Blakey v. Continental Airlines Case

Blakey v. Continental Airlines

Case Report: Blakey v. Continental Airlines

Blakey v. Continental Airlines, 751 a.2d 538 (2000).

Procedural History

Plaintiff employee Blakey brought suit against defendants, her employer Continental Airlines and her coworkers, alleging that the co-workers published defamatory statements on the employer's electronic bulletin board, and that the employer was liable for a hostile work environment. The trial court, the Superior Court, Law Division, Essex County (New Jersey) granted defendant co-workers' motion to dismiss for lack of personal jurisdiction and granted summary judgment in favor of defendant employer on the hostile work environment claim. Plaintiff sought review of that court's decision. The Superior Court, Appellate Division, affirmed the trial court's decision, and plaintiff sought certification to the Supreme Court. The Supreme Court certified the case.

Facts

Plaintiff employee was a highly-qualified airline pilot, employed by defendant employer since 1984 to the time of the litigation. From 1990 to 1993, plaintiff employee was based in Newark, New Jersey, but lived in Arlington, Washington. Plaintiff complained of sexual harassment and a hostile work environment, based on conduct and comments by her male co-workers. In February 1991, plaintiff employee began to file complaints with defendant employer based on pornographic photos and gender-based comments appearing in the cockpit of her plane and in other work areas. In February 1993, plaintiff employee filed a sexual harassment charge with the Equal Employment Opportunity Commission in Washington, her home state. She also filed a lawsuit against defendant employer for its failure to remedy the hostile work environment in the United States District Court in Seattle, Washington. The U.S. District Court granted defendant employer's motion to transfer the action to the United States District Court for the District of New Jersey, because plaintiff employee had been based in New Jersey, the harassing behavior took place in New Jersey, and the harassing coworkers were also based in New Jersey. Plaintiff employee transferred to Houston in May 1993, and assumed a voluntary unpaid leave of absence in August 1993.

While plaintiff employee's federal litigation was pending, defendant coworkers published a series of allegedly harassing gender-based messages on an electronic bulletin board that was remotely accessible by all of defendant employer's pilots and crew member personnel, if they had the appropriate internet service provider. Defendant employer required pilots and crew to access the website associated with the forum to learn flight schedules and assignments, though the forum was not an official part of defendant employer's website. Defendant employer's management was not permitted to post messages or reply to messages on the forum, but its chief pilots, whom plaintiff employee alleged were in a management position, had access to the forum. Defendant coworkers posted statements about plaintiff employee's sexual harassment claims and alleging that she received additional training to pass a test, burned up a plane's engine, caused hail damage to a plane, and crashed a floatplane. Plaintiff alleged that many of these statements were false and defamatory, in addition to constituting harassment. Plaintiff employee sought to amend her federal complaint to add these allegedly defamatory remarks as an additional cause of action and to support her claim of a hostile work environment. The federal court denied her claim, and plaintiff employee filed the present complaint in New Jersey. Meanwhile, plaintiff employee was successful in her federal discrimination lawsuit, though that court found that she had not mitigated her damages.

Issues

There are several issues presented in the case, and how one views those issues depends on whether one believes plaintiff employee's facts or defendants' fact. First, does the fact that defendant employer provides an electronic website for its employees to use that has an associated social bulletin board, give defendant employer the obligation to monitor that board for harassment? Second, does the fact that a defendant employer is based in New Jersey give plaintiff employee, an out-of-state pilot, the right to sue defendant employer and defendant coworkers in New Jersey? Third, if defendant had actual or constructive knowledge that co-employees were posting harassing, retaliatory, and sometimes defamatory, messages about a co-employee on an electronic bulletin board used by defendant's employees, did defendant have a duty to stop or prevent the harassing conduct? Fourth, should defendant co-workers have reasonably expected to be subject to the personal jurisdiction of New Jersey when (a) they published defamatory statements in that forum that were foreseeably likely to have injured plaintiff employee in her exercise of her protected rights to be free from discrimination and (b) when the defamatory statements were retaliation for the employee's having sought the protection of the forum's anti-discrimination laws?

