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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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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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When employees are fired for misconduct, employers often think that they have an airtight defense to any charges of wrongful discharge. But that’s often not so.

The case of Upshaw v. Ford Motor Company, decided last week by the Sixth Circuit Court of Appeals, brought this point home.

What Happened In The Case

Here’s a brief synopsis of what happened in the case.

Carolyn Upshaw worked for Ford Motor Company in Michigan as a production supervisor for several years. In spite of the fact that she received excellent reviews, she was repeatedly denied a promotion.

In 2003, she filed a charge of race and gender discrimination with the Equal Employment Opportunity Commission. Upshaw alleged that Ford had “improperly promoted similarly-situated while male production supervisors to Salary Grade 7 while continually denying her the same promotion.”

She later filed two more EEOC charges alleging various retaliatory acts by Ford. In 2004, she filed a lawsuit. In 2005, Upshaw was fired.

In response, Upshaw filed an additional EEOC charge claiming that she was terminated in retaliation for filing her prior EEOC charges and filing a lawsuit.

Upshaw also amended her complaint to contain a claim for retaliatory discharge. All of her claims were filed pursuant to Title VII of the Civil Rights Act of 1964.

The district court judge threw out Upshaw’s case against Ford. Upshaw appealed, and the Court of Appeals found in her favor on her claim for retaliatory discharge.

Why The Lower Court Was Reversed

Ford claimed that it fired Upshaw for cause. These were the reasons the company gave to support the discharge:

1. Falsification of company records by under-reporting scrap
2. Harassment of and retaliation against one the employees she supervised
3. Violation of company safety policies on multiple occasions by driving an  uninspected personnel scooter and continually failing to wear a required safety vest, and
4. Insubordination

Upshaw submitted proof that none of these reasons would warrant the termination of a supervisor on its own or together.

Upshaw presented evidence to prove that business reasons for the discharge were not true or not believable (what’s called evidence of "pretext") Therefore, she contended, she should have been allowed to present her case to a jury. The Court agreed.

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 Retaliation  Because of Fight for Abortion Training Gets Doc Million Dollar Lawsuit Settlement

A $1.4 million dollar settlement was reached last week in this important case about a doctor's advocacy for reproductive rights.

Here's the story as reported by the Center for Reproductive Rights and the Feminist Majority Foundation.

Dr. Christopher Carey served for many years as both Chief of Obstetrics & Gynecology and Director of the Obstetrics & Gynecology Residency Program at Maricopa County Hospital in Phoenix.

While in that position, Dr. Carey supported providing OB/GYN residents the opportunity to participate in abortion training if they so desired.

Carey also spoke out against the efforts of the Maricopa County Board of Supervisors and others who wanted to end those training opportunities.

As a result, Carey claimed he was harassed and retaliated against  by the Board of Supervisors and other officials who:

• carried on an eighteen month campaign to force Carey out of his position

• spread false statements which damaged his reputation

• worked to block his re-appointment to the Medical Staff
  

• conducted multiple baseless investigations

• voted to remove him from his position at the hospital

Carey was terminated from his position in September of 2004.

Carey sued alleging that his Constitutional rights were violated under the First and Fourteenth Amendments,  and that he was discriminated against because of his religious and moral beliefs.

A settlement of $1.4 million dollars was announced on May 22nd by the Center for Reproductive Rights and the firm of Weil, Gotshal & Manges which represented Dr. Carey. The case was set to go to trial on June 23rd.

In an interview after the settlement, Dr. Carey said:

I am extremely pleased with the settlement, but it’s important to remember that the shortage of abortion providers in this country is extensive.

A resident’s ability to obtain abortion training is crucial to ensuring women receive quality health care when they need it.

No doubt Dr. Carey is a real champion on this very important and controversial issue.  It's reassuring to many of us that Dr. Carey was vindicated.

In addition to the important principles concerning  quality health care, and freedom free from discrimination and retaliation,  there's a broader lesson to be learned from this case.

It was simply stated by Janet Crepps, deputy director of he U.S. Legal Program at the Center for Reproductive Rights who said:  "Personal politics have no place in medical care."

It's not often that we see cases which send this message -- let's hope it gets delivered.

 Image:blog.lib.umn.edu

            s1.causes.com

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I love the decision of Gerving v. Opbiz, LLC which was decided by the Ninth Circuit a few days ago. Thanks to mmmglawblog for pointing it out.

