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Complaints To Supervisor/Harasser Are Sufficient To Overcome Affirmative Defense On Hostile Environment Claim

There’s lots of meaty reading in the Second Circuit case of Gorzynski v JetBlue Airways Corporation decided this month. The 31 page opinion hits multiple issues including sexual harassment, age discrimination, race discrimination, and retaliation.

The Federal District Court threw out the case on summary judgment. The Second Circuit Court of Appeals reversed and this is why.

Facts Of The Case

It’s a long story, but here’s the gist of it.

JetBlue hired Diane Gorzynski as a customer service agent in January 2000 for its operation at Buffalo International Airport. She was 54 years old at the time. In May 2000 she was promoted to the position of Customer Service Supervisor and stayed in that position until she was fired on July 5, 2002.

The customer service supervisors were managed by James Celeste, the General Manager. William Thro, a regional manager, was responsible for overseeing the General Managers of several JetBlue stations. 

During her employment, Gorzynski experienced age and gender discrimination including sexual harassment. She also observed discrimination of other employees. The main culprit was her supervisor, James Celeste. 

Gorzynski complained  to Celeste on numerous occasions about the discrimination and harassment she experienced and about  the discrimination and harassment of her co-employees.

She was retaliated against and fired, she believed, because of her complaints.

The Lawsuit

Gorzynski filed a lawsuit claiming that JetBlue:

• discriminated against her because of gender in violation of Title VII of the Civil Rights Act of 1964

• discriminated against her because of age in violation of the Age Discrimination in Employment Act

• retaliated against her for complaints to her supervisors about age and gender discrimination and race discrimination of co-employees in violation of Title VII and the ADEA

She also claimed numerous violations on the New York Human Rights Law.

The federal District Court granted JetBlue’s Motion for Summary Judgment of all claims. Gorzynski filed an appeal.

The Second Circuit Reverses

The Faragher/Ellerth Defense

One of the most important and interesting parts of the decision is its holding regarding JetBlue’s affirmative defense on which the District Court hung its hat to throw out Gorzynski’s sexual harassment claim – and it’s a holding which can effect lots of people.

In order to establish a hostile environment sexual harassment claim, a plaintiff must produce enough evidence to show that the workplace was:

• permeated with discriminatory intimidation, ridicule, and insult that is

• sufficiently severe or pervasive to alter the conditions of the victim’s employment and

• create an abusive working environment

In analyzing a hostile environment claim, the court is required to “look at the record as a whole and assess the totality of the circumstances.”

In this case, Gorzynski presented evidence that Celeste:

• grabbed Gorzynsi and other women around the waist

• tickled them

• stared at them as if” he was mentally undressing them”

• made numerous sexual comments including remarks about wanting to suck on or massage their breasts.

The District Court did not consider this evidence. Instead, it found that JetBlue was entitled to win as a matter of law because of its “affirmative offense” under the Supreme Court Faragher and Ellerth decisions.

The employer is entitled to raise the defense in certain sexual harassment scenarios involving supervisors and co-workers if it can show that:

• it exercised reasonable care to prevent and promptly correct any harassing behavior and
  

• the plaintiff unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid the harm

With respect to the first element, JetBlue presented evidence of its sexual harassment policy (contained in its employee handbook)  which stated that: “any crewmember who believes that he or she is the victim of any type of discriminatory conduct, including sexual harassment, should bring that conduct to the immediate attention of his or her supervisor, the People Department or any member of management.”

JetBlue argued that Gorxynski was not entitled to proceed on her sexual harassment claim because she failed to take advantage of the policy in the handbook when she:

• only complained to her supervisor -- the harasser
  

• did not complain to other members of management.

The District Court agreed with JetBlue and granted judgment in its favor on Gorzyynski's sexual harassment claim.

The Second Circuit rejected the District Court’s conclusion and reversed.  It stated:

We reject such a brittle reading of the Faragher/Ellerth defense. We do not believe that the Supreme Court, when it fashioned this affirmative defense, intended that victims of sexual harassment, in order to preserve their rights, must go from manager to manager until they find someone who will address their complaints.

