*1 injunc- entry preliminary court’s qua trict as the sine irreparable harm showing of tion, plaintiffs’ under relief, the claims and dismiss injunctive preliminary for non Buffalo because: Corp., 638 the Commerce Clause Ampco-Pittsburgh Forge v.Co. (2d Cir.1981), a de- and such F.2d a like- plaintiffs to establish 1. The failed clearly precedent established parture from merits, because the of success on the lihood See JSG of discretion. an abuse constitutes management scheme does not Town’s waste Inc., F.2d Tray-Wrap, Trading Corp. v. Clause; and the dormant violate Commerce Cir.1990) (2d pre- (reversing grant of 75, 79 supports record 2. Evidence court found injunction district liminary where plaintiffs will not finding that district court’s of than “likelihood” only “possibility” rather implementation harm from irreparable suffer harm). irreparable management plan. of the Town’s waste that the concede Although plaintiffs claims plaintiffs’ dismiss Accordingly, we for misapplied the standards court district Clause, plain- as well under Commerce relief, they nevertheless equitable granting rights premised upon viola- tiffs’ civil claims for facts to comb the record urge us plain- Clause. The tions of the Commerce irreparable harm. finding of support a would Baby- Recycling, Inc. v. Town tiffs USA any basis affirm “on true that we It is lon, 95-7129, claims un- additional No. raise per is a sufficient which there record statutory pro- and constitutional der various law, including grounds mit conclusions Carting in A.A. plaintiffs & M. visions. The rely.” did not court upon which district Service, Babylon, No. 95- Inc. v. Town Cir. Murphy, v. Leon the Sher- arguably raise claim under however, 1993). case, the district In this for further Act. remand man We therefore plaintiffs had explicitly found that court claims, any remaining consis- proceedings on harm. We could irreparable demonstrated opinion. tent with then, injunction, preliminary affirm factu district court’s by determining that the Because “clearly finding was erroneous.”
al deter supports the district court’s record injuries alleged plaintiffs’
mination that therefore entirely
would be financial —and money damages— an award
remediable clearly court say that the district
we cannot plaintiffs had it found that
erred when harm. irreparable not demonstrated TOMKA, Plaintiff-Appellant, Carole v. III. Conclusion to two sim CORPORATION, This case down boils Daniel The SEILER First, can assume Timothy towns ple propositions. Polonsky Lucey, David the collection responsibility Defendants-Appellees. Conroy, exclusive Second, can towns disposal garbage. of local 94-7975. No. Docket municipal provide private contractors hire In case does neither services to residents. Appeals, States United Court any impose against, town discriminate Circuit. Second on, The local interstate commerce. burden Argued March consolidating that are interests served town— hands of the garbage service 27, 1995. Sept. Decided service, sanitation, garbage safety, reliable cheaper service to residents —would placed any arguable burdens outweigh
event interstate commerce. Babylon’s waste summary, uphold we the dis- system. We reverse
management
brief), Defendants-Appellees The Seiler Corporation Lucey. and Daniel Sullivan, Jr., Buffalo, (Mary Michael T. NY Gannon, Sullivan, Sullivan, T. Buf- Gannon & falo, NY, brief), Defendant-Appel- on the Timothy Conroy. lee MINER, PARKER, Before: Circuit SCHEINDLIN, Judges, Judge.1 District SCHEINDLIN, Judge. District (“Tomka”) appeals from a Carole judgment final of the United District States York, Court for the Western District of New Telesca, granting Judge, Michael A. sum- mary judgment employer, to her former The (“Seiler”) Corporation and three for- co-employees, Lucey (“Lucey”), mer Daniel Polonsky (“Polonsky”), Timothy David *5 Conroy (“Conroy”). complaint Tomka’s i) presents claims of environment sex- hostile retaliatory discharge ual and harassment Rights violation of Title VII of the Civil Act 2000e-2(a)(l) §§ 1- 42 U.S.C. and 3(a), Rights and New York’s Human Law 296(l)(a) (3- (“HRL”), §§ N.Y.Exec.Law and ii) a)(c); unequal pay in violation of the 206(d), VII, Act, § Equal Pay Title U.S.C. 296(l)(a) 2000e-2(a)(l), § and U.S.C. in) HRL; common assault and and law intentional infliction of emotional distress. Lucey, Conroy Tomka also claims that and Polonsky should be held liable in both their al- capacities official and individual for the leged violations of Title VII and the New Law. York Executive complaint The district court dismissed except all claims as to and dismissed Seiler against the individual the common law claims appeal, Tomka contends defendants.2 On impermissibly court resolved that the district Rochester, Pezzulo, (Bradley, E. NY Glenn fact in favor of disputed issues of material Marks, Tanenbaum, Sherman, Culley, A. prof- Tomka’s and failed to credit defendants Rochester, NY, Reifsteck, Capeh, Potter and un- discrimination and fered evidence of sex brief), Plaintiff-Appellant. on the for argues dis- equal pay. also that the Tomka Boston, dismissing her Title VII Burak, trict erred Massachusetts court Mark H. Manion, against defen- III, HRL claims the individual Cooley, and (Harry L. Manion agree P.C., Boston, MA, personal capacities. We Jones, dants in their on the Moore & Order, Scheindlin, subsequent dis- Decision and In a Shira A. 1. The Honorable remaining claims trict court dismissed Court for the Southern United States District preju- against without the individual defendants York, sitting by designation. District of New replead Tomka’s with leave to should dice and appeal. be reinstated after federal claims working Lucey, appellant that her hostile work environ- with who the district with ment, retaliatory discharge, unequal pay manager region. for the Rochester and not have been claims Seiler should subsequently spoke by telephone dismissed, reverse the and we therefore Lucey responsibilities with about her for the fur- judgment part and remand for below accounts, Lucey and informed her that she proceedings. ther job in should review Seiler’s contracts for the assignment.3 prepare order to for her Tom- I. BACKGROUND ka was also informed that she would be working Conroy, manager with the location undisputed. Seiler’s En- Certain facts are facility, Polonsky, Hill Haven and provides Division insti- vironmental Services Survey member of the and who Starts team management of then- tutional clients with assigned had also been to the Rochester (i.e. cleaning) staff. Seiler’s environmental accounts. None of the individual defendants consists of on-site organizational structure prior had worked with Tomka to her arrival managers, known as account or location also in Rochester. managers, unassigned managers, district managers part of a who are “Starts Most of this ease centers on the events Surveys” managers Account are as- team. transpired-after Taylor assigned which Tom- signed they to client facilities where are re- ka to the Rochester accounts. Tomka claims daily sponsible supervision of the client’s Lucey, Polonsky, Conroy sexually staff, matters, scheduling environmental following assaulted her a dinner on Decem- management. interactions the client’s with 6, 1988, subsequently ber and that Seiler managers step District are one above account complained terminated her because she managers hierarchy in the have rapes pursue these and threatened to crimi- account, responsibility prof- overall for an its charges. alleges nal Tomka also itability, high and interactions level eighteen assaults were a continuation of *6 management. Unassigned managers client months of verbal sexual harassment she had part Surveys who are of the Starts and team previously during suffered her tenure at Seil- managers opening assist account in new ac- Although vigorously deny er. the defendants by travelling counts to the account and train- that the sexual assaults and verbal harass- ' ing employees, writing the client’s work occurred, ment we assume Tomka’s conten- schedules, performing and other needed tions to and be true limit our discussion to tasks. her version of the events. began Tomka in work Seiler’s Environ- December, A. Events Prior to July, in
