Speaker 1: 0:22

Hey, it's Mark and welcome to the next edition of the Employee Survival Guide. Today's topic is sexual assault at work the Carol Tomka story. In this episode, I want to shed light on sexual assault in the workplace. Employees, most of them female, are forced to endure not only the sexual assault event but also the employer's defiant denial that it did anything wrong and that it should not be held liable. These female employees further endure the emotional toll in years of litigation that follow. I also want to do what no Other Podcast does explore the real life employment stories employees have gone through. It is important to explore employment discrimination cases to learn from them, possibly to prevent them and to know possibly what to expect when it happens to you.

Speaker 1: 1:12

I will continue to produce episodes about real people going through difficult employment situations because our current employment system and judicial system hide these stories from public consumption. The general public can access the federal court system through a website called PACERgov and various state judicial websites. I use a version of PACER for attorneys called the ECF system, where I file and interact with the court's docket. I do this for daily research on cases I'm working on litigating and also for this podcast. It is my mission to cut through the alleged complexity of employment laws and make them more accessible to the public at large and to protect you against the default management culture that exists in almost every workplace. There are thousands of cases handled by the courts every week. Many of them never make the news headlines, but some do. Then they fade away into obscurity.

Speaker 1: 2:10

Employment cases involve real people and real stories about how much or how each employee endured discrimination and abuse at the hands of their employers. In this episode I'm bringing one woman's story back to the present because it provides a lesson about the boundaries of working. This story occurred nearly 30 years ago, but what happened is still being experienced by women today rape in the workplace. In November 24th 1995, the Rochester Business Journal ran a story with the following statement, quote a woman who says she was gang raped by supervisors and coworkers following a heavy drinking business dinner can take her case to trial. End quote. That was the story that's reported from the decision from the Second Circuit Court of Appeals, the federal court in New York on September 27th 1995.

Speaker 1: 3:00

This episode explores Carol Tomka's story and why it is still important for employees to understand today. Much of what I'm about to read to you is from the actual case decision from the Second Circuit. So you may find the language being used a little bit unusual. I'll attempt to narrate and comment where necessary to make things clearer for you. But this is what the law is. It's the cases that are being reported and how judges write. It appears this way, but nonetheless there's still a story here that we can learn from and help ourselves on our daily work lives. Let's get into it.

Speaker 1: 3:35

Carol Tomka began work in Sealer's Environmental Services Division in July 1987 as an account manager and she was assigned to the Garden State Rehabilitation Hospital in Tom's River, new Jersey. Following complaints from the client's management, sealer transferred her to the Starts and Surveys team in December 1987. Her supervisor in this division was Ray Taylor, so here on after called Taylor the director of the Starts and Surveys team. After working on various accounts, taylor assigned her on December 4, 1998 to work in opening new accounts in the Daybreak Drug and Alcohol Rehabilitation Hospital in the Hill Haven Nursing Home in Rochester, new York. Taylor informed Tomka that she would be working with Mr Lucy, who was the district manager for the Rochester region. Tomka subsequently spoke by telephone with Lucy about her responsibilities for the accounts and Lucy informed her that she would review Sealer's contracts for the job in order to prepare for her assignment. Tomka was also informed that she would be working with Conroy, the fellow's individual male, the location manager for the Hill Haven facility, and Mr Polinsky, a member of the Starts and Surveys team, who had been assigned to the Rochester accounts. None of the individual defense had worked with Tomka prior to her arrival in Rochester.

Speaker 1: 5:07

Most of the case centers on the events which transpired after Taylor assigned Tomka to the Rochester accounts. Tomka claims that Lucy Polinsky and Conroy sexually assaulted her following a dinner on December 6, 1988, and that Sealer subsequently terminated her because she complained of these rapes and threatened to pursue criminal charges. Tomka also alleges that the assaults were a continuation of 18 months of verbal sexual harassment that she had previously suffered during her tenure at Sealer. Although the defendants vigorously denied the sexual assaults and the verbal harassment occurred, we assume that—and this is the court—we assume Tomka's intentions to be true and limit our discussion to her version of the events, the events prior to December 1988.

Speaker 1: 5:59

Tomka claims that the work environment at Sealer was permeated with a discriminatory animus towards women in general and that various Sealer supervisors and employees subjected her to sexual jokes, comments and innuendos. Specifically, tomka lists a number of incidents which occurred at various locations in which Tomka had been assigned. For example, mark Toomey, a senior account executive in Sealer's sales division, stated that he would buy a diamond bracelet for someone who would be quote-unquote special to him. While looking at Tomka, he then stated quote I wonder if anyone in this office could be special to me. End quote. Toomey later asked Jim Green, a sealer manager who was standing by with Tomka, if Tomka and Green were sleeping together. Another example while on an inspection with Tomka and two other male sealer employees, jesse Parker, a district manager, grabbed Plenev's hand and stated Carol, when you are going, when are you going out with me? Another example Ray Taylor instructed Plenev to accompany Toomey to Toomey's house for dinner and to bring a bathing suit and to use Toomey's pool. Upon arrival at Toomey's house, toomey expressed disappointment that Tomka was not wearing her bathing suit because quote he had been looking forward to seeing her in it. End quote Tomka. Another example Harry Schnook, a senior account executive in the sealers of the sales division, talked on the phone with Douglas Schnook, the vice president in charge of the Environmental Services Division, and stated with Tomka present that quote, and when I'm not doing that, I will be in bed with Carol Tomka end quote. Tomka said nothing and left the office from which the call had been made At a required orientation function.

