Employee Survival Guide® - Carol Tomka's Battle: Confronting Sexual Assault and Harassment in the Workplace

Episode Date: March 19, 2024

Can you imagine facing a nightmare in the very place meant for professional growth? Carol Tomka's story, set nearly three decades ago, echoes the chilling experiences that, unfortunately, still resonate in today's workplaces. This episode brings to light the harrowing journey of Carol, who suffered sexual assault and harassment within the confines of her job at Sieler's Environmental Services. Your ears won't believe the denial and legal wrangling that ensued as we walk through the painful reality many face in silence. It's a grim reminder of why the fight against workplace sexual assault and harassment is far from over.As we navigate the complexities of employer liability, Robert Bowe's investigation, and Sealer's internal decisions, we confront the sobering legal battles Carol endured. The courtroom became a battleground for defining the liability of employers under Title VII, with the Second Circuit weighing in on Sealer's responsibilities. This chapter of Carol's saga isn't just about the legalities; it's a crucial discourse on the mishandling of boundaries in professional settings. Listeners will gain a deeper understanding of the legal framework and the ever-important issue of maintaining respect and safety in the workplace.Lastly, we dissect the legal twists in Tomka's case, scrutinizing the alleged retaliatory discharge and the role of trial in such disputes. This episode doesn't just recount the facts; it delves into the human aspect—the impact of employer actions on an individual's career and the complex dance of proving discrimination in court. By revisiting the Second Circuit's reversal and the settlement that followed, we stress the importance of clear definitions when it comes to supervisor roles and the conditions they create. Join us in a thought-provoking exploration that aims to arm employees with the knowledge to confront and overcome workplace challenges.Link to Case Decision: Tomka v. Sieler Corp., 2d Cir. https://caselaw.findlaw.com/court/us-2nd-circuit/1321133.html If you enjoyed this episode of the Employee Survival Guide please like us on Facebook, Twitter and LinkedIn. We would really appreciate if you could leave a review of this podcast on your favorite podcast player such as Apple Podcasts. Leaving a review will inform other listeners you found the content on this podcast is important in the area of employment law in the United States. For more information, please contact our employment attorneys at Carey & Associates, P.C. at 203-255-4150, www.capclaw.com.

Hey, it's Mark here and welcome to the next edition of the Employee Survival Guide where I tell you, as always, what your employer does definitely not want you to know about and a lot more. 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. I will continue to produce episodes about real people going through difficult employment

situations because our current implement system and judicial system hide these stories from public consumption. The general public can access the federal court system through a website called pacer.gov 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. 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 co-workers 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. This episode explores

Carol Tomka's story and why it's 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 appears this way. But nonetheless, there's still a story here that we can learn from and help ourselves on our daily work lives. So let's get into it.

Carol Tomka began work in Sealers Environmental Services Division in July 1987 as an account manager, and she was assigned to the Garden State Rehabilitation Hospital in Toms 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, 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 and the Hillhaven 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 Hillhaven facility, and Mr. Polinsky, a member of the Starson's survey team, also a male, who had been assigned to the Rochester accounts. None of the individual defendants had worked with Tomka prior to her arrival in Rochester. Most of the case centers on the events which transpired after Taylor assigned Tomka to the Rochester accounts. Tomka claims that Lucy Polensky and Conroy sexually assaulted her following a dinner on December 6, 1988, and that Seeler 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 Seeler. Although the defendants vigorously deny the sexual assaults and the verbal harassment occurred, we assume that, and this is the court, we assume Tomka's contentions to be true and limit our discussion to her version of the events. The events prior to December 1988. 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 with Tomka, if Tomka and Green were sleeping together. Another example, Another example, Ray Taylor instructed plaintiff 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 Schnuck, a senior account executive in Sealer's sales division, talked on the phone with Douglas Schnuck, 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, Sealer manager at Tomka, at Tomka said nothing and left the office from which the call had been made. At a required orientation function, sealer manager at Tomka's table 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 obscure 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. Snook looked at Tomka as he made this remark and then laughed and said, quote, no, more appropriately, does she fuck you, end quote. After Snook laughed again, Tomka walked away from the group. Let's take a quick break. It's Mark Kim. We have a new product for you. It's called the Employee Survival Guide or EmployeeSurvival.com. And it's a site that you can obtain PDF products that I've created myself. It's spending too many hours, way too many researching and writing about, for example, the performance improvement plan or beating them.

