Perez v. United Air Lines, Inc.

362 F.Supp.2d 1230

Sue PEREZ, Plaintiff, v. UNITED AIR LINES, INC.; and International Association of Machinists and Aerospace Workers, Defendants.

No. CIV.A.02-F-1967(MJW).

United States District Court, D. Colorado.

February 24, 2005.

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John R. Olsen, Olsen & Brown, P.C., Niwot, CO, for Plaintiff.

Meghan W. Martinez, Brownstein, Hyatt & Farber, P.C., Denver, CO, Ira Lawrence Gottlieb, Geffner & Bush, Burbank, CA, for Defendants.

ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

FIGA, District Judge.

This employment discrimination case brought under Title VII comes before the Court on the amended motion for summary judgment filed by Defendant International Association of Machinists and Aerospace Workers ("IAM"), on September 4, 2003 (Dkt.# 26) and the motion for sanctions filed by Defendant IAM on October 20, 2003 (Dkt.# 40).

Defendant IAM originally filed its motion on August 28, 2003, together with one volume of supporting exhibits numbered A-1 through A-22, and a second volume containing excerpts from the depositions of plaintiff, union representatives Miriam Seewald and Rich Pijanowski, and various witness declarations in support of the motion. By Order entered on August 28, 2003, Judge Blackburn struck Defendant IAM's motion for failure to comply with the practice standards in effect in his courtroom, but allowed the defendant until September 8, 2003 to refile a conforming motion. The order did not require a refiling of the supporting documentation. On September 4, 2003, Defendant IAM filed its amended motion for summary judgment and supporting brief. On October 16, 2003, Plaintiff Sue Perez filed her opposition to