Government says Mariners’ rape on USNS ship may fall under workers comp
Defense lawyers argued that workers comp would be much more limited and not take emotional damages into account.
A civilian mariner says she suffered deep emotional trauma when she was raped by the captain of the Navy ship she served on after a night out drinking with the crew. But while government lawyers acknowledge rape as “a reprehensible crime” in court documents filed last month, they argue that the attack likely amounts to “personal injuries sustained while in the performance of [the employee’s] duties,” which would be covered by traditional workers compensation laws.
Elsie E. Dominguez, a graduate of the U.S. Merchant Marine Academy, was the 1st Assistant Engineer aboard the USNS Carson City when she said she was raped by the vessel’s captain. In a federal lawsuit filed in November, Dominguez said Navy and Military Sealift Command, MSC, officials failed to protect her from sexual assault.
“We categorically reject the idea that rape can be in the performance of her duties,” Christine Dunn, Dominguez’s lawyer told Task & Purpose. “So, workers’ comp is the wrong vehicle for this claim.”
Government lawyers have asked a court to temporarily halt Dominguez’s lawsuit, citing workplace laws that put civilian mariners under the Federal Employee’s Compensation Act, which governs typical workers comp cases. Any harm Dominguez suffered aboard the ship, including from sexual assault, would amount to a workplace injury, for which she could not seek damages beyond the limits of normal worker’s compensation.
The government specifies Dominguez’s workplace as the deployed USNS Carson City “because her job required that she be there” and “as a practical matter she had no other place to live.” The alleged assault occurred in her stateroom which is a government premises, the government said.
“On these facts, a substantial likelihood of FECA coverage exists. Where a substantial question of FECA coverage exists, courts defer to the Department of Labor in assessing its availability,” the government said in its filing.
The Federal Employee’s Compensation Act provides compensation benefits to civilian employees due to personal injury sustained while performing their job duties.
Dominguez’s lawyer said that position would mean “a sexual assault by the ship’s captain is an expected and incidental risk of performing duties on the ship.”
Dominguez’s lawyers brought the lawsuit under the Jones Act which allows mariners to bring claims against the government for injuries sustained as a result of negligence. Damages under the Jones Act would be determined at trial in federal district court so it’s unclear what Dominguez would be awarded if the case succeeded at trial, Dunn said.
“Recovery under the federal workers’ compensation statute would be much more limited and does not generally take into account emotional distress damages,” Dunn said. “It is possible to get compensated for emotional distress through workers’ comp, but the process is much more limited and her damages awarded are almost certain to be less through the workers’ comp process than proceeding in court.”
The U.S. Merchant Marine
The USNS Carson City, like all United States Naval Ships or USNSs, is operated by the Navy’s MSC. The command’s fleet of 125 vessels provides sealift and ocean transportation for military services and federal agencies. As “civilian mariners,” both Dominguez and the captain were federal employees in the U.S. Merchant Marine but not in the Navy. MSC ships follow civilian commercial ship rules and regulations, according to the command.
According to the lawsuit, Dominguez said she had gone ashore with members of the crew in Brindisi, Italy on the evening of Dec. 18, 2021, when someone slipped a drug into her drink which caused her to black out. Dominguez was so incapacitated that she had to be carried onto the ship by fellow crew members, she said. She awoke the next morning to find the captain — who the lawsuit does not name — raping her as she lay unconscious, court documents allege.
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Thomas Van Leunen, a spokesperson for the Military Sealift Command told Task & Purpose that the captain was put on administrative leave in November. As a civilian federal employee, the accused in the case is not subject to the military justice system.
Earlier this week, Dominguez’s lawyers filed an opposition to the Government’s motion to halt further court proceedings. The government cited a Supreme Court precedent that established the Federal Employee’s Compensation Act was “the exclusive mechanism for civilian mariners employed by the federal government to recover for damages ‘resulting from personal injury sustained while in the performance of [the employee’s] duty.’”
The government goes on to request that the Department of Labor should determine if Dominguez’s allegations are true and if there’s “substantial likelihood that her claim would be covered by FECA.”
Dominguez’s lawyers called the government’s response “morally reprehensible” in a press release and that the government’s argument shows a “shocking lack of concern” for the events that led up to the rape.
“That assertion is not only wrong as a matter of law, but also offensive to civilian mariners and to society’s notion of decent working conditions,” Dominguez’s lawyer, Christine Dunn said in her filed response. “The United States cannot avoid liability for its negligence, nor avoid its
responsibility to remedy the intentional shipboard safety failures that caused Plaintiff to be raped, by asserting that a sexual assault by the ship’s captain is an expected and incidental risk of performing duties on the ship.”
The U.S. noted in its filing that “rape is a reprehensible crime, and the Naval Criminal Investigative Service is investigating this serious allegation.”
“Civilian mariners should not be expected to take on the risk that their Captain will rape them in their own bed as a condition of accepting employment on a U.S. naval vessel,” Dunn said in a release. “For the United States to characterize this sexual assault as workers’ compensation is astonishing.”
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