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Claims Of Gender, Race, Disability And National Origin Discrimination By Transportation Authorities

Earlier this month, a group of female and Hispanic Massachusetts Bay Transportation Authority (MBTA) employees filed a class action complaint with the Massachusetts Commission Against Discrimination alleging that women and Hispanic workers were "pigeonholed in entry-level positions and grossly underpaid compared to non-Latino and male counterparts.

One day later, a federal class action was filed alleging that  racism and sexism "pervade the culture" of the Chicago Department of Transportation which includes referring to black employees as "Mambo Gorilla," "nigger," and segregating minority employees by assigning them to work only on the city's "gang-infested" South Side.

Last Thursday ,the Los Angeles County Metropolitan Transportation Authority  reached a settlement agreement resolving a class action lawsuit in Los Angeles County Superior Court.

The lawsuit alleged disability discrimination against visually-impaired Metro bus passengers by:

• failing to announce stops on buses
  
• failing to stop and pick up visually-impaired passengers
  
• failing to provide schedule and route information in accessible formats
  
• failing to make its public website accessible with screen-readers commonly used by the visually-impaired.

For more information about the settlement, look here.

Unfortunately, discrimination of all kinds in the government transportation business seems to be out of control.

 images:website.lineone.net

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Banker Terminated When "Regarded As Disabled" And Because Of Perceived Mental Impairment Has ADA Claim

Disability claims involving mental impairments can be tough. That’s why this recent case from a federal district court in the Eight Circuit is an important and helpful read. Here’s what happened in the case of Lizotte v. Dacotah Bank.*

Facts Of The Case

Alfred Lizotte was an assistant vice president of commercial lending at Dacotah Bank where he had been employed since 2003.

On Thursday, November 30, 2006 Lizotte consumed somewhere between 10-12 drinks at a local bar. On his way home, “and for whatever reason”, he decided he “had enough of this shit”, drove to a cemetery, took a gun out of his backseat, and called his sister.

When his sister arrived at the cemetery, he told her that he “didn’t want to be here anymore.” She unsuccessfully struggled to get the gun and called the police.

Lizotte drove away, was stopped by the police, and taken into custody. He was involuntarily committed to a psychiatric inpatient unit for four days following the incident. 

On December 1, 2006 Lizotte called his immediate supervisor and told him that he was unable to come to work. On December 5, 2006 Lizotte’s physician faxed a Dacotah Bank “Certification of Health Care Provider” form indicating that Lizotte could return to full work duties in a week.

On December 8, 2006 the HR director (Bobby Compton) sent Lizotte a letter stating: “Because of the impact of your action in the community, and the ability to perform your job, we are placing you on Leave of Absence to allow us to review the information and consider the issue.”

On December 14, 2006 Lizette met with Compton and two officers of the bank. He was given a letter to sign which said that it was his last day of employment. In exchange for signing the letter he got $6,500.00 in severance pay. Lizette unwillingly signed the letter and thereafter received a “Notification of Employee” resignation form which he refused to sign.

The Lawsuit

Several months later, Lizotte filed a lawsuit in federal district court in North Dakota alleging discrimination under the Americans with Disabilities Act (“ADA”). The complaint also asserted several state law claims.

ADA: What’s The Law?

The Americans with Disabilities Act  law is quite complicated but here it is in a nutshell.

In order for an employee to establish a prima facie case under the ADA, he must show he:

1. is disabled within the meaning of the ADA
2. is qualified to perform the essential functions of the job with or without reasonable accommodation, AND
3. suffered an adverse employment action because of his disability

The ADA defines disability as:

1. a physical or mental impairment that substantially limits one or more major life activities OR
2. a record of such impairment OR
3. being regarded as having such impairment

If a plaintiff establishes all of those elements, the burden shifts to the employer to produce a legitimate, non-discriminatory reason for the discharge.

If the employer establishes a legitimate reason for the discharge, the burden shifts back to the plaintiff to show that the reason given by the employer is a pretext for discrimination --- meaning that it’s a “phony excuse.”