It’s a great example of  “caregiver discrimination” about which the EEOC issued a report just last week (I wrote about it : Read Carefully to Avoid Caregiver Discrimination), and it's a case in which the caregiver wins.

The case also has a very clear analysis of what kind of evidence allows a plaintiff to get to a jury in a typical gender discrimination case.  

Here’s what happened in the case.

Karen Gerving worked as a sales manager for Opbiz (Alladin Resort and Casino) until she was fired by her supervisor, Jim Lauster.

Gerving filed a lawsuit alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964.

Gerving’s evidence showed that after she became a stepmother, Lauster:

• began to give her poor performance reviews

• told her that working mothers should stay at home

• told her that she would have to choose between being a mother and a sales manager

• made similar discriminatory remarks to a pregnant co-worker

• treated  Gerving differently than a male co-worker when she was reprimanded for making calls to her children while he was not

Because of the discriminatory treatment, Gerving complained to the Human Resource Deparatment. Two weeks later, an angry Lauster tried to get Gerving fired.

It turned out that Luster wasn’t able to fire Gerving until some months later when new management was in place.

In a typical discrimination case, the plaintiff can establish an inference of discrimination if she can prove:

1)   she belongs to a protected class

2)   she performed her job satisfactorily

3)   she suffered an adverse employment action

4)   she was treated differently than a similarly situated employee who does not belong to the protected class

Once the employee establishes an inference of discrimination – what’s called the prima facie case – the employer is required to "articulate a legitimate, non-discriminatory reason" for it's employment action.

If the employer does that, the employee must prove pretext – meaning that the employee presents evidence that the reason given by the employer is not believable or made-up.

In this case, Alladin said that Gerving was fired because of poor performance and because she used profanity in an argument with a co-worker.

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It's not often that we see a case in which the verdict for the employer is reversed in favor of the employee because the judge improperly excluded evidence -- but that's exactly what happened in the case of Cobbins v. Tennessee Department of Transportation .   Here's the story:

The plaintiff, Greg Cobbins,  an African-American  was employed by the Tennessee Department of Transportation ("TDOT") since 1994.

In 2005 Cobbins became eligible for a promotion for which he was qualified.  He was considered along with another candidate ( white male) named Bradford Staggs.

Staggs got the job instead of Cobbins.  Cobbins believed he was discriminated against and filed a lawsuit.

Part of the reason stated for the decision to choose Staggs over Cobbins, according to the Regional Director of TDOT, was that Cobbins had "less education" and "several oral and written warnings in his work file".

The most common way that discrimination cases are proven is with circumstantial evidence showing that the reasons given for the adverse employment decision are not valid, not credible, or not believable -- it's called pretext.

During the trial, when Cobbins attempted to offer his evidence of pretext as to the reasons stated for the denial of his promotion, the judge refused to allow it:

• "Less education": Cobbins had evidence that Staggs lied about his education on his promotion application.  Staggs' application stated that he had "postsecondary education after high school" during the years 1991-1995. It turns out that Stagss didn't even graduate from high school until 1995 so the statement could not have been true.
  

The trial court judge refused to allow Cobbins to introduce the evidence showing that Staggs had lied about his education.

• "Several oral and written warnings in his work file": Cobbins did have several warnings in his file. However, Cobbins had evidence that his former supervisor, Wayne Youcum, was biased and discriminated against him. Several years earlier, Cobbins charged Yocum with discrimination and Yocum retaliated by:

1. marring Cobbins work record with unfounded complaints,
   
2. refusing to give Cobbins supervisory responsibilities, and
   
3. treating him more harshly than the white employees.
   

• The first lawsuit over Yocum's conduct was dismissed because Cobbins failed to file a brief on time. (Cobbins blamed  the new electronic filing system of the court for the failure to process the brief )
• The important point is that the previous case was never decided "on the merits" but rather was dismissed due to a technical matter.

The trial court judge refused to allow Cobbins to introduce evidence showing that the warnings in his file were prompted  by his former supervisor's discriminatory motives.

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I was both surprised and amused when I read this piece in the New York Times about  the French way of handling labor troubles.

According to what's reported, at least three times in recent weeks workers in France have held their bosses hostage in order to get management  to accede to their demands.

