Monday, March 1, 2010

It should be a hell of a trial

It looks like Diane Gorzynski hit the employment discrimination trifecta in her case decided by the Court of Appeals on February 19. Gorzynski's case produced a more plaintiff-friendly standard interpreting the Faragher affirmative defense in sexual harassment cases. She also won herself a new trial on her age discrimination case, as outlined here. And also gets a trial on her racial, age and gender retaliation claims. Sexual harassment, age discrimination, and retaliation in the same case! You don't see that very often.

The case is Gorzynski v. JetBlue. The sexual harassment angle is here. The age discrimination angle is here. Here's the retaliation.

The Court of Appeals' retaliation analysis does not break new ground. The panel cites some leading retaliation precedents and applies those settled legal standards in reversing summary judgment in Gorzynski's case. On her racial retaliation claim, the Court finds that she engaged in protected activity in standing up for an African-American co-worker, who was allegedly passed over for a promotion because of his race. As plaintiff was fired one month after she spoke out, the timeline is close enough to draw the retaliatory inference. She also has a retaliation case on her complaints about age discrimination. Gorzynski complained about disparate treatment in favor of younger workers who were violating airline policy with impunity. In granting summary judgment, the district court overlooked her affidavit stating that "there was unequal enforcement of the rules at the Buffalo station with respect to older employees versus younger employees." As she was fired less than four months later, Gorzynski has a retaliation claim for complaining about age discrimination.

So we got ourselves two retaliation claims based on complaints about racism and ageist practices. But that's not all. Gorzynski also has a retaliation case based on complaints about sex discrimination. She complained when the guy who sexually harassed her told an airplane full of passengers (over the loudspeaker)that Gorzynski "was a former table dancer and that another crewmember was a former pin-up girl." This complaint took place about two months before Gorzynski was fired.

The prima facie cases for race, age and gender retaliation take us to the pretext analysis. Since JetBlue's reasons for terminating Gorzynski were pretextual (as outlined in the context of her disparate treatment claim), these claims go to the jury as well. In the end, Gorzynski has a (1) sexual harassment claim; (2) an age discrimination claim; (3) a racial retaliation claim; (4) an age retaliation claim and (5) a gender retaliation claim. Should be a hell of a trial.

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