Boston Sexual Harassment Watch: The Court in Dulaney v. Packing Corp of America Says an Employer Can Be Liable for Manager’s Sexual Harassment

There has been a great shift in our country from small business to big business. It is more common to see employers as large companies with thousands of employees, than the semi-extinct family businesses. In this environment, it can become challenging to identify who can be held liable for sexual harassment in the workplace.
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Having a knowledgeable and sympathetic Boston employment attorney helping you in your Boston sexual harassment case can be the difference between winning your case and losing it. Especially with the job market as bad as it is, you need to fully understand your rights to protect yourself and your family.

Dulaney v. Packing Corp. of America is a sexual harassment case coming out of Virginia. The trial court originally granted summary judgment to the employer in this case, and it recently came to the Circuit Court of Appeals. The original claim was of sexual harassment and gender discrimination against Dulaney by Packing Corp. of America (“PCA”) and PCA’s “managerial” employee.

Plaintiff sought compensatory and punitive damages and argued that her employer and her supervisor should be held jointly and severally liable. The main issue in this case is whether the employer can be held liable for sexual harassment committed by one of their managerial staff members to another employee. There are many intricacies to this determination for which the court addresses in this case.

Packing Corp. of America (“PCA”) is a company with a Virginia facility that manufactures cardboard boxes. The majority of their staff is male and working as temporary hourly paid employees. The plaintiff is a woman who was originally hired to work the night shift as a temporary hourly paid employee. As is the hope of most employees, Plaintiff wanted to obtain a permanent position with PCA.

The night shift at PCA had no designated manager within their employee pool. However, they did have an employee with significant supervisory job duties. Mr. Mills was the only night shift employee who maintained a set of keys to the administrative offices within the facility. Additionally, he was charged with assigning work to the night shift employees, sending any employee home early without pay, and disciplining the employees consistent with the company disciplinary manual. Mills was also responsible for reporting any employee misconduct or complaints to the company’s management staff.

In Plaintiff’s pursuit of seeking permanent employment she consulted with Mills, as he had the apparent authority of a supervisor. Although PCA contends the Mills was not a manager or supervisor, Mills offered Dulaney a position as a permanent employee for PCA. Upon her acceptance, PCA treated her as a permanent employee in every way.

After some time, Mills allegedly began to make sexual passes at Plaintiff. This included threats indicating that Mills would make her life unbearable if she did not engage in sexual conduct with him. Under an extreme fear of losing her job, Dulaney began a sexual relationship with Mills which primarily took place within the locked corridors of the facility to which Mills had a key. Whenever Plaintiff did not assent to these encounters Mills would scream at her in front of staff, spread horrible sexual rumors about her, and even send her home without pay. Dulaney alleged that because of the rumors spread by Mills, she was ostracized by other PCA employees, creating a very unproductive work environment.

Plaintiff finally reported her abuser to his direct supervisor and was allegedly told to be careful as she was considered a replaceable employee and would be fired if she spoke with anyone else from management. Finally, Plaintiff reported both men and soon after, Mills was fired. Plaintiff remained in a very uncomfortable work environment where she was bullied constantly by her co-workers. This led Plaintiff to look for work elsewhere and speak with the PCA management.

The facts surrounding the plaintiff leaving PCA and the severance agreement were found by the court to be material facts in dispute, thus the trial court erred in granting summary judgment for PCA.

PCA argued that they should not be held liable for the actions of Mills because of the Faragher-Elleth doctrine. This is a doctrine that arose out of two U.S. Supreme Court cases dealing with liability for sexual harassment.

Faragher-Elleth doctrine says that an employer can be protected from liability if the employer exercised reasonable care to correct any sexual harassment and they can prove that the victim failed to utilize the corporate safeguards established to protect them from harm. The Court agreed that this relief could be granted if it could be proved that the plaintiff did not suffer a “tangible employment action.” This is defined to include: being hired, fired, not being promoted when entitled, reassignment, or any significant change in employee benefits.

This court here found that the facts presented by both parties show that Plaintiff suffered a significant change in employment when she was emotionally forced to resign. Because this nexus was found between the sexual harassment plaintiff suffered and this “tangible employment action,” the lower court erred in granting summary judgment for PCA. This case will therefore be heard again by the trial court to determine what damages Plaintiff is entitled to.

Businesses small and large must have qualified employment counsel in Massachusetts. And an employee who believes an employer violated state or federal law must retain a law firm experienced in handling sexual harassment claims.

The Brown Law Firm, LLC is a Boston business law firm with offices in Belmont and Boston. For a free and confidential consultation, call Attorney Graeme Brown at 617-489-0817 or contact us through this website.

Additional Resources:

Dulaney v. Packing Corp. Of America, No. 10-2316 (4th Cir. Mar. 12, 2012).
Faragher v. Boca Raton, 524 U.S. 775 (1998).
Burlington Indus. v. Ellerth, 542 U.S. 742 (1998).

MBA
Boston Bar Assosiation