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Case 2.3
164 N.J. 38, 80 Empl. Prac. Dec. P 40,458, 16 IER Cases 809

Supreme Court of New Jersey.



Tammy S. BLAKEY, Plaintiff-Appellant,

v.

CONTINENTAL AIRLINES, INC., a Foreign Corporation, Kaye V. Riggs, Joe Vacca, Mark J. Farrow, Donald Jensen, Dave Orozco and Thomas N. Stivala, Defendants-Respondents, and ABC Corporations (1-100), Steve Abdu and John Does (1-100), Defendants.

Argued Feb. 2, 2000.

Decided June 1, 2000.

O'HERN, J.

"According to a venerable principle of disputation, the power to frame the question includes also the power to control the answer." Des Moines Register & Tribune Co. v. Dwyer, 542 N.W.2d 491, 503 (Iowa 1996)(Harris, J., dissenting). In this employment discrimination case against Continental Airlines and certain of its employees, one way of framing the issues is whether:

1. "If an employer provides an [I]nternet 'forum'--an electronic bulletin board--for employees' use, does it have a duty to monitor e-mail postings to ensure that employees are not harassing one another?" [FN1]

FN1. Eric D. Randall, Sexual Harassment Via E-Mail Forum, 8 Discrimination L. Update 29 (1999).

2. May "a Continental pilot living in Seattle, based out of Houston, [file a complaint in a New Jersey court] about electronic statements on the employee network because Continental was headquartered in New Jersey?" [FN2]

FN2. Michael Lampert, The Internet and Personal Jurisdiction, 198 N.J. Lawyer 47 (1999).

The answers to those questions are easy. The answers are not quite so easy when the questions are stated as follows:

1. Should an employer, having actual or constructive knowledge that co- employees are posting harassing, retaliatory, and sometimes defamatory, messages about a co-employee on a bulletin board used by the company's employees, have a duty to prevent the continuation of such harassing conduct?

2. Should employees of Continental Airlines reasonably expect to be subject to the personal jurisdiction of New Jersey when (a) they have published in that forum defamatory statements that are intended or are foreseeably likely to injure the co-employee in the exercise of her protected rights to be free from discrimination, and (b) they have done so in retaliation for a co-employee having sought in that forum, where her work activities were centered, the protection of the forum's laws against discrimination?

It seems to us that if the facts are stated thus the answers to the questions should be "yes." Because the facts may be somewhere in between, we cannot provide categorical answers to the questions.

[1] The case appears to have proceeded on the thesis that there could be no liability if the harassment by co-employees did not take place within the workplace setting at a place under the physical control of the employer. Although the electronic bulletin board may not have a physical location within a terminal, hangar or aircraft, it may nonetheless have been so closely related to the workplace environment and beneficial to Continental that a continuation of harassment on the forum should be regarded as part of the workplace. As applied to this hostile environment workplace claim, we find that if the employer had notice that co-employees were engaged on such a work- related forum in a pattern of retaliatory harassment directed at a co-employee, the employer would have a duty to remedy that harassment. We find that the record is inadequate to determine whether the relationship between the bulletin board and the employer establishes a connection with the workplace sufficient to impose such liability on the employer. We remand that aspect of the matter to the Law Division for further proceedings in accordance with this opinion.

[2][3] Concerning the issue of personal jurisdiction, we find that defendants who published defamatory electronic messages, with knowledge that the messages would be published in New Jersey and could influence a claimant's efforts to seek a remedy under New Jersey's Law Against Discrimination, may properly be subject to the State's jurisdiction. Although advances in electronic and Internet technology have created new ways to communicate, the sources of personal jurisdiction remain constant. Specific jurisdiction may be exercised over non-resident defendants by applying traditional principles of jurisdictional analysis irrespective of the medium through which the injury was inflicted. Because the record is inadequate to determine the jurisdictional facts, we remand the jurisdictional issues for further consideration.

I.

A.



