Norcon v. Kotowski

Mary Kotowski (plaintiff) worked for Norcon, a subcontractor for Veco, the general contractor for cleanup of the Exxon Valdez oil spill. After two weeks working for Norcon, Kotowski was reassigned by Mike Posehn, a Norcon foreman who supervised Kotowski’s direct supervisor. However, Kotowski found that there were no quarters and no work for her on the new barge. Instead, Posehn propositioned Kotowski and invited her to come to his room where he gave her whiskey, despite Norcon’s policy against alcohol consumption. Posehn told Kotowski to come back to his room later for a party and to discuss her employment. Kotowski told Elmo Savell, an Exxon executive, that Posehn was sexually harassing her and agreed to tape record the conversations at the party in Posehn’s room where alcohol was being served. Posehn arranged to be alone with Kotowski and after asking her to spend the night, he unsuccessfully tried to prevent her from leaving the room. The next day, Kotowski was induced to sign a statement admitting to insubordination, and later the same day Kotowski was subjected to hostile questioning by Norcon, Veco and Purcell Security, a subcontractor responsible for security and investigations of rulebreaking. Kotowski and Posehn were fired on the same day, but only Kotowski for alcohol consumption. Kotowski sued Norcon for sexual harassment. At trial, Kotowski offered a memorandum handwritten by Bruce Ford, an investigator with Purcell Security. The memo included statements by Jim Stampley and Sgt. Mark Flesching, employees of Norcon who Ford had interviewed as part of his investigation. In the memo, Stampley said that Posehn served alcohol in his room “as a ‘springboard’ for sexual activity with the females under his supervision,” and Flesching said that Larry Coyle, a head supervisor for Norcon, told him “Posehn would do favors for some of his female crew in exchange for some sort of sexual activity.” The jury returned a verdict against Norcon. On appeal Norcon asserted that admission of Stampley and Flesching’s statements in Bruce Ford’s memo was erroneous because they were hearsay statements of persons not acting in the ordinary course of business. Kotowski defended that Stampley and Flesching were acting in the course of their business, or alternatively, that their statements were admissible as admissions of a party-opponent.