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Tomkins v. Public Service Electric & Gas Co.

argued: September 7, 1977.


Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 75-1673).

Aldisert, Rosenn and Garth, Circuit Judges.

Author: Aldisert


ALDISERT, Circuit Judge.

The question presented is whether appellant Adrienne Tomkins, in alleging that her continued employment with appellee Public Service Electric and Gas Co. [PSE&G] was conditioned upon her submitting to the sexual advances of a male supervisor, stated a cause of action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. The district court determined that appellant did not state a claim under Title VII, and dismissed her complaint. 422 F. Supp. 553 (D. N.J. 1976). Taking the allegations of Tomkins' complaint as true, see Walker, Inc. v. Food Machinery, 382 U.S. 172, 174-75, 15 L. Ed. 2d 247, 86 S. Ct. 347 (1965); Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957), we find that a cognizable claim of sex discrimination was made and, accordingly, we reverse the dismissal of the complaint and remand the case to the district court for further proceedings.


Taken as true, the facts set out in appellant's complaint demonstrate that Adrienne Tomkins was hired by PSE&G in April 1971, and progressed to positions of increasing responsibility from that time until August 1973, when she began working in a secretarial position under the direction of a named supervisor. On October 30, 1973, the supervisor told Tomkins that she should have lunch with him in a nearby restaurant, in order to discuss his upcoming evaluation of her work, as well as a possible job promotion. At lunch, he made advances toward her, indicating his desire to have sexual relations with her and stating that this would be necessary if they were to have a satisfactory working relationship. When Tomkins attempted to leave the restaurant, the supervisor responded first by threats of recrimination against Tomkins in her employment, then by threats of physical force, and ultimately by physically restraining Tomkins. During the incident, he told her that no one at PSE&G would help her should she lodge a complaint against him.

Tomkins' complaint alleges that PSE&G and certain of its agents knew or should have known that such incidents would occur, and that they nevertheless "placed [Tomkins] in a position where she would be subjected to the aforesaid conduct of [the supervisor] and failed to take adequate supervisory measures to prevent such incidents from occurring." Amended Complaint, para. 24. It further alleged that on the day following the lunch, Tomkins expressed her intention to leave PSE&G as a result of the incident. She agreed to continue work only after being promised a transfer to a comparable position elsewhere in the company. A comparable position did not become available, however, and Tomkins was instead placed in an inferior position in another department. There, she was subjected to false and adverse employment evaluations, disciplinary layoffs, and threats of demotion by various PSE&G employees. Tomkins maintains that as a result of the supervisor's conduct and the continued pattern of harassment by PSE&G personnel, she suffered physical and emotional distress, resulting in absenteeism and loss of income.

In January 1975, PSE&G fired Tomkins. Following her dismissal, she filed an employment discrimination complaint with the Equal Employment Opportunity Commission, which ultimately issued a Notice of Right to Sue. After Tomkins filed suit in district court, PSE&G moved to dismiss the complaint on various grounds, including failure to state a claim upon which relief may be granted. In addressing the motion, the district court bifurcated the issues raised in the complaint. The court denied the company's motion to dismiss Tomkins' claim of company retaliation against her for complaining about her supervisor's conduct. However, the company's motion to dismiss Tomkins' claim against PSE&G for his actions was granted for failure to state a claim. The latter judgment was determined final by the district court under Rule 54(b), Fed. R. Civ. P., and this appeal followed.


Section 703(a)(1) of Title VII, 42 U.S.C. § 2000e-2(a)(1), provides that "it shall be an unlawful employment practice for an employer . . . to discharge any individual . . . or otherwise to discriminate against any individual with respect to . . . terms, conditions, or privileges of employment because of such individual's . . . sex . . . ." In order to state a claim under this provision, then, it is necessary that Tomkins establish both that the acts complained of constituted a condition of employment, and that this condition was imposed by the employer on the basis of sex.


Tomkins claims that the sexual demands of her supervisor imposed a sex-based "term or condition" on her employment. She alleges that her promotion and favorable job evaluation were made conditional upon her granting sexual favors, and that she suffered adverse job consequences as a result of this incident.*fn1 In granting appellees' motion to dismiss, however, the district court characterized the supervisor's acts as "abuse of authority . . . for personal purposes." 422 F. Supp. at 556. The court thus overlooked the major thrust of Tomkins' complaint, i.e., that her employer, either knowingly or constructively, made acquiescence in her supervisor's sexual demands a necessary prerequisite to the continuation of, or advancement in, her job.

The facts as alleged by appellant clearly demonstrates an incident with employment ramifications, one within the intended coverage of Title VII.*fn2 The context within which the sexual advances occurred is itself strong evidence of a job-related condition: Tomkins was asked to lunch by her supervisor for the express purpose of discussing his upcoming evaluation of her work and possible recommendation of her for a promotion. But one need not infer the added condition from the setting alone. It is expressly alleged that the supervisor stated to Tomkins that her continued success and advancement at PSE&G were dependent upon her agreeing to his sexual demands. The ...

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