mental Services Division 1987 as an Tomka claims that the work environment manager assigned account to the Garden permeated at Seiler was with a discriminato- River, Hospital State Rehabilitation in Toms ry general in animus towards women and Jersey. Following complaints New from the supervisors employ- that various Seiler management, client’s Seiler transferred her comments, subjected jokes, ees her to sexual December, Surveys to the Starts and team in Specifically, and innuendos. a Tomka lists supervisor 1987. in Her this division was number of incidents which occurred at vari- Ray (“Taylor”), Taylor the director of the ous locations to which Tomka had been as- Surveys working Starts and team. After on signed: accounts, Taylor assigned various her on De- i) 4, opening in Toomey,
cember 1988 to work new ac- Mark a senior account execu- Daybreak Division, Drug counts at the and Alcohol in tive Seiler’s Sales stated that Hospital buy Rehabilitation and the Hill Haven he would a diamond bracelet for some- Rochester, Nursing him; “special” Home New York. one who would be to while Tomka, Taylor looking informed Tomka that she would be at he “I then stated won- Specifically, surveying supervisors 3. employees Tomka's duties included chain of and line for the schedules, building, writing Tomka, 8, the entire work facility. Deposition January of C. training employees supplies equip- on the ("Tomka Dep.”) p. at 1059. ment, cleaning equipment, setting up December, 1988, special could be Prior to Tomka anyone if in this office had not der Green, complained anyone at Seiler about this Toomey later asked Jim a to me?” ¶ Complaint at harassment. See 11. standing with manager who was Seder Tomka, sleeping if Tomka and Green were December, B. Events together. Responses Plaintiffs to Seiler’s began Tomka work at the ac- Rochester (“Pl.Resp.”) at Interrogatories First Set counts on December 1988. After work 4-5; pp. 5, Tomka, Lucey, Polonsky, December Con- ii) inspection with Tomka and While on an Conroy’s roy and wife went to dinner at a employees, male Jessie two other Seiler Henrietta, York. restaurant New Parker, manager, grabbed plain- a. district join Lucey directed that Tomka claims “Carol, you and stated when are tiffs hand him, Conroy, Polonsky for a business Id.; going go out with me?” Pl.Resp. p. at dinner. See Tomka also company policy stated that it was for Seiler iii) Ray Taylor plaintiff instructed to ac- start-up employees travelling on business to Toomey’s him house for dinner company evening together eat meals and to transact bring bathing to use in Too- and to suit during Seiler business these meals. While Toomey’s mey’s upon arrival at pool; dispute defendants that the December 6 din- house, Toomey expressed disappointment dinner, Lucey ner at was business testified wearing bathing her that Tomka was not deposition “customary” his it was looking forward suit because he “had been travelling employees group, to eat as a seeing Supplemen- in it.” Tomka’s her Lucey, Deposition January see of D. Responses tal First Set of Inter- Seiler’s (“Lucey Dep.”) p. Conroy at testi- 3;p. rogatories (“Pl.Sup.Resp.”), at deposition always fied at his that “[w]e when- iv) Snook, Harry account execu- senior way ... ever we met discussed business one Division, talked on the tive Seiler’s Sales Deposition Conroy, or the other.” See of T. Snook, phone Douglass Pres- Vice 330; August (“Conroy Dep.”) p. charge ident in of the Environmental Ser- 7,1992 Deposition Taylor, May see also of R. stated, with Tomka vices Division and (“On (“Taylor Dep.”) p. start-up it doing I am present, that “and when practice was our to sometimes talk about the I’ll bed with Carole Tomka.” meals.”). business at nothing Tomka said and left the office dinner, par- At the December 5 all of the from which the call had been made. PI. *7 ticipants consumed alcohol. Tomka claims Resp. p. at 5. Lucey encouraged that his subordinates to v) function, required At a orientation drink, and that he directed the conversation manager Seiler at Tomka’s table referred exploitation “vulgar to accounts of his show that had discussed wom- to radio Pl.Resp. p. women.” at 8. Tomka consumed 3; Pl.Sup.Resp. p. at en’s underwear. meal, glasses of wine at the while each of two vi) inspection Tomka and While on with to drink after the meal the men continued employees, Douglass two other male Seiler 216; Conroy Dep p. at ended. See Tomka employees and Snook turned to the two Dep. p. evening, At at 56. the end sitting of were around “[a] stated bunch us Lucey gave Tomka a ride to her hotel his night at other and we all won- dinner the ear. rented does she fuck.” Snook looked at dered Lucey day, Tomka contends that The next remark, Tomka as he made this and then dinner and or- again convened a business said, “[n]o, laughed appropriate- and more him, join Conroy and Polon- dered that she ly you?” does she fuck After Snook sky Holiday Airport Inn bar in Roch- at the away laughed again, Tomka walked from ¶ Although Complaint at 18. ester. See 6; Pl.Resp. p. group. at Lucey “physically afraid” of and Tomka was vii) employees Polonsky, December 6 din- Unidentified male Seiler she attended this “Sergeant Slaughter” Lucey instructed her to and nicknamed Tomka ner because had early evening “great legs.” “it would be an and stated that she had Id. she understood Lucey had he had a seven p. because said at 7. job open pay and continue to her morning.” Tomka hold her flight the next o’clock Inn, Holiday Lucey salary took time she At the while she whatever Dep. p. at 496. for Tomka and from the assaults. Id. repeatedly ordered drinks needed recover drink with the others. See insisted that she flying Pennsylvania After to be with glass- consumed six Pl.Resp. p. at 9. Tomka relatives, Taylor on Decem- Tomka wrote to wine, lists and the bar tab —which es of arrangements. Tom- ber 12 to confirm these forty and a small approximately drinks take whatev- ka that she was “to understood that the others quantity of food—indicates pursue counseling, ... er time I need Dep. Tomka at had even more to drink. See treatment, and the rest I re- medical 561; Tomka’s Statement of p. Exh. 62 to my physical quire to restore mental and well Facts. being.” Exh. 9 to Tomka’s Statement of See on, evening the conversation As the wore Facts. Her letter also stated Seiler Tomka apparently took a turn for the worse: fully expenses I incur in would “cover repeatedly made alleges that the defendants need,” getting help I and that all contacts vulgar women and talked of remarks about through Taylor. with were to be made Seiler Pl.Resp. p. past exploits. See at 9. sexual Finally, Taylor she Id. Tomka informed wearing Tomka about her The men teased Philadelphia. seeing therapist would be down, until she took it and hair a bun response Tomka never received a to this Id. Lucey brought garter a women’s to the table Taylor Dep. p. letter. See at 224. Tomka, put placed it in front of who it December, 1988 pp. By C. Events around her arm. Id. at 9-10. After evening, admits that she end of the Tomka Bowe, subsequently ordered Robert difficulty walking. had felt intoxicated and security, corporate its director of to investi- gate allegations. Bowe interviewed leaving approximately After at Tomka’s the bar Conroy, Polonsky get away and some of the bar and p.m., Tomka “want[ed] 11:30 Polonsky.” employees. Deposition of Robert Lucey Dep. at hotel from Bowe, 21,1991, 67-69,127-29, initially Airport January pp. p. 496. climbed into an She van, Conroy Although ei- courtesy but assisted her out 180-81. he failed to interview Lucey, Lucey’s ther Tomka or Bowe concluded that helped her into the back seat of alleges car. Tomka that each of the Tomka had never been assaulted. He did rental car, find, however, Lueey’s Polonsky inap- had acted raped three men her in an alle- deny. Pl.Resp. p. propriately slept because he had with Tomka gation that defendants Snook, Tomka, Douglass Conroy Polonsky when she was inebriated. then drove during Lucey, who was inebriated and semiconscious who interviewed then decided assaults, Polonsky Conroy’s other Seiler officials to terminate back to her hotel hotel, because “his attitude and behavior were det- car. At the Tomka claims that Polon- Seiler,” room, sky reprimand rimental and to directed her to his hotel where he ¶ Tomka, Lucey raped again. Complaint at 24. demote because he had overused his her consciousness, company charge during passing in and out of was able card the December *8 Snook, Douglas eventually dinner. See Affidavit of J. to free herself and went back to (“Snook Aff.”), at her hotel room. Id. dated November Exh. A. day remembering during After that before, 1989, January, Taylor night spoke had assaulted the Tomka to
