In November, 2004, Jessica Jolly was hired by Risky Business Motors ("Risky Business") as a new car salesperson. The company has had an employee population of about seventy-five. She started as a Mercury new car salesperson and moved into a Ford sales position as well as being designated the Ford internet sales manager. Ms. Jolly was previously employed by Risky Business Motors for 45 days between October and November, 2003 in a sales position. According to her November, 2004 job application, she previously left her employment in order to "paint homes."

During the 2003 stint with Risky Business, T.J. Hooker, the Ford sales manager who supervised Ms. Jolly, tended to frequently stop by Ms. Jolly's desk and converse with her. At a New Year's Eve party (December 31, 2003) that several employees attended, Ms. Jolly and T.J. mutually kissed.

In early February, 2004, Ms. Jolly quit. In October, 2004, Ms. Jolly receives a call from a friend who complained about Risky Business's customer service. Despite the fact that she didn't work there anymore, she emailed T.J. to communicate her friend's concerns. She and T.J. met for lunch a few days later and discussed potentially returning to Risky Business.

On October 31, 2004, Ms. Jolly turned in a job application for reemployment at Risky Business and she signed "new employee" paperwork on November 1. As mentioned above, she was hired as a new car salesperson.

In mid-December, 2004, Ms. Jolly and T.J. Hooker attended a Ford convention/product launch in New York over the course of three days. T.J. and Ms. Jolly traveled to New York on the same flight. At the airport, T.J. was engaged in a conversation with another passenger and told the passenger that he and Ms. Jolly were on their honeymoon. Ms. Jolly states that T.J. repeatedly tried to touch her hand during the flight. T.J. denies this.

Upon arriving at the hotel, T.J. avoids socializing with the other convention-goers and stays in the vicinity of Ms. Jolly. She follows him to the balcony adjacent to the hotel's ballroom (where the central area of the convention is located). (They were both drinking rum and cola during the preceding hour or two.) T.J. turns to her and says that he has a crush on her. He takes hold of her hand and says he has wanted to kiss her again ever since the prior year's New Year's Eve party. She did not pull her hand away, but she refused to kiss him, stating that he was "her boss." They stayed on the balcony (T.J. had since released Ms. Jolly's hand) for another 20 minutes. Then, Ms. Jolly left. T.J. says that Ms. Jolly told him she saw another salesperson from another New York dealership she knew. Ms. Jolly reports that she actually left to go to the women's restroom for 45 minutes, hoping that T.J. would leave the area.

Neither of them said anything to each other about that night. Ms. Jolly and T.J. didn't have any substantive interactions for a couple of months after the trip.

On February 18, 2005, Ms. Jolly received a performance review from T.J., who gave her an above-average rating for most categories. In March, Ms. Jolly tells another manager she wants to eventually become a manager, herself. The manager tells Ms. Jolly that he'll mentor her. When T.J. learns of this, he tells Ms. Jolly that she should have gone to him and not to others in the company. He also told her to always go to him first about work-related matters. From then on, if the other manager paged Ms. Jolly, T.J. would answer the page for her.

On May 10, Ms. Jolly sends an email to the owner of Risky Business, John (who is also T.J.'s brother), stating: "I'm very thankful for the opportunity to work here again. It's a great place to be."

In late May, John approached Ms. Jolly and a co-worker, Rick, and invited them to attend one of races. (He raced classic cars locally.)

In mid-June, 2005, Ford announces another convention, this time in Los Angeles. Ms. Jolly, T.J. and Rick were all supposed to attend. Ms. Jolly was originally scheduled to go on a different flight than T.J. and Rick. Just before Ms. Jolly's plane took off, T.J. came aboard. He said he rescheduled and that Rick was no longer coming. He sat in an open seat next to Ms. Jolly.

In Los Angeles, Ms. Jolly and T.J. stayed at a two-bedroom condominium and intended to sleep in separate bedrooms. Ms. Jolly was surprised about the arrangements to be in the same "room," but did not object since there were separate bedrooms.

On the first of the two nights, T.J. entered Ms. Jolly's bedroom jumped into bed with her. She felt uncomfortable, believing he started making sexual advances. She left the bed, told him to leave her alone. T.J. immediately stopped his behavior and proceeded to pass out in her bed. She believed he passed out because he was intoxicated.

Next, Ms. Jolly went into his bedroom and went to sleep. Later in the night, T.J. returned to his bedroom and again jumped into bed and started "hugging" her. She again jumped out of bed and told him to leave her alone. According to Ms. Jolly, T.J. again passed out, presumably because of his state of intoxication. The next day, Ms. Jolly confronted T.J. about the previous night and he apologized. He attempted to exchange hugs, but she refused.

