Tomka v. Seiler Corp.

• Decision Date: 27 September 1995
• Docket Number: D,No. 1180,1180
• Citation: 1995 WL 572112,66 F.3d 1295
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 1508, 67 Empl. Prac. Dec. P 43,816, 64 USLW 2215 Carole TOMKA, Plaintiff-Appellant, v. The SEILER CORPORATION, Daniel Lucey, David Polonsky and Timothy Conroy, Defendants-Appellees. ocket 94-7975.
• Court: U.S. Court of Appeals — Second Circuit

Page 1295

66 F.3d 1295

68 Fair Empl.Prac.Cas. (BNA) 1508,

67 Empl. Prac. Dec. P 43,816, 64 USLW 2215

Carole TOMKA, Plaintiff-Appellant, v. The SEILER CORPORATION, Daniel Lucey, David Polonsky and Timothy Conroy, Defendants-Appellees.

No. 1180, Docket 94-7975.

United States Court of Appeals Second Circuit.

Argued March 28, 1995.

Decided Sept. 27, 1995.

Glenn E. Pezzulo, Rochester, NY (Bradley, A. Sherman, Culley, Marks, Tanenbaum, Reifsteck, Potter and Capell, Rochester, NY, on the brief), for Plaintiff-Appellant.

Mark H. Burak, Boston, Massachusetts (Harry L. Manion III, Cooley, Manion, Moore & Jones, P.C., Boston, MA, on the brief), for Defendants-Appellees The Seiler Corporation and Daniel Lucey.

Michael T. Sullivan, Jr., Buffalo, NY (Mary T. Sullivan, Gannon, Gannon & Sullivan, Buffalo, NY, on the brief), for Defendant-Appellee Timothy Conroy.

Before: MINER, PARKER, Circuit Judges, and SCHEINDLIN, District Judge. ¹

SCHEINDLIN, District Judge.

Carole Tomka ("Tomka") appeals from a final judgment of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, granting summary judgment to her former employer, The Seiler Corporation ("Seiler") and three former co-employees, Daniel Lucey ("Lucey"), David Polonsky ("Polonsky"), and Timothy Conroy ("Conroy"). Tomka's complaint presents claims of i) hostile environment sexual harassment and retaliatory discharge in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-2(a)(1) and 1-3(a), and New York's Human Rights Law ("HRL"), N.Y.Exec.Law Secs. 296(1)(a) and (3-a)(c); ii) unequal pay in violation of the Equal Pay Act, 29 U.S.C. Sec. 206(d), Title VII, 42 U.S.C. Sec. 2000e-2(a)(1), and Sec. 296(1)(a) of the HRL; and iii) common law assault and intentional infliction of emotional distress. Tomka also claims that Lucey, Conroy and Polonsky should be held liable in both their official and individual capacities for the alleged violations of Title VII and the New York Executive Law.

The district court dismissed the complaint as to Seiler and dismissed all claims except the common law claims against the individual defendants. ² On appeal, Tomka contends that the district court impermissibly resolved disputed issues of material fact in favor of defendants and failed to credit Tomka's proffered evidence of sex discrimination and unequal pay. Tomka also argues that the district court erred in dismissing her Title VII and HRL claims against the individual defendants in their personal capacities. We agree

with appellant that her hostile work environment, retaliatory discharge, and unequal pay claims against Seiler should not have been dismissed, and we therefore reverse the judgment below in part and remand for further proceedings.

I. BACKGROUND

Certain facts are undisputed. Seiler's Environmental Services Division provides institutional clients with management of their environmental (i.e. cleaning) staff. Seiler's organizational structure consists of on-site managers, also known as account or location managers, district managers, and unassigned managers who are part of a "Starts and Surveys" team. Account managers are assigned to client facilities where they are responsible for daily supervision of the client's environmental staff, scheduling matters, and interactions with the client's management. District managers are one step above account managers in the Seiler hierarchy and have overall responsibility for an account, its profitability, and interactions with high level client management. Unassigned managers who are part of the Starts and Surveys team assist account managers in opening new accounts by travelling to the account and training the client's employees, writing work schedules, and performing other needed tasks.

Tomka began work in Seiler's Environmental Services Division in July, 1987 as an account manager assigned to the Garden State Rehabilitation Hospital in Toms River, New Jersey. Following complaints from the client's management, Seiler transferred her to the Starts and Surveys team in December, 1987. Her supervisor in this division was Ray Taylor ("Taylor"), the director of the Starts and Surveys team. After working on various accounts, Taylor assigned her on December 4, 1988 to work in opening new accounts at the Daybreak Drug and Alcohol Rehabilitation Hospital and the Hill Haven Nursing Home in Rochester, New York. Taylor informed Tomka that she would be working with Lucey, who was the district manager for the Rochester region.

