UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SARA A. COLLINS,
Plaintiff-Appellant,

v.

BANKERS LIFE AND CASUALTY
COMPANY,
                                                                   No. 98-1494
Defendant-Appellee,

and

BANKER'S MULTIPLE LINE INSURANCE
COMPANY,
Defendant.

Appeal from the United States District Court
for the District of South Carolina, at Florence.
Cameron McGowan Currie, District Judge.
(CA-96-2199-4-22BE)

Argued: June 7, 1999

Decided: September 15, 1999

Before MURNAGHAN, NIEMEYER, and LUTTIG, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: David Eugene Massey, FEDOR, MASSEY, WHITLARK
& BALLOU, Columbia, South Carolina, for Appellant. Susan Pedrick
McWilliams, NEXSEN, PRUET, JACOBS & POLLARD, L.L.P.,
Columbia, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

This appeal requires us to determine whether Sara A. Collins pro-
duced sufficient evidence to support her common law claims under
South Carolina law that her employer, Bankers Life & Casualty Com-
pany, intentionally inflicted emotional distress upon her and negli-
gently supervised her immediate superior who subjected her to sexual
advances. The district court entered summary judgment against her,
concluding that her evidence was insufficient as a matter of law. We
affirm.

I

In December 1984, Sara Collins began working as a sales agent for
Bankers Life & Casualty Company ("Bankers Life") in Florence,
South Carolina, and, over the next seven years, she assumed a number
of managerial positions. In January 1994, while Collins was working
as a sales agent, Bankers Life hired Billy Mills to manage its Florence
office.

Collins alleged that after Mills arrived, he began to subject her to
"numerous sexual advances, sexual harassment, including assaultive
conduct, and an abusive hostile environment," which continued
through early 1994. In particular, she claimed that Mills made a num-
ber of lewd and profanely indecent comments to her and that he simu-
lated masturbation in her presence. She also asserted that Mills
assaulted her:

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          [H]e would drop by my house uninvited. . . . He told me that
          if I didn't let him in he would write me up for having a poor
          attitude and terminate me. . . . He -- when I opened the door
          he pushed me into the corner of the door frame and the wall
          and he told me that if I didn't keep my mouth shut-- . . .
          that he just wanted to kill somebody.

Collins alleged that after she rebuffed Mills' advances, Mills retali-
ated against her by refusing to approve her sales and by "nit-
pick[ing]" at her work. Nevertheless, because she "wanted to give the
man the benefit of the doubt," Collins stated that she chose not to
report Mills' alleged wrongdoings to Bankers Life at that time. Some-
what in contradiction, however, she claimed that in January 1994 she
notified Gary Wells, a vice president and regional manager, about
Mills' alleged verbal harassment. Wells denied having received any
complaint from Collins before June 1994. At that time, he responded
by relieving Collins of any responsibility of working with Mills and
by admonishing Mills to avoid further contact with Collins.

Collins suffered mental and physical distress, and in accordance
with the instruction of her psychiatrist, she stopped working in May
1994. After she ultimately failed to return to work, Bankers Life ter-
minated her employment.

In the summer of 1996, about two years after her termination, Col-
lins commenced this action against both Bankers Life and its insurer
in the Court of Common Pleas in Florence County, South Carolina,
alleging (1) intentional infliction of emotional distress; (2) breach of
contract; (3) violation of public policy; (4) assault and battery; (5)
invasion of privacy; (6) negligence; (7) violation of civil rights; and
(8) violation of Title VII. After removing the action to federal court,
the insurance company filed a motion for summary judgment on all
of Collins' claims, which the district court granted. Thereafter, Bank-
ers Life also filed a motion for summary judgment.

In granting Bankers Life's motions, the district court determined
that Collins waived her breach of contract, assault and battery, and
civil rights claims by not addressing them in response to Bankers
Life's motion for summary judgment. The court dismissed her Title
VII claim because she was an independent contractor and not an

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employee of Bankers Life. And as to the intentional infliction and
negligent supervision claims -- which are the subject of this appeal
-- the court held that Bankers Life could not be held vicariously lia-
ble for Mills' alleged intentional infliction of emotional distress
because Bankers Life did nothing to ratify Mills' conduct. The court
also held that Collins could not pursue a recovery for Bankers Life's
negligent supervision of Mills because that cause of action, under
South Carolina law, is predicated upon "establishing the employee's
[here Mills'] commission of an underlying tortious act." Because the
court dismissed Collins' Title VII claim and all of her other state law
claims, Collins was precluded, as a matter of law, from demonstrating
that Mills committed an independent legal wrong for which Bankers
Life could be responsible. This appeal followed.

II

To succeed on a cause of action for the intentional infliction of
emotional distress under South Carolina law, a plaintiff must demon-
strate (1) that the defendant intentionally or recklessly inflicted severe
emotional distress or was certain or substantially certain that such dis-
tress would result from its conduct; (2) that its conduct was so
extreme and outrageous as to exceed all possible bounds of decency
and must be regarded as atrocious and utterly intolerable in a civilized
community; and (3) that its acts caused severe emotional distress that
no reasonable person could be expected to endure. See Ford v.
Hutson, 276 S.E.2d 776, 778 (S.C. 1981) (citations omitted). Even
though Mills' alleged wrongdoings undoubtedly fell outside the scope
of his employment, Bankers Life could nonetheless be held liable for
them upon a showing of express or implied ratification. See Lincoln
v. Aetna Cas. & Sur. Co., 386 S.E.2d 801, 803 (S.C. Ct. App. 1989).
Specifically, Collins would have to demonstrate that Bankers Life,
with full knowledge of Mills' conduct, affirmatively acquiesced in or
accepted benefits flowing from that conduct. See id.