Reasoning

The court looked at the traditional means of establishing law arm jurisdiction to determine whether or not New Jersey had jurisdiction over all defendants. Once the defendants established a lack of territorial presence in New Jersey, the burden shifted to the plaintiff to establish long-arm jurisdiction. Knowledge that electronic messages would be published in New Jersey and could affect an employee's efforts to seek redress under New Jersey's Law Against Discrimination could give New Jersey jurisdiction over co-workers who allegedly published defamatory messages about the employee on an electronic bulletin board. Moreover, the court realized that it could obtain specific jurisdiction over non-resident defendants if traditional principles of jurisdictional analysis apply, regardless of the medium through with the injury was inflicted.

In fact, in order for a court to exercise jurisdiction over a defendant, it is only necessary that the defendant have certain minimum contacts with the forum. Furthermore, there is no test for minimum contacts; instead, the court evaluates minimum contacts on a case-by-case basis, by focusing on the relationship between the non-resident defendant, the forum, and the subject of the litigation. Minimum contacts can be established by showing that the contacts with the forum were the result of the non-resident defendant's intentional conduct, and whether such conduct would have made him reasonably anticipate being subject to the forum's jurisdiction. As a result, an intentional act calculated to create an actionable event in a forum will give that forum jurisdiction over a non-resident, even if the action was performed outside of the forum state. Use of the instrumentalities of commerce, such as telephones, mail, wire, and internet communications, to tap an interstate market can be considered when determining personal jurisdiction.

Moreover, in order to determine the applicability of personal jurisdiction over non-resident defendants, the court considers several factors including the burden on the defendant, the interests of the forum state, the plaintiff's interest in obtaining relief, whether the defendant could anticipate that the forum would have substantial interest in vindicating the plaintiff's rights. If the coworkers' statements on an electronic bulletin board were published with knowledge that it could impact the employee's pursuit of her civil rights in New Jersey, that would satisfy the minimum contacts requirements for the purposes of jurisdiction. Finally, where jurisdictional and substantive issues are intertwined, the jurisdictional determination should await a determination of the facts.

At the time of this case, there were not well-established laws regarding electronic forums of workplace communication. In addition, the court did not believe that the case involved specific consideration of the electronic forum, because the established laws were sufficient to Therefore, the court looked at traditional methods of determining whether harassment outside of the workplace could be considered employment discrimination. The established law held that some places outside of the workplace were so related to work that they could be considered an extension of the workplace. The classic example of that type of environment would be the country club or "gentleman's club" where after-hours business deals occurred, but that may have excluded minorities or women from admittance. Harassment in these forums had previously been considered employment harassment if it could be linked to a pattern of workplace harassment or discrimination.

The court believed that if an employer's electronic bulletin board is so closely related to the workplace environment and beneficial to the an employer that continuation of harassment on the forum should be regarded as notice, then an employer having notice that employees on its forum were engaging in retaliatory harassment of another employee has a duty to remedy that harassment. The court further found that the fact that an electronic bulletin board was located outside of the workplace does not relieve an employer of the duty of correcting off-site harassment by co-workers. On the contrary, conduct that takes place outside of the work environment impacts conduct at work and can contribute to a hostile work environment. In fact, severe or pervasive harassment in a work-related setting sends the message that management supports the harasser if the harassment is a continuation of on-the-job harassment and the employer does not take effective measure to stop such harassment.

However, the court was not willing to give employers a duty to monitor their employees' non-work behavior. Employers do not have a duty to monitor private communications between employees for harassing comments towards coworkers. There is no affirmative duty to seek out information about whether this type of harassment is occurring. However, if the employer knows or has reason to know that such harassment is occurring and is part of a pattern of workplace harassment, the employer has a duty to take effective measures to stop the co-employee. In fact, whether or not an employer takes effective measures to stop harassment by a co-worker will be relevant to an employer's defense in a sexual harassment lawsuit.

