intending to act, however clumsily, as counselor or
peacemaker, assuring Gantt that Sheppard only wanted to talk to her and repair their
relationship," Niemeyer wrote. "Claggett's misguided judgment and perhaps even
recklessness, however, cannot support a finding that she deliberately intended to injure
Gantt."

Luttig, however, dissented on that point.

"A reasonable jury need not reach such an innocent conclusion as to Claggett's
motivations," he wrote, given the friendly relationship between Claggett and Sheppard, her
knowledge of his prior threats against Gantt, her violation of the protective order, and other
factors - not the least of which was her delay in calling police after "frantic" security guards
reported Gantt had been abducted at gunpoint and was being driven away in a van.

A jury could "determine that Claggett's actions, taken as a whole, demonstrated a
deliberate intent 'to bring about the consequences of [her] act[s]...,'" Luttig wrote, "Gantt's
abduction, torture and rape, as well as the emotional injuries that attended each."

Judge Luttig had it right, according to Russell P. Butler, executive director of the Maryland
Crime Victims' Resource Center Inc., and Jeff Dion, deputy director of the Washington,
D.C.-based National Crime Victim Bar Association, a group of attorneys who handle civil
claims on behalf of crime victims.

"She was fully justified in bringing suit against her employer," said Dion, who felt the 4th
Circuit should have imputed to Security U.S.A. liability for all the damages Gantt incurred. "It
was reasonably foreseeable that this woman was at risk; she had a protective order and
they placed her in harm's way."

Artificial divide

Although the partial remand is technically a victory for them, Gantt and her attorney feel the
court was splitting hairs.

"There was an artificial division, to cut off the liability of the employer when Gary Sheppard
showed up," Martin said.

She also believes the 4th Circuit erred in concluding that as a private entity, Security U.S.A.
had no constitutional duty to protect Gantt from workplace sexual harassment.

"The court should hold that Security U.S.A. is a state actor," Martin said, since it performed
duties that would have been performed by U.S. Federal Protective Service officers and local
police, but for the General Services Agency's contract with the security firm. "The security
officers are not like night watchmen; there's an extensive GSA training procedure operated
by the government and certified by the government."

Paavola of the Maryland Trial Lawyer's Association thinks that may be Gantt's best chance
for getting the case reviewed by the Supreme Court.

"Private companies are increasingly performing government functions," he said. "Maybe we
need clarification as to when these entities must be deemed a state actor."

If the case is reviewed, Paavola said, it is likely the MTLA would file an amicus brief on the
applicability of the Workers' Compensation Act.

"Claggett's behavior should be imputed to her employer under common law, not under the
act," he said. "The facts support the exception to the act."

Precedent

Whether the high court reviews it or not, the case has attracted attention far from Maryland.
Texas employment attorney Michael Fox writes on his Web site that while the tort of
intentional infliction of emotional distress is not a favorite of his, there are situations where
he would be "hard pressed to deny" such a claim might exist.

"Gantt v. Security U.S.A. is such a case," Fox writes. "Just on the question of whether the
underlying facts state a cause of action, this one does not offend."

"The case is horrible," adds Dion, of the National Crime Victim Bar Association, which is also
considering filing an amicus brief.

It is common for stalkers and batterers to show up at the workplaces of their victims and
commit acts of violence, Dion says; employers have been held liable in tort for failing to
protect employees from acts of domestic violence that occur on their premises, "particularly
when they're on notice of the threat."

"Employers and other responsible parties that ... take it upon themselves to mediate the
situation are opening themselves up to liability," he said.

What makes this case unusual is the almost conspiratorial nature of the supervisor's
actions, Dion notes.

"It creates terrible precedent to have employers absolved from the actions of the
perpetrator when they facilitated the kidnapping, the sexual assault," he said.
"Dominique's Nightmare"  
(Gantt v. Security USA)
Maryland Daily Record Cover Story, by Ann W. Parks