And the second one about negotiating severance negotiation agreements. Two of the most important topics that we see in terms of the web traffic and podcast traffic we have. So check out EmployeeSurvival.com and see if this can try to help you and you don't need an attorney to use it. Thank you. And a final example, an unidentified male 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. Events of December 1988. Tomka began work at the Rochester Accounts on December 5th, 1988. After work on December 5th, Tomka, Lucy, Polinsky, Conroy, and Conroy's wife went to dinner at a restaurant in Henrietta, 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 6th 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 his deposition that it was customary for traveling sealer employees to eat as a group, and Conroy testified at his deposition that, quote, we always, whenever we meet, we discuss business one way or another, end quote. 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 in his rented car. The next day, Tomka contends that Lucy again convened a business dinner and ordered that Jim, ordered that she join him and Conroy and Polinski at the Holiday Inn Airport Bar in Rochester, New York. Although Tomka was physically afraid of Lucy and Polinski, 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. 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. After leaving the bar at approximately 11.30 p.m., Tomka wanted to get away from Lucy and Polinski. She initially climbed into an airport courtesy van, but Conroy assisted her out and helped her into the 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 Polinski 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 Polinski directed her to his room, where 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. 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.

at the crisis center on December 8th and called Ray Taylor to report that she had been assaulted by Lucy Conroy and Polinsky. Taylor then flew to Rochester and met with plaintiff on December 9th. Tomka contends that Taylor promised her that Seeler 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 to remember for the story. After flying to Pennsylvania to be with her relatives, Tomka wrote to Taylor on December 12, 1998, to confirm these arrangements. Tomka understood that she was to take whatever time I need to pursue the counseling medical that all the contacts with Seeler were to be made through Taylor. and that all the contacts with Seeler 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. The events after December 1988. Seeler 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, Bo 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 inebriated. Douglas Schnook, 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. 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 Seeler would continue to pay for her counseling expenses and that her salary benefits would also continue, an important factor note. salary benefits would also continue, an important factor note. On February 1, 1989, Douglas Schnuck wrote to Tompka and advised her that her extended leave with full benefits and pay would end on February 15, 1989, and that she would report to Taylor to receive her next assignment. On February 10, Tompka 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. Its investigation had concluded that the assaults had not occurred and that Sealer would discontinue her salary and place her employment on inactive status as of February 17, 1995. Tomka later sent Snook a copy of the doctor's invoice for $100, which prescribed psychiatric treatment. Tomka then commenced this action on December 1989. The District Court's decision. In a decision and order dated June 7, 1994, Judge Teleska granted summary judgment to the defendants on all of Tomka's claims other

than the intentional affliction of emotional distress and assault claims against the individual defendants. As to Seeler'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 for by a supervisor is an event which is sufficiently severe to create an abusive working environment, but under the principles of agency. Seeler would be liable for assaults only if Tom 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 Supreme Court had since revised it, and I'll explain later in the episode. Judge Teleska phrased the issue in the following manner, describing his opinion. In addition to proving that she was raped, Tomka 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 Seeler liable for the rape, she must show that Lucy used his actual or apparent authority as Seeler's agent to accomplish the rape. However, the court rejected Tomka's contention that Lucy had used his apparent authority to convene a mandatory business dinner on December 6th. say Tomko also presented no evidence to suggest that she was ordered by Lucy or that it was sealer's policy for employees to attend working dinners 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 discuss progress of the client's premises and on 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 plaintiffs to drink excessively against her will in order to make her more vulnerable to the assaults. After finding that the verbal harassment did not rise to an actual level of conduct, under Title VII, the court dismissed Tomka's hostile work environment claims. The district court also dismissed Tomka's claim

that Seeler had discharged her in February 1989 because she had complained of the rapes and had threatened to initiate criminal proceedings. The court held that Seeler had a legitimate non-discriminatory reason to dismiss Tomka. She failed to report for work on February 15th, 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 Tomka had not cast any doubt on Seeler's asserted reason because she had failed to provide any evidence that she had been treated differently than any other Seeler employee would have been

under similar circumstances. If you believe that one, then you've been hoodwinked because that's incorrect. As to the Tompkins' remaining claims, the court held that Lucy Polinsky 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 rapes adequately supported Tompkins' claims of assault and intentional affliction of emotional distress under New York law. However, the court found no basis to impose responding at superior liability on Seeler, the employer, for the sexual misconduct of its employees. And then Tomka 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. Tomka contends that the district court erred in holding that Seeler was entitled to summary judgment on her sexual harassment claim because disputed issues of fact exist as to whether the working environment at Seeler was sufficiently abusive and whether Seeler could be held liable for the hostile environment. Title VII forbids employers from discriminating against any individual with respect to compensation terms, conditions, or privileges of employment because of such individual's sex, among other things. 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. 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've discussed that as well. The court goes on. Whether a workplace should be viewed as hostile or abusive from both a reasonable 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 courts should be guided by common law principles of agency. We have used Meritor's general guidance to derive the following rules of employer liability.