she been 7, early by telephone Tomka left work on December on a number of occasions and Rape long Center. asked him how her benefits would con- and called the Rochester Crisis Taylor Dep. pp. at the on tinue. at 204-06. She Tomka was examined Crisis Center See Ray “thinking Taylor report press- 8 and called to also told him that she was December Lucey, pursuing by ing charges that she been criminal as well as oth- had assaulted Con- ¶ roy Polonsky. Pl.Resp. p. Complaint at 12. at 30. After con- See er remedies.” Snook, Taylor that Taylor ferring flew and met with told Tomka then to Rochester plaintiff pay would continue to for her counsel- on December 9. Tomka contends Seiler Taylor ling expenses salary that and bene- promised that her that would her Seiler February fits would also continue. Id. On authority ent agent as Seiler’s to accom- 1.1989, Douglass plish rape. Snook wrote Tomka and that advised her “her extended leave with p. Id. at 26. pay” February benefits and full would end on However, rejected the court Tomka’s con- 15.1989, report Taylor and that she should Lucey tentions that had used apparent his assignment. to receive her next Snook Aff. authority to convene mandatory “business 10, February respond- at Exh. A. On Tomka dinner” on December 6: undergoing ed that she was still medical tests presented Tomka also no sug- evidence to and that willing supply she would gest that she Lucey, was ordered reports tests, Snook -withthe from those but policy that it was employees, Seiler for all that in expected salary the interim her she working attend meetings dinner while indefinitely. and benefits to continue Id. at road, on the at the conclusion of the busi- February Exh. B. On Snook wrote Tom- day. ness The clear inference from the any ka Seiler had not received doctor’s proof instead shows that the business col- status, reports regarding Tomka’s its investi- leagues, road, quite while on the naturally gation had concluded assaults had had together, dinner during they which occurred, and Seiler would discontinue progress sometimes discussed salary place employment her her premises. nights client’s both On Roch- February inactive status as of 1995. Id. ester, Conroy even Mrs. was invited to ¶at 21. Tomka copy later Snook a of a sent dinner, attend and Tomka herself consid- doctor’s prescribed invoice for which $100 inviting ered a friend. psychiatric treatment. Tomka then com- Similarly, Id. the court discounted Tomka’s December, menced this action in 1989. Lucey assertions that plaintiff had forced excessively against drink her inwill order to D. The District Court’s Decision make her more vulnerable to the assaults. p. Id. at 30. finding After In a the verbal Decision and dated Order June harassment did not rise to an actionable (“Opinion”), level Judge granted Telesca VII, of conduct under Title the court dis- summary judgment to the defendants on all missed Tomka’s hostile environment claims. of Tomka’s claims than other the intentional p. Id. at infliction of emotional distress and assault
claims the individual defendants. As The district court also dismissed Tomka’s to Seiler’s for hostile work environ- claim that discharged Seiler had her Feb- harassment, ment sexual the district court ruary, 1989 because complained had she only Lucey first held that could be rapes consid- and had threatened to initiate plaintiff’s supervisor ered purposes charges. criminal court held that The “Seil- summary judgment. Opinion pp. legitimate, 24- er had a non-discriminatory rea- 25. The court rape went on to state that the son to dismiss report Tomka: she failed to (which employee by of an supervisor for work February is an event Rochester) sixty sufficiently days which is to create an abu- after the severe incident as environment, but, Snook, working by Douglass instructed princi- provide sive or to under doctor, ples agency, requested by statement from her hable would be for the him, justifying if assaults her for medical Lucey could show that absence rea- 36; p. sons.” apparent had used his actual or Id. at also authority to see Snook Aff. at ¶¶ Judge facilitate 18-23. The court found Tomka had not assaults. Telesea cast phrased the doubt on following issue Seiler’s asserted reason manner: *9 provide any because she had failed to evi- proving [I]n addition to that she was differently dence that she had treated been raped, Tomka must show some also nexus any than employee other Seiler would have between the work and the environment been under similar Opin- circumstances. See sexual conduct in order to benefit from pp. ion at 36-37. protections. words, Title VU’s In other hold rape, Seiler hable rejected she must court equal pay The next Tomka’s Lucey show that his appar- actual or Although apparently used claims. it found that 1304 raised, ing genuine issue has been prima case of whether facie made out Tomka had underly- discrimination, drawn from the held that the inferences to be the court
wage
affidavits, exhibits,
any
present
ing
evidence
facts revealed
Tomka had failed
answers,
wage
depositions
differ-
must
interrogatory
that the
defense
counter Seiler’s
male Seiler
light
and six
favorable to the
Tomka
in the
most
entials between
be viewed
See,
than
e.g.,
factors other
based on
motion.
United
employees
party opposing
were
Diebold,
654, 655,
p. 45.
82
sex.
Id. at
369 U.S.
S.Ct.
v.
States
(1962);
994,
993,
Ramseur v.
1305
prohibitions against
violate Title
ment
VH’s
declined to announce a definitive rule on
i)
ii)
workplace inequality:
quid pro quo and
employer liability, holding instead that feder-
hostile work environment harassment. See
guided
al courts
by
should be
common law
Vinson,
Savings
Meritor
Bank v.
477
Meritor,
U.S.
principles
agency.
Even if a
ciently
work environment
alters the conditions of the victim’s
abusive, however,
found to
plaintiff
employment
clearly
creates an abusive
“must establish that the conduct which creat
purposes
work environment for
of Title VII
Meritor,
ed the
imput
liability.5
hostile environment should be
U.S.
Kotcher,
employer.”
ed to the
harassment,
However,
also establish Seiler’s
Tomka must
they
if
were otherwise
plish
rape,
or
the sexual misconduct
responsibility for
agency relation-
Polonsky.
aided
the existence
Conroy, and
Lueey,
short,
carry out the assaults.
ship to
Liability
For
3. Seiler’s
allege facts which establish a
must
Tomka
Employees
Acts
Its
authority of
supervisory
nexus between
rapes.
Lueey Conroy and the December
or
teachings,
Applying Karibian’s
by arguing that
attempts to do this
Tomka
determining
considered
first issue to be
dinner as a
Lucey convened the December 6
is whether
liability for the assaults
Seiler’s
meeting,
that the conduct of the
and
business
can be
defendants
any of the three individual
defendants, including the excessive
individual
supervisor. The district
Tomka’s
considered
meeting,
part
parcel
was
and
drinking at the
Lucey
treated as
should be
court held
corporate culture fostered
of the Seiler
summary judg
supervisor at the
plaintiffs
Conroy
capacity
in their
as Seil-
Lueey and
agree with the district court
stage. We
ment
agents.
er’s
alleged facts sufficient to
Tomka has
Lucey acted
to find that
enable a fact finder
Authority
Apparent
4. Evidence
Use
al
supervisor at Hill Haven:
plaintiffs
as
supervisor
Taylor was Tomka’s direct
though
support
presented
has
evidence
Tomka
give Tomka direction
Lueey did not
and
discoveiy,
During
Tomka stated
her claims.
Haven, Lueey
manager
was the district
Hill
6 dinner was a business
that the December
Tomka had been
responsible for the accounts
by Lucey
she
meeting convened
which
felt
Lucey’s po
including
assigned,
Hill Haven.
Tomka further stated
compelled to attend.
hierarchy
enable
in the
would
sition
Seiler
travelling together
employees
that Seiler
at Hill
performance
Tomka’s
him to review
together,
meals
and
the road often took their
any thoughts about
communicate
Haven and
during this
often discussed
that business was
Taylor, thereby affecting Tomka’s
plaintiff to
itself,
testimony
suffi-
By
Tomka’s
time.
This evidence is suffi
future with Seiler.
nature of
to create a fact issue over the
cient
Lucey’s
a fact issue as to
cient to create
However, Lucey
December 6 dinner.