Speaker 1: 7:46

Sealer manager Tomka. Tomka Sable referred to a radio show that had discussed women's underwear. Another example while on an inspection with Tomka and two other male sealer employees, douglas Schnook again turned to the two employees and stated quote, a bunch of us were sitting around at dinner the other night and we all wondered does she fuck? End quote. Yes, the court uses language like this, so be prepared, and the information in this case will be more explicit and I'll label the podcast as explicit as well. Schnook looked at Tomka as he made this remark and then laughed and said quote, no More appropriately does she fuck you? End quote. After Schnook laughed again, tomka walked away from the group. And a final example an unidentified male senior, a sealer employee, nicknamed Tomka, quote Sergeant Slaughter and stated that she had great legs. Prior to December 1988, tomka had not complained to anyone at sealer about this harassment. Events of December 1988.

Speaker 1: 9:35

Tomka began work at the Rochester accounts on December 5, 1988. After working, after work on December 5, tomka, lucy Polinsky, conroy and Conroy's wife went to dinner at a restaurant in Henry Anna, new York. Tomka claims that Lucy directed that Tomka join them, conroy and Polinsky, for a business dinner. Tomka also stated that it was company policy for sealer employees traveling on startup business to evening meals together and to transact sealer business during these meals. While defendants dispute that the December 6 dinner was a business dinner, lucy testified at a deposition that it was customary for traveling sealer employees to eat as a group and Conroy testified at a deposition that quote. We always, whenever we meet, we discuss business one way or another. End quote.

Speaker 1: 10:27

At the December 5th dinner, all the participants consumed alcohol. Tomka claims that Lucy encouraged his subordinates to drink and that he directed the conversation to vulgar accounts of his exploitation of women. Tomka consumed two glasses of wine at the meal while each of the men continued to drink after the meal ended. At the end of the evening, lucy gave Tomka a ride to her hotel and in his rented car the next day. Tomka contends that Lucy again convened a business dinner and ordered that she join him and Conroy and Polinsky at the Holiday Inn Airport Bar in Rochester, new York. Although Tomka was physically afraid of Lucy and Polinsky, she attended this December 6th dinner because Lucy had instructed her to do so and she understood it. It would be an early evening because Lucy had said he had a 7 o'clock flight the next morning. At the Holiday Inn, lucy repeatedly ordered drinks for Tomka and insisted that she drink with the others. Tomka consumed six glasses of wine and the bar tab, which lists approximately 40 drinks and only a small quantity of food, indicates that the others had even drank more.

Speaker 1: 11:40

As the evening wore on, the conversation apparently took a turn for the worse. Tomka alleges that the defendants repeatedly made vulgar remarks about women and talked of past sexual exploits. The men teased Tomka about wearing her hair in a bun until she took it down and Lucy brought a woman's garter to the table and placed it in front of Tomka, who put it around her arm. By the end of the evening, tomka admits she had felt intoxicated and had difficulty walking. At this juncture everybody understands in the storyline that something terrible is going to happen, and it did, and the moral of the story is don't drink at work. That's my comment.

Speaker 1: 12:20

After leaving the bar at approximately 11.30 pm, tomka wanted to get away from Lucy and Polinsky. She initially climbed into an airport courtesy van, but Conroy assisted her out and helped her into a backseat of Lucy's rental car. Tomka alleges that each of the three men raped her in Lucy's car. In an allegation that the defendants deny, conroy and Polinsky then drove Tomka, who was inebriated and semi-conscious during the assaults, back to her hotel in Conroy's car. At the hotel, tomka claims that Polinsky directed her to his room when he raped her again. Tomka, passing out in and out of consciousness, was able to eventually free herself and went back to her hotel room.

Speaker 1: 13:01

After remembering during the day that she had been assaulted the night before, tomka left work early on December 7, 1988 and called the Rochester Rape Crisis Center. Tomka was examined at the crisis center on December 8 and called Ray Taylor to report that she had been assaulted, the assaulted by Lucy, conroy and Polinsky. Taylor then flew to Rochester and met with plaintiff on December 9. Tomka claims that Taylor promised that the promised her that Taylor would hold her job open and continue to pay her salary while she took whatever time she needed to recover from the assaults A very important factor, remember for the story. After flying to Pennsylvania to be with her relatives, tomka wrote to Taylor on December 12, 1988 to confirm these arrangements. Tomka understood that she was to take whatever time I need to pursue the counseling, medical treatment and the rest I may require to restore my mental and physical well-being. Her letter also stated that Sealer would cover fully any expenses I incur getting the help I need and that all the contacts with Sealer were to be made through Taylor. Finally, tomka informed Taylor that she would be seeing a therapist in Philadelphia. Tomka never received a response to this letter.