The bottom line is after jumping through all of these hoops, there must be evidence from which a jury could reasonably conclude that the individual’s disability “was a factor in the employment decision at the moment it was made.”
The Court's Opinion In The Case

Regarded As Disabled

The bank argued that Lizotte’s claim should be dismissed as a matter of law because he did not have a disability as defined by the ADA.

Lizotte contended that he met the definition of disability because Defendants regarded him as disabled and mistakenly  believed that his mental disorder substantially limited the major life activity of working .

The Court agreed with Lizotte.

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Here's a few Short Takes worth sharing:

Supervisor Liability

 Payne v. U.S. Airways, Inc. (Reprinted from Westlaw with permission of Thomson Reuters) :The Court held, in a matter of first impression, that a former employee's supervisor was an agent of the employer and individually liable for sexual harassment under the Vermont Fair Employment Practices Act. While the opinion only pertains to Vermont, the language may be helpful in states with similar statutes.

Constructive Discharge

Klein v. Raytheon Co. (Reprinted from Westlaw with permission of Thomson Reuters): A California federal judge allowed a constructive discharge lawsuit to proceed based on a physics engineer's claim that his supervisor told him his mental disability was a "load of crap". His supervisors also called him a "liar," "thief" and "fraud", threatened to strip him of his security clearance, and told him that he would never be able to work in the aerospace industry again.

The Court rejected Raytheon's motion to dismiss the suit on the grounds that harsh or threatening language used in a single instance is insufficient to support a constructive discharge claim under the California Fair Employment and Housing Act. There aren't many cases that address the "single instance/incident" argument, so this one helps.

Age Discrimination

Law Firm Sued By EEOC For Age Discrimination: The EEOC filed a suit against the  New York law firm of Kelley Drye & Warren claiming that it significantly underpays attorneys who practice law past age 70 compared to similarly productive younger attorneys in violation of the Age Discrimination in Employment Act. Here's the complaint. It's not the first time law firms have been in trouble for age discrimination. The EEOC got a whopping $27.5 million dollar consent decree in a similar case against the Sidly Austin law firm in 2007.

Sexual Harassment

King v. McMillan: The Fourth Circuit affirmed a jury award to the plaintiff of $50,000 in compensatory damages on her Title VII sexual harassment claim, $175,000 on her sexual assault/battery claim (remitted to $50,000) and $100,000 in punitive damages. It's a very helpful case to read regarding evidentiary questions and jury instructions for those involved in cases of both sexual harassment and battery. It's also helpful on the issue of punitive damages.

images: arkansasmatters.com

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Palin's Run For President Is Huge Setback For Women's Rights

I read the other day in the New York Times that Sarah Palin is considering a run for President – and I have been trying to figure out why it makes me so angry -- other than the fact that I have to listen to her most irritating voice and garbled grammar for the many campaign months ahead.

I know it’s because she’s a woman and because she embodies a major setback to so much I have worked for over the past 30 plus years, but I’m struggling with what really makes me feel this visceral negativity. And I'm not the only one.

Is it simply because of where she stands on the issues -- her harmful views on a woman’s right to choose that would take us back to the dark and dangerous days before Roe v Wade?

Is it because she was against the Lily Ledbetter Fair Pay Act and thought it was ok for a woman with no knowledge that she was a victim of  wage discrimination to be barred from bringing a lawsuit when she first learned about it?

Is it because she touts equal pay for women but takes positions against the Paycheck Fairness Act which would help ensure that women really do get the equal pay they deserve?

Is it because she’s against government programs to help women with issues like affordable child care – concerns which deeply affect working women and for which the US is light years behind other countries?

Is it because she thought it was ok to promote a sexual harasser to her cabinet?

Or is it because she is simply unqualified?

What everyone knows but barely anyone talks about is that Sarah Palin is where she is because she is pretty. As  Todd Purdham noted in his Vanity Fair article about Palin, her beauty queen looks have

captivated people who would never have given someone with Palin’s record a second glance if Palin had looked like Susan Boyle.

