On the first day of the next phase of this unpaid-hobby-turned-part-time-job-turned-full-time-job-turned-at-times-every-waking-moment-obsession, I decided to pretend that I still practice law. So I obtained a copy of the complaint filed against Brett Favre and the Jets by Christina Scavo and Shannon O’Toole (it’s the same as the one posted by Deadspin), and I reviewed it as I would have reviewed a complaint filed for the first time against one of my clients. (Over the years, I both defended and pursued cases just like this one, but never involving anyone whose middle name was “Lorenzo”.)
The questions that were raised appear after the jump, just as I would have written them up if the Jets and/or Favre had the misfortune of hiring me to represent them.
This may be a little technical and esoteric, but for better or worse it’s authentic.
Frankly, we think it’s a very weak case of sexual harassment. At worst, Favre sent text messages to someone other than either of the plaintiffs, propositioning the unnamed massage therapist and suggesting that one of the plaintiffs -- Scavo -- come along. He never made a specific or direct proposition to Scavo or O’Toole. Indeed, O’Toole makes no sexual harassment claim at all. She says only that she was never hired again by the Jets because of her association with Scavo.
Sexual harassment entails conduct much more troubling and pervasive and offensive than a married man making a pass at a woman he encountered in the workplace. It arises from severe, pervasive, unwelcome, and offensive behavior. Scavo’s husband told Favre that Scavo wasn’t interested, and there’s no allegation that Favre tried to proposition her again.
As to the retaliation claims, which are not as weak but which have some holes, the plaintiffs will have a hard time proving a link between the decision not to hire Scavo and O’Toole after the incident in 2008, if there’s no evidence that the women complained to the Jets at that time. Alleged comments from Ripi in October 2010 show a possible link moving forward between the situation and the failure to use their services; then again, it’s plausible that the Jets would have good reason not to use Scavo and/or O’Toole based on the decision of Scavo’s husband to deal directly with one of the franchise’s key employees on a matter that should have been left to the team to handle.
The typical procedure for reporting sexual harassment doesn’t entail a woman’s husband calling the harasser and demanding an apology, like the guy who slugged George Bailey (hey, Christmas isn’t over just yet). Employers shouldn’t encourage employees and/or their spouses to take these matters into their own hands. If harassment occurs, it should be handled internally.
On that point, the plaintiffs make much of the fact that Ripi admitted generally to other incidents being handled internally. There’s nothing necessarily sinister about that; if anything, it proves that the Jets are responsible about handling such complaints, if the Jets are aware of them.
Then there’s the issue of damages. Basically, how much would Scavo and O’Toole have earned if they hadn’t been frozen out by the Jets, and what if anything did they do to reasonably replace the lost revenues? If they were contractors, they provided services to others -- and not working for the Jets gave them more time to replace that business with other work.
It’s likely not a big-money case, and it will be hard to prove that the law was violated, given the facts set forth in the complaint. But the plaintiffs and their lawyer surely believe that they have a proverbial tiger by the tail, and that the Jets and/or Favre will prefer settling the case over allowing all sorts of potentially embarrassing evidence to come out.
Anyway, the questions that came to mind while reviewing the complaint appear below.
1. Can the case be removed to federal court? The Jets have a New York address, but if their principal place of business is in New Jersey, the Jets aren’t a “resident” of New York for the purposes of federal diversity jurisdiction. If Lisa Ripi is not a resident of New York (the complaint is silent on that point), complete diversity exists, and the case could be removed from state court to federal court.
2. Should the case be removed to federal court? If the plaintiffs filed the case in state court, they presumably want to be in state court. Generally speaking, plaintiffs prefer state court and defendants prefer federal court, where the judges aren’t elected and the procedures are more complicated and formal -- and there are more hurdles and other obstacles that can be thrown in the path of the plaintiffs and their lawyer.
3. For how long did Christina Scavo and Shannon O’Toole work for the Jets? How much were they paid? Were they employees or independent contractors? (If they were independent contractors, they still would have been protected against sexual harassment and/or retaliation for reporting it.) How much money did they earn from the Jets, and how much did they earn from other massage clients?
4. What if any information were Scavo and O’Toole given regarding procedures for reporting harassment, unwanted advances, or any or behavior they believed to be inappropriate? Did they ever use those procedures, as to Favre or anyone else?
5. Did Favre ever say anything directly to Scavo or O’Toole, either verbally or by text message? Based on the complaint, it looks like he never did.
6. Who is the unnamed massage therapist to whom Favre sent text messages about “get[ting] together” and having “bad intentions”? How did he get her number? Did she go to see him? If so, what happened? Why didn’t she file suit? Did she ever complain about Favre?
7. Beyond sending those two text messages to an unnamed massage therapist, what other evidence is there of sexual harassment of Scavo?
8. How did Joseph Scavo get Brett Favre’s number?
9. Did Christina Scavo tell anyone with the Jets about Favre’s conduct? Did anyone tell the Jets about it?
10. When did the Jets first know that Joseph Scavo called Favre? What evidence is there to prove a link as of 2008 between the phone call to Favre and the allegation that Christina Scavo and Shannon O’Toole were never again called to provide massage therapy for the Jets?
11. How did Lisa Ripi know in October 2010 that the media reports regarding unnamed massage therapists referred to Scavo and O’Toole?
12. When did Ripi tell Scavo and O’Toole that they would “never work for the Jets again”?
13. What would Ripi and the Jets have done if Scavo had complained internally about the behavior of Favre? What has happened in any other similar cases?
14. Why did the plaintiffs expect the NFL to take “some meaningful action” against Favre when the plaintiffs refused to cooperate with the NFL’s investigation? Though it was wise for litigation purposes that they didn’t cooperate, it’s disingenuous to now claim that they are filing suit because the league failed to take action in response to vague complaints about which the plaintiffs refused to provide any specific information.
15. What proof is there that Favre retaliated against the plaintiffs by instigating the Jets to freeze them out of any future assignments?
16. Did Scavo or O’Toole require psychological or psychiatric help for their alleged “mental anguish and distress”? If so, the records need to be reviewed to determine whether there were other causes of their distress.