Speaker 1: 14:24

The events after December 1988. Sealer subsequently ordered Robert Bowe, its director of corporate security, to investigate Tomka's allegations. Bowe interviewed Conroy Polinsky and some of the bar and hotel employees. Although he failed to interview either Tomka or Lucy. Bowe concluded that Tomka had never been assaulted. He did find, however, that Polinsky had acted inappropriately because he had slept with Tomka when she was enabred. Douglas Snook, who interviewed Lucy, then decided with other Sealer officials to terminate Polinsky because quote his attitude and behavior were detrimental to Sealer end quote and to reprimand and demote Lucy because he had overused his company charge card. During the December 6th dinner In January 1989, tomka spoke to Taylor by telephone on a number of occasions and asked him how long her benefits would continue.

Speaker 1: 15:20

She also told him that she was thinking of pressing criminal charges as well pursuing other remedies. After conferring with Snook, taylor told Tomka that Sealer would continue to pay for her counseling expenses and that her salary and benefits would also continue. An important factor, note. On February 1st 1989, douglas Snook wrote to Tomka and advised her that her extended leave with full benefits and pay would end on February 15th 1989. And that she would report to Taylor to receive her next assignment On February 10th. Tomka responded that she was still undergoing medical tests and that she would be willing to supply Snook with the reports from those tests, but in the interim she expected her salary and benefits to continue indefinitely. On February 20th, snook wrote to Tomka that Sealer had not received any doctor's reports regarding Tomka's status. This investigation concluded that the assault had not occurred and that Sealer would discontinue her salary and place her employment on inactive status as of February 17th 1995. Tompka later sent Snook a copy of the doctor's invoice for $100 which prescribed psychiatric treatment. Tompka then commenced this action on December 1989.

Speaker 1: 16:36

The district court's decision. In a decision and order dated June 7, 1994, judge Taleska granted summary judgment to the defendants on all of Tompka's claims other than the intentional affliction of emotional stress and the assault claims against the individual defendants as to Sealer's liability for hostile work environment and sexual assault or sexual harassment, the district court first held that only Lucy could be considered plaintiff considered plaintiff supervisor for purpose of summary judgment. The court went on to state that the rape of an employee by a supervisor is an event which is sufficiently severe to create an abusive working environment. But under the principles of agency, sealer would be liable for assaults only if Tompka could show that Lucy had used his actual apparent authority to facilitate the assaults. I will tell you that that's the old standard. The district court had since revised it and I'll explain later.

Speaker 1: 17:32

In the episode, judge Taleska phrased the issue in the following manner, describing his opinion In addition to proving that she was raped, tompka must also show some nexus between the work environment and the sexual conduct. In order to benefit from Title VII's protections, in other words to hold Sealer liable for the rape, she must show that Lucy used his actual or apparent authority at Sealer's agent or at Sealer's agent to accomplish the rape. However, the court rejected Tompka's contention that Lucy had used his apparent authority to convene a mandatory business dinner on December 6. The court went on to say Tompka also presented no evidence to suggest that she was ordered by Lucy or that it was Sealer's policy for her employees to attend working dinner meetings while on the road at the conclusion of the business day. The clear inference from the proof instead shows that the business colleagues while on the road quite naturally had dinner together, during which they sometimes discussed progress of the client's premises, and on both nights in Rochester even Mrs Conroy was invited to attend the dinner and Tompka herself considered inviting a friend. Similarly, the court discounted Tompka's assertions that Lucy had forced Plain If to drink excessively against her will in order to make her more vulnerable to the assaults.

Speaker 1: 18:56

After finding that the verbal harassment did not rise to an actual level of conduct On Title VII, the court dismissed Tompka's hostile work environment claims. The district court also dismissed Tompka's claim that Sealer had discharged her in February 1989 because she had complained of the rapes and had threatened to initiate criminal proceedings. The court held that Sealer had a legitimate, nondiscriminatory reason to dismiss Tompka. She failed to report for work on February 15, 1989, which was 60 days after the incident in Rochester, as instructed by Douglas Schnook, or to provide a statement from her doctor, as requested by him, justifying her absence for medical reasons. The court found that Tompka had not cast any doubt on Sealer's assertive reason because she had failed to provide any evidence that she had been treated differently than any other Sealer employee would have been under similar circumstances. If you believe that one, then you've been hoodwinked because that's incorrect. As to Tompka's remaining claims, the court held that Lucy Plainsky-Conroy would not be held liable in their individual capacities under Title VII or the human rights law under New York. Finally, the court held that the alleged adequately supported Tompka's claims of assault and intentional fiction emotional distress in New York law. However, the court found no basis to impose or respond to its superior liability on Sealer, the employer, for the sexual misconduct of its employees.