Tomka,
role vis-a-vis
and we
supervisory
deposition that
it was
also testified at his
supervisor.
treat him as Tomka’s
therefore
“customary”
employees
on the road
Seiler
Taylor
it was the
together,
testified
to eat
court also held that neither
The district
employees to “some-
“practice” of Seder
Conroy
as
Polonsky nor
should be treated
meals,
at these
times” talk about business
Polonsky
an unas-
supervisors.
was
Tomka’s
Conroy
that whenever Seiler
testified
surveys manager
Tom-
signed
like
starts
meals business
employees met for after-work
clearly
supervisor.
was not her
Con-
ka and
way
oth-
“always” discussed “one
or the
Hill
roy,
manager
account
who was the
Moreover, if
in fact
er.”
the dinners were
Haven,
Tomka’s
had no direct control over
certainly
per-
meetings, it
be
business
would
duties,
power
discharge
did not have the
fact to find that
missible for the trier of
her,
equiva-
approximately at a level
and was
these meet-
compelled
Tomka felt
to attend
hierarchy. How-
Tomka in the Seiler
lent to
working on
ings;
employee
an out-of-town
ever,
gave him
position at Hill Haven
his
account,
she
Tomka
have felt that
new
worksite,
significant control
Tomka’s
over
disadvantaged if she failed to at-
would be
he,
unfavorably
Lucey,
report
like
could
any valuable information or
tend and receive
Further,
alleges
on her work.
might
imparted
insight which
be
from
actually
Conroy
much of Tomka’s
controlled
managers
meeting. This lat-
various
at the
Although
question
at Hill Haven.
work
might
true even if business
proposition
ter
one,
is a close
this evidence
sufficient
topic of
and the
was not the sole
conversation
Conroy was
a fact issue as to whether
raise
flavor.
meal took on
social
supervisor,
we treat him as
Tomka’s
summary judgment.
purposes of
such for
that,
Lucey
argue
even if
also
Thus,
if
was a business meet-
for the assaults
the December 6 dinner
Seiler is liable
drinking
meal was
ing,
at the
Lucey Conroy, plaintiffs supervisors, used
the excessive
*12
proximate cause of the assaults and that
also could
stopped drinking
have
at the De-
voluntary
drinking
and uncon-
Tomka’s
was
cember 6 dinner before she became intoxicat-
any
Lucy’s apparent
of
authori-
nected to
use
ed and hence more vulnerable to the attacks.7
course,
ty.
drinking
Of
does
cause
issues, however,
These
are for the fact find-
However,
rape people do.
insofar as the
above,
er. As discussed
present-
Tomka has
—
drinking
meeting
at the December 6
made
ed sufficient evidence to create an inference
Tomka more vulnerable and facilitated the
Lucey
that
apparent authority
used his
to
assaults,
by
this too could be connected
a fact
convene the December 6 dinner and encour-
delegation
authority
finder to
of
Seiler’s
to
age the free
use
alcohol.
If the trier of
Lucey. First, Lucey charged the drinks at
fact were to
testimony
credit Tomka’s
that
meeting
company
to Seiler with his
the December 6 dinner was in fact a business
Second,
charge card.6
Tomka testified that meeting
by Lucey,
convened
and that he
corporate
encouraged
culture at Seiler
apparent
used his
authority to foster the
drinking, and that she felt forced to drink
drinking,
excessive
provide
this would
during
accepted.
the dinner
order to be
required nexus between that event and the
suggest
no
While there is
evidence to
that
alleged
short,
assaults which
followed.
physically
Tomka was
forced to drink six Tomka has created a series of reasonable
wine,
glasses of
it would be reasonable for
Lucey
apparent
inferences that
used his
au-
drink,
pressure
given
her to feel
to
that all of
thority to convene the
encourage
dinner and
drinking.
the others were
A fact finder
drinking
which enabled the defendants to
reasonably
could
conclude that Seiler em-
rape Tomka.
If the fact finder credits these
ployees
assignment customarily
on
met after
inferences, a sufficient nexus between the
business,
working
to
hours
eat and discuss
assaults and Seiler would be established for
Seiler,
Lucey,
agent
and that
as the
used
liability
Thus,
purposes.
Tomka’s sexual
apparent authority
promote
policy,
his
to
harassment claims under Title VII —and thus
supplying
which included the
of alcoholic
incorrectly
under the HRL —were
dismissed
company’s
drinks on the
credit card.
by the district court.8
course,
contradictory
Of
there
evidence
simply
in the record that the dinner was
Retaliatory Discharge
B.
social event which Tomka chose to attend
Tomka
that
contends
the district court im-
consumption
and that her
of alcohol was
properly dismissed her retaliation claims un-
voluntary.
example, Conroy’s
likewise
For
Rights
der Title VII of the
Act
Civil
wife was
to
invited
attend both the December
2000e-3(a),
296(3-a)(c)
§
42 U.S.C.
5 and 6 dinners and did attend the December
Tomka,
According
HRL.
the court
Conroy
originally
5 dinner.
stated that he
improperly
all
plan
did not
to attend
resolved
factual inferences in
the December 6 din-
Moreover,
ner.
Tomka drank much
Seiler’s favor and failed to credit her evi-
less
Lucey, Polonsky,
than
Conroy
discharge
either
dence that
decision
Seiler’s
her
5, creating an
discriminatory
December
inference that she was fueled
animus. Al-
Lucey
eventually reprimanded
alleged
and demot-
liable under Title VII for the
assaults.
ed
Seiler for the excessive number of drinks
suggest
We do not read the district court to
charged to Seiler's account at the December 6
drinking
evening
equated,
Tomka’s
can be
Snook,
Deposition Douglass
dinner. See
Janu-
any way, with her consent to have sexual inter-
ary
pp.
248-250. While he
thus
course,
course with
of the defendants. Of
authority
corpo-
have exceeded his
to use Seiler's
reject any
we would
such inference were it
card,
he,
charge
rate
the fact remains that
as a
made.
officer,
Seiler
can be considered to have acted
company
buying
night.
for the
drinks
reject
argument
8.We
also
Seiler’s
that its subse-
quent investigation of the assaults shields it from
discussed,
length,
7. The district court
at some
Karibian,
liability.
employer
Under
is liable if
argument
par-
Seiler’s
that Tomka's decision to
supervisor
apparent
uses his actual or
authori-
ticipate
drinking during
the December 6 din-
ty
accomplish
the harassment. An
proximate
ner was a
cause of the events which
cannot disclaim
for such conduct based
followed. We understand the district court’s dis-
drinking
post-harassment investigation.
cussion
on a
an,
of Tomka's
as relevant
See Karibi-
the narrow issue of whether Seiler can be held
justifying that action.
place
assaults did not take
accept-
Snook
ed and acted on the results of
investiga-
Pretext
Intentional Discrimination
tion. Seiler’s
perpetrators
treatment of the
response,
Tomka contends that
Polonsky
was mixed:
was fired because “his
receiving
Seiler was aware that she was
med
*14
attitude and behavior” did not reflect well on
ical treatment and was unable to return to Seiler, Conroy
all,
disciplined
was not
at
Taylor
work. Tomka told
in December that
Lucey
demoted,
reprimanded
but
seeing
therapist
Philadelphia
she was
a
in
only because he had overused
corporate
his
February
in
later informed Snook
a
charge
disciplined
card. While Seiler
two of
undergoing
letter that she would be
tests
alleged perpetrators,
no mention was
ability
March to determine her
to resume
alleged
made of the
assaults as a basis for
work at
Tomka
Seiler.
also offered to send
punishment.
their
A reasonable inference
any
tests,
Snook the results of
medical
from
might
Seiler’s actions
be that Seiler
Taylor
reiterated that
had promised her that
attempted to “whitewash” the December 6
salary and
her
benefits would continue until
by separating
incident
Tomka from the inves-
ready
Moreover,
she was
to return.
Tomka
tigation, playing
assaults,
down the
and sub-
argues that she did not understand that Seil
sequently terminating
employment.9
Tomka’s
required
er
an official
doctor’s note
lieu of
However, these fact issues must be resolved
her verbal and written communication with
at trial.
Taylor
condition,
and Snook about her
or
evidence,
the invoice she sent to Seiler did not
Tomka’s
while
overwhelming,
satisfy their concerns. Tomka claims Snook is sufficient to
a fact
raise
issue as to wheth-
what,
specified
any,
never
if
medical docu
proffered
merely
er Seder’s
reason was
a
required,
mentation was
pretext
or that
would
terminating
salary
her
and bene-
terminate her if she
provide
did not
fits.
ambiguity
There is a fair amount of
material.
support
regarding
There
some additional
Taylor
what and when Snook or
proposition
for this latter
in the record:
told Tomka about the extent of her leave and
correspondence
based on the
provide
the need to
medical documentation.
—submitted
Snook,
Seiler —between Tomka
Similarly,
the first
investigation
Seiler’s
of the as-
provide
mention of Tomka’s
alleged
failure
medi
saults
perpetra-
and treatment of the
cal
February
documentation is
Snook’s
20 tors raises concerns over Seiler’s true rea-
letter,
sent
Tomka’s benefits had
February
been
sons for its actions on
one
after
terminated. While Snook claims that he had month
complained
after Tomka
of the as-
January
vein,
informed Tomka
that she needed
saults.