In addition, employers facing a retaliatory harassment claim can assert an affirmative defense based on their exercise of reasonable care to prevent and correct the harassment. Basically, the court determined that it comes down to a standard established by the court in Lehmann v. Toys 'R" Us, Inc. 132 N.J.587 at 623, 626 a.2d 445, where the court held that, "Although an employer's liability for sexual harassment of which the employer knew or should have known can be seen to flow from agency law, it also can be understood as direct liability. When an employer knows or should know of the harassment and fails to take effective measures to stop it, the employer has joined with the harasser in making the working environment hostile. The employer, by failing to take action, sends the harassed employee the message that the harassment is acceptable and that the management supports the harasser. "Effective" remedial measures are those reasonably calculated to end the harassment. The "reasonableness of an employer's remedy will depend on its ability to stop harassment by the person who engaged in harassment."

Analysis

The court did not enter into a discussion of the intricacies of the internet, but began its reasoning by discussing the fact that, had the bulletin board been real and not virtual, and placed in a lounge used exclusively by the pilots and crew of an airline, if management had notice of messages creating a hostile work environment, then plaintiff employee could assert a cause of action for hostile work environment sexual harassment. Moreover, the court stated that if there had been a place frequented by senior management, pilots and crew where one of the crew was regularly subjected to sexually offensive insults, which were a continuation of workplace harassment, if the employer had notice of the harassment in and out of the workplace, it would have some duty to address the conduct.

Therefore, what the court had to determine was whether the electronic bulletin board was the equivalent of a physical bulletin board at the workplace of a work-related place. The court agreed with the trial court's decision that there were no critical differences between a physical bulletin board or location and the electronic bulletin board in question. Given that courts had already established that harassment outside of the workplace could contribute to a pattern of sexual harassment in the workplace, the fact that the bulletin board was not located on the job site had little impact on the plaintiff's case. Employers can clearly be held liable for retaliatory harassment by coworkers. According to plaintiff employee, she gave notice to defendant employer of the harassment on the electronic bulletin board as early as March 1995. The court likened the electronic bulletin board to traditional after-hours meeting places, where outsiders had frequently faced harassment. The court found that "severe or pervasive harassment in a work-related setting that continues a pattern of harassment on the job is sufficiently related to the workplace that an informed employer who takes no effective measures to stop it" is giving tacit approval of such harassment. Blakey v. Continental Airlines, 751 a.2d 538 at 550. While the court believed defendant employer probably obtained benefits from the relationship, it held that the trial court needed to determine whether defendant employers derived a substantial workplace benefit from the relationship between the electronic bulletin board, the employer, and CompuServe (the internet service provider).

The court then turned to consideration of the issue of personal jurisdiction over defendant pilots. It observed that the parties seemed to believe that the case presented novel issues of Internet jurisdiction, but the court disagreed with that characterization. It believed that the issue of jurisdiction could be resolved by examining whether the state had power over the parties, and that power could be based on either personal presence in the state or the establishment of minimum contacts with the state. Therefore, the question involves not only whether conduct occurred in the forum state, but also whether the result of that conduct occurred in the forum state. In fact, New Jersey's criminal law even extends criminal jurisdiction over offenses which result in an element of the crime occurring in New Jersey. N.J.S.A. 2C:1-3a (1). Therefore, the court looked at whether the defendant coworkers had sufficient minimum contacts with New Jersey to justify New Jersey exercising personal jurisdiction over them. As a result, the court believed that the question was whether the harassment could have been expected to cause injury in New Jersey.

It cannot be ignored that plaintiff employee was involved in sexual harassment litigation with defendant employer in New Jersey at the time of the alleged harassment at the heart of this lawsuit, and that such harassment was alleged to be in retaliation for her having filed a sexual harassment lawsuit. Furthermore, plaintiff employee pled that defendant employers were aware of such litigation, because the litigation formed the underlying subject matter of the posts on the company's electronic bulletin board. The court believed that posting such messages in a traditional national newspaper would clearly establish jurisdiction in New Jersey and believed that the instantaneous nature of electronic communication did not lessen the state's jurisdictional power. Moreover, the court had previously concluded that it was the quality of a message, not its means of communication, which is important when one considers long-arm jurisdiction. Therefore, the court determined that if the defendant coworkers' statements were capable of defamatory meaning and were published with knowledge that it could harm plaintiff employee's pursuit of her civil rights in New Jersey, the defendant coworkers' contacts with New Jersey were sufficient to establish jurisdiction.