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A Philadelphia Common Pleas judge has overturned a jury’s award of $150,000 to a man who said his employer invaded his privacy by subjecting him to an embarrassing, police-style interrogation after he had an innocent, romantic tryst with a female co-worker that she later reported to company management as a rape. In the same opinion, the judge upheld the jury’s decision that the woman had defamed the man by making a false report, but that the man was not entitled to any compensatory damages on that claim. In Jackson v. McCrory, Judge Mary D. Colins found that Mark Jackson’s invasion of privacy claim against Rohm & Haas is barred by the Workers’ Compensation Act because any injury he suffered arose within the course of his employment. Jackson’s lawyer, Richard Silverberg, argued that his client’s Friday night date with co-worker June McCrory was a purely social event that led to consensual sex, and that it was not at all connected to work. But Colins agreed with Rohm & Haas’ lawyers, James D. Pagliero and Paul J. Greco of Morgan Lewis & Bockius, who argued that the incident became work-related when McCrory reported the incident as a rape and told company management that she was “not at all happy” about the prospect of seeing Jackson in the office. At that point, Colins found, Rohm & Haas had a federally mandated duty to investigate. “As a matter of public policy, investigations into claims of sexual harassment are not only encouraged, they are mandated,” Colins wrote. Jackson testified that company investigators asked him “horrible questions,” and that during the 90-minute interrogation he “couldn’t breathe” and was terrified, angry, crying and humiliated. But Colins found that the probe was appropriate. “The questions asked during the interview, though uncomfortable, were necessary for a proper investigation into a sexual harassment claim,” Colins wrote. According to court testimony, Jackson was confronted at work by company lawyers and a member of the company’s security department about two weeks after he had dinner and spent the night with McCrory. Jackson claimed the investigating lawyers asked excruciatingly personal questions about the specifics of the sexual encounter. Silverberg said that Jackson, an accountant, continued to work at Rohm & Haas for months after the incident but was forced to quit after the lawsuit was started, and he learned that many more of his co-workers were aware of the accusations. “He felt like everyone was looking at him like he was a rapist,” Silverberg said. A psychiatrist who has been treating Jackson testified at trial that Jackson was “fighting a losing battle” trying to maintain his dignity in the workplace. In August 2000, he left his job on disability and hasn’t returned. Silverberg said Jackson decided to sue because he believed the company had gone too far with its investigation. “This had nothing to do with sexual harassment in the workplace. It didn’t occur on company property, it wasn’t during business hours, and they weren’t engaged in any Rohm & Haas business,” Silverberg said. During trial, the jury heard conflicting accounts of what happened on the night that Jackson and McCrory had their single date. Jackson said he had offered McCrory a ride home because the city’s transit workers were on strike. After visiting a few nightclubs, Jackson said, that McCrory wanted to watch a movie. Since it was already the wee hours of the morning, he suggested they go to his place and watch “Mrs. Doubtfire” on video. After dozing on the couch, Jackson said the two decided to go to bed, and that the sex they had was consensual. But McCrory told the jury that Jackson had offered to sleep on the couch while she slept in his bed. She said she awoke to find him molesting her and that the sex was not consensual. She said she went to the bathroom to get away and that she then demanded that Jackson drive her home. Jackson said McCrory seemed to regret her actions soon after and that, during the ride to her home, she insisted that she had never slept with a man on a first date and didn’t want him to get the wrong idea. The next day, Jackson said, McCrory called him for a ride to work. He said he agreed to take her even though he wasn’t working, but later called to reschedule and proposed a date on the next day — a drive to work and a movie after. But on the second day, Jackson said he was forced to cancel the date because he injured his shoulder playing basketball. Silverberg said he believes McCrory felt that she was being discarded like a “one-night stand.” Her report to Rohm & Haas two weeks later, he said, was precipitated by a co-worker who insisted that she tell management of the incident after hearing her account because it sounded as if she had suffered a rape. Jackson said he tried to get in touch with McCrory several times because she had left her driver’s license with him and he wanted to return it. But he said he couldn’t get in touch with her. Jackson had filed separate lawsuits against McCrory and Rohm & Haas, but the two cases were consolidated for trial. In its verdict, the jury found that Rohm & Haas had invaded Jackson’s privacy, but rejected his claim of intentional infliction of emotional distress. The jury also found that McCrory had defamed Jackson by making false accusations but awarded him no money on that claim. And in a third prong to its verdict, the jury rejected McCrory’s counterclaims of assault and intentional infliction of emotional distress. In its post-trial motions, Rohm & Haas argued that the entire verdict against it should be set aside because Jackson’s invasion of privacy claim was barred by the exclusivity provisions of the Workers’ Compensation Act. But Silverberg argued that the WCA bar did not apply since the incident arose out of a purely personal interaction between Jackson and McCrory that occurred away from the workplace. Judge Colins found that the relationship between Jackson and McCrory began in the office where the two talked on the phone and made social plans. They also met for their date in the company’s lobby, she said, and discussed work issues during their evening together. Colins also found that when Rohm & Haas received McCrory’s complaint that Jackson had raped her, it had a duty to investigate even if the incident had occurred away from work. In 1993, Colins said, a federal judge in Kansas held in Huitt v. Market St. Hotel Corp. that one incident of rape, if proven, constitutes sexual harassment even if conduct did not occur in the workplace. As a result, Colins found that Rohm & Haas had no choice but to investigate the accusations lodged against Jackson. As a result, Colins concluded that any injuries Jackson suffered were work-related and that he was therefore barred under the WCA from suing. “If there was no report of sexual harassment in the workplace, no interviewing process would have taken place and Mr. Jackson would not have been injured,” Colins wrote. Colins also rejected Silverberg’s argument that even if the incident was work-related, Jackson’s claim fell under the WCA’s personal animus exception. “There was no evidence presented from which a jury could have reasonably concluded that Rohm & Haas treated Mr. Jackson differently than it would have treated any other employee who had been accused of raping a co-worker,” Colins wrote. In her final paragraphs, Colins denied Silverberg’s motion for additur or a new trial on the issue of damages on Jackson’s defamation claim against McCrory. Silverberg argued that the jury’s finding that McCrory made a false report of rape showed that Jackson suffered per se slander and therefore that he did not need to show any pecuniary loss. As a result, he said, the jury was required to award damages. Colins agreed with Silverberg’s first point but said the jury was nonetheless free to decide that there was no actual harm suffered. “The jury was presented with ample evidence to support the award of zero damages to Mr. Jackson. … [He] suffered no loss of wages or medical expenses. In fact, [he] received promotions and salary increases. The jury weighed the evidence and found that Mr. Jackson [suffered] no injury caused by June McCrory,” Colins wrote.

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