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December 27, 1999 12:00pm
Associate Gets $300,000 for Sex Harassment
Source: New York Law Journal
by: Anna Snider

A former associate at Jacobs Persinger & Parker prevailed on claims that she was sexually harassed by a partner and was awarded $300,000 by State Supreme Court Justice Beverly Cohen.

The court also sustained her claim that the partner's harassment created a hostile work environment, but rejected an argument that she was fired in retaliation for her complaints.

The Jacobs Persinger partnership is liable for $250,000 of the damage award and the harassing partner, Scott Shepard, must pay $50,000.

The plaintiff will also recover attorneys' fees.

Plaintiff Lisa Sier claimed the harassment by Mr. Shepard began almost immediately when she started working at the firm as a 24-year-old first-year associate in September 1990.

She testified in a bench trial before Justice Cohen that Mr. Shepard, then 39, took an unusual interest in her clothing and her body.

In the first instance, she said Mr. Shepard came into her office on a Saturday, began commenting on her outfit and stared at her chest, also asking "What do you have on under your jeans?"

On another occasion, when Mr. Shepard invited her to have drinks after work, she said he asked if she was dating anyone and if she, in the evening tennis game she was about to play, would be wearing one of "those short tennis skirts." When she said she wore shorts, he asked to see them, telling Ms. Sier that he wanted to "fantasize what you look like in them."

At other times he also asked her if she wore a bikini, if she wore heels with her mini skirts, if she participated in orgies at a house she shared in the Hamptons, whether she would sleep with two men on the same night and whether she had recently been to any sex clubs in Manhattan.

Once when the pair shared a cab home after a number of Jacobs Persinger lawyers went out for drinks and dinner, Ms. Sier testified that Mr. Shepard put his hand on her knee. She said that led to a "wrestling match" when she tried to remove it and that Mr. Shepard grabbed her between the legs. Later in the cab, he kissed her.

For his part, Mr. Shepard described his comments to her as romantically-charged banter, testifying that their relationship was "very playful," the decision said.

"We tended to tease each other," he said. "We laughed a lot."

Of the cab ride, Mr. Shepard said Ms. Sier had been flirtatious that night. During the ride, he said he asked for an invitation up to her apartment, and when she declined, he cupped her right cheek and kissed her. He denied touching her leg or grabbing her between the legs.

A week after the cab ride, she told the firm's assignment partner, Marc Adelsohn, that she was being sexually harassed by a partner but did not name him. She said that Mr. Adelsohn said he knew who it was and would investigate.

Mr. Adelsohn testified that he could not investigate until she named her harasser.

After she complained, she said Mr. Shepard continued to make comments of a sexual nature and also asked her out for drinks. Ms. Sier said she agreed to meet Mr. Shepard only because she depended on him to get work assignments.

According to the decision, she said he commented about the way she dressed that: "Men just think you want it." He also said he wanted to get involved with her.

In October 1991, Jacobs Persinger terminated her employment.

When she told Mr. Shepard she was fired, he said, "Lisa, don't worry about your situation, you can take care of me and I'll take care of you."

She sued in 1994, alleging the remark constituted a quid pro quo act of sexual harassment and continued the hostile work environment created by Mr. Shepard's earlier conduct. She also claimed that she had been fired in retaliation for her complaints. Sier v. Jacobs Persinger &Parker, Index No. 127848/94.

Justice Cohen dealt with Ms. Sier's retaliation claim first, finding it unsupportable since the firm had "legitimate, independent and nondiscriminatory reasons" to fire her. These included the fact that the firm had lost an important rainmaker, Marshall Jacobs, and was dealing with a decline in work from a major client, Kawasaki. The judge also said several partners had been unhappy with Ms. Sier's performance on three assignments.

Also, the fact that only four of 14 partners knew of her sexual harassment complaints at the time Ms. Sier was fired, went against her, the judge said.

Justice Cohen, however, said Ms. Sier did establish a claim of hostile work environment.

While Mr. Shepard contended that what had happened was part of a consensual relationship, Justice Cohen said she did not believe him.

His remark about protecting her helped support Ms. Siers' allegation that she was the victim of a hostile work environment, the judge said.

"The remark was not an ordinary business statement. It was made by a partner who could not understand why plaintiff, a young associate, was not honored by his sexual interest," Justice Cohen wrote. "It was made at a time when Shepard knew that Lisa was distressed about his behavior towards her, and it carried a connotation that plaintiff would be well advised to keep calm and keep quiet about any problem she had with Shepard."

"Plaintiff was in a vulnerable position and the message was a coercive one," she went on to say.

Some of Mr. Shepard's remarks and actions occurred outside a three year statute of limitations for a harassment claim, so Mr. Shepard argued they were barred.

But Justice Cohen determined that the first instances of harassing conduct were sufficiently similar to the last, which were not time-barred, to justify the conclusion that all of the actions "were part of a single course of conduct."

Thus, Ms. Sier was entitled to a recovery for all the acts committed against her, the decision said. Justice Cohen found the law firm at fault, too. "Inasmuch as Shepard was not a mere employee of defendant law firm, Jacobs Persinger & Parker, but was a partner, that partnership is liable for his acts of harassment," she wrote. "His acts are attributable to the partnership even if the other partners didn't know about them."

In the end, the judge awarded to Ms. Sier $250,000 for emotional distress resulting from the hostile work environment, to be paid by the law firm partnership. She found Mr. Shepard alone liable for $50,000 in punitive damages.

Justice Cohen also awarded attorneys' fees, to be fixed at a later hearing.

Ms. Sier was represented by Robert Rosen of Hempstead's Rosen Leff.

Jacobs Persinger represented itself.

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