In this
we are mindful that
documentation,
provide
medical
at
granting
caution must be exercised in
sum-
summary judgment stage
mary judgment
we must credit
employer’s
where an
intent is
Leech,
9. Tomka also contends that she was treated dif-
further detail in
record
about
ferently
managers
than other male Seiler
who
length of time that he had been absent from
had been forced to take extended leaves of ab-
work,
any explanation why
alleg-
or
Seiler had
Specifically,
points
sence.
Leech,
Tomka
to James
edly provided
period
him with an
leave
extended
employee,
allegedly
another Seiler
who
short,
salary.
with full
In
Leech
have been
had told her that he had been on sick leave for
granted
very
leave under
different circumstances
period
an extended
of time and that Seiler had
Tomka,
than
and her assertion does not undercut
pay
salary
continued to
his
and medical bills.
proffered explanation.
Seiler’s
However,
Pl.Resp.
p.
See
at
13.
there is no
plaintiff makes out a
Chambers,
Once
43 F.3d
in issue.
genuinely
case,
1224).
persuasion
the burden
prima facie
Gallo,
Be-
22 F.3d at
(citing
at
prove that
remain,
Tomka’s
shifts to
of fact
material issues
cause
justified by
of four affirma
one
disparity
trial.
be resolved
claim must
retaliation
ii)
i)
a seniori
system;
a merit
tive defenses:
iii)
measures
system which
ty system;
Claims
Wage Discrimination
C.
production;
by quantity
quality
earnings
violated
that Seiler
next claims
iv)
other factor
a differential based
VII,
(“EPA”),
and the
Title
Pay Act
Equal
206(d)(1);
see
29 U.S.C.
than sex.
other
salary than it
lower
by paying
HRL
her
Coming, 417
94 S.Ct.
U.S. at
also
substantially
employees for
paid seven male
justify
attempts to
employer who
2229. An
court dismissed
district
equal work. The
“factor other than
pay
based on
differential
claims. We
wage discrimination
Tomka’s
gender-neutral
that the
prove
also
sex” must
Tomka’s
court on
disagree with the district
adopted
legitimate
for a
business
factor was
the named
as to four of
Equal Pay Act claim
Aldrich,
n.
at 526-27 and
reason.
the decision
reverse
employees and therefore
Co., 691
(citing
v. Allstate Insurance
Kouba
below.
Cir.1982)).
(9th
Equal Pay Act
Facie Case
Tomka’s Prima
a.
prima facie
state a
In
order
interrog
responses
to Seiler’s
her
on sex
salary
based
case of
discrimination
*15
atories,
em
named seven male Seiler
Tomka
206(d),
EPA,
plain
§
a
the
29 U.S.C.
under
allegedly
higher
sala
ployees who
received
i)
employer
the
that
tiff must demonstrate
performing work sub
ry
she did while
than
wages
employees
to
pays different
stantially equivalent to her duties as Starts
ii)
sex;
perform
employees
opposite
the
manager.
Pl.Resp.
pp.
at
Surveys
and
See
skill,
jobs requiring equal
equal work on
evidence
The uncontradicted
the
13-17.
iii)
jobs
effort,
responsibility; and
and
employees
that the seven
record establishes
working condi
performed
similar
are
under
higher
than Tomka.
all received
salaries
See
Brennan,
Corning
v.
Glass Works
tions. See
Gallitano,
Vice-
Frances
Seiler
Affidavit of
2228,
195,
2223,
188,
41
94 S.Ct.
417 U.S.
9,
Resources, November
of Human
President
(1974);
Randolph
v.
Cen
L.Ed.2d 1
Aldrich
However,
1993,
Exh. 1-11.
the evidence
at
(2d
District,
520,
963 F.2d
524
tral School
employed
that
never
one
also indicates
—
denied,
U.S.-,
Cir.),
113 S.Ct.
cert.
Aff.
employees. See Snook
at
of the listed
(1992).
plaintiff
A
need
L.Ed.2d 359
¶5.
¶7;
other
Taylor Aff. at
Two
listed
job
her
to a
not demonstrate that
identical
responsi
managers
employees were district
only must show that
higher paid position, but
multiple
the stan
accounts. While
ble
“substantially equal.”
positions
the two
are
job
Equal Pay Act is
content
under the
dard
46,
Hospital, 10 F.3d
v.
See Lambert Genesee
job
description,
title or
see Marshall
and not
-*
denied,
U.S.-,
(2d Cir.1993), cert.
56
Corp.,
Building
587 F.2d
v.
Maintenance
(1994).
1612,
13H jobs identical cause Abrams and held do not differentiate between positions, allege job assigning and Seiler does not that their pay range the same to both. See differed, pri- Cox, duties Tomka has established a Affidavit of Bonita Seiler Director of they performed Resources, that 9,1993 ma facie ease substan- Human November at Exh. Barr, tially equal Dwyer work. As to and B. recognized This evidence is as relevant Jones, Equal Seiler admits the duties of Starts Employment Opportunity Com- Surveys managers partially account mission EPA regulations: overlap: Surveys managers Starts and assist In determining job whether differences are managers opening account new accounts so jobs substantial as to unequal, make it by surveying building, training the client’s pertinent inquire whether and to what employees, writing client’s work significance extent given has been to such ¶ 4; Taylor schedules. See Snook Aff. at Aff. setting differences in wage levels for ¶3. Moreover, types managers both jobs. such inquiry Such ... dis- housekeeping need to know how the con- close apparent differences between implemented tracts at a worksite are to be jobs recognized have not been as relevant supervise to train and how the client’s for wage purposes. janitorial implies staff. This evidence (1994); 29 C.F.R. 1620.14 Laffey see also v. manager positions require substantially both Airlines, Inc., Northwest equal skill and effort and is buttressed (D.C.Cir.1976) (administrative interpretations fact that originally Tomka herself was hired EPA great are entitled to deference in manager as an account before Seiler trans- applying given situations), the Act to factual Surveys ferred her to the Starts and team. denied, cert. 434 U.S. 98 S.Ct. primary Seiler claims that the difference (1978). Thus, L.Ed.2d 792 Seiler’s decision types managers between the two is that classify jobs compensation in the same Surveys managers Starts and have limited range purported is evidence that the differ supervisory responsibility over a client’s em- ences positions may between the not be sub ployees managers and that account are Moreover, stantial. Snook described Tom- *16 assigned management to interact with client ka’s Surveys transfer to the Starts and team ¶4. daily on a basis. See Snook Aff. at manager from an account position as “at best Presumably, Seiler contends that account ¶ a lateral move.” Snook Aff. at 4. While managers supervisory responsibil- have more suggests Snook also that Tomka was demot ity employees they over client’s because team, Surveys ed to the Starts and his asser supervise employees basis, the an ongoing tion is undercut the fact that Tomka’s Surveys whereas Starts and managers only salary remained the same after her transfer supervise employees during those same published and Seiler’s statement which However, start-up training. both the nature characterized the “promotion.” move as a scope supervision and during start-up of the Trumpet, Spring, See Seiler attached as period apparently are the same for both Exh. 9 to Tomka’s Statement of Facts. types managers: they deal with the same evidence, Based on this a fact finder could employees, position from the same of author- reasonably positions infer that the two en ity, concerning the same work. While a substantially equal tailed responsibility. Surveys manager’s Starts and supervisory addition, In evidence exists that Starts may time, period role last for a shorter it Surveys managers performed and account is for the trier of fact to decide if this is a jobs their working under similar conditions. significant enough in responsibility difference on-site, types managers Both work often jobs to- unequal. make the Indeed, from the same office. one of the
Similarly, a fact issue exists im- Surveys manager over the duties of a Starts is to portance manager’s daily of an account organize inter- the manager. office of the account ¶4. management. actions with client While Seil- See Snook Aff. at While Starts er claims that this Surveys managers constantly interaction differentiates travel to new account Surveys manager and Starts and spend facility worksites and at a less time positions, job managers, Seiler’s internal classifications than account it is for the trier of managers, Seiler As to the account re- frequent travel if this to determine fact higher proved that it based their has also not For working conditions. in dissimilar sults than sex.” Seiler wages on “factors other reasons, has established above “variety of factors” to consider claims case, to defeat Seiler’s prima facie sufficient managers, its determining the salaries for motion, that she was summary judgment education, work and including experience, Barr, Dwyer and even Jones than paid less job perfor history, salary requested, salary substantially equal they performed though applied for. See Snook position mance working conditions. See under similar work ¶ However, par neither Seiler has Aff. at 6.
