T.L. v. Toys R Us, Inc.

Decision Date16 April 1992
Parties, 62 Fair Empl.Prac.Cas. (BNA) 504 T.L., Plaintiff-Appellant, v. TOYS 'R' US, INC., a Corporation, Don Baylous, and Jeffrey Wells, Defendants-Respondents.
CourtNew Jersey Superior Court — Appellate Division

Fredric J. Gross, Mount Ephraim, for appellant (Fredric J. Gross, on the brief and reply brief).

James R. Williams, New York City, for respondents (Greenberg & Epstein, Newark, and Jackson, Lewis, Schnitzler & Krupman, attorneys; James R. Williams and Scott T. Baken, New York City, of counsel and on the brief; Ina B. Lewisohn, Newark, of counsel).

Nadine Taub, Newark, submitted a brief on behalf of amicus curiae Women's Rights Litigation Clinic, Rutgers University School of Law.


The opinion of the court was delivered by


In this appeal we are called on to determine whether the alleged unwelcome sexual conduct towards and harassment of this plaintiff by her male supervisor constituted sexual discrimination entitling her to compensatory and punitive damages. We must also decide whether the supervisor's employer should also be held liable. The Law Division judge in a non-jury trial found that the supervisor's liability was limited to a single non-consensual touching of plaintiff that constituted a battery. The judge awarded $5,000 in compensatory damages, but denied punitive damages "because there is no evidence that [the supervisor] acted with malice toward plaintiff." The judge dismissed all claims against plaintiff's employer. We reverse and remand.

On August 27, 1987, plaintiff, T.L., commenced a civil action in the Law Division against her former employer, Toys 'R' Us Inc. (Toys 'R' Us), and Don Baylous, plaintiff's supervisor. She alleged injuries and damages resulting from defendants' violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to

-42, and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e to 2000e-17. She also claimed tortious violations of her "body and person" as a result of alleged assaults and improper conduct in the workplace during her employment by Toys 'R' Us. She further alleged intentional interference by Baylous with her contractual relationship with Toys 'R' Us, and negligence in defendants' conduct towards her while she was an employee. She asserted that sexual harassment perpetrated and condoned by the defendants caused her to suffer damages including loss of wages, pension benefits, anxiety, detriment to her health, medical expenses, humiliation, and pain and suffering, and also that she was required to expend attorneys' fees, and costs of suit.

Plaintiff filed an amended complaint on March 23, 1988, wherein she deleted reference to her claims being based in part on Title VII. She filed a second amended complaint on August 25, 1989, adding Jeffrey Wells as a party defendant. Plaintiff alleged that, as supervisor of the Human Resources Department of Toys 'R' Us, Wells directed that plaintiff participate in a face-to-face encounter with defendant, Baylous, causing her lasting psychological harm. She asserted that Toys 'R' Us ratified Wells' intentional and malicious wrongful acts all in violation of the LAD.

The trial, conducted over six days from June 6 through June 14, 1990, revealed that plaintiff began her employment with Toys 'R' Us in August 1981 as a file clerk in the Purchasing Department. Through various promotions she worked her way up to supervisory positions, including Data Entry Supervisor and then Purchase Order Management Supervisor. Plaintiff held this position in November 1985 when Baylous joined Toys 'R' Us as Director of Purchasing Administration. In that capacity Baylous supervised approximately thirty people, including plaintiff. Plaintiff received favorable evaluations and promotions under his supervision. She was promoted to Systems Analyst for the Purchasing Department in September of 1986, and was in close contact with Baylous on a daily basis, and at least once a week met with him in his office.

Plaintiff, then twenty-seven years of age, noticed what she considered to be offensive sexual conduct by Baylous directed against other female employees in December 1986. However, the first incident complained of as personally involving plaintiff occurred around January 21, 1987. She testified:

Don told me that I should show the order to Frank Pissani. And I remarked that I knew how upset Frank could get when his orders reject especially a three-hundred page Mattel order.


And Don said, well, just lean over his desk and show him your tits, implying that that way Frank couldn't get upset at me.

When asked how she felt when he said this, she stated:

Well, I left the office and headed toward Frank, and all I kept thinking is how weird. That's disgusting that that man would say that to me.

