Plaintiff appeals the dismissal, on summary judgment, of her employment discrimination action based on claims that she suffered a hostile work environment, age discrimination, and retaliation for complaints of race and age discrimination. Plaintiff complained to her supervisor, who was also her harasser, regarding the allegedly hostile work environment. Although the employer's sexual harassment policy provided that Plaintiff could have complained to other persons besides her supervisor, we hold that the employer is not, as a matter of law, entitled to the Faragher/Ellerth affirmative defense. Instead, we must look to the facts and circumstances of each case to determine whether, by not pursuing other avenues seemingly provided in the employer's sexual harassment policy, a plaintiff unreasonably failed to take advantage of the employer's preventative measures. Plaintiff has presented genuine issues of material fact with respect to her hostile work environment, age, and retaliation claims, and accordingly the decision of the District Court is VACATED and REMANDED for further proceedings.
The opinion of the court was delivered by: Calabresi, Circuit Judge
Before: WALKER, CALABRESI, WESLEY, Circuit Judges.
Plaintiff-Appellant Diane Gorzynski alleges that her former employer, JetBlue Airways Corporation ("JetBlue") discriminated against her based on age and gender and retaliated against her for complaining to her supervisors about that age and gender discrimination, as well as race discrimination against other employees, thereby violating Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq. Upon JetBlue's motion for summary judgment, the United States District Court for the Western District of New York (Elfvin, J.) dismissed Gorzynski's Complaint in its entirety. In particular, the District Court found that JetBlue was entitled as a matter of law to the Faragher/Ellerth affirmative defense to Gorzynski's hostile work environment claim.*fn1 JetBlue argues that because Gorzynski complained of sexual harassment to her supervisor, who was also the harasser, rather than pursing alternative options listed in her employee manual, it is shielded from liability. We must therefore determine whether, for the purposes of the Faragher/Ellerth defense, it is unreasonable as a matter of law for an employee to complain of sexual harassment to his or her harasser if that person is designated in the employer's plan as one of several persons with whom to lodge complaints. We hold that it is not, and conclude that whether a plaintiff's complaints to the harasser constitute reasonable availment of an employer's sexual harassment policy is to be determined by the specific facts and circumstances of each case. Moreover, we find that Gorzynski has presented genuine issues of material fact with respect to her hostile work environment, age, and retaliation claims, which are made evident through examining several omissions and incorrect accounts of the record in the District Court's decision. Accordingly, the grant of summary judgment is vacated, and the case is remanded for further proceedings.
The following facts are construed, as they must be, in the light most favorable to the plaintiff. See Hotel Employees & Rest. Employees Union, Local 100 v. City of N.Y. Dep't of Parks & Recreation, 311 F.3d 534, 543 (2d Cir. 2002). In January 2000, JetBlue hired Gorzynski to work as a customer service agent for its operations at the Buffalo International Airport (the "Buffalo Station"). She was fifty-four years old at the time. In May 2000, she was promoted to the position of Customer Service Supervisor, and stayed in that position until her employment was terminated on July 5, 2002.
A. JetBlue's Corporate Hierarchy for the Buffalo Station
In addition to Gorzynski, the Buffalo Station had three other Customer Service Supervisors from January 2000 to July 2002: (1) Gina Boyer Galipeau, a 38-year-old female; (2) Kevin Crowley, a 30-year-old male; and, after Crowley was promoted to Ground Operations Instructor, (3) Eli Cruz, a 37-year-old male. The Customer Service Supervisors were responsible for overseeing customer service crewmembers 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 luggage, maintaining ground equipment, and performing all other duties related to the aircraft, including interior cleaning. Customer Service Supervisors were held to a higher professional and performance standard than other crew members.
The Customer Service Supervisors, including Gorzynski, were supervised by the General Manager of the Buffalo Station. At the beginning of Gorzynski's employment, the General Manager was Irene Goosley, a female in her forties. In October 2001, Goosley was fired and James Celeste was hired as the General Manager of the Buffalo Station by William Thro, the Manager of Stations-a regional manager responsible for overseeing the General Managers of several JetBlue stations. Finally, at the top of the relevant hierarchy was Judy Zimmer, a 52-year-old female, who served as the Director of Airports.
B. Alleged Instances of Discrimination and Subsequent Complaints
Gorzynski alleges multiple instances of disparate treatment based on age and gender that she experienced at the Buffalo station, and testifies that she complained numerous times about such treatment. The evidence she presents to support her hostile work environment, disparate treatment, and retaliation claims is as follows.
1. Hostile Work Environment
Gorzynski's hostile work environment claim is based in part on multiple comments made by her supervisor Celeste, which Gorzynski contends constitute sexual harassment. For example, after assisting a crewmember in cleaning up a spill of a passenger's breast enhancement cream, Celeste made massaging gestures with his hands and stated that he had the impulse to massage breasts. On another occasion, after observing a female passenger with large breasts, Celeste and another crewmember made a comment about wanting to suck on the woman's breasts. Celeste was also overheard telling a crewmember that he had to get home to watch his children so his wife could go to a "sex toy" party, and asked a female crewmember if she had "gotten enough loving" over the weekend.