Aldrich, 527. explains each of factors ticularized how these Tomka and salary discrepancy between b. Seiler’s Defense Affirmative managers nor demonstrat three account job-related to any are how of these factors ed assertions, Tomka’s response to In most, At the positions question. Seil and the three ac justifies Abrams’ Seiler merely a fact issue as er’s evidence raises by alleging salaries managers’ higher count any can of these factors ex whether all or from “factors discrepancies resulted that the wage differentials justify the be plain and contended, and the Seiler than sex.”10 other managers.11 the account Tomka and tween higher that Abrams’ agreed, court district sum, for the finder to deter- it is fact that he had the fact salary resulted from work, paid equal if Tomka was less mine years experience with a Seiler over ten so, and, has established that if whether Seiler experience Abrams’ competitor. While legitimately salary differentials were discrepancy, has Seiler very explain the well According- sex. factors other than based on that it persuasion to show both the burden improperly dismissed ly, the district court salary on factor higher this Abrams’ based Abrams, Barr, claim Tomka’s EPA job-related experience qualifica is and that Dwyer and Jones. question. id. at position for the tion assertion Abrams’ 527. Seiler’s mere HRL Title VII and experience insuffi salary his based on burden, equal and the district unequal pay cient to meet A claim of gener HRL holding Title VII erred work under therefore court ally analyzed than under the standards used “factor other sex” same established its had Laffey, in an EPA claim. See defense. affirmative summary judg- arguments shaped at the Tomka’s of the EPA's affirma- did not 10. Seiler raise *17 anticipate stage. plaintiff's to an A failure ment pleadings, and Tomka conse- tive defenses in its not affirmative defense should work summary judgment unasserted quently counter-moved remand, the district court to its detriment. On response to sum- claim Seiler's on her EPA Tomka is entitled to determine whether sought should to mary judgment Seiler then motion. discovery "factor additional on Seiler's other a “factor than answer to include other amend its defense, than defense. sex” weeks Tom- sex” affirmative three after court The district ka filed her counter-motion. four its Although allowed Seiler amend answer —over district did not consider 11. court complaint de- years summary judgment her after Tomka filed counter-motion Tomka's —but discovery claim, request pointless for additional nied Tomka's be to re- her EPA it would regarding develop deciding the new defense. evidence her the case without counter- mand above, pp, court Opinion 44-45. The district See at the trier of As discussed fact motion. that, discovery pretrial reasoned because the Starts and determine whether Sur- must first judge parties supervised by magistrate manager positions a are veys substan- account compel argued prevail on the tially equal. motions to at the sum- had several Tomka cannot issue, by jobs prejudiced mary stage not be whether these judgment EPA Tomka would because fact, satisfy substantially equal question failure to a is a “Seiler's inadvertent technical are addition, summary judgment requirement.” We find that the for Tomka pleading Id. law. In by permitting inappropriate the factors listed its discretion because district court abused would support by of its affirmative defense answer without more Seiler to amend also its regarding the true reasons for considering of fact fully Tomka was raise issues whether entitled Accordingly, salary discrepancies. Tomka’s discovery, especially as Seiler’s it was additional is denied. plead which counter-motion affirmative defense failure its
1313
However,
EPA plaintiff,
unlike an
of the statute. See Landreth Timber Co. v.
Landreth,
plaintiff
produce
681, 685,
must also
2297,
Title VII
evidence
471 U.S.
105 S.Ct.
2301,
(1985)
discriminatory
(citations
animus
order to make
were therefore
dismissed
ry “employers”
who
individually
be held
Id.; Brinkley-Obu,
district court.
36 F.3d at
See,
discriminatory
hable for
e.g.,
acts.
Pa
17; Miranda,
344 n.
1. Title VII application cases the literal of a [in which] starting point any statutory The in produce demonstrably statute will a result case, course, language construction of is the odds with the intentions of its drafters.” 1314 explicitly suit were C.I.B., against a Title VII defend
Samuels,
930
& Co. v.
Kramer
Cong.Ree.S.
Cir.)
110
13092
addressed.
v. Oceanic
975,
(quoting
979
Griffin
(1964) (Remarks
Cotton);
Cong.
110
564,
Contractors, Inc.,
of Sen.
S.Ct.
458 U.S.
(1964) (Remarks
(1982)),
of Sen. Hum-
3250,
cert. de
Ree.S.
73 L.Ed.2d
(1964)
nied,
13092-93
phrey);
Cong.Ree.S.
112 S.Ct.
502 U.S.
Morse).
(Remarks
(1991);
2A
As the dissent
also
Sutherland
of Sen.
see
L.Ed.2d
(5th
Construction,
notes,
correctly
§
ed.
factors were also con-
46.07
other
Statutory
2000e(b),
1992).
§
cases,
enacting
the “intentions of
by Congress
it is
In such
sidered
lan
per-
than the strict
including
protection
rather
of intimate
legislators,
businesses,
Id.
existing in small
guage, that controls.”
relations
sonal
competition and the
econ-
potential effects
2000e(b)
a rare
§
to be such
findWe
constitutionality
Title VII
omy, and the
narrow,
reading of the
literal
case. While
See, e.g., 110
Clause.
under the Commerce
2000e(b)
imply that an
§
does
agent
clause
(1964) (Remarks of Sen.
Cong.Rec. 7088
statutory employer for
agent
employer’s
is
(Remarks
Stennis);
Cong.Ree.S. 7207-17
liability, a broader consideration
purposes of
Clark).
latter reasons do
While these
of Sen.
interpretation
that this
VII indicates
of Title
proposition that
directly support
not
comport
statutory language does not
of the
Congress
concerned with the burden
was
clearly
intent
expressed
Congress’
with
liability
employers,
on small
there
potential
particular, we find
enacting
statute.
that
any mention of
noticeable absence of
is a
pro
statutory
and remedial
scheme
that the
over
liability in the floor debates
agent
Congress
that
VII indicate
visions of Title
2000e(b).
Indeed,
§
most
comments
liability
employer-entities
limit
to
intended to
employee
directed at the minimum
threshold
finding
employees. A
more
with fifteen or
implying that
employer-entities,
to
refer
moreover,
liability,
would lead to re
agent
liability
contemplate agent
Congress did not
have contem
Congress could not
that
sults
See,
Cong.R. 6566
e.g., 110
under Title VII.
plated.
(1964) (letter
minority membership of
from
Judiciary)
Committee on the
the House
Statutory Scheme
a. The
to busi-
(“Coverage
VII]
Title
limited
[of
of a sentence that
agent
part
clause is
The
affecting
organizations
com-
and labor
nesses
liability
employers with fifteen
limits
(Remarks
merce.”);
Cong.R. 7212
of Sen.
2000e(b).
§
employees. See 42 U.S.C.
more
Clark).
Int’l,
rea-
the Ninth Circuit
In Maxwell’s
Congress
protect
small
decided
soned
Remedial Provisions
b. Title VII’s
Congress
part
“in
did
employers
because
the costs
small
with
burden
entities
want
provisions also
us
Title
lead
VU’s remedial
litigating
with
discrimination
associated
Congress
never intended
to conclude
Int’l,
The CRA of 1991
addition,
adds
and
tion
In
plain-
a Title VII
punitive damages to
rarely
the remedies available
tiff will
against
file a suit
agent
the
alone,
to a victim of intentional discrimination.13
plaintiff
because the
has the best
Although money damages
type
are of the
recovering
chance of
employing
from the
en-
normally
expected
tity. However,
that an individual can
it is not difficult
imagine
pay, Congress
calibrated the maximum situation in
agent
which an
may still be
damage
allowable
award to the size of the
forced to bear the brunt of a
judg-
Title VII
employer
repeal
exemption
and failed to
ment.
example,
employer-entity
For
employ-
for defendants
may
with less than fifteen
bankruptcy, leaving
file for
agent
addition,
ees.14
the CRA of 1991 does not
exposed
defendant
liability.
