PNC Bank office. Photo: Ken Wolter/Shutterstock

In a verdict demonstrating employers' potential exposure to sexual harassment claims based on the acts of clients or other nonemployees, a New Jersey jury has awarded $2.4 million to a former PNC Bank employee who said the company failed to protect her from unwelcome touching by a customer.

The Essex County Superior Court jury on Monday made the award to Damara Scott, an employee of the PNC Bank branch in Glen Ridge who claimed she was sexually assaulted in the vestibule outside the bank entrance in October 2013 by customer Patrick Pignatello, who has since died.

Scott's attorney, Nancy Erika Smith, said that the verdict should serve as a reminder that an employer's duty to protect its workers from harassment extends beyond the acts of company employees.

"All employers have an obligation to provide a safe workplace, no matter who does the harassing," Smith said.

Scott's suit claimed Pignatello, a customer who regularly visited the Glen Ridge branch in years past, pressed his crotch into her buttocks and rubbed against her during the 2013 incident. She also alleged he had a history of groping and harassing female employees and customers, and was occasionally—but only temporarily—banned from the premises.

PNC said it had no knowledge of such incidents.

The suit claimed the bans of Pignatello were temporary, and bank management refused to close Pignatello's accounts because he was an investor who could refer other business to the bank.

Following a three-week trial before Superior Court Judge Robert Gardner, the jury found that the alleged assault in fact occurred, that it constituted harassment on the basis of gender, and that PNC Bank should be found liable for the incident, according to court documents. The jury awarded $300,000 in past lost wages, $500,000 in future lost wages, $800,000 for past emotional distress, and $800,000 for future emotional distress, the documents noted.

Scott, whose title was wealth manager, reported the incident to police, who charged Pignatello, 77, with criminal sexual contact. He died a few weeks later from an apparent heart attack.

PNC Bank was represented by David Osterman of Goldberg Segalla's Princeton office, who deferred comment to PNC Bank.

A PNC Bank spokesman released a statement: "PNC does not condone harassment of any kind. We have a long-standing history of providing a safe workplace for our employees, and robust policies and procedures to help ensure that we continue to do so. We are disappointed by the verdict, even though the jury expressly found that this was not a case where punitive damages were appropriate. We intend to appeal based on errors made by the court."

Smith, of Smith Mullin in Montclair, was joined in representing Scott by Elizabeth attorney Randy Davenport.

Among Smith's prior representations is Fox News host Gretchen Carlson in a sexual harassment suit against Roger Ailes, the network's former chairman.

Pignatello's status as a customer was raised as a legal issue leading up to the trial.

PNC Bank had argued in a prior motion for summary judgment that the incident between Pignatello and Scott did not constitute a claim because he was not Scott's boss. In the motion, filed in March 2019, PNC Bank said the suit was "an attempt at a significant expansion of the protections afforded under the New Jersey Law Against Discrimination." The incident was completely unforeseeable, did not occur in the workplace, and was entirely outside of PNC's control, the bank's motion said.

"This is critically important given that plaintiff's narrow path to a recovery in this case is through the LAD, which, by its very definition, is a workplace protection statute so that individuals are not subject to unwarranted advances or conduct, within the workplace, by individuals who have power over them within the workplace. Pignatello does not remotely fall into that category of individual," the bank said in its motion.

Superior Court Judge Bridget Stecher denied PNC's motion for summary judgment June 21, 2019.

Following the verdict, Smith said she was considering a postverdict motion for spoliation or fraudulent concealment against PNC Bank, based on an alleged failure to turn over video from the bank's security cameras of the 2013 incident between Pignatello and Scott. The bank provided no video from its own cameras in discovery, although a video from a nearby Panera restaurant was admitted into evidence, Smith said. PNC contended that the Panera video did not support Scott's claim about the incident with Pignatello, but the jury apparently did not agree, Smith added. PNC's spokesman said the company is unaware of any other video besides the one entered into evidence.

Trying the case was complicated by PNC's attempts to apply personal injury law to the case, rather than the New Jersey Law Against Discrimination, which governs sexual harassment cases, Smith said, an issue that Scott's counsel addressed by focusing on an employer's duties to work to prevent such incidents.

PNC Bank had a sexual harassment training program in place a few months before the incident between Scott and Pignatello, but none of the employees in the Glen Ridge branch went through that training, and PNC never placed a sexual harassment policy into evidence in the case, according to Smith. A PNC spokesman said all current and former branch employees who testified said they received sexual harassment training annually.

Smith also presented testimony from an assistant branch manager who said another customer had his account closed by the bank after he used profanity toward a bank employee.

"The entire workplace is supposed to be safe, no matter who comes and goes," Smith said. "The only way employees are going to be safe is if the employer takes it seriously."