Court documents filed in the case of military veteran Katherine Ragazzino and her nurse Michelle Tyler — who allege that former mayor Bob Filner sexually harassed them during a meeting last year — shows the city attorney's office is distancing itself from Filner.
The demurrer, filed on February 18 and posted today, March 5, on the court's website, provides a glimpse at the city's new legal strategy when it comes to Filner.
Tyler's and Ragazzino's complaints are fourfold. They say that the two visited Filner at his office in city hall for help expediting benefits for Ragazzino from Veteran's Affairs. Once inside, Filner allegedly made inappropriate comments and began to rub Tyler's arm. Then, according to the lawsuit filed in January of this year, Filner said he would help the veteran in exchange for sexual favors from her nurse.
Now, the city says that, despite the claims, it should not be held liable for Filner's actions.
In regard to the charges of common-law battery and statutory sexual harassment, the city attorney's office feels Filner should shoulder the blame because there is "no causal nexus to Filner's official duties" and because "the misconduct is completely outside the scope of his employment."
"Under the doctrine of respondeat superior, an employer may be vicariously liable for torts committed by employees within the scope of employment. While an employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, an intentional tort that has no causal nexus to the employee's work will fall outside the scope of employment. Moreover, the scope of employment does not extend to an employee's malicious or tortious conduct if the employee substantially deviates from the employment duties for personal purposes."
In other words, Filner's actions had to be at the behest of the city in order for the city to be liable. The city also claims that when making those inappropriate advances, the former mayor was not acting in his capacity as mayor but chose to do so himself.
Which raises the question, why would the city have to award plaintiffs damages in the case of sexual misconduct by police officers? Because, theorizes the city attorney, police officers have special powers to detain, arrest, and use force. A mayor does not.
The legal brief also questions the actual harm that Filner inflicted on Tyler and Ragazzino.
"Physical harm was never a consideration. Section 51.9 requires a concerted pattern of harassment of a repeated, routine or a generalized nature, or, in the case of an isolated incident, a physical assault or the threat thereof. Plaintiffs have alleged neither."
Attorneys for both sides with state their case at a March 28 meeting in front of judge Joel Wohlfeil.