Sim-
contain
damage
ilarly, plaintiff
similar limits on
awards
who
corporate
settles with a
against agents
employer,
of an
or even ad-
defendant
continue a Title VII suit
subject
liability.
against
dress
agent,
individual
plaintiff
as the
did
Although
1981a(b)(3)
14.Specifically,
the issue of individual
provides
§
was
42 U.S.C.
raised,
backpay
we affirmed a
award
part:
in relevant
defendants,
and four individual
(3) Limitations
Robinson,
jointly
severally,
and
in Cornwell v.
compensatory
The sum of the amount of
(2d Cir.1994).
employ-
F.3d 694
The fact that an
damages awarded under this section ... and
agent
pay monetary
desig-
er’s
is able to
sum
punitive damages
the amount of
awarded un-
backpay
Congress
nated as
does not mean that
section,
exceed,
der
agents
individually
shall not
each
intended
to be
liable for such
reinstatement,
Backpay,
complaining party—
relief.
rally provided
like
is most natu-
employer-entities.
(A)
respondent
in the case of a
who has
employees
more than 14 and fewer than 101
giving
13. Because the actions
rise to Tomka's
each of 20 or more calendar weeks in the
Complaint occurred between
50,000;
preceding
year, $
current or
calendar
compensatory
punitive damage provisions
(B)
respondent
in the case of a
who has
apply
the CRAof 1991 do not
to her claims. See
employees
more than 100 and fewer than 201
Products,-U.S.-,
Landgraf v. USI Film
in each of 20 or more calendar weeks in the
(1994) (compensato-
S.Ct.
Maxwell’s liability, cau- employer it also discussing punitive liability compensatory or for agent’s may principles common “such law tioned that of the depend on the size damages would particulars their all not be transferable Thus, an agent an for employer. agent’s Id., at at 106 S.Ct. 477 U.S. Title VII.” po- would be employees 110 employer with particu- be find this statement to 2408. We $100,000; if damages of tentially for liable agent liabili- in the larly applicable context employees, had 100 employer agent’s the liability employer’s for ty, to an opposed $50,- for however, would be liable agent the context, agents. In the former of its the acts such an anomalous that It is doubtful agency principles example, traditional for by Congress that contemplated a result was liability by joint require and several would liability. individual to address failed even discriminatory agent employer and the fully agent. As part the of the conduct on to the Dissent Response c. above, directly in liability such is discussed already addressed Although have we statutory scheme and Title VH’s conflict with dissent, raised number of contentions provisions. remedial following points additional we offer the employer-enti- also notes that The dissent suggests The dissent respectful rebuttal. civil agents can face unlimited and their ties “agent” which reading of the clause that a § 42 for discrimi- liability U.S.C. 1981 under only against employer- liability permits cognizable un- natory also acts be “surplus- that clause to entity reduce would Thus, the contends VTI. dissent der Title reasons that absent age.” The even dissent with the Congress was not concerned clause, per- would this Title VII nevertheless employer- liability civil on impact small liability against em- superior respondeat mit agents it limited thus entities —and —when agents for the acts of their ployer-entities employ- liability employers with at least 15 liability principles. How- law under common however, remains, that we are The fact ees. Meritor, ever, 477 U.S. Supreme Court interpretation of Ti- here with an concerned “Con- stated that 106 S.Ct. VII, § and Title 1981. Section 1981 tle employer include define gress’ decision to distinct of action provide VII causes surely employer.... any ‘agent’ of an liability a Title schemes. Unlike different on the place an some limits evinces intent § claimant plaintiff, example, VII employers under employees for which acts before need not exhaust EEOC remedies responsible.” held This Title VII are employer. Whereas filing an suit agent implies that the does statement clause discrimination, only prohibits § racial purpose regard to independent an serve sex, based Title VTI covers discrimination liability employer’s scope of an vicarious color, origin, religion. More national namely, that an agents: of its for the acts only enti- importantly, plaintiff a Title VTI com- employer’s liability should be based on damages compensatory punitive tled to agency principles. mon Id. at law size; by employer there are no calibrated Karibian, ap- S.Ct. at 2408. Court § imposed on a corresponding limits plied principles of Meritor to set backpay awards also limits claim. Title VII an would be standards which under years, permits § unlimited to two while supervisors lower liable for the acts 2000e-5(g)(l); § backpay. 42 U.S.C. Indeed, employees. what Meritor and level Inc., Railway Express Agency, Johnson v. conclusively progeny establish its 1716, 1720, 454, 460, 95 S.Ct. U.S. surplusage, agent not mere because clause is (1975). although Finally, L.Ed.2d agency Congress explicitly apply chose to damages under may not recover plaintiff scope principles to determination § see U.S.C. VTI and both Title liability. employer’s an 1981a(a)(l), expressly the CRA of 1991 damage Moreover, imposed on statement that tra- that limitations provides dissent’s “not be con- Title agency principles guide should awards VII should ditional under of, the relief scope limit the inquiry agent required into is not strued to under, title.” of this section 1981 Although courts available Meritor. Meritor instructs
1317
1981a(b)(4).
296(6)
However, §
significant
§
These
of the HRL
42 U.S.C.
states that
statutory
discriminatory
it shall be an
prac-
in the
enforcement
unlawful
differences
aid, abet,
mechanism,
any person
incite,
tice “for
coverage,
provi-
and remedial
com-
1981,
pel
doing
any
or coerce
distinguished
§
from Title
the
as
the acts
sions
article,
VII,
attempt
that the breadth of one statute
forbidden under this
or
reveal
to do
296(6)
§
so.”
support
divining
(emphasis
the intent of
N.Y.Exec.Law
provides no
add-
ed).
limiting
coverage
language,
of the oth-
Based on this
Congress in
several courts
distinguished
by holding
have
Patrowich
er.
actually participates
a defendant who
in the
sum,
interpretation of a
In
the dissent’s
giving
conduct
rise to a discrimination claim
single provision produces a result at odds
personally
be held
liable under
intent,
Congress’
expressed through
See, e.g.,
HRL.
City
Poulsen v.
North
scheme,
statutory
to limit
Tonawanda, N.Y.,
884,
F.Supp.
811
900
Samuels,
employer-entities.
Kramer &
(W.D.N.Y.1993); Bridges,
F.Supp.
800
(citation omitted).
Co.,
So
statutory
reading
Based on literal
permits
language, I would hold that Title VII
PARKER,
Judge, dissenting:
Circuit
pro-
plaintiff
to receive all relief
successful
Concurring
aspect
for under the statute —in this instance
all but one
of our
vided
against an em-
holding today,
separately
equitable
I
limited to
write
dissent
relief—
only
ployer
any agent
person,”
of such a
as to the narrow issue of whether an
“and
meaning
rejected
severally,
leading
below. For
should be
jointly and
as outlined
with,
respectfully
results,
disagree
I
adopted
absurd
and a construction
this reason
from,
majority opinion holding
harmony
dissent
thought
with what is
be
agent
employer’s
cannot be individu-
spirit
that an
purpose
of the act in order to
ally
under Title VII.
liable
give
Congress.
effect
to the -intent of
principle
applied
is to
[This]
to override
majority, citing
v. Maxwell’s
The
Miller
Cir.1993),
the literal
of a
terms
statute
under
(9th
Inc.,
Metals superior liability, for deat tortious conduct (“It is, therefore, duty the of the courts to party by a third either an committed works, make sure that the Act and the intent alone, agent agent together or an with that by Congress hampered of is not a combina- (Second) agent’s principal. Restatement of of the and tion of a strict construction statute 217B(1) (1958). If, Agency as Meritor semantics.”)) Therefore, I a battle with see suggests, Congress incorporate intended to elsewhere, basis, in the statute or for no determining in agency principles traditional agent impose only reading the clause to re- implicate agent’s whether an acts Title VII spondeat superior liability, to the exclusion liability, inconsistency reading there is no in joint liability, several an em- of between agent Congress the clause as evidence that (thus, ployer agent necessarily and his or her incorporate further intended to these same liability permitting degree some of individual agency principles regard traditional part agent) on of the under Title VII. the scope liability. Accordingly, of that I the permits employers believe Title VII and their Reading A Literal Title VII of jointly severally agents to be held liable All courts which have considered the mat- agent for tortious conduct of an or that “the that, by adding agree agent ter the clause to agent principal.” Id. statutory “employer,” definition of Con- gress sought discriminatory by to make acts may by gathered foregoing, As (in employers the traditional sense of both reading agent in literal of the clause Title term) agents, and their actionable under suggests Congress VII intended to question us whether Title VII. The before discriminatory by employers make acts both Congress agent per- intended clause VII, agents and their actionable under Title only respondeat superior upon mit also, Congress but intended to make agent, for the acts his or her discriminate, employers those who both rather, permit holding employers or to also authority agents acting under the cloak of agents jointly severally and their liable answerable, employers, jointly their and sev- discriminatory agent. for the acts of the erally, discriminatory for acts. I would those inquiry, Supreme
To in hold that the statute means what its words aid this Court persons “Congress say: employers instructs us that wanted courts Both of 15 or more Padway’s for Title The full agents reasoning be held liable extent and their point consists of the statement that Title violations. VII VII, speaks practices by of unlawful the em- Progeny
Miller and its
ployer,
practices by
and not of unlawful
employees
employer.