Speaker 1: 20:25

Then Tompka now appeals to the Second Circuit. The Second Circuit then responded by saying the following. In part H it said that hostile work environment and sexual harassment. Tompka contends that the district court erred in holding that Sealer was entitled to some re-judgment on her sexual harassment claim because disputed issues of fact exist as to whether the working environment at Sealer was sufficiently abusive and whether Sealer could be held liable for the hostile environment. Title VII forbids employers from discriminating against any individual with respect to compensation, terms and conditions or privileges of employment because of such individual's sex, among other things.

Speaker 1: 21:04

It is now well established that two forms of sexual harassment violate Title VII prohibitions against workplace inequality. One is the quid pro quo harassment and the other is the hostile work environment harassment. Because Tompka limits her claims to hostile work environment theory, we only consider that form of discrimination. In this case, the hostile work environment sexual harassment occurs when an employer's conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile and offensive working environment. A hostile work environment exists when the workplace is permeated with a discriminatory intimidation, ridicule and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment. That standard hasn't changed on the hostile work environment theory in quite some time, and we've had another episode. We discussed that as well.

Speaker 1: 21:56

The court goes on. Whether a workplace should be viewed as hostile or abusive from both a regional person's standpoint as well as the victim's subjective perception, can only be determined by considering the totality of the circumstances of the facts. Even if a work environment is found to be abusive, however, a plaintiff must establish that the conduct which created the hostile work environment should be imputed to the employer. In a famous Supreme Court case called Meritor, the Supreme Court declined to announce a definitive rule on employer liability, holding instead that the federal court should be guided by a common law principles of agency. We have used Meritor's general guidance to derive the following rules of employer liability If a plaintiff's supervisor is the alleged harasser, an employer will be liable if the supervisor uses his actual apparent authority to defer the harassment or if the supervisor was otherwise aided in accomplishing the harassment by the existence of the agency relationship.

Speaker 1: 22:56

I will say that that's now not the standard that used and declared by the US Supreme Court. By contrast, where a low-level supervisor does not rely on his supervisor authority to carry out the harassment or a co-employee of the plaintiff is the alleged harasser, an employer will generally not be liable unless the employer either provided no reasonable avenue of the complaint or knew of the harassment but did nothing. Knew of the harassment, did nothing about it. The hostile work environment at Sealer. Tompka points to the comments, jokes, innuendos directed at her during her tenure at Sealer and to the alleged assaults that followed the December 6th dinner as evidence that her work environment was abusive. The District Court held that the assaults were sufficient and severe to alter the conditions of Tompka's employment and to constitute actual sex discrimination. Accepting as we must that the assaults occurred, we agree with the District Court that even a single incident of sexual assault sufficiently alters the conditions of the victim's employment and clearly creates an abusive work environment that for purpose of Title VII liability. However, tompka must also establish Sealer's responsibility for the sexual misconduct of Lucy Conroy and Polinsky.

Speaker 1: 24:12

Sealer's liability for the acts of its employees is the topic next. The first issue to be considered in determining Sealer's liability for the assaults is whether any of the three individual defendants can be considered Tompka's supervisor. The District Court held that Lucy should be treated as plaintiff's supervisor at the summary judgment stage. We agree with the District Court that Tompka has alleged facts sufficient to enable a finder of fact, meaning a court or a jury, to find that Lucy had acted as plaintiff's supervisor at Hill Haven. Although Taylor was Tompka's direct supervisor and Lucy did not give Tompka direction at Hill Haven, lucy was a District Manager responsible for the accounts Tompka had been assigned to, including the Hill Haven account. Lucy's position in the Sealer hierarchy would enable him to review Tompka's performance at Hill Haven and communicate any thoughts about plaintiff to Taylor, thereby affecting Tompka's future with Sealer. This evidence is sufficient to create a fact issue as to Lucy's supervisory role vis-a-vis Tompka and we therefore treat him as Tompka's supervisor. Sorry folks, but this is what courts go through to establish who is an employee's supervisor or not. It may sound Byzantine or Archaic, but this is where the courts go through it. The Court continues.

Speaker 1: 25:33

The District Court also held that neither Polinsky nor Conroy should be treated as Tompka's supervisors. He was an unassigned starts and surveys manager like Tompka and clearly was not her supervisor. Conroy, who was the account manager at Hill Haven, had no direct control over Tompka's duties and did not have the power to discharge her and was approximately at a level equivalent to Tompka in the Sealer hierarchy. However, his position at Hill Haven gave him sufficient control over Tompka's work site and he, like Lucy, could report unfavorably on her work. Further, tompka alleges that Conroy actually controlled much of Tompka's work at Hill Haven. Although the question is a close one, the evidence is sufficient to raise a fact issue as to whether Conroy was Tompka's supervisor and we treat him as such for purposes of summary judgment.