After returning from Colorado, she claims that she confronted T.J. Risky Business again about his actions and that he apologized for his behavior. She contends that his behavior from the Arizona and Colorado events continued to bother her and ruined the job atmosphere for her.

In July, 2005, Ms. Jolly intended on attending an auto race that John had mentioned back in May. She did not attend the race, which occurred over the course of a weekend. She claims, however, that, on July 27, John called her cell phone several times during the weekend some sort of harassment. On the Monday following the race, John invited her to go on a tour of a vacant building on a nearby lot that the Risky Business recently purchased.

According to Ms. Jolly, while they were in the building, he gave her a "one-second" hug after she congratulated him for winning his race. Then Ms. Jolly explained she couldn't make it to the race because she had some personal problems due to a "tumultuous relationship." John asked for permission to give her a hug. She agreed and the hug lasted about "five to seven seconds." She thought it was a little odd, but didn't say anything. John then says, "You know, Jessica, I don't wear underwear." He proceeded to take hold of her hand and placed it on his "genital area." She immediately pulled it away, left the building and headed back to the Risky Business showroom. John apologized "if [he made her] uncomfortable," and said he probably shouldn't have further contact with her. He says that she forgives him and says that he can still talk to her because he's "a nice guy."

On August 16, 2005, Ms. Jolly told HR she needed to go on FMLA for "job-induced stress." Her last actual day in the office was on August 9, 2005 and she was not at work on August 10 because that was her traditional day off. She did not arrive for work on August 11, 2005 as she was scheduled, and Risky Business personnel unsuccessfully attempted to reach her by phone and email. Risky Business received correspondence from Ms. Jolly's attorney, dated August 16, 2005, indicating that her psychologist was placing her on medical leave due to work-related stress. The letter stated, in part:

• "Ms. Jolly has been unable to work since August 11, 2005 and is presently unable to return to work at Risky Business Motors. I have authorized her to be off work indefinitely."

Ms. Jolly's attorney also requested FMLA paperwork to provide more information about her supposed "serious medical condition," but Risky Business refused to provide it.

On August 22, 2005, Ms. Jolly picked up her personal belongings and communicated to HR that she was on medical leave and explicitly informed the HR manager that she was not quitting her job. Nonetheless, she did not return to work. About a week later, HR updated the operations manager about the absences and the operations manager sent a letter to Ms. Jolly indicated that she was terminated for not coming in to work.

Risky Business had two harassment policies in place, which were included in the employment handbook. Risky Business did issue a copy of this handbook to Ms. Jolly. Although the handbook does not expressly define "sexual harassment," it does state that, "If you believe that you have been subject to sexual harassment because of the actions of a supervisor, another employee or a non-employee, immediately report the incident to your supervisor, office manager or the operations manager." This policy also assures the employee there will no retaliation for reporting an act of sexual harassment: "Retaliation against any employee for filing a complaint or participating in an investigation is prohibited."

The organization's other harassment policy is regarding general "harassment" and specifically includes sexual harassment as well. In the event of harassment, the employee is instructed as follows: "If you experience any job-related harassment, or believe you have been treated in an unlawful, discriminatory manner, you should promptly report the incident to your supervisor, office manager or the operations manager. Confidentiality will be protected to the extent reasonably possible." Ms. Jolly never reported either T.J.'s or John's conduct to anyone.

In the middle of September, 2005, Ms. Jolly filed a complaint with the EEOC, alleging that (1) Risky Business illegally terminated her for having a "serious medical condition" ; and (2) Risky Business violated Title VII because T.J. and John sexually harassed her. She claimed she didn't report T.J.'s conduct because the "highest" she could go was John, who was a harasser as well. She wants to recover back pay, compensatory damages for bills related to psychological treatment, and for punitive damages.

Respond to the following:

1. Assume you are Ms. Jolly's attorney. Make your argument(s) (a) that Risky Business wrongfully terminated her; (b) that T.J. sexually harassed her; and (c) that John sexually harassed her. You must support your argument(s) by thoroughly applying the relevant law(s) to the facts of the case.
2. List any claims other than Title VII violations (such as torts) that may be relevant for Ms. Jolly to make based on the facts of this case. Make your argument(s) in favor of these claims. You must support your argument(s) by thoroughly applying the relevant law(s) to the facts of the case.
3. Assume you are Risky Business's attorney. What defense(s) would you assert against (a) the Title VII allegations, and (b) the non-Title VII allegations. Make your arguments in favor of these defenses, i.e., in favor of dismissing Ms. Jolly's claims. You must support your argument(s) by thoroughly applying the relevant law(s) to the facts of the case.