Tuesday, January 11, 2011

The Favre Lawsuit Has Some Issues

(It's a must read - it's pretty colorful).

As you have now heard, licensed massage therapists Ms. Christina Scavo and Ms. Shannon O’Toole, have sued quarterback Brett Favre, the New York Jets and Lisa Ripi, the person who allegedly coordinates massages for the Jets, in the Supreme Court of the State of New York. The Plaintiffs allege they were the victims of sexual harassment and job discrimination. They are seeking unspecified monetary damages from Favre, the Jets and Ripi, alleging they lost their part-time jobs after complaining about sexually suggestive text messages from Favre while he was with the Jets in 2008.


The Plaintiffs have alleged that sometime during the Jets 2008 training camp, Favre sent another unidentified massage therapist text messages indicating he wanted to “get together” with the therapist and Scavo: "Brett here you and crissy want to get together im all alone".

After that, Favre sent another message to the same unnamed massage therapist, stating, "Kinda lonely tonight I guess I have bad intentions."

According to the Complaint, Scavo then brought the messages to her husband's attention, who in turn contacted Favre “and requested that he stop soliciting his wife.” Favre “responded in an inappropriate manner and refused to apologize or take any other action.”

Shortly thereafter, “the plaintiffs Christina Scavo and Shannon O’Toole were never again called to provide massage therapy for the Jets".

The lawsuit does not directly accuse Favre of soliciting or having any inappropriate contact with O’Toole, who also worked as massage therapist for the Jets, but according to the lawsuit’s second cause of action, “O’Toole was terminated because she had been associated with plaintiff Scavo and brought Scavo into the Jets organization as a massage therapist.”

After the allegations about Favre and the masseuses surfaced on Deadspin.com, Ripi sent Scavo emails criticizing Scavo for not having keeping the matter quiet. Meanwhile, Ripi told O'Toole to "keep your mouth shut" and declared that neither O'Toole nor Scavo would work for the team again.

What Laws Were Allegedly Broken

The lawsuit accuses the defendants of violating New York State and municipal huma rights laws. Specifically, Favre is accused of violating §296 of the Human Rights Law of the State of  New York, which prohibits discrimination against individuals based on their gender when it comes to terms of compensation or employment.

Quoting from the New York City Commission on Human Rights, New York State interprets “sexual harassment” as a type of discrimination outlawed by this provision:
Sexual harassment is a form of gender-based discrimination. Unwelcome verbal or physical conduct of a sexual nature constitutes unlawful sexual harassment when:

• Granting sexual favors is used as the basis for employment decisions or as a requirement to keep your job

• Such conduct unreasonably interferes with job performance, or creates an intimidating, hostile or offensive work environment
The Human Rights Law also provides that employers are prohibited from “retaliating” or “discriminating” against a person who complains about a violation.

The Plaintiffs Scavo and O’Toole have alleged that they were no longer called upon to provide massage therapy at the Jets training camp and accuse Favre, the Jets and Ripi of retaliation and discrimination.

The lawsuit also claims the Jets and Ripi are liable under New York Human Rights Law because Scavo and O’Toole “were discriminated against…and the Jets refused to take any action to permit plaintiffs to work as massage therapists as they had in the past before the incident with the defendant Favre.” The Plaintiffs added that the Jets "aided and abetted the discriminatory practice because the plaintiffs objected to a hostile work environment, and the Jets retaliated when plaintiff Scavo reported the harassment to her husband who in turn called defendant Favre". The Jets retaliation is also in violation of the human rights laws. As far as Ripi, the Plaintiffs argue that she deprived them of employment and also engaged in retaliation. The lawsuit also alleges that Favre engaged in retaliation.

Early Views on the Case

From a preliminary standpioint at least, this seems like a challenging case for the plaintiffs. However, much does turn on the evidence. Still, there are issues right off the bat.

The first issue revolves around the strength of the sexual harassment allegations. In order to establish sexual harassment, the plaintiffs will need to show that Favre engaged in a pattern of unwelcome sexual advances. The behavior needs to be pervasive and offensive.

It will be argued by Favre that he only sent two text messages, that he was only flirting and that he stopped when contacted by Scavo's husband. As well, it will be argued that Favre did not send the text messages to either plaintiff, but rather to the unnamed therapist who is not a party to the lawsuit. In fact, O'Toole is not making a claim for sexual harasment.

The lawsuit also alleges that Favre engaged in retaliation, even though he was not the employer and the lawsuit does not allege any direct act taken by Favre to terminate Scavo and O’Toole’s relationship with the Jets. In this regard, the legislation provides that employers can't retaliate; Favre was not an employer at the time but rather an employee of the Jets.

The plaintiffs may be able to get some traction on the retaliation charges particularly against Ripi. However, they will need to establish a link between not getting called back to work and the incidents that transpired in 2008. That is never easy.

Finally, there is the issue of how much money can the plaintiffs get even if they are successful. The plaintiffs were massage therapists so if they can make out their case, they are unlikely to be awarded a significant sum of money. When determing an award of damages, lost revenue will be an important consideration.

While the case has some issues, the plaintiffs may be betting that Favre and the Jets (and particularly Favre) would rather settle than be faced with potentially embarrassing evidence coming out.

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