Last week workers at a Caterpillar plant in the French Alps held five of their bosses in a dispute over their severance packages. Pierre Piccarreta, a French union representative, justified the conduct this way :

“There is no violence or sequestration, but simply pressure so they restart negotiations . . . .At a time when the company is making a profit and distributing dividends to shareholders we want to find a favorable outcome for all the workers and know as quickly as possible where we are going.

The same type of hostage taking occurred at two other French plants in recent weeks:

• Workers at a 3M plant held their boss for more than 24 hours at a plant in Central France.

• Workers at a Sony plant in southwest France held their boss overnight when they were trying to get better severance packages.

France has  a long history of labor militancy and as reported in the Times has become increasingly restless as the impact of the global economic crisis worsens . The French unemployment rate rose to 8.3 percent in February, according to the European Union.

It certainly struck me as an interesting contrast to the way we do things in America.

It's no secret that we are in a hot debate over the passage of the Employee Free Choice Act. The bill provides a bypass to the traditional union election process and allows for a certified bargaining unit if a majority of workers sign cards indicating their support for a union.

The bill would also provide stiffer penalties against employers for intimidation and retaliation of union organizers.

Labor suffered a real blow this past week when Senator Arlen Spector backed out of his support for the bill.  Another hurdle came came from Senator Diane Feinstein, a past sponsor of the act. Citing the flailing economy as a reason, her office issued a statement indicating she would seek alternative legislation that was less divisive.

There are many compelling reasons for the bill and it still has lots of support. One example is the excellent editorial by David Freiboth in Friday's Seattle Times who wrote:

The debate over pending labor-law reform, the Employee Free Choice Act, is getting mired in concerns about an employee's role in democratic determinism, thereby missing the larger economic issue that drives the real issue. Scare tactics that highlight problems with union intimidation during organizing campaigns are just that — scare tactics — designed to subvert the essence of the issue.

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I got a call last week from a woman in Michigan who was in a great deal of distress about what  was happening to her at work.  She is employed in a  sales  position for a large company.  She told me that she became aware of different criteria being used to judge performance for different individuals in the sales department in which she worked.

From documents she saw, one formula was being used to evaluate the white men,  and a second formula was being used for the one African American in the sales department.   A third formula was being used for the one and only woman. She shared her concern with the African American employee.  He filed a grievance.  She believes that she is now being retaliated against and is fearful that she will lose her job. Let's hope not.

There are three important points to share about this scenario: 

1. One of the prime ways to prove discrimination is by proving a difference in treatment.  If different standards are being used to evaluate performance for the same or similar jobs, it very well may prove discrimination. The practice of using different criteria to judge the same people in the same jobs is exposing a company to risk.
2. Retaliation is a separate claim under the law which prohibits discrimination. If a person raises a complaint  -- whether formal or informal -- about discrimination or a perceived civil rights violation and is retaliated against because of it, it's illegal.
3. If a person sticks up for or advocates on behalf  of a minority who is being discriminated against, and then is retaliated against because of it, the retaliation is illegal.

I wrote about the topic of  white employees sticking up for black friends in a recent article. The 6th Circuit Court of Appeals case of Barrett v. Whirlpool Corporation  involved a white employee who protested the racially hostile atmosphere confronting some of her friends at work.  She was retaliated against because of her advocacy.  The court stated that she had a right to be free from retaliation under those circumstances under Title VII of the Civil Rights Act.

It is sad but true that many women in sales positions are discriminated against with regularity. They are often held to higher standards, given less preferential accounts, and excluded from networking opportunities. When they complain, they are commonly retaliated against.

I had one case involving a woman who worked for seventeen years in sales for a very large corporation without a promotion.  She was regularly training young men brought in by her bosses. The trainees were then promoted over her. Since she was a single mom with a pretty good paying job she felt she could not complain.

Finally one day she had it and decided enough was enough. She voiced her concern to her boss and was immediately shut down.  She filed a complaint with the EEOC claiming gender discrimination. When her boss found out about the charge, he fired her on the spot shouting: "You better find the best god damn lawyer that you can."  We settled the case about eighteen months later.

It seems like no matter how much training and education is provided, there is still is a lack of awareness that a difference in treatment of individuals in similar positions is discriminatory. Sadly true is that when an employee has the nerve to point it out, retaliation is often common which exposes the employee to all sorts emotional and financial distress and the employer to needless liability.

image:www.fotosearch.com

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