Susan Reimer , from the Baltimore Sun put it this way:

Put red high heels and red lipstick on a woman with a cute figure and run her out there and we promise, nobody will notice her mangled syntax or her poor sense of geography.

Unqualified women who get ahead simply because of their looks make it that much harder for intelligent, capable women to get a fair shake. Is it possible that beneath all of the chatter, it’s this harsh reality that makes feminists so upset?

There is no doubt, that for those of us who have long championed equal rights for women, Sarah Palin represents a gigantic step backwards --- and going backwards after the many hard fought struggles to get ahead is always rough. She got where she did simply because of her looks and she rejects policies which would improve the lives of women.

Simply put, for so many women, this major league anti-feminist is just really hard to take.

image: turbo.inquisitr.com

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Kmart Employee Fired For Taking Medical Leave Wins Family and Medical Leave Act Appeal

You would think most employers know that you’re not supposed to fire someone because they take a medical leave of absence – but it looks like K-Mart may have missed the boat.

A sales clerk at one of its Michigan stores who lost her job for taking time off after surgery will get her jury trial on a Family and Medical Leave Act retaliation claim according to the Sixth Circuit Court of Appeals opinion last week in Cutcher v Kmart Corporation.

Here’s what happened in the case.

The Facts

Susan Cutcher worked as a full-time hourly sales clerk at Kmart for many years. (Kmart calls these employees “associates”)  Her performance evaluations were good to excellent.

In 2002, she received an overall rating of “exceptional,” the second highest rating available that year.  In 2003, she again received a rating of “exceptional,” the highest possible rating in that year’s appraisal.

In 2004, her rating dropped from “exceptional” to “exceeds expectations,” the second highest rating possible. In 2005, she again received an overall rating of “exceeds expectations.”

The 2005 review  noted: “Susan usually is able to provide good, friendly, customer service, her work is usually very well done—and accurate.”

In early November 2005, Cutcher learned that she needed surgery. Her doctor indicated that she required six weeks off work after surgery and signed the necessary forms which Cutcher then submitted.

In December of 2005, while Cutcher was on leave, Kmart announced a nationwide reduction in force (“RIF”).  The Port Huron Michigan store, like others, was required to cut a number of associate positions.

Each store received guidelines as to how it would go about making the cuts. The guidelines included an "Associate Performance Recap Form” which included :

• the same four performance categories as the annual evaluations: customer service, teamwork, demonstrated work habits, and effectiveness in position

• consideration of  the employee’s most recent annual appraisal rating in calculating an employee’s score

• a requirement that the stores provide an explanation in the comments section -- along with documentation -- of a significant change in the employee’s score when compared to their annual appraisals

• a statement  that those on a LOA (leave of absence) should be included in the selection process but that the fact of a LOA should not be considered as a rating factor

When Cutcher was evaluated for the RIF, she received lower ratings than she received in the last performance appraisal for the same categories. In addition, the following comment appeared next to her name: “Poor customer and associate relations. LOA.”

The last evaluation was just twenty days earlier, and no performance issue occurred in the interim, nor was there any documentation to substantiate a lower rating. The only employment event regarding Cutcher was her leave of absence.

The negative evaluation and low scores caused Cutcher to be selected for termination. Had she been evaluated consistently with her last evaluation of November 15, 2005 --just twenty days earlier -- her ranking would have been high enough to avoid the RIF.

When Cutcher returned from medical leave to active status on January 23, 2006, she was greeted with a pink slip. Her position was not eliminated. It was given to another employee.

Cutcher filed a lawsuit in federal court against Kmart claiming that Kmart violated the FMLA by interfering with her FMLA leave and retaliating against her for taking FMLA leave.

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Winning Plaintiff In Supreme Court Crawford Decision Gets Big Verdict For Title VII Retaliation

We often read about cases in the courts of appeals, including the ultimate court of appeals -- the United States Supreme Court -- in which the plaintiff prevails and gets the opportunity to take his or her case to a jury.

We study these cases because of the legal principles and precedents involved and how they will affect other clients and cases in the future.