Speaker 1: 26:23

Thus, sealer is liable for the assaults if Lucy or Conroy plaintiff supervisors use their actual or apparent authority to accomplish this rape or if they were otherwise aided by the existence of the agency relationship to carry out the assaults. In short, tompka must allege facts which establish a nexus between the supervisory authority of Lucy or Conroy and the December 6th rapes. Tompka attempts to do so by arguing that Lucy convened the December 6th dinner as a business meeting and that the conduct of the individual defendants, including the excessive drinking at the meeting, was part and parcel of Sealer corporate culture fostered by Lucy and Conroy in their capacity as Sealer's agents. Very critical fact point issue for you to understand. Then the court goes on to evidence and use of apparent authority. I'm only including this part because its facts are important for you to understand the storyline. But necessarily the rules about who is a plaintiff supervisor is drastically changed by the Supreme Court in a later decision. Now let's go on.

Speaker 1: 27:32

The court has presented evidence to support her claims. During discovery, tompka stated that the December 6th dinner was a business meeting convened by Lucy, which she felt compelled to attend. Tompka further stated that Sealer employees traveling together on the road often took their meals together and that the business was often discussed during this time. Conroy itself. Tompka's testimony is sufficient to create a fact issue over the nature of the December 6th dinner. However, lucy also testified at his deposition that it was customary for Sealer employees on the road to eat together. Taylor testified that it was practice of Sealer employees to sometimes talk about business at these meals and Conroy testified that whenever Sealer employees met for after-work meals, business was always discussed one way or another. Moreover, if the dinners were in fact business meetings, it would certainly be permissible for the trier effect in the court or the jury to find that Tompka felt compelled to attend these meetings. As an out-of-town employee working on a new account, tompka may have felt that she would be disadvantaged if she failed to attend and receive any valuable information or insight which might be imparted with the various managers at the meeting. This later proposition might be true. Even if business was not the sole topic of conversation, the meal took on a social flavor.

Speaker 1: 29:00

Sealer and Lucy also argued that even if the December 6th dinner was a business meeting, you can see this tug-and-pull back and forth between the parties was it a business meeting or not? We're trying to get at. Did the rape occur within the business meeting? And that's where the court's going, and they don't really tell you that, but you have to bear with me here. Sealer and Lucy also argued that even if the December 6th dinner was a business meeting, the excessive drinking at the meal was approximate cause of the assaults and that Tompka's drinking was voluntary and unconnected to any use of Lucy's apparent authority. Of course drinking does not cause rape. People do. That's what the court said.

Speaker 1: 29:41

However, insofar as the drinking at the December 6th meeting made Tompka more vulnerable and facilitated the assaults, this too could be connected by a finder of fact, a jury or a court to Sealer's delegation of authority to Lucy. First, lucy charged the drinks at the meeting with his company's charge card. Second, tompka testified that the corporate culture at Sealer encouraged drinking and she felt forced to drink during the dinner in order to be accepted. While there is no evidence to suggest that Tompka was physically forced to drink six glasses of wine, it would be reasonable for her to feel pressured to drink, given all the others were drinking at the dinner meeting. A fact finder could reasonably conclude that Sealer employees on assignment customarily met after working hours to eat and discuss business and that Lucy, as the agent of Sealer, used his apparent authority to promote this policy, which included supplying of alcohol drinks on the company's credit card.

Speaker 1: 30:45

Of course, there is a contradictory evidence in the record that the dinner was simply a social event which Tompka chose to attend and that her consumption of alcohol was likewise voluntary. For example, conroy's wife was invited to attend both the December 5th and 6th dinners and did attend the December 5th dinner. Note that December 6th dinner was the rape situation. Conroy stated that he originally did not plan to attend the December 6th dinner. Moreover, tompka drank much less than either Lucy or Polinsky or Conroy on December 5th, creating inference that she also could have stopped drinking at the December 6th dinner before she became intoxicated and hence more vulnerable to the attacks.

Speaker 1: 31:28

These issues, however, are for the finder of fact. As discussed above, tompka has presented sufficient evidence to create an inference that Lucy used his apparent authority to convene the December 6th dinner and encourage the free use of alcohol. If the trial of fact were to credit Tompka's testimony that December 6th dinner was in fact a business meeting convened by Lucy and that he used his apparent authority to foster the excess of drinking, this would provide the required nexus between that event and the alleged assaults which followed later that evening. In short, tompka has created a series of reasonable inferences that Lucy used his apparent authority to convene the dinner and encourage the drinking which enabled the defendants to rape Tompka. If the fact finder credits these inferences, a sufficient nexus between the assaults and sealer would be established for liability purposes. Thus Tompka's sexual harassment claims under Title VII and thus under the Human Rights Law in New York were incorrectly dismissed by the District Court. So this reversal by the Second Circuit of the District Court's decision.

Speaker 1: 32:34

The court goes on to discuss the retaliatory discharge which also took place. Tompka contends that the District Court improperly dismissed her retaliation claims under Title VII of the 1964 Civil Rights Act and the Human Rights Law under New York. According to Tompka, the court improperly resolved all factual inferences in sealer's favor and failed to credit her evidence that sealer's decision to discharge her was fueled by a discriminatory animus. Although the issue is a close one, we agree with Tompka and reverse the judgment of the District Court. The court goes on to say that we analyzed a claim of retaliatory discharge under the familiar three-part burden shifting analysis set forth in a very famous Supreme Court case called McDonald Douglas versus Green back in 1973, still used today.

