Johnson v. Tower Air, Inc.

149 F.R.D. 461, 27 Fed. R. Serv. 3d 539, 1993 U.S. Dist. LEXIS 9372, 64 Empl. Prac. Dec. (CCH) 43,134, 66 Fair Empl. Prac. Cas. (BNA) 918, 1993 WL 262629
CourtDistrict Court, E.D. New York
DecidedJuly 8, 1993
DocketNo. CV-90-3085
StatusPublished
Cited by8 cases

This text of 149 F.R.D. 461 (Johnson v. Tower Air, Inc.) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Tower Air, Inc., 149 F.R.D. 461, 27 Fed. R. Serv. 3d 539, 1993 U.S. Dist. LEXIS 9372, 64 Empl. Prac. Dec. (CCH) 43,134, 66 Fair Empl. Prac. Cas. (BNA) 918, 1993 WL 262629 (E.D.N.Y. 1993).

Opinion

MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiff, a former flight attendant trainee, brings this action under 42 U.S.C. § 1983 and Title VII, 42 U.S.C. § 2000e et seq., alleging that her former employer and its president subjected her to workplace sexual harassment. By this motion, defendants seek summary judgment on all claims, attorney’s fees under 42 U.S.C. §§ 1988 and 2000e-5(k), and sanctions under Rule 11 of the Federal Rules of Civil Procedure. As an alternative to granting their summary judgment motion, defendants move pursuant to Rule 39(a)(2) of the Federal Rules of Civil Procedure for an order striking plaintiffs jury demand. For the reasons described below, defendants’ motion for summary judgment is granted in its entirety and defendants’ motion for fees and sanctions is granted in part.

FACTS

This ease arises out of the hiring and subsequent dismissal of plaintiff Dorothy Johnson as a probationary flight attendant in the employ of defendant Tower Air, Inc. (“Tower”). Defendant Tower is an airline that flies scheduled and charter flights. Defendant Morris Nachtomi is and was the President of that airline during plaintiffs six-month period of employment.

Before examining the undisputed facts leading to plaintiffs dismissal, it is helpful to set forth some preliminary information concerning Tower’s operating procedure. While aboard an airplane, a flight attendant’s immediate supervisor is an in-flight manager (“IFM”) who, in turn, reports to the plane’s engineer, followed by the first officer, and finally the captain. (Deposition of Dorothy Johnson, dated June 3 and 4, 1991, at 35)1 Those four persons, along with the flight attendants, comprise an airplane’s crew. The crew to which a trainee flight attendant is assigned changes frequently, so that in Johnson’s experience she reported to different persons on each of her flights. (Johnson Dep. at 35) Under the terms of the Crew Policy Manual (the “Crew Manual”), distributed to all new flight attendants, the first year of employment at Tower serves as a' probationary period during which normal grievance procedures do not apply. (Affidavit of Beatrice Darcy, Tower Flight Attendant Manager, Exh. D) The Flight Attendant [463]*463Manual (the “Attendant Manual”), also distributed to new hires, sets forth grounds for termination or discipline, including insubordination and failure to comply with FAA regulations and company directives. (Darcy Aff. Exh. E)

Johnson commenced her employment with Tower on June 24,1987 and, after completing a training period, first served as a flight attendant in July of 1987. (Johnson Dep. at 33; Darcy Aff. Exh. A) On December 10, 1987, five months after completing her training, Johnson violated company policy by neglecting to notify “Crew Scheduling” that she would be unable to report for her scheduled flight. (Darcy Aff. ¶ 8) As a result, Johnson was listed as a “no show,” and her scheduled flight was short-staffed. On December 11, Crew Scheduling reached Johnson and was informed that she was ill and unable to work; later that same day, Johnson appeared at Tower’s annual employee Christmas party. (Darcy Aff. ¶ 8) Tower’s Manager of Flight Attendants, Beatrice Darcy, responded to this behavior by writing a letter of reprimand to plaintiff, dated December 22, 1987, which states as follows:

On December 10,1987, you reported Medical to Ms. Hau. It has been established that you did not call Crew Scheduling as required in Chapter 1 Page 22, Company Policies of the Flight Attendant Manual. This oversight resulted in a “No Show” status on December 11, 1987 at 0700L which was your assigned flight, and caused your crew to fly short staffed. In addition while on medical status you attended the Company Christmas party. Although you indicated that you felt better physically this action indicated poor judgment.
In view of the above discrepancy and that you are still on probation this letter serves as a final warning that any future infraction regarding your overall performance will result in immediate dismissal.

(Darcy Aff. Exh. F)

During approximately this same time period, from December 12 to December 27,1987, Johnson served as an attendant on a series of international flights under the immediate supervision of IFM Angel Paladines. At her deposition, Johnson testified that Paladines made several untoward and insulting sexual remarks to her during this period, both while they were on flights and off duty. (Johnson Dep. at 55-57, 61-62, 64-65, 72, 82, 85-86)2 Johnson also alleges that Paladines brushed against her in a sexual manner on one occasion,3 and that Paladines “grabbed his [own] crotch” as a sexual gesture. (Johnson Dep. at 57-58, 83-84) It is important to note that in her deposition testimony Johnson acknowledges that Paladines did not direct his inappropriate language at her alone or at women alone, but that he was “hostile towards the' whole crew,” (Johnson Dep. at 66-69), often indiscriminately ordering crew members to “get out of [his] f!: * *ing face.” (Johnson Dep. at 84) Despite the fact that the complaint in this action accuses Paladines of vulgarity and offensive behavior commencing in July of 1987, plaintiffs deposition reveals that her sole contact with Paladines and her allegations against him are limited to this two-week period and that those allegations [464]*464form the sole basis of her sex discrimination claims.4

On December 29, 1987, Paladines filed a Flight Attendant Standards Discrepancies report (the “Report”) stating that Johnson had not been seated in her “jump seat” for landing during the December 27 flight to Paris, in violation of company policy and FAA regulations. (Darcy Aff. Exh. G & H) Johnson admitted at her deposition that the Report filed by Paladines was accurate. (Johnson Dep. at 109-11) In the Report, Paladines also acknowledged that he did not know what the captain had told Johnson about seating. (Darcy Aff. Exh. G) A Trip Report filed by Captain Fred King on January 15,1988 and appended to plaintiffs opposition papers indicates that Captain King did, in fact, tell Johnson to sit in the cockpit and not in her jump seat.

On January 4, 1988, Darcy telephoned Johnson, who was home on sick leave, read her the Report, and requested a written response. According to Darcy, a written response to such reports is required because of possible FAA investigation at a later date. (Darcy Aff. ¶ 12) Darcy offered to provide a copy of the Paladines Report to Johnson; however, the parties dispute whether Johnson voiced a desire to see the Report, although they agree that Darcy did not send a copy to Johnson.

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149 F.R.D. 461, 27 Fed. R. Serv. 3d 539, 1993 U.S. Dist. LEXIS 9372, 64 Empl. Prac. Dec. (CCH) 43,134, 66 Fair Empl. Prac. Cas. (BNA) 918, 1993 WL 262629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-tower-air-inc-nyed-1993.