We don't usually hear -- and it's not commonly reported -- what eventually happens to the plaintiff who won the reversal and got the chance to go to court. That's because some of those cases are settled, and the settlements are often times confidential. In other instances, the results of the trial simply don't make the news.

So I was really pleased this morning to read in one the bulletins I receive from the National Employment Lawyers Association about the fantastic verdict on Monday for Vicky Crawford, the plaintiff in the landmark United Supreme Court decision Crawford v. Metropolitan Government of Nashville and Davidson Cty .

Here's what happened in the case.

Facts Of The Case

In 2002, the Metropolitan Government of Nashville and Davidson County, Tennessee ("Metro") began looking into rumors of sexual harassment by the Metro School District's employee relations director, Gene Hughes.

When Vicky Crawford, a 30 year Metro employee , was asked whether she had witnessed "inappropriate behavior" on the part of Hughes, Crawford described several instances of sexually harassing behavior including instances where Hughes: 

• repeatedly put his crotch up to her window and

• entered her office and grabbed her head and pulled it to his crotch

Two other employees also reported being harassed by Hughes.

Metro took no action against Hughes, but fired Crawford and the two other accusers soon after finishing the investigation.  Metro claimed it fired Crawford for embezzlement.

Crawford filed a lawsuit claiming that she was fired in retaliation for her report about Hughes's behavior in violation of Title VII of the Civil Rights Act of 1964.

Title VII's Anti-Retaliation Provisions

Title VII has two provisions which prohibit retaliation in employment discrimination cases and make it unlawful for an employer to discriminate against any of its employees because:

1. he or she "has opposed any practice which is unlawful" under Title VII
   
2. he or she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this subchapter"

These provisions are commonly known as the "opposition clause" and the "participation clause".

The District Court and Sixth Circuit Decisions

The District Court granted summary judgment in favor of Metro. It held that Crawford did not satisfy the opposition clause because she had not "instigated or initiated any complaint", but had "merely answered questions by investigators in an already-pending investigation, initiated by someone else."

The District Court also concluded that Crawford's claim failed under the participation clause because it held that the only circumstances in which an employee would be protected from retaliation for participation in an employer's internal investigation was where "the investigation occur[ed] pursuant to a pending EEOC charge."

Crawford appealed and the Sixth Circuit Court of Appeals affirmed on the same grounds.

Crawford next filed a petition for certiorari requesting that the United States Supreme Court accept the case. The petition was granted.

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C.H. Robinson Loses Another Sexual Harassment Hostile Environment Appeal

I read about this case decided by the Eleventh Circuit Court of Appeals last week with great interest. In it the Court held quite clearly that a constant flow of profanity in the workplace can constitute sexual harassment and gender discrimination.

After reading it I thought,  "this sounds familiar."  In fact I thought, "I've already written about this case," so I researched my blog and there it was -- an almost identical lawsuit against the same company for the same awful conduct decided in June by  the Sixth Circuit Court of Appeals and I thought, "doesn't this company ever learn?"

Reeves v. C.H. Robinson Worldwide, Inc. is  a long decision -- 27 pages -- and one definitely worth the read. In a nutshell, here's what happened in the case.

The Facts

Ingrid Reeves worked as a sales representative from July 2001 to March 2004 in the Birmingham, Alabama branch of C.H. Robinson.  She worked in a cubicle in an open area with six male co-workers.

During that time, she was subjected to an onslaught of foul and disgusting language at work on a daily basis.  Women were repeatedly referred to as:

• bitch
  

• fucking bitch
  

• fucking whore
  

• crack whore 
  

• cunt

Co-workers also listened to a crude radio show each morning, displayed pornography on a computer, and sang songs about gender-derogatory topics.

Though she complained to her co-workers they persisted in the conduct.  She complained to her branch manager on at least five separate occasions and in two separate work evaluations. She also contacted two C.H. Robinson executives. Nothing changed, and Reeves resigned.

Reeves filed a lawsuit alleging that she had been subjected to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964.