Speaker 1: 33:21

In order to make out a Supreme Court case, a retaliation plaintiff must show by a proponent of the evidence Number one, that participation in a protected activity known to the defendant. Two an employment action disadvantaged the employee. Three a causal connection between the protected activity and the adverse employment action. Moreover, the burden that must be met by an employment discrimination plaintiff to survive some adjustment at the Supreme Court case is de minimis meaning it's not that great. If the plaintiff meets this burden, the defendant must then articulate a legitimate, nondiscriminatory reason for its actions. If the defendant meets its burden of production, the plaintiff will then have the opportunity to prove that the proffered reason was merely a pretext for retaliation and that the employer's action was prompted by an impermissible motive.

Speaker 1: 34:12

Let's bring in a faster case. There is no dispute that Tompka met her burden on the first two elements of premarital fascist case. First, tompka complained of the sexual harassment to Sealer when she spoke to Taylor on December 8th and then when she later told him that she was considering legal action. This is sufficient to satisfy the first prong of the premarital fascist case. Second, sealer disadvantaged Tompka when it discontinued her salary and benefits in December 17th 1989.

Speaker 1: 34:39

The issue is thus whether Tompka has alleged sufficient facts to enable a fact finder to infer a causal connection between Tompka's complaints and Sealer's actions on February 17th. Tompka has offered sufficient evidence to infer such a connection. Accepting Tompka's version of the facts is true. Sealer terminated Tompka just three months after Taylor promised her that her salary and benefits would continue until she had sufficiently recovered from the assaults. Remember I told you about that? In addition, tompka told Taylor in January 1989 that she was considering legal action. A few weeks later, douglas Schnook wrote Tompka and informed her that Sealer would terminate her benefits on February 17th. As this was the first mention of the termination date, the timing of Schnook's letter supports an inference of discrimination sufficient to establish a premarital fascist case. Of course it does. What happened really is the employer just got sick of her and wanted to get rid of her and they run the risk that she'll go find a lawyer and leverage up and try to go to the lawsuit. Most people don't do that and that's why the employer took that risk.

Speaker 1: 35:44

Sealer's justification this is Sealer's profit-illegitimate reason for terminating Tompka's salary and benefits. That she failed to report to work by February 15th 1909, as instructed by Schnook, or to provide medical documentation indicating her physical condition, prevented her from returning to work. It is undisputed that the only medical documentation provided by Tompka was a doctor's invoice it, dated February 13th, which set forth her diagnosis of post-traumatic stress syndrome, anxiety and depression, and prescribed psychiatric or psychological treatment. However, the invoice did not indicate that Tompka was unable to work. In addition, sealer notes that it paid Tompka's medical bills and salary for most three months following the Rochester incident and that it could legitimately ask for adequate medical documentation justifying Tompka's continued entitlement to these benefits. Sealer's explanation for its decision to terminate Tompka's benefits therefore satisfies his burden to produce a legitimate reason to justify in the action. That's a very limited burden for them to proffer, and they did it. The burden shifts now to Tompka to demonstrate that that explanation is completely illiterate, protectural, and she has to demonstrate and prove that its intentional discrimination was the reason why she was fired.

Speaker 1: 37:06

In response, tompka contends that Sealer was aware that she was receiving medical treatment and was unable to return to work. Tompka told Taylor in December that she was seeing a therapist in Philadelphia and later informed Snook in a February 10th letter that she would be undergoing tests in March to determine her ability to resume work at Sealer. Tompka also offered to send Snook the results of any medical tests and reiterated that Taylor had promised her that her salary and benefits would continue until she was ready to return. That's what he said. We all heard it. Moreover, tompka argues that she did not understand that Sealer required an official doctor's note in lieu of her verbal and written communication with Taylor and Snook about her condition, or that the invoice she sent to Sealer did not satisfy their concerns. Tompka claims Snook never specified what, if any medical documentation was required, or that Sealer would terminate her if she did not provide this material. There is some additional support for this latter proposition. In the record based on the correspondence submitted by Sealer between Tompka and Snook, the first mention of Tompka's failure to provide medical documentation is in Snook's February 20th letter, sent after Tompka's benefits had been terminated. While Snook claims that he had informed Tompka in January that she needed to provide medical documentation at the summary judgment stage, we must credit Tompka's assertion that she was not told at that time to provide further medical proof of her condition.

Speaker 1: 38:38

Additional pieces of evidence cast doubt on Sealer's profit rationale. Again, this is what the court has to go through to decide a case. It's quite elaborate, it's fact-based, it's following a formula that's time-intested in the courts and you're experiencing it. I know it's a little bit much, but this is how courts are deciding cases even today. So back to the court case. First, tompka, unlike Polinsky, conroy or Lucy, was never interviewed by Bow, sealer's security director, or by Snook about the alleged assaults. Bow, however, concluded that the assaults did not take place and Snook accepted and acted on that result of that investigation. Sealer's treatment of the perpetrators was mixed Polinsky was fired because his attitude and behavior did not reflect well on Sealer, conroy was not disciplined at all and Lucy was reprimanded and demoted, but only because he had overused his corporate charge card, drinking too much on the job. While Sealer disciplined two of the alleged perpetrators, no mention was made of their alleged assaults as a basis for their punishment.

