Brower v. Continental Airlines, Inc.

62 F.Supp.2d 896

Margaret M. BROWER, Plaintiff, v. CONTINENTAL AIRLINES, INC., Defendant.

No. 96 CV 1911(ILG).

United States District Court, E.D. New York.

July 29, 1999.

COPYRIGHT MATERIAL OMITTED

Robert H. Bernstein, Epstein Becker & Green, P.C., Newark, NJ, for Continental Airlines, Inc.

Raymond Nardo, Mineola, NY, for Margaret M. Brower.

MEMORANDUM & ORDER

GLASSER, District Judge.

SUMMARY

Plaintiff Margaret Brower ("Brower") commenced an employment discrimination action against defendant Continental Airlines, Inc. ("Continental") claiming that it illegally fired and failed to promote her because she was disabled and because of her age. She has brought a variety of claims against Continental under federal, state and local anti-discrimination statues. The defendant now moves for summary judgment.

FACTS

I. The Employment Conduct

Continental hired Brower, a then 48 year-old woman, in February 1987 as a part-time reservations agent at LaGuardia Airport. Def. Rule 56.1 Statement ¶ 1. In March 1991, Continental's reservations office at LaGuardia closed resulting in the elimination of Brower's job and Continental offered her a position as a part-time Airport Sales Agent ("ASA"). Id. ¶ 2. As an ASA, Brower had substantial contact with customers and was often the first company representative that passengers met when they arrived at the airport. Accordingly, Continental expects its ASA's to be polite and helpful. Id. ¶ 3.

On July 10th, 1992, a passenger wrote a "Comment Card" to Continental which read, in part:

With one party (2 people) in front of us, the agent at the first class counter [plaintiff] announced that "I am finished — get back," grabbed her coffee and left the counter with all of us in line .... The agent was incredibly rude to the couple in front of us and totally uncaring to the line of First Class passengers.

Id. ¶ 8; Bernstein Aff., Ex. H. That same day, another passenger also wrote Continental and complained as follows:

Tried to check in at FC [First Class] counter. Stepped up to counter & [plaintiff] said I'm finished step back & left. We waited in line for 18 min until [someone] came to help us. We were very upset which is no way to begin a vacation.

Id. On July 29th, 1992, Brower's supervisor, Alba Liston ("Liston") notified the plaintiff that she was "very disappointed to receive the enclosed Comment Cards from two of our customers on July 10, 1992." Id. ¶ 11.

On March 31st, 1993, Brower received her performance appraisal. While it was positive in several respects, it did caution that she needed "to exercise tolerance especially when dealing with adverse situations." Id.

On April 4th, 1993, Brower was again the subject of a written complaint filed by an unhappy passenger. The customer wrote, in part:

I missed my America West flight and asked [plaintiff] at the [LaGuardia] ticket counter to purchase a ticket on # 419. She rudely asked "Doesn't America West have a flight you can take?" Then when I handed her the $125 [in] cash to pay for my ticket, she rudely made a scene at the counter ....

Id. ¶ 13; Bernstein Aff., Ex. K. William Richardson ("Richardson"), the LaGuardia Station manager, called the passenger after receiving a copy of this complaint. He summarized his conversation with her as follows:

Usually, when I would call people, it was relatively easy because time had elapsed and they're not upset anymore .... This woman was — she felt that she was totally humiliated. She began crying on the phone when I talked to her .... there was an argument about whether ... [the plaintiff] would handle her or not. That was minor. What she described to me is that the way [the plaintiff] took her hundred dollar bill and held it up with other customers around, held it up as if it was dirty, as if something had been spilled on it or something and totally humiliated her.

Id. ¶ 14; Richardson Tr. 37:21 — 38:12. Richardson further testified at his deposition about this incident as follows:

Answer: .... When a grown woman is left crying over a business transaction, the professional then, in this case being [the plaintiff], that conduct is inexcusable.

Question: It was your impression that the grown woman was left crying over this transaction because of [the plaintiff's] handling of it?

Answer: Humiliation.

Question: And it's your impression that [the plaintiff] caused this humiliation?

Answer: Yes, intentionally.

Id. ¶ 15; Richardson Tr. 56:21—57:7.