Tomka subsequently spoke by telephone with Lucey about her responsibilities for the accounts, and Lucey informed her that she should review Seiler's contracts for the job in order to prepare for her assignment. ³ Tomka was also informed that she would be working with Conroy, the location manager for the Hill Haven facility, and Polonsky, a member of the Starts and Survey team who had also been assigned to the Rochester accounts. None of the individual defendants had worked with Tomka prior to her arrival in Rochester.

Most of this case centers on the events which transpired after Taylor assigned Tomka to the Rochester accounts. Tomka claims that Lucey, Polonsky, and Conroy sexually assaulted her following a dinner on December 6, 1988, and that Seiler 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 eighteen months of verbal sexual harassment she had previously suffered during her tenure at Seiler. Although the defendants vigorously deny that the sexual assaults and verbal harassment occurred, we assume Tomka's contentions to be true and limit our discussion to her version of the events.

A. Events Prior to December, 1988

Tomka claims that the work environment at Seiler was permeated with a discriminatory animus towards women in general and that various Seiler supervisors and employees subjected her to sexual jokes, comments, and innuendos. Specifically, Tomka lists a number of incidents which occurred at various locations to which Tomka had been assigned:

i) Mark Toomey, a senior account executive in Seiler's Sales Division, stated that he would buy a diamond bracelet for someone who would be "special" to him; while looking at Tomka, he then stated "I wonder ii) While on an inspection with Tomka and two other male Seiler employees, Jessie Parker, a district manager, grabbed plaintiff's hand and stated "Carol, when are you going to go out with me?" Id.;

                if anyone in this office could be special to me?"   Toomey later asked Jim Green, a Seiler manager who was standing with Tomka, if Tomka and Green were sleeping together.  Plaintiff's Responses to Seiler's First Set of Interrogatories ("Pl.Resp.") at pp. 4-5
                

iii) Ray Taylor instructed plaintiff to accompany him to Toomey's house for dinner and to bring a bathing suit to use in Toomey's pool; upon arrival at Toomey's house, Toomey expressed disappointment that Tomka was not wearing her bathing suit because he "had been looking forward to seeing her in it." Tomka's Supplemental Responses to Seiler's First Set of Interrogatories ("Pl.Sup.Resp."), at p. 3;

iv) Harry Snook, a senior account executive in Seiler's Sales Division, talked on the phone with Douglass Snook, the Vice President in charge of the Environmental Services Division and stated, with Tomka present, that "and when I am not doing that I'll be in bed with Carole Tomka." Tomka said nothing and left the office from which the call had been made. Pl.Resp. at p. 5.

v) At a required orientation function, a Seiler manager at Tomka's table referred to a radio show that had discussed women's underwear. Pl.Sup.Resp. at p. 3;

vi) While on an inspection with Tomka and two other male Seiler employees, Douglass Snook turned to the two employees and stated "[a] bunch of us were sitting around at dinner the other night and we all wondered does she fuck." Snook looked at Tomka as he made this remark, and then laughed and said, "[n]o, more appropriately does she fuck you?" After Snook laughed again, Tomka walked away from the group. Pl.Resp. at p. 6;

vii) Unidentified male Seiler employees nicknamed Tomka "Sergeant Slaughter" and stated that she had "great legs." Id. at p. 7.

Prior to December, 1988, Tomka had not complained to anyone at Seiler about this harassment. See Complaint at p 11.

B. Events of December, 1988

Tomka began work at the Rochester accounts on December 5, 1988. After work on December 5, Tomka, Lucey, Polonsky, Conroy and Conroy's wife went to dinner at a restaurant in Henrietta, New York. Tomka claims that Lucey directed that Tomka join him, Conroy, and Polonsky for a business dinner. See Pl.Resp. at p. 9. Tomka also stated that it was company policy for Seiler employees travelling on start-up business to eat evening meals together and to transact Seiler business during these meals. While defendants dispute that the December 6 dinner was a business dinner, Lucey testified at his deposition that it was "customary" for travelling Seiler employees to eat as a group, see Deposition of D. Lucey, January 7, 1992 ("Lucey Dep.") at p. 487, and Conroy testified at his deposition that "[w]e always whenever we met ... discussed business one way or the other." See Deposition of T. Conroy, August 21, 1992 ("Conroy Dep.") at p. 330; see also Deposition of R. Taylor, May 7, 1992 ("Taylor Dep.") at p. 446 ("On a start-up it was our practice to sometimes talk about the business at meals.").

At the December 5 dinner, all of the participants consumed alcohol. Tomka claims that Lucey encouraged his subordinates to drink, and that he directed the conversation to "vulgar accounts of his exploitation of women." Pl.Resp. at p. 8. Tomka consumed two glasses of wine at the meal, while each of the men continued to drink after the meal ended. See Tomka Dep at p. 216; Conroy Dep. at p. 56. At the end of the evening, Lucey gave Tomka a ride to...