If a plaintiff supervisor is the alleged harasser, an employer will be liable if the supervisor uses his actual apparent authority to further the harassment, or if the supervisor was otherwise aided in accomplishing the harassment by the existence of the agency relationship. I will say that that's now not the standard that's used and declared by the U.S. 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. Tomka 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 sufficiently 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 for purpose of Title VII liability. However, Tomka must also establish the sealer's responsibility for the sexual misconduct of Lucy, Conroy, and Polinsky. 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 assault 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 Tomka'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 Tomka 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 Hillhaven. Although Taylor was Tomka's direct supervisor and Lucy did not give Tomka direction at Hillhaven, Lucy was a district manager responsible for the accounts Tomka had been assigned to, including the Hillhaven account. the accounts Tompka had been assigned to, including the Hillhaven account. Lucy's position in the Seeler hierarchy would enable him to review Tompka's performance at Hillhaven and communicate any thoughts about plaintiff to Taylor, thereby affecting Tompka's future with Seeler. 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 Tomka's supervisor.

Sorry, folks, but this is what courts go through to establish who is an employee's supervisor or not. And it may sound Byzantine or archaic, but this is the way the courts go through it. The court continues, the district court also held that neither Polinsky nor Conroy should be treated as Tomka's supervisors. Polinsky was an unassigned starts and surveys manager like Tomka and clearly was not her supervisor. Conroy, who was the account manager at Hillhaven, had no direct control over Tomka's duties and did not have the power to discharge her and was approximately at a level equivalent to Tomka in the sealer hierarchy. However, his position at Hillhaven gave him sufficient control over Tomka's work site, and he, like Lucy, could report unfavorably on her work. Further, Tomka alleges that Conroy actually controlled much of Tomka's work at Hillhaven. Although the question is a close one,

the evidence is sufficient to raise a fact issue as to whether Conroy was Tomka's supervisor, and we treat him as such for purposes of summary judgment. Thus, Seeler 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, Tomka must allege facts which establish a nexus between the supervisory authority of Lucy or Conroy and the December 6th rapes. Tomka 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 the sealer corporate culture fostered by Lucy

and Conroy in their capacity as sealers' agents. Very critical thought or fact point issue for you to understand. Then the court goes on to evidence of 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's supervisor is drastically changed by the Supreme Court in a later decision. Now let's go on. The court said Tomko has presented evidence to support her claims. During discovery, Tomko 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. By 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 the 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 trial or fact, the court or the jury, to find

that Tomka felt compelled to attend these meetings as an out-of-town employee working on a new account. Tomka may have felt that she would be disadvantaged if she failed to attend and receive any valuable information or insight, which might be imparted from 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. Seeler 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. They don't really tell you that, but you have to bear with me here. Seeler and Lucy also argued that even if the December 6th dinner was a business meeting, the excessive drinking at the meal was an approximate cause of the assaults and that Tomka'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. However, insofar as the drinking at the December 6th meeting made Tompkins more vulnerable and facilitated the assaults,

this too could be connected by a finder of fact, a jury or a court, to Seeler's delegation of authority to Lucy. First, Lucy charged the drinks at the meeting to Seeler with his of authority to Lucy. First, Lucy charged the drinks at the meeting to Seeler with his company's charge card. Second, Tomka testified that the corporate culture at Seeler encouraged drinking, and she felt forced to drink during the dinner in order to be accepted. While there is no evidence to suggest that Tomka 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. met after working hours to eat and discuss business, and that Lucy, as the agent of Seeler,

used his apparent authority to promote this policy, which included supplying of alcoholic drinks on the company's credit card. Of course, there is contradictory evidence in the record that the dinner was simply a social event, which Tomka 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 the December 6th dinner was the one that created the alleged, well, the rape situation. Conroy stated that he originally did not plan to attend the December 6th dinner. Moreover, Tomka drank much less than either Lucy or Polinsky or Conroy on December 5th, creating an inference that she also could have stopped drinking at the

