Complaining About Harassment To The Perpetrator May Be Enough To Put The Employer On Notice

By: Jeffrey C. Freedman
April 25, 2011

Once an employer receives a complaint of harassment from an employee the obligation arises to conduct a thorough investigation and to take immediate and appropriate corrective action where warranted.  What happens when the harasser is the victim's supervisor and the victim complains only to the supervisor?  Is this adequate to put the company on notice?  Based upon the decision of the U.S. Court of Appeals for the 2nd Circuit (in New York state) the answer may be yes in many cases.  The answer was yes in Gorzynski v. JetBlue Airways Corporation.  Diane Gorzynski was a customer service supervisor for JetBlue at the Buffalo Airport.  She alleged that she was discriminated against and harassed by her supervisor James Celeste, the General Manager of the JetBlue Buffalo operation.

As a customer service supervisor, Gorzynski was responsible for overseeing customer service crew members who were in turn responsible for conducting the customer check-in and boarding pass process, tagging baggage, greeting and parking aircraft, maintaining safety compliance, unloading and loading baggage, maintaining ground equipment and performing all other duties related to the aircraft including interior cleaning.  There were two other customer service supervisors at Buffalo including a 38 year old female and a 30 year old male.  The male was promoted and was replaced by a 37 year old male.

Gorzynski contended that she was sexually harassed by Celeste.  He engaged in conduct such as making massaging gestures with his hands and stating that he had the impulse to massage breasts.  He said he wanted to suck on the breast of a female passenger who had a large chest and he told another subordinate employee that he needed to get home to watch his children so his wife could go to a "sex toy" party.  He also reportedly asked a female crew member if she had "gotten enough loving" over the weekend.  Celeste also reportedly announced, while giving a final boarding call for a flight over the loud speaker that a female crew member was a former pin-up girl.  During another final boarding call he announced that Gorzynski had been a table dancer prior to joining the airline industry.

Gorzynski complained to Celeste about these comments but he never apologized, and no disciplinary action was ever taken against him.

Gorzynski also presented evidence that Celeste grabbed female crew members including her around the waist and on other occasions he attempted to tickle them.  Another female crew member testified that she noticed Celeste looking at women as if he were mentally undressing them.  Another customer service supervisor testified that Celeste was very sexual and frequently made inappropriate comments and gestures.

Gorzynski also presented evidence that she had been treated differently by Celeste from younger supervisors, both male and female, and that in general the men were treated better than the women.  There was also evidence that she had received from Celeste a negative performance evaluation covering an entire year when he had only supervised her for one month.  On the other hand Celeste gave a male employee a positive performance evaluation even though that employee had been written up and verbally counseled on numerous occasions throughout the same year.  That employee was also promoted.

Gorzynski was terminated after she presented another supervisor with a list of broken items of equipment and various safety issues.  She was terminated for having "created a hostile work environment" by this conduct.

Gorzynski sued JetBlue alleging sex and age discrimination and retaliation for complaining.  JetBlue's summary judgment motion was granted but the Court of Appeals reversed it.

The Company had an appropriate written policy prohibiting discrimination and harassment and setting forth a complaint and investigation policy.  Gorzynski did not challenge the propriety of the Company's policy but she did allege that the Company failed to follow its policy in any respect.  The Company countered that Gorzynski had not properly brought her complaints to the Company's attention.  Gorzynski countered that she had in fact complained to Celeste himself about his conduct, all to no avail.  The Company countered that she could have also taken her complaints to William Thro, a Regional Manager, or to the Company's Human Resources Department, which was called the People Department.  (The Employee Handbook at JetBlue was cleverly named the "Blue Book.")  The Court of Appeals rejected these contentions, pointing out that Gorzynski had complained to Celeste about his conduct but that he neither apologized nor faced any disciplinary action.  She had previously spoken with Thro about disparate treatment based on age and he responded by admonishing her.  Other crew members testified that Thro was intimidating and they feared complaining to him because of possible retaliation.  As for the People Department, one of Gorzynski's co-workers, a woman over 40, was suspended within days of making a complaint about Celeste to the Vice President of Human Resources.  The Court concluded, "Given that several of the listed channels appeared to be ineffective or even threatening, a fact question exists as to whether it was reasonable for Gorzynski to believe that any other avenues would be similarly futile."

The trial court had dismissed the lawsuit by granting summary judgment to JetBlue.  The Court of Appeals reversed and sent the matter back to the trial court, holding that triable issues of material fact existed as to whether Gorzynski suffered a hostile work environment, disparate treatment based on her age and retaliation based on her complaints of race, sex and age discrimination.

Under federal law, an employer can obtain dismissal of a lawsuit if it can show that the plaintiff alleging discrimination and harassment failed to take advantage of adequate in-house procedures which could have led to a thorough investigation and potential remedial action that could have limited damages.  This defense is named after two United States Supreme Court decisions and is known as the "Faragher / Ellerth Affirmative Defense."  This defense is not available under California law to defeat a lawsuit but can be a factor on the question of damages.

Nonetheless, the Court of Appeals' decision in Gorzynski is instructive on several points.  First, and most obviously, JetBlue may have retained a "rogue" supervisor at a location remote from its corporate headquarters who was unfit for supervision, was not properly supervised himself and who thus could create liability for the Company because of his unlawful conduct.  Further, the decision teaches that employers must not only adopt but then adequately communicate to all employees a corporate policy that will quickly lead to reports of alleged harassment or discrimination to responsible company officials who will take appropriate actions such as (1) immediately placing the alleged perpetrator on leave of absence if appropriate; (2) conducting an immediate and thorough investigation into the allegations; and (3) taking appropriate corrective action, which may or may not include permanent removal of the perpetrator from the work place.  JetBlue's dilemma here, based at least upon Gorzynski's allegations, was that there was no management official either at the Buffalo facility or having immediate supervisory responsibility over that facility who responded appropriately to Gorzynski's claims.  This situation brings to mind the old cliché that a chain is only as strong as its weakest link.  Based upon the facts set forth in this decision, JetBlue had a number of weak links in Buffalo.

This article was written by Jeffrey Freedman, an attorney with the labor and employment law firm of Liebert Cassidy Whitmore.  Mr. Freedman is a Partner in the Los Angeles office and can be reached at (310) 981-2000 or jfreedman@lcwlegal.com.  For more information regarding the discussion above or on our firm please contact one of our offices below.

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