Speaker 1: 39:48

A reasonable inference from Sealer's actions might be that Sealer attempted to whitewash the December 6th incident by separating Tompka from the investigation, playing down the assaults and subsequently terminating Tompka's employment. Yeah, that's what exactly happened. However, these facts, these fact issues, must be resolved at the trial. Again, this is a court of appeals case. The case will be eventually remanded back to the trial court to go to a trial and I'll get into that later Because evidence, while not overwhelming, is sufficient to raise a fact issue as to whether Sealer's profit reason was merely a pretext for terminating her salary and benefits. There's a fair amount of ambiguity regarding what, in Wynne, snoek or Taylor told Tompka about the extent of her leave and the need to provide the medical documentation. Similarly, sealer's investigation of the assaults and treatment of the alleged perpetrators raises concerns over Sealer's true reasons for its actions on February 17th, only one month after Tompka complained of the assaults. In this vein, we are mindful. The court says that caution must be exercised in granting some judgment when an employer's intent is genuinely at issue. Because material issues affect remain, tompka's retaliation claim must be resolved at trial.

Speaker 1: 41:07

The court goes into Title VII, individual liability, in its what this case is actually famous for for lawyers and judges. Not to concern you, but it is something of a popular case in the lore of employment discrimination cases. But the court goes on to say here that the case obtained promise for lawyers. I'm sorry, this is my comment. The case obtained promise for lawyers and judges due to the holding that under Title VII of the 1964 Civil Rights Act individual supervisors are not individually liable for violations they committed under Title VII. That is still the law today. The statutory language does not provide for any relief on the basis the court held. Specifically quote individual defense with a supervisory control over plaintiffs may not be held personally liable under Title VII. Under the human rights law in New York, however, the individual defendants may be sued in their personal capacities for sexual harassment. That's the state law. So, title VII being the federal law, no individual liability for supervisors under state law in New York. And check your local jurisdiction. They are personally liable.

Speaker 1: 42:14

And the court then goes into the New York Human Rights Law claim Again. The court has to go through the various claims asserted, the various statutes the claims fall under and run through the rationale. Because you have to go through this analysis to make determinations of right and wrong. And this is what the court's doing in order to reverse the district court's decision, that's, in the case, back down for trial. The New York Human Rights Law claim the court goes on to say defines human rights law in New York, defines employer in terms of the number of persons employed and provides no clue whether the individual employee is a corporate employer may be sued under his provisions. In a New York Court of Appeals case, decision held that an employee is not individually subject to suit under Section 296 of the Human Rights Law as an employer if he is not shown to have any ownership interest or provide or any power to do more than carry out personnel decisions made by others. End quote.

Speaker 1: 43:14

None of these, none of the three individual defendants in this case has ownership interests in sealer and plaintiff has not alleged that either Polinsky or Conroy had the power to hire or fire her. As to Lucy, no evidence has been presented to indicate that he could hire or fire Tomka or any other sealer employee, although Lucy's position is as district manager gave him supervisor control over Tom's work site and presumably enabled him to review and comment on a performance in Rochester. It was Ray Taylor, the director of the starts and surveys team, who had assigned Tomka to Rochester, who apparently had the authority to make personnel decisions about starts and surveys team members. To lose hope, folks. There's actually a wrinkle here. And the court goes on to say. However, section 296 of the Human Rights Law of New York states that it shall be an unlawful discriminatory practice for quote any person to aid, abet, incite, compel or coerce the doing of any fact, of any acts that are forbidden under the article, or attempt to do so. End quote. Based on this language, the court says several courts have distinguished the Supreme Court case that was referring to by holding that a defendant who actually participates in the conduct given rise to a discrimination claim may be held personally liable under the Human Rights Law. Two years wrinkle In the present case.

Speaker 1: 44:34

Tomka has alleged that each of the individual defendants assaulted her and thereby created a hostile working environment. This allegation is sufficient to satisfy Section 296 and the trial court. District court thus incorrectly dismissed Tomka's sexual harassment claims against the individual defense in their personal capacity. Under New York law the court then moves into the assault claim because she had an assault claim, you had a rape, so you can use employment claims in cases and also use tort claims. In this case we have an assault, a rape. Tonka claims that the district court improperly dismissed the assault and intentional affliction of emotional distress claims against Sealer. The only conduct relevant to these claims is the alleged rapes, because the district court had previously dismissed all other claims of assault and intentional affliction of emotional distress based on conduct occurring prior to December 6, 1988.

Speaker 1: 45:26

The court went on to say under New York law, the doctrine of respondent superior it's a legal doctrine renders an employer vicariously liable for a tort committed by an employee while acting within the scope of his employment. Very important topic. You're not going to like the result of this. However, the employer is not liable for the torts committed by the employee for personal motives unrelated to the furtherance of the employer's business. The district court held and we agree this is the second circuit court of appeals that the alleged assaults of December 6, 1988 were not in furtherance of Sealer's business and were a complete departure from the normal duties of a Sealer employee. Thus Tonka, as a matter of law, cannot hold Sealer liable for the assaults and the emotional distress stemming from those acts.