December 6th dinner before she became intoxicated and hence more vulnerable to the attacks. These issues, however, are for the finder of fact. As discussed above, Tomka has presented sufficient evidence to create an inference that Lucy used his apparent authority to convene the December 6th dinner and encouraged the free use of alcohol. If the trier of fact were to credit Tomka'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 excessive drinking, this would provide the required nexus between that event and the alleged assaults which followed later that evening. In short, Tomka 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 Tomka. If the fact finder credits these inferences,

a sufficient nexus between the assaults and sealer would be established for liability purposes. Thus, Tomka'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 there's a reversal by the Second Circuit of the district court's decision. The court goes on to discuss the retaliatory discharge, which also took place. decision. The court goes on to discuss the retaliatory discharge, which also took place. Tomka 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 Tomka, the court improperly resolved all factual inferences in Seeler's favor and failed to credit her evidence that Seeler's

decision to discharge her was fueled by discriminatory animus. Although the issue is a close one, we agree with Tomka and reverse the judgment of the Judiciary 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 McDonnell-Douglas v. Green back in 1973, still used today. In order to make out a pre-emphasis case of retaliation, a plaintiff must show by a preponderance 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

summary judgment at the pre-implementation case is de minimis, meaning it's not that great. If the plaintiff meets this burden, the defendant must then articulate a legitimate, non-discriminatory 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. Tompka's pre-infantia case. There is no dispute that Tompka met her burden on the first two elements of pre-infantia case. There is no dispute that Tompka met her burden on the first two elements of pre-infantia case. First, Tompka complained of the sexual harassment to Seeler 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 pre-infantia case. Second, Seeler disadvantaged Tompka when it discontinued her salary and benefits on February 17, 1989. The issue is thus whether Tomka has alleged sufficient facts to enable a fact finder to confer a causal connection between Tomka's complaints and Seeler's actions on February 17. Tomka has offered sufficient evidence to infer such a connection, excepting Tomka's version of the facts is true. connection, accepting Tompka's version of the facts as true, Seeler 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 Schnuck wrote Tompka and informed her that Seeler 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 prima facie 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. But most people don't do that, and that's why the employer took that risk. Sealer's justification. This is Sealer's profit of legitimate reason for terminating Tompkins' salary and benefits that she failed to report to work by February 15, 1989, as instructed by SNCC, or to provide

medical documentation indicating that her physical condition prevented her from returning to work. It is undisputed that the only medical documentation provided by Tomka was a doctor's invoice dated February 13, 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, Seeler notes that it paid Tompka's medical bills and salary for almost 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 his decision to terminate Tomka's benefits, therefore, satisfies his burden to produce a legitimate reason justifying the action. That's just the way it goes. That's a very limited burden for them to proffer, and they did it. to proffer, and they did it. The burden shifts now to Tomka 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. In response, Tomka contends that Sealer was aware that she was receiving medical treatment and was unable to return to work. Tomka 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. Tomka 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, Tomka 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. Tomka claims Snook never specified what, if any, medical documentation was required or that Seeler 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 Seeler between Tomka and Snook. The first mention of Tomka's failure to provide medical documentation

is in Snook's February 20th letter sent after Tomka's benefits had been terminated. While Snook claims that he had informed Tomka in January that she needed to provide medical documentation at the summary judgment stage, we must credit Tomka's assertion that she was not told at that time to provide further medical proof of her condition. Additional pieces of evidence cast doubt on Seeler'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 and tested 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, Tomka, unlike Polinsky, Conroy,

or Lucy, was never interviewed by Bo, Sealer's security director, or by Snook about the alleged assaults. Bo, however, concluded that the assaults did not take place, and Snook accepted and acted on that result of that investigation. Seeler's treatment of the perpetrators was mixed. Polinsky was fired because his attitude and behavior did not reflect well on Seeler. Conroy was not disciplined at all, and Lucy was reprimanded and demoted, but only because he had overused his corporate charge card, reprimanded and demoted, but only because he had overused his corporate charge card, drinking too much on the job. While Seeler disciplined two of the alleged perpetrators, no mention was made of their alleged assaults as a basis for their punishment. A reasonable inference from Seeler's actions might be that Seeler attempted to whitewash the December 6th