What Happened In The Courts

The federal district court granted judgment in favor of C.H. Robinson and threw out the case. Its reasoning was that the offensive conduct was not motivated by sex and not directed at Reeves.

Reeves appealed. A panel of the appellate court reversed the district court's decision holding, among other things, that Reeves presented jury issues as to whether the offensive conduct was based on sex.

That decision was vacated and a rehearing en banc was granted -- meaning that the whole court was going to hear and decide the case.

The Eleventh Circuit Finds For Reeves

The Court started the opinion with some "core principles of employment discrimination law" in hostile work environment cases:

• a plaintiff must show that

1. her employer discriminated because of her membership in a protected group (race, sex, etc.) and that
   
2. the offensive conduct was either severe or pervasive enough to alter the terms or conditions of employment
   

• Title VII is not a civility code, and not all profane or sexual language or conduct will constitute discrimination
  

• workplace conduct can not be viewed in isolation, but but must be viewed cumulatively and in its social context
  

• a plaintiff can prove a hostile work environment by showing severe or pervasive discrimination directed against her protected group, even if she herself is not individually singled out

Applying these principles, the Court held that sufficient evidence had been presented for a jury to find that Reeves was subjected to a  "discriminatorily abusive working environment."

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As Congress ended its last session, a legislative victory for employee rights advocates came with it.

The bill, signed by President Obama at the end of December,  came about because of the horrible story involving Jamie Leigh Jones. Here's one description of what happened as reported in September by  Think Progress:

In 2005, Jamie Leigh Jones was gang-raped by her co-workers while she was working for Halliburton/KBR in Baghdad. In an apparent attempt to cover up the incident, the company then put her in a shipping container for at least 24 hours without food, water, or a bed, and “warned her that if she left Iraq for medical treatment, she’d be out of a job.”

Even more insultingly, the DOJ resisted bringing any criminal charges in the matter. KBR argued that Jones’ employment contract warranted her claims being heard in private arbitration — without jury, judge, public record, or transcript of the proceedings. After 15 months in arbitration, Jones and her lawyers went to court to fight the KBR claims. Yesterday, a court ruled in favor of Jones.

The tragedy spurred the bill which became known as both  the "Franken Amendment" and the"Jamie Leigh Jones Amendment" (to the Defense Appropriations Act for 2010) . It's the first federal legislation that prevents employees from forcing binding arbitration on their employees as a forum for resolving employment disputes.

In recent years, many companies have required employees to sign contracts, handbooks, and other documents which require them to go to arbitration to resolve their employment disputes.

When employees sign -- which they are forced to do to either get the job or keep the job -- they give up their right to take claims against their employers to court. Cases involving discrimination and sexual harassment, to name a few, are compelled to go to arbitration instead.

An arbitration is generally held before three arbitrators and is commonly  viewed as a favorable forum for employers versus employees.

Without binding arbitration, employees have the right to take their discrimination cases to court, and with sufficient evidence, in front of a jury. It is this precious right to a jury trial which is at the heart of this issue.

The Franken Amendment prohibits the award of Department of Defense contracts of over one million dollars to any company that forces its employees or independent contractors to submit to pre-dispute binding arbitration of Title VII and sexual assault-related tort claims

Under the bill, defense contractors:

• with over $1 million (which is most) that are funded by 2010 appropriations will not be able to force arbitration of Title VII and sexual assault-related tort claims
  

• will not be able to enter into forced arbitration agreements with their employees or independent contractors or enforce any agreements that have such provisions.

The list of covered sexual assault-related tort claims covers:

any tort related to or arising out of sexual assault or harassment, including assault and battery, intentional infliction of emotional distress, false imprisonment, or negligent hiring, supervision, or retention

The Franken Amendment will protect hundreds of thousands of employees around the country from being forced to arbitrate their Title VII claims. It also provides persuasive authority for employee advocates to strike down forced arbitration clauses in other federal contracts.

It's also a step forward to getting rid of forced arbitration in other employment settings.

All in all, it's a great victory on a critical issue for employee advocates and we thank Senator Franken for his efforts on behalf of employee rights.

image: bsmith101.files.wordpress.com

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