Collins argues that Bankers Life ratified Mills' conduct by failing
to respond to her alleged January 1994 complaint of Mills' verbal
harassment. She posits that "Bankers Life did not perform a reason-
able investigation" into her complaints, which in turn resulted in its
saving time and money, and that "Mr. Wells never gave [her] the
opportunity to explain her complaint."

                     4
While we recognize that the parties dispute the question of when
Collins first notified Bankers Life of Mills' transgressions, we never-
theless conclude that Collins has not proffered sufficient evidence to
support a claim that Bankers Life is liable for the intentional infliction
of emotional distress. The record contains no evidence demonstrating
that Bankers Life ratified Mills' alleged wrongful conduct. As the dis-
trict court reasoned:

          [T]he record is wholly devoid of any evidence that [Bankers
          Life] accepted the benefits of Mills' harassment or that
          [Bankers Life] made an affirmative decision to adopt the
          harassment. Rather, the record is uncontradicted that Mr.
          Wells simply chose to disbelieve [Collins'] account of
          harassment, crediting the fact that Mills was a religious man
          married to the same woman for a number of years. Even if
          Wells was woefully mistaken in his assessment of Mills'
          character, that may show poor judgment but it does not
          prove affirmative adoption of the [alleged] illegal conduct.

We agree and therefore conclude that the district court properly
granted Bankers Life's motion for summary judgment on Collins'
intentional infliction of emotional distress claim.

III

Collins also contends that Bankers Life negligently failed to super-
vise Mills. Collins asserts that Mills' simulation of "masturbation and
verbal threats to force sexual relations [with her]" constituted an
assault and that Bankers Life could have prevented that assault absent
its negligent supervision of Mills.

Under South Carolina law, an employer is obliged, in certain cir-
cumstances, to exercise reasonable care to control an employee acting
outside the scope of his employment. See Degenhart v. Knights of
Columbus, 420 S.E.2d 495, 496 (S.C. 1992). Breach of that duty gives
rise to negligent supervision liability if the plaintiff is able to show
that an employee intentionally harmed another when the employee:
"(1) [was] upon the premises of the employer, or [was] using a chattel
of the employer, (2) the employer [knew] or[had] reason to know that
he [had] the ability to control his employee, and (3) the employer

                     5
[knew] or should [have known] of the necessity and opportunity for
exercising such control." Moore v. Berkeley County Sch. Dist., 486
S.E.2d 9, 12 (S.C. Ct. App. 1997) (citing Degenhart, 420 S.E.2d at
496); see also Brockington v. Pee Dee Mental Health Ctr., 433 S.E.2d
16, 18 (S.C. Ct. App. 1993). In Moore, for instance, a middle school
student sought to hold a school district liable for negligently supervis-
ing his summer school teacher, who engaged in sexual activity with
him at her home. The court entered judgment for the school district
after determining that no evidence demonstrated that it knew or
should have known of the necessity to exercise preventative control
over the teacher. Id. at 13; cf. Doe v. Greenville Hosp. Sys., 448
S.E.2d 564 (S.C. Ct. App. 1994) (holding that an employer's notice
of one of its employee's prior sexual assaultive conduct was sufficient
to result in the imposition of negligent supervision liability against the
employer).

Viewed in the light most favorable to Collins, the record does not
support her assertion that the district court erred in granting Bankers
Life's motion for summary judgment. Appalling as Mills' conduct
may have been, there is no indication that his simulation of masturba-
tion placed Collins in fear of bodily harm. See Herring v. Lawrence
Warehouse Co., 72 S.E.2d 453, 458 (S.C. 1952) (defining civil assault
as conduct that causes another to reasonably fear the infliction of bod-
ily harm). Collins has nowhere suggested that she feared for her
safety while Mills engaged in such conduct, even though the conduct
was crass and improper.

In addition, the record contains no evidence demonstrating that
Collins notified Bankers Life that Mills had physically assaulted her.
According to her claim, in January 1994, Collins notified Bankers
Life that Mills had made several suggestive and indecent verbal
remarks to her. Significantly, however, and by Collins' own admis-
sion, Mills' alleged verbal harassment is not the conduct that under-
lies her negligent supervision claim. Nor do we believe that Bankers
Life could have reasonably anticipated, based upon an allegation of
verbal harassment, that Mills would proceed to physically assault Col-
lins. See Moore, 486 S.E.2d at 13 ("Whether or not [principal] Hilson
adequately monitored [teacher] Steward's classroom is of no signifi-
cance, inasmuch as none of the alleged classroom incidents were of
such a character that the administration would have, if aware of them,

                     6
reasonably anticipated that Steward would engage in sexual inter-
course with a student in her own home after school hours"). Accord-
ingly, absent any evidence demonstrating that it received notice that
Mills engaged in assaultive or similar conduct toward Collins, Bank-
ers Life cannot, as a matter of law, be held liable for negligently
supervising Mills. See Brockington, 433 S.E.2d at 18.

Accordingly, the judgment of the district court is

AFFIRMED.

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