incident by separating Tomka from the investigation, playing down the assaults, and subsequently terminating Tompka's employment. Yeah, that's exactly what happened. However, 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. Tompka's evidence, while not overwhelming, is sufficient to raise a fact issue as to whether Seeler's profit reason was merely a pretext for terminating her salary and benefits. There's a fair amount of ambiguity regarding what and when Snook 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 Tomka complained of the assaults. In this vein, we are mindful, the court says, that caution must be exercised in granting summary judgment when an employer's intent is genuinely at issue. Because material issues of fact remain, Tompkins' retaliation claim must be resolved at trial. The court goes into Title VII individual liability, and it's what this case is actually famous for for lawyers and judges. is actually famous for lawyers and judges, not to concern you, but it is something of a popular case in the lure of employment discrimination cases. But the court goes on to say here that the case obtained prominence for lawyers. I'm sorry, this is my comment. The case obtained prominence 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 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 defendants with a supervisory control over plaintiff 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. And the court then goes into the New York human rights law claim. Again, the court has to 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 and send the case back down for trial. in order to reverse the district court's decision and send 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 employees of a corporate employer may be sued under its provisions.

employer may be sued under its 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. None of the three individual defendants in this case has ownership interest in Seeler, 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 Seeler employee, although Lucy's position as district manager gave him supervisor control over Tomka'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. Don't 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 it 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. So here's a wrinkle. In the present case, 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 individual defense in their personal capacities 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 Seeler. 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 6th, 1988. 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, Tomka, as a matter of law, cannot hold Sealer liable for the assaults and the emotional distress stemming from those acts. Furthermore, Tomka 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 supports the case about the negligent retaining or supervising, but she didn't do that. Although Tomka claims that Lucy had previously raped and sexually harassed another female Seeler employee, Tomka has produced no evidence of prior assaults or sexual misconduct by Lucy. Again, she could have submitted more evidence, but she didn't.

Similarly, Tomka's allegation that Seeler 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. The district court correctly dismissed the common law claims against Sealer. That's, I told you forewarning that the, so her assault claims under 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. 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. Carol filed her case in federal court in 1992. The district court granted

the employer's motion for summary judgment on August 26, 1994, second circuit reversed in part on September 27, 1995. The case went back to the trial court. According to the court docket, 1995, and the case went 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 scheduling themselves for trial. So you go back from your appeal, go down to the lower trial court, and you go to trial on whatever facts or whatever claims that were remaining. And 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. I will tell you that the U.S. 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, et cetera, 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 may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e. 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. I know this is a tortured affair that you've had to endure listening to my voice and discussing the Second Circuit Court of Appeals decision, but this is the law, folks. This is how, when you hear news stories, this is what the judges are painfully, painstakingly going through to establish liability or not liability. And this is their jurisprudence that our democracy is based upon. We establish statutes and those statutes must be enforced. And 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 to be held liable for it. Under state law, we found that Tomka couldn't hold her employer liable for these employees. So Title VII, we found that she could create a hostile work

environment case, and it's probably why 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, okay? 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. And so it's still going on. There's still alcohol involved. There's still date rape drugs being used. And so we have, and the law really hasn't changed much in this respect that women and all genders should be aware that rape can occur at the workplace. It just doesn't happen just to women, but predominantly it does.

So I guess the pull and take away from the case is that, you know, 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 that's what they say. We really don't hear much about it anymore. But I think people, I guess the expectation reasonably for yourself is to approach work situations with the utmost degree of professionalism. Clearly, 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 went massively awry in terms of the outcome. So I'm telling you the stories and bringing the stories to light because I want you to hear them in their kind of minute detail of what's transpiring. So you can pick up things for you that may benefit you as you work to maybe to things to avoid situations. You know, 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.

And 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. And 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 your answers, you're not going to find this stuff unless you search or how to search. So here we have a story that's a rape at work occurs.

You know what took place. You know what had 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. So 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. If you like the Employee Survival Guide, I'd really encourage you to leave a review. We try really hard to produce information to you that's informative, that's timely, that you can actually use and solve problems on your own and at your employment.

So if you'd like to leave a review anywhere you listen to our podcast, please do so. And leave five stars because anything less than five is really not as good, right? I'll keep it up. I'll keep the standards up. I'll keep the information flowing at you. If you'd like to send me an email and ask me a question, I'll actually review it and post it on there. You can send it to mcaryu at capclaw.com. That's capclaw.com.