officers or
of the
Nevertheless,
joins
today this
sev-
Circuit
pay
Back
paid
awards are to be
holding
Congress
other circuits
eral
employer. The individual defendants can-
liability to
to restrict Title VII
re-
intended
pay.
not be held
liable
back
liability against
agent’s
an
spondeat superior
Padway,
(emphasis
origi-
the
can
contri-
stating
litigating
that a “district court
order
claims.” Id.
ed with
discrimination
actually
parties
named as de-
among
assumption
bution
court rea-
From this
Miller
Id. at
that,
in the Title VII suit.”
Congress
protect
fendants
decided to
“[i]f
sons
entities with limited resources from
small
liability,
Congress
it
inconceivable that
in-
availability
re-
of reinstatement
As for the
liability
against
to allow civil
to run
tended
agent,
majority
against
employer’s
an
lief
employees.” Id.
individual
acknowledges that
there are circumstances
authority
will have the
supervisor
where a
argument.
There are two flaws to this
rehire,
employment
promote, and correct
First,
concerning
the floor debates
Title VII
However,
majority
reasons that
records.
employee
suggest that the minimum
thresh-
authority mere existence of this
some
protect
old was not created to
small “enti-
agents
us to hold
cases should not embolden
rather,
liability,
potential
ties” from
but
reinstatement of a successful
liable
necessary
justify
it was deemed
federal
contrary,
majority
it is the
plaintiff. On the
legislation
employment
in the
context under
boldly
to foreclose individual
which
chooses
See, e.g.,
Cong.
the Commerce Clause.
VII,
arising
in all cases
under Title
(1964) (letter
minority
Rec. 6566
from
mem-
categorically,
backpay
contending,
bership
on the
of House Committee
Judicia-
provided by
“can
be
em-
reinstatement
(1964);
ry);
Cong.Rec.
Cong.
may
ployers,”
admitting that there
while
(1964) (remarks
Rec.
of Sen.
individual
instances where
defendants
(1964) (re-
Humphrey);
Cong.Rec.
authority
provide precisely
have the
Stennis);
Cong.Rec.S.
marks
Sen.
plaintiff.
remedy sought
(1964) (remarks
Clark).
7207-12
of Sen.
2000e-5(g)(l) places
As 42
U.S.C.
Moreover,
upon
impact
where Title VII’s
scope
equitable relief within the discretion
debated,
small businesses was
those debates
courts, these
of the district
courts should also
legislation
a concern that federal
voiced
propriety
imposing
consider the
a rein-
upon
family
intrude
the intimate —often
employer’s agent,
statement order
—ties
*26
employing
which often exist
businesses
independent
agent’s
in addition to or
of that
people.
Cong.Rec.
a handful of
110
employer,
plaintiff
the
has
where
chosen
(1964).
13,086
generally
R.
Janice
relief,
specific
on
facts of
seek such
based
the
Franke,
Contemplate
Does Title VII
Person-
particular
simply
the
ease.
It
not our
Defendants?,
Liability
Employee/Agent
al
place
provided for un-
to foreclose remedies
(1994).
12 Hofstra Lab.L.J. 39
solely upon
der the statute based
our own
given
of the likelihood that a
assessments
Second, the Miller court’s reference to
authority
defendant will have reinstatement
Congress’ concern for small “entities” is mis-
fact-finding necessary
that
or
the
deter-
leading.
Congress
im-
Where
addressed the
scope
authority may
that
mine the
of
be too
pact
potential liability,
of
it concerned itself
burdensome.
business,
solely
impact upon
with the
small
Finally,
injunctive
Tomka seeks broad
re-
13,-
opposed
Cong.Rec.
“entities.” 110
lief, including declaratory judgment
identi-
(1964) (debate
proposed
085-93
Cotton
fying
alleged
violating
the
conduct as
federal Amendment).
debates,
During
pri-
those
its
majority
law. The
offers no rationale to mary
impact upon
concern
the
was
overall
justify
liability
limiting
to the
economy
large
of
the
should
number
small
sought.
where such relief is
litigate
businesses be forced to
discrimination
See,
18,336, 18,-
e.g.,
Cong.Rec.
The second rationale offered Miller re-
claims.
137
(1991) (remarks
Hatch);
upon
statutory
fact that
lies
the
the
definition 337-8
of Sen.
137
(remarks
(1991)
3857,
“employer”
employ Cong.Rec.
Rep.
of
limited to
of
those who
3874
(and
employees
agents). Moody).
concerning
fifteen or more
their
The
the econom-
debate
Miller,
viability
simply
1323
employee
H.R.Rep.
102-40(11),
of an
who discriminates
No.
Cong.,
102d
1st
(1991),
co-worker or subordinate.
Sess. 68-70
reprinted
in 1991
(1992).
694,
U.S.C.C.A.N.
754-56
proposition
Congress
that
The
was con
impact
liability upon
cerned with the
of civil
The floor debate
pitched
itself reveals a
proponents
battle
small “entities” is further undermined
the
between
of compensatory
punitive
employers
agents
damages
fact that
opponents.
of those em
and their
result,
As a
ployers
liability
face unlimited civil
debate concerns
simi
whether or
impose
not to
tort
discriminatory
damages,
any
lar
acts under 42
rather than
U.S.C.
1981,
creating staggered
rationale for
regardless
liability caps
§
persons
the number of
See,
according to
Keith,
employer.
the size of the
they employ.
e.g.,
It is
Mitchell v.
(9th
noteworthy
385,
Cir.),
that
the 1990
denied,
version of
cert.
472 U.S.
amendments, passed by Congress
1028,
3502,
but
(1985);
subse-
105 S.Ct.
agent would be liability, agent’s TOURS, em- without of Title VII FORT SUMTER INCORPO- liability, portion RATED, Petitioner-Appellant, of that ployer bearing a also course, any inequity which illusory. Of v. staggered created have been Secretary, BABBITT, Bruce United Congress’ making and the liability caps Interior, Department of the States body. solely with that remedy for it lies Respondent-Appellee. above, Congress imposed Finally, as noted Association, Hospitality Park National violations, part, damages for Title VII tort Amicus Curiae. liability “parity” between establish U.S.C. schemes under Title VII No. 94-1570. 92-288, H.R.Rep. § No. 92d 1981. also Appeals, United States Court 92-415, (1971); Cong., S.Rep. No. 2d Sess. 19 Fourth Circuit. (1971). Cong., possibili- The 92d 2d Sess. might ty employer’s agent that an be held 1,May Argued 1995. damages § for tort under 1981 has liable Sept. Decided 1995. Faraca, since at least 1975. See existed liability 956. If individual for discrimi- truly natory beyond contempla- acts Congress, ample opportunity it had
tion of permitted
correct courts which have those Instead, liability.
such the 1991 amendments damages
broadened the available under Title the breadth of
VII and reaffirmed apparent political The
under neces-
sity liability caps within that scheme not shroud the clear desire on the
should
part Congress to bolster the broad reme- reasons, goals
dial of Title VII. For these I Miller, progeny, ultimately un-
find and its
persuasive. conclusion, convinced, I remain Ias was Bombardier, F.Supp. Goodstein v.
(D.Vt.1995), permits that Title VII an em-
ployer employer’s agent and that to be held severally
jointly and liable for Title VII viola- language permits
tions. The of the statute
it, statutory interpretation require canons of
it, object overriding policy goals and the
of Title VII warrant it. I would reverse the
district court on the of individual issue liabili-
ty under Title VII for the reasons stated and *28 proceedings.
remand for further