The facts of the case are more fully set forth in the opinion of the Appellate Division reported at 322 N.J.Super. 187, 730 A.2d 854 (1999) and in the related opinions of the United States District Court. Blakey v. Continental Airlines, Inc., 992 F.Supp. 731 (D.N.J.1998); Blakey v. Continental Airlines, Inc., 2 F.Supp.2d 598 (D.N.J.1998). We provide this summary. Tammy S. Blakey, a pilot for Continental Airlines since 1984, appears from the record to be a highly qualified commercial airline pilot. In December 1989, Blakey became that airline's first female captain to fly an Airbus or A300 aircraft (A300). The A300 is a widebody twin-engine jet aircraft seating 250 passengers. Airbus Industrie (visited March 13, 2000) . Plaintiff was one of five qualified A300 pilots in the service of Continental Airlines. Shortly after qualifying to be a captain on the A300, Blakey complained of sexual harassment and a hostile working environment based on conduct and comments directed at her by male co- employees. From 1990 to 1993, Blakey was based in Newark, New Jersey, but lived in Arlington, Washington. According to Blakey, in February 1991, she began to file systematic complaints with various representatives of Continental about the conduct of her male co-employees. Specifically, Blakey complained to Continental's management concerning pornographic photographs and vulgar gender-based comments directed at her that appeared in the workplace, specifically in her plane's cockpit and other work areas.

In February 1993, Blakey filed a charge of sexual discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 against Continental with the Equal Employment Opportunity Commission in Seattle, Washington, her home state. She simultaneously filed a complaint in the United States District Court in Seattle, Washington, against Continental for its failure to remedy the hostile work environment. Because Blakey's major flight activities had been out of Newark International Airport, the United States District Court granted Continental's motion to transfer the action to the United States District Court for the District of New Jersey. Continental requested the transfer to New Jersey because Blakey was based in Newark, her allegations were predicated on unlawful employment practices that took place in New Jersey and the Continental personnel responsible for investigating Blakey's complaints also were based in Newark. Continental's motion to transfer was granted on May 13, 1993. At her own request, Blakey transferred to Houston in May 1993. To be relieved of the continuing stress that she had experienced in Newark, Blakey assumed a voluntary unpaid leave of absence beginning in August 1993.

B.

In the midst of that federal litigation, her fellow pilots continued to publish a series of what plaintiff views as harassing gender-based messages, some of which she alleges are false and defamatory. From February to July 1995, a number of Continental's male pilots posted derogatory and insulting remarks about Blakey on the pilots on-line computer bulletin board called the Crew Members Forum ("Forum"). The Forum is accessible to all Continental pilots and crew member personnel through the Internet provider, CompuServe. When Continental employees access CompuServe, one of the menu selections listed in the "Continental Airlines Home Access" program includes an option called "Continental Forum." Like many other large corporations today, Continental's computer technology operations are "outsourced" or contracted-out, in this case to a company called Electronic Data Systems ("EDS"). EDS manages Continental's information systems including the CMS, which contains information on flights, crew member schedules, pay and pilot pairings. Continental requires that pilots and crew "access" the CMS in order to learn their flight schedules and assignments. To access such a system is, in essence, to call in through a computer or telephone.



Continental personnel access the CMS in three ways. Continental personnel may access the CMS through "dumb terminals" [FN3] located in crew locations throughout the Continental network through a direct line to Continental's main computer system that is managed by EDS and maintained on a mainframe computer in North Carolina. Flight crew members also may access CMS through a voice response system by dialing into the system on a regular telephone. The third means of access to the CMS is to connect to the system through an Internet service provider [FN4] (ISP), in this case, CompuServe, a wholly owned subsidiary of America Online, Inc. (AOL). CompuServe is the ISP approved by Continental to provide pilot and crew access to the CMS. To access the CMS through CompuServe, Continental personnel simply need a personal computer, a modem (a device that connects the computer to a phone line), and a phone line. CompuServe provides "membership kits," containing customized computer software to all Continental personnel who may wish to connect to the CMS in this manner. The CompuServe software provides access to the CMS to any individual with a Continental employee identification number that identifies that individual as a pilot or crew member. As part of the package provided to pilots and crew personnel, CompuServe made the Crew Members Forum available for crew members to exchange ideas and information. According to Continental's witnesses, CompuServe charged $5.80 per hour to provide a direct connection between Continental's main computer system and CompuServe. Three percent of that charge is paid back to Continental to defray any costs incurred by Continental.

FN3. A "dumb terminal" is defined as "a display monitor that has no processing capabilities. A dumb terminal is simply an output device that accepts data from the [central processing unit or "brain" of the computer]. In contrast, a smart terminal is a monitor that has its own processor for special features, such as bold and blinking characters. Dumb terminals are not as fast as smart terminals, and they do not support as many display features, but they are adequate for most applications." Webopedia (visited March 30, 2000)

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