Later that same month, on April 30th 1993, Brower's behavior was the subject of yet another passenger Comment Card:

[Plaintiff] at the check in ticket counter was rude and was asking for [$]45.00 for an extra bag I had to check in. I was travelling [sic] 1st class and it was not an upgrade. I paid full fair.... If she had been pleasant about the 4th piece, I would have complied graciously but she was obviously having a bad day. It doesn't matter if you are a surgeon or an airline attendant — you can't bring your bad mood to work! .... Then, as I was walking away, she mumbled under her breath "I don't need this aggravation." I find it convenient to fly Continental, but you are not the only airline. I spoke with some attendants in Houston about this incident and they said that "the ones from N.Y. are like M. Brower — Rude and unlikable." You may call me.

Id. ¶ 16; Bernstein Aff. Ex. L.

On May 13th, 1993, rather then terminate Brower's employment, her supervisor again counseled her as a result of receiving yet another Comment Card from a disgruntled passenger. Id. ¶ 17. Brower was also counseled by management on May 27th, 1993, and was warned about the "perception [given when] walking away from customers." Id. ¶ 20.

On June 3rd, 1993, Brower's supervisors again had a counseling session with her. At this session, they tried to help Brower focus on customer service skills by addressing her behavior in connection with the passenger who cried as a result of her interaction with Brower. Management intended this session to help Brower understand why the passenger was upset with Brower's treatment of her, and to avoid the recurrence of similar problems. Id. ¶ 21. However, Brower's supervisors were dissatisfied with her participation in that counseling session. They felt that she failed to focus on the issues of her demeanor and interaction with the customer, and instead insisted that she had done nothing wrong. Id. ¶ 22. They further felt that she refused to even consider why the passenger would be upset with her. Id. ¶ 23.

That same day, another passenger complained that the plaintiff insulted him when he tried to purchase tickets for his sons. Continental then spoke to Brower and recorded the substance of that conversation in her personnel file:

Bill Richardson [the station manager] & myself (Nikki) spoke with [Brower] today after her poor and unacceptable behavior in handling a customer, which resulted in [the] customer feeling that he was being called a "liar"

* * * * * *

Bill Richardson informed [Brower] that her behavior was unacceptable and will no longer be tolerated. He offered assistance in getting her help if she wanted it.

Id. ¶ 24.

On July 26th, 1993, Continental counseled Brower for the eighth time in connection with her behavior. One of her supervisors, Liston, explained as follows:

[The plaintiff] was called at my office to discuss her "break period." In an arrogant and negative way, she explained to me that she had closed up with [morning supervisor] Cecilia [Harney and] that it was best for the operation if she took her break at 6:30 a.m. I will verify and pass this information to opening [supervisor]. At 11:30 a.m. [plaintiff] apologized for her early presentation.

Id. ¶ 25. Brower later admitted that she had overreacted in this conversation with Liston. Id. ¶ 26.

On August 10th, 1993, Cecilia Harney, one of Brower's supervisors, sent her a "termination warning letter," which read as follows:

There was inappropriate behavior which was displayed at the Ticket Counter, as a result of the above situation which is of great concern to me. Item # 3 in the General Rules of Conduct clearly states "all duties are to be performed in a courteous, helpful and businesslike manner both with regard to work assignment and one's relationship with other employees and customers." (See attached)

Based on my observations and after reviewing eight statements, which includes yours, I feel that your behavior was in complete violation of Continental Airlines Policy and Procedures.

On July 7, 1992, you received a letter for unsatisfactory job performance and on July 29, 1992, you also received a letter for unsatisfactory job performance. Both letters relate to your inability to interact with the internal and external customer. The situation of July 31, 1993, ties into your inappropriate behavior.

Continued employment with Continental Airlines will be based on the effective resolution of your unacceptable behavior ....

Id. ¶ 30.

Pursuant to Continental's policies, Brower filed a request for a step one appeal of the termination warning to be decided by a hearing manager outside of plaintiff's chain of command. Id. ¶ 32. Management granted this request and conducted a hearing on September 3rd, 1993 before Brad Hendrick, the hearing manager named to hear the appeal. Id. ¶ 33. Although Brower contends that she was not permitted to adequately defend herself, see Pl. Resp. to Def. Rule 56.1 Statement ¶ 35, she does not dispute that she was permitted to make opening statements and present evidence in support of her position. Id. ¶ 36. Following the hearing, Hendrick held the warning was justified. He observed that:

I am very concerned that although verbal and written counseling has been administered that the root of the problem has not been addressed nor recognized by [the plaintiff]. Therefore I am highly recommending that [she] seek assistance from the Employee Assistance Program ... to discuss this sense that "management at [LaGuardia...