Speaker 1: 46:16

Furthermore, tonka has not produced sufficient evidence to raise a fact issue that Sealer should be liable because it was negligent in retaining or supervising employees. So that was an important issue. She could have come up with the information, the evidence that support the case about the negligent retaining or supervising, but she didn't do that. Although Tonka claims that Lucy had previously raped and sexually harassed another female Sealer employee, tonka has produced no evidence of prior assaults or sexual misconduct by Lucy. Again, she could have submitted more evidence but she didn't. Similarly, tonka's allegation that Sealer fostered heavy drinking and reckless and abusive conduct is insufficient to put Sealer on notice that Lucy, polinsky and Conroy would sexually assault a female employee at a startup work site.

Speaker 1: 47:04

The district court correctly dismissed the common law claims against Sealer. I told you before warning that the—so her assault claims on New York law were dismissed. That's hard to believe, but that's the nature of what the law is In sum, that the rapes didn't occur in the scope of the employment, meaning they had this business dinner. They're talking about business, but then—so that's the hard rub of this case. I did go further back into the docket of the trial court, the Federal District Court in the western district of New York, the Carol Fowler case in federal court in 1992, the district court granted the employer's motion for some judgment on August 26, 1994, second circuit reversed in part on September 27, 1995, in case we back to the trial court. According to the court docket the court reported the case settled on May 6, 1996. So in the court docket when you look at it they were scheduled themselves for trial. So you go back from your appeal, go down to the lower court trial court and you go to trial and whatever facts or whatever claims that were remaining, that's what the parties were scheduled to do here. But after this long and torturous storyline she eventually settled the case. We don't know what the amount of the settlement was. We just know it was reported settled.

Speaker 1: 48:26

I will tell you that the US Supreme Court in 2013 issued a decision that I want you to be familiar with. Instead of having this apparent authority to alter the conditions of people's jobs, etc. To become a supervisor, the Supreme Court said the following that an employee is a supervisor for purposes of vicarious liability under Title VII, they say. We hold that an employer maybe vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, ie to affect a significant change in their employment status, such as a hiring, a firing, a failing to promote reassignment with a significant different responsibilities, or a decision causing significant change in benefits. That's the current standard to which supervisors to be found vicariously liable.

Speaker 1: 49:21

I know this is a tortured affair that you've had to endure listening to my voice and discussing this Second Circuit Court of Appeals decision, but this is the law, folks, when you rehear news stories. This is what the judges are painstakingly going through to establish liability or not liability. This is the jurisprudence that our democracy is based upon. We establish statutes and those statutes must be enforced. Here you have an example of the court doing that in this sexual assault, in one of the most extreme situations where the individual was raped and who's beheld liable for it Under state law.

Speaker 1: 50:01

We found that Tomka couldn't hold her employer liable for these employees Title VII. We found that she could create a hostile work environment case and it's probably the party settled it. But there are other issues that come up in terms of the mere act of going to a business meeting. This is 30 years ago but it still goes on today. I have to tell you I just heard a story called into me that I heard even a more egregious situation involving rape in the workplace. It's still going on. There's still alcohol involved, there's still date rape drugs being used.

Speaker 1: 50:49

The law really hasn't changed much in this respect and gender should be aware that rape can occur at the workplace. It just doesn't happen to women, but predominantly it does. I guess the pull and take away from the case is that after the Me Too movement because that's where we're at men are now skittish to be around women. I think that's what they say. We really don't hear much about it anymore, I think people. I guess the expectation reasonably for yourself is to approach work situations with the utmost degree of professionalism. I don't want to blame, put fault here to anything in terms of Ms Tomka, but the issue of drinking at work is not acceptable in any regard. I know it's part of some employment cultures at work to do this, but here we have an example where things would massively arrive in terms of the outcome.

Speaker 1: 51:48

I'm telling you the stories and bringing these stories to light because I want you to hear them in their minute detail of what's transpiring. You can pick up things that may benefit you as you work, maybe to things to avoid situations. People are employment. When you put people together, you're bringing all together different psychologies. People have life experiences or lack thereof, or experience, and things happen, and that's the point I'm trying to bring these stories so that you become aware of them. There's thousands of these stories. They're just in reported case decisions, but you don't hear about them.

Speaker 1: 52:29

It's so easy for me to edit and narrate the best I can to bring those stories back to life so you can hear them in real time. That's important to hear what people went through, because when you search the internet trying to find the answers, you're not going to find this stuff unless you search or how to search. Here we have a story that's a rape at work occurs. You know what took place, you know what happened, how the court had treated it and maybe something is taken away from that to help you in your furtherance of your work and your career so you can become successful and to avoid a situation like this, which is horrendous. Of course, that's the reason why I did the episode like this. Hope you enjoyed it. If you have any comments and questions, don't hesitate to email me. Until next time, take care.