A three-fer for employment discrimination plaintiffs, from the Second Circuit: (1) If the supervisor is also the harasser, telling him to bug-off might be enough to defeat the Faragher/Ellerth defense. (2) The court recognizes an age-plus-sex case under the ADEA, and observes that a plaintiff need not necessarily have to plead it in her complaint to survive summary judgment. (3) A gap as long as two to three months between a protected activity and termination might still support an inference of retaliation.
Gorzynski v. JetBlue Airways Corp., No. 07-4618 (2d Cir. Feb. 19, 2010): The plaintiff was a 54-year-old woman who worked as a Customer Service Supervisor for the defendant, a national discount airline. Her three peers (male and female) were all in their thirties. She was fired in 2002, after a series of disciplinary complaints against her, culminating in an incident where she allegedly stirred-up employees against a fellow crewmember (named McMahon), who according to the summary judgment record had gotten behind on his repair list.
Plaintiff’s troubles began in 2001, when James Celeste was hired as the General Manager at their worksite. According to the summary judgment record, Celeste was the kind of overgrown adolescent that made comments about sex toys and breasts, stared at women as if to mentally undress them, and grabbed (and tried to tickle) female employees. “In the spring of 2002, while giving a final boarding call for a flight over the loudspeaker, Celeste announced that a female crewmember, Cheryl Harrison, was a former pin-up girl. During another final boarding call around the same time, Celeste announced that Gorzynski had been a table dancer in her life prior to joining the airline industry.”
On the performance front, there was evidence that Celeste enforced disciplinary rules more strictly against plaintiff than against younger and male employees. Gorzynski did not remain silent. “In February or March of 2002, less than four months before Gorzynski was fired, she had a meeting with the General Manager, Thro [Celeste’s boss], and complained about the unequal treatment of employees based on age which was occurring at the Buffalo Station, and in particular about the fact that [younger Customer Service Supervisors] Crowley and Galipeau were still not trained to do bag searching six months after the directive.”
On the ADEA front, there was evidence in the record of Celeste’s age-consciousness. “According to Gorzynski, also probative of Celeste’s discrimination is a conversation in early 2002 in which Celeste told Gorzynski that she reminded him of one of his aunts who was in her eighties.” Moreover, “Gorzynski describes a general atmosphere where Celeste ‘treated older women as if they were not there.’ He did not converse with the older female crewmembers, but regularly spoke with Gojmerac and Helms.”
There was also evidence that Gorzynski was singled out unfavorable by management because she protested race discrimination by Celeste against African-American employees (though she herself is white).
The plaintiff presented claims of sex harassment, ADEA discriminatory termination, and Title VII retaliation (with parallel state law claims). Though the district court granted summary judgment on all counts, the panel reverses summary judgment across-the-board. In summary it holds:
1. SEX HARASSMENT: Celeste was Gorzynski’s supervisor, and his conduct could legally be imputed to the defendant save for the Faragher/Ellerth defense. The plaintiff recognized that JetBlue maintained an anti-harassment policy, but contended that her complaints to Celeste were sufficient to meet its requirements, because his office was listed in the published policy as the place to complaint.
“There is no doubt that Celeste was her supervisor and was the first person designated in the Blue Book’s policy as the one to whom complaints should be addressed. Nevertheless, JetBlue contends that, as a matter of law, it was unreasonable for Gorzynski not to take advantage of the alternate avenues that JetBlue provided, such as complaining to other members of management or the People Department. 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. There is no requirement that a plaintiff exhaust all possible avenues made available where circumstances warrant the belief that some or all of those avenues would be ineffective or antagonistic. Considering the courage it takes to complain about what are often humiliating events and the understandable fear of retaliation that exists in many sexual harassment situations, we decline to read the rule so rigidly. Accordingly, we hold that an employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense simply because an employer’s sexual harassment policy provides that the plaintiff could have complained to other persons as well as the alleged harasser. Instead, we conclude that the facts and circumstances of each case must be examined to determine whether, by not pursuing other avenues provided in the employer’s sexual harassment policy, the plaintiff unreasonably failed to take advantage of the employer’s preventative measures. In some instances, it may be unreasonable for a victim of harassment to complain only to the harasser because, as a realistic and practical matter, there are other channels that are adequately indicated and are accessible and open. But, in other cases, there may be reasons why the plaintiff failed to complain to those other than the harasser, who are listed as available. And in such cases, a genuine issue of fact may be raised as to whether it was reasonable not to pursue other options.”
2. AGE DISCRIMINATION: Applying the McDonnell Douglas method of proof, the panel holds that there was a genuine issue of material fact about pretext. It also holds that an age-plus-sex claim might attend under the ADEA:
“In addition to her age discrimination claims, Gorzynski argued to the District Court, and to us, that she faced discrimination based on age-plus-gender in violation of Title VII and the ADEA. That is, she claimed that she was treated differently because of her status as an older woman, rather than because of age or gender acting as independent factors. In support, she contends that younger women, including Galipeau, Gojmerac, and Helms, were all treated preferentially with respect to the enforcement of JetBlue’s policies and discipline. Following the Supreme Court’s lead in Phillips v. Martin Marietta Corp., 400 U.S. 542 (1971), we have recognized that a plaintiff’s discrimination claims may not be defeated on a motion for summary judgment based merely on the fact that certain members of a protected class are not subject to discrimination, while another subset is discriminated against based on a protected characteristic shared by both subsets. See Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 118-120 (2d Cir. 2004); see also Jefferies v. Harris County Cmty. Action Ass’n, 615 F.2d 1025, 1034 (5th Cir. 1980) (explaining the history of “plus” claims and recognizing a claim for discrimination against black females). And, as other courts have explained, where two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components. See Lam v. Univ. of Haw., 40 F.3d 1551, 1562 (9th Cir. 1994) (acknowledging that “the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences” including a specific set of stereotypes and assumptions not shared by all persons of that race or gender).”
3. RETALIATION: Though there was a two-to-three month gap between the race and age discrimination complaints and the adverse action (termination) that followed, the panel stated that this period was close enough, under the facts in the record, to present a genuine issue of material fact about “temporal proximity” to establish causation.
“The District Court, however, erroneously stated that the complaint occurred in December 2001, when in fact-as both sides agree-it happened in June 2002 [the final complaint], within a month of Gorzynski’s discharge. ‘[A] plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse employment action.” Gorman-Bakos v. Cornell Coop. Extension of Schenectady County, 252 F.3d 545, 554 (2d Cir. 2001) (internal quotation marks and alterations omitted). Though this Court has not drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond which a temporal relationship is too attenuated to establish causation, we have previously held that five months is not too long to find the causal relationship. See, e.g., id. at 555.”