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Jets officially respond to masseuse lawsuit
Posted by Mike Florio on April 3, 2011, 12:21 PM EDT
In early January, the Jets unofficially responded to a lawsuit filed by a pair of massage therapists who claimed that they had been sexually harassed by Brett Favre and subjected to retaliation after complaining about it. More recently, the Jets have officially replied.

Per the Associated Press, the Jets have filed “court documents” in which they deny liability to Christina Scavo and Shannon O’Toole. “The relationship [with the team] they seek to portray could not be further from the truth,” Jets lawyer Gary H. Glaser wrote.

Said Glaser in a statement released in January: “Unfortunately, the plaintiffs never reported the allegations to the Jets, either during or after the conclusion of their work. The case against the Jets is completely without merit, and we look forward to defending the matter in court, where we are confident that the Jets will prevail.”

Lawyer David Jaraslowicz told the Associated Press on Friday that his clients didn’t complain to the Jets because “they were trying to keep the work.”

The Associated Press also points out that a hearing in the case is set for this week. But with no information in the AP article about the nature of the “court documents” or the specific purpose of the “hearing,” it’s impossible to know what precisely will be happening this week.

It could be an initial status conference, in which a trial date and other deadlines will be set. It could be a hearing on a motion by the Jets to dismiss the case. Or it could be something else. (We’re trying to find out what will be happening.)

It appears for now that the Jets have argued, among other things, that Scavo and O’Toole weren’t employees, but merely independent contractors. Though the laws of the various states may differ in this regard, the status of the worker shouldn’t matter. If a contractor is subjected to sexual harassment, and/or if the contractor’s relationship is terminated because the contractor complained about sexual harassment, the law should provide a remedy.

In this case, the primary weakness seems to be the allegation of sexual harassment. If all Favre ever did was send text messages to a third masseuse (who has opted not to sue) inviting two of them to come to his hotel room and confessing to “bad intentions,” it doesn’t seem to be enough to prove the existence of a hostile work environment, since the law contemplates actions that are severe and pervasive. If Favre never even communicated with Scavo or O’Toole in a potentially improper manner, they arguably have no case for sexual harassment.

Their better claim, if they can prove it, is retaliation. But that could be a big “if,” especially since their lawyer admits that they didn’t complain to the Jets at the time of the alleged harassment. Basically, they’ll need evidence sufficient to support a finding by a reasonable jury that, after Scavo’s husband called Favre to confront him about the text message to the third masseuse, Favre then made it known to the Jets that the women were “troublemakers” and shouldn’t be used in the future.

The real question is whether the plaintiffs can develop any evidence to support a finding of retaliation. If they can’t, they’ll have a tough time even getting the case in front of a jury.