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Kallas Remarks: The Masseuse Mess

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(Photo by Al Bello/Getty Images)

(Photo by Al Bello/Getty Images)

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By Steve Kallas
>>More Columns

Their names are Christina Scavo and Shannon O’Toole and they are two of the former Jet massage therapists who claim that they have been sexually harassed by “pervert” Brett Favre and that they were retaliated against when Scavo’s husband confronted Favre after Favre allegedly sent suggestive text messages to a third (not named) Jet massage therapist.

WHO ARE THE PLAINTIFFS?

According to the verified complaint, the plaintiffs worked for years for the Jets giving players massages, sometimes even in the players’ homes. But, after suggestive text messages were sent to a third massage therapist (“Brett here you and crissy want to get together I’m all alone” and “Kinda lonely tonight I guess I have bad intentions”) and after plaintiff Scavo told her husband, the husband called Favre and told him, basically, to leave his (Scavo’s) wife alone.

Shortly thereafter, according to the complaint, plaintiff Scavo and her friend, plaintiff O’Toole (who had recommended plaintiff Scavo for a job with the Jets), were never again called by the Jets to give massages to the players.

WHO ARE THE DEFENDANTS?

Well, everybody knows Brett Favre and the New York Jets. The third defendant, who will play a pivotal role in this case, is Lisa Ripi, described in the complaint as the “coordinator” for the Jets to obtain massage therapists.

WHAT ABOUT THE STATUTE OF LIMITATIONS?

These plaintiffs did not file a complaint with either the federal Equal Employment Opportunity Commission (“EEOC”) or the New York State Department of Human Rights. Those complaints, especially as to Brett Favre, would have been time-barred. As we discussed, however, in this column with respect to a (still) possible Jenn Sterger lawsuit: “Arguably, she could just file a straight civil action in a New Jersey state court (maybe New York state court?) against Brett Favre. That statute of limitations would be longer … .” (see Kallas Remarks, 10/12/10).

That’s exactly what the plaintiffs have done here, in New York State Supreme Court in Manhattan. The 300-day EEOC statute of limitations has passed, certainly as to Favre, as has the one-year statute of limitations to file a complaint with the New York State Division of Human Rights (the two-year statute of limitations, that has been talked about incessantly, is a New Jersey time limit). BUT, to bring a straight civil action in New York, the potential plaintiff has THREE years from the last occurrence to bring her action, both under the New York State Human Rights Law and the New York City Human Rights Law.

WHAT ARE THE CAUSES OF ACTION?

There are three. The first cause of action and the second cause of action are virtually identical: they are both against only defendant Favre. The first is brought by plaintiff Scavo; the second by plaintiff O’Toole.

In these two causes of action, plaintiffs allege that they were, in essence, fired from their jobs because, after a friend (another massage therapist, not a plaintiff) received suggestive texts from Brett Favre and after plaintiff Scavo told her husband (who confronted Favre), plaintiffs were never again called to work for the Jets.

Specifically, plaintiffs allege a violation of the New York Human Rights Law section 296(7) which states, in pertinent part, “It shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article … .”

Under the first two causes of action, the respective plaintiffs seek damages for their mental anguish and distress, for a “sullied” reputation and for the damage done to their respective careers as massage therapists. They also seek punitive damages due to the “outrageous conduct” of defendant Favre, as well as costs and attorneys’ fees.

The third cause of action is by both plaintiffs against defendants Ripi and the Jets. This cause of action alleges that the Jets “aided and abetted” the discrimination against both plaintiffs, contributed to the hostile work environment and retaliated against plaintiffs by not calling them for work anymore after Scavo’s husband confronted Favre. This third cause of action also seeks compensatory and punitive damages, as well as costs and attorneys’ fees.

Defendant Ripi sent damaging (to the defendants) text messages to Scavo and/or O’Toole, saying things like “everything at the Jets went through me and you know that,” and, about Favre, “For sure feel horrible that u had to go thru that w a pervert” and “I truly wish u wldve come forward at the time it happened” and” he [Favre] was wrong on all counts.”

But the most damaging claim, alleged in a phone call (not a text) from Ripi to O’Toole, is the alleged statement from Jets’ employee Ripi that “Chrissy and you will never work for the Jets again.”
Yikes!

SOME WEAKNESSES IN THE CASE?

Well, the complaint goes off on a tangent about how shocked the plaintiffs were that the NFL only fined Favre, going so far as to state that they now have to sue because, essentially, the NFL did nothing. I suggested in this column last week (see Kallas Remarks, 12/29/10) that, if the NFL wanted to appear “tough,” they could suspend Favre for a few games next year, probably knowing that he would retire (or helping him to make the retirement decision).

But it’s hard to believe that one has anything to do with the other. Nothing the NFL would do should make the plaintiffs decide to sue or not. It’s preposterous.

Also, where is the third therapist? Why is she not a plaintiff? She’s the one who got the original text messages from Favre. Is she still working for the Jets? If she is, that would be interesting – the one who did no complaining is still on the job while the complainers were no longer called to work. There is no way this third massage therapist stays anonymous. She will be deposed and a witness at trial, if there is one.

What about the old employee/independent contractor distinction? Well, there seems to be some law that states that independent contractors like the two plaintiffs (and they seem, at first glance, to be independent contractors – the two exhibits with pay stubs show no take-out for taxes, etc., a usual sign of an employee) can be considered employees under the City and State Human Rights Laws.

And don’t forget, despite the stupidity of defendant Ripi sending text messages (like Favre, what are these people thinking?), the most damaging statement, “Chrissy and you will never work for the Jets again,” is in a phone call, your basic she said, she didn’t say issue at trial.

Finally, and the above is only after a brief perusal of the complaint, while reinstatement, back pay, front pay and compensatory damages can, in the appropriate case, be recovered under the New York State Human Rights Law, neither punitive damages nor attorneys’ fees nor costs are recoverable. Maybe under another interpretation of another statute they are, but not under the New York State Human Rights Law.

WHAT’S NEXT?

Well, for all we know, the defendants haven’t even been served with the complaint. Once they are, they will have thirty days to make a motion or answer the complaint. You can expect the defendants to make a motion to dismiss part or all of the complaint.
And one would expect that Jenn Sterger might jump into the fray as well, filing a similar, but not identical, lawsuit.

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