Plaintiff stated that she did not say anything to Baylous for using that kind of language, adding, "I never said anything to Don. I was afraid that I could lose my job."

The next sexually offensive incident plaintiff allegedly witnessed was when she and two other female workers were in Baylous' office, and he noticed that one of the women had worn a dress to work in the morning and changed into jeans after lunch. She stated that "Don put his hands on [the woman's] waist and asked her if she had gone home for a quickie." She explained "[h]e put his hands on her waist and kind of squeezed as he said it, and we all left the office." Plaintiff testified that the woman did not say anything to Baylous.

Plaintiff related that the next incident she remembered, also apparently occurring in January 1987, was when she had a meeting with Baylous. She testified that after the meeting was concluded:

Don stood up walked around his desk and stood by the door. I rose and went to my right a little, and I noticed something out of the corner of my eye out of the window, and I said, what's going on out there? At this, Don lifted the back of my shirt up over my shoulders. I know my bra strap was exposed, and said, give them a show. And I pulled my shirt down, ran out of the office crying, and I remember running to M.P.

Plaintiff indicated that although she saw scaffolding outside the window and assumed window washers were present, she failed to actually see anyone. Plaintiff worked until the end of the day, although she indicated that she was crying and quite upset. Plaintiff produced other witnesses who testified about her condition immediately following the incident. Plaintiff did not report the incident to any superior or manager at Toys 'R' Us.

The next occurrence was within a short time thereafter. Plaintiff and Baylous were discussing the fact that Baylous was going to get a new boss reputed to have a quick temper. Plaintiff recounted that she said: "[T]hat's all we need, is somebody else with a quick temper, because that makes me nervous." She asserted that Baylous replied: "[W]ell, just stick your tits out at him as if you're brave and act as if you're brave." She described her reaction thus: "Once again, I just got upset, and I don't remember anything except leaving the office." Despite Baylous' comments, plaintiff did not express her distaste, nor did she tell him to stop using that language, explaining: "I was really afraid of Don. I didn't know what would happen if I said something."

She further recounted that around the same time while in her cubicle she saw defendant squeezing a female co-employee's knee. She remembered that the woman pushed his hand away, and that afterwards the woman told her that "she really hated for Don to touch her and especially there because she hated to be touched on the knee."

On January 21, 1987, according to plaintiff's testimony, she and a co-worker were with Baylous at a meeting, when he told plaintiff "[t]o write a memo to cover [her] ass, and then he added because you have such a cute little ass." She said nothing to Baylous about the comment, but the following day plaintiff went to talk to Baylous' immediate boss, Bill Frankfort, about the incident. Plaintiff was disappointed with the meeting, however, because Frankfort told her not to tell Howard Moore, the Executive Vice President in charge of Purchasing, as he was very straight-laced and a family man and "[h]e also told me to handle it myself." Plaintiff remembered telling Frankfort that she would try, but she really did not think that she could because she had not been able to tell Baylous how she felt up to that time. On January 26, 1987, plaintiff wrote a letter to Frankfort concerning her complaints of sexual harassment. She handed the letter to him in an envelope that same day. However, it appears that Frankfort did not open the letter until after plaintiff left the employ of Toys 'R' Us in April 1987.

Plaintiff, on January 26, 1987, received a call to report to Eric Jonas, Manager of Employee Relations for Toys 'R' Us. At the meeting, plaintiff and a female co-worker, who was present when plaintiff arrived, told Jonas "about the trouble we were having with Don." Plaintiff stated, "I told him the specific incidents of what had happened with me with Don." She stated, "we gave him a list of names of other women who had either themselves said something--you know, had come to us talking about Don also." She recalled at trial approximately six or seven names that she had given to Jonas as women who were offended by Baylous' touchings or remarks since the department Christmas party in 1986.

Plaintiff told Jonas that she did not want Baylous fired, but just "wanted it stopped." Jonas informed plaintiff that the problem would be more difficult to handle because plaintiff did not want Baylous to know that she had complained. Jonas assured plaintiff, however, that "he could handle it by saying that someone had complained, and that should be enough to make him stop." A few days...

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