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.Both Harrison and Gorzynski were humiliated and walked off the aircraft. Gorzynski complained to Celeste about these comments. Celeste did not apologize and no disciplinary action was taken against him.
Besides these comments, on some occasions Celeste would grab female crewmembers, including Gorzynski, around the waist area and, on other occasions, he would attempt to tickle them.One female crewmember testified that she noticed Celeste looking at women as if he were mentally undressing them, and Galipeau, another Customer Service Supervisor, testified that Celeste was very sexual and frequently made inappropriate comments and gestures.
Gorzynski presents a number of instances where she was treated differently from younger Customer Service Supervisors, especially by Celeste, her supervisor. In December 2001, Celeste gave Gorzynski a negative performance evaluation. Celeste had been hired in December 2001, and although he had only worked with Gorzynski for one week, he prepared and submitted an evaluation of her for the entire year, giving her low ratings: two out of five in fifteen categories, three out of five in seven categories, and two out of five overall. This was so despite the fact that she had not been written up for any disciplinary problems that year. For this same period, Gorzynski was evaluated by an anonymous crewmember who rated her as a four out of five in seventeen categories and a five out of five in eleven categories. Moreover, at the same time, Celeste evaluated Crowley, a then-30-year-old Customer Service Supervisor, and gave him an overall rating of four out of five in the face of the fact that Crowley had been written up and verbally counseled on numerous occasions throughout that same year, 2001. Crowley was then promoted.
After Crowley was promoted, he sent a series of emails to all the Buffalo Station employees relating an incident in which he and another male employee were intoxicated while on a company trip and vandalized hotel property. Despite sending these emails, Crowley was not disciplined. Zimmer, the Director of Airports, testified that Celeste should have taken disciplinary action with respect to this conduct.
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. Beyond mentioning his aunt's age, Celeste allegedly told Gorzynski that his aunt was a nice person, but difficult. Gorzynski complained to Thro about this comment, but he told her that she need not be concerned.
In addition to these allegations, Gorzynski points to multiple instances where JetBlue's rules and policies were enforced differently on the basis of age and sex. Following September 11, 2001, JetBlue was forced to change its policies on bag searching and screening of passengers. Gorzynski received training regarding these new policies. Despite the directive that all JetBlue employees were supposed to be trained in this fashion, Gina Galipeau and Kevin Crowley (both younger Customer Service Supervisors) refused to complete the training and to assist in the performance of this work. Although their lack of participation made it more difficult to complete these searches, Celeste did not do anything to discipline Galipeau or Crowley.
In February or March of 2002, less than four months before Gorzynski was fired, she had a meeting with the General Manager, Thro, 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 Crowley and Galipeau were still not trained to do bag searching six months after the directive. Immediately after Gorzynski made her complaints, Thro told her that Eli Cruz, a male crewmember in his thirties, stated that on one occasion he felt uncomfortable with Gorzynski because she spoke in a harsh manner. According to Gorzynski, Thro asked her to "reinvent herself."Thro placed Gorzynski on 60-day probation. Later, Celeste reported to Thro that no inappropriate behavior recurred within the 60-day period.
As another example of disparate enforcement of the rules, Gorzynski alleges that Galipeau was consistently late for her shifts without any discipline. A supervisor being late for a shift is allegedly particularly bad because the supervisor is supposed to brief the employees before the shift starts and provide them with the cash necessary to operate the counter. Galipeau also violated JetBlue's rules by scheduling her significant other for positive space (rather than standby) on JetBlue flights. Similarly, Galipeau and Crowley were regularly permitted time off without having to use the limited amount of personal time off allotted to each supervisor. Gorzynski was not given the same privilege.
Gorzynski also alleges that JetBlue's preferential treatment of younger crewmembers, who were not Supervisors like herself, is probative of her claims. Lee Gojmerac, a 21-year-old female who worked as part of the ramp crew, violated rules, such as the smoking policy, without discipline from Celeste. Gojmerac also mocked and ridiculed other crewmembers and spread rumors about them. Although other crewmembers complained, Celeste did nothing. Gojmerac and another female employee in her early twenties, Nicole Helms, slept through the arrival of an aircraft. Gorzynski woke them up and then reported the incident to Celeste. Instead of issuing any discipline, he "got on bended knee and apologized to Ms. Gojmerac because she was startled when Ms. Gorzynski attempted to wake her." Similarly, Gorzynski contends, Nate Neubaur, a male crewmember in his twenties, also received preferential treatment. He violated multiple policies: (a) by opening a vibrating bag while not in the presence of another supervisor, (b) by altering United States Postal Service sheets without having them verified by the Postal Service, and (c) by holding onto foreign currency that had been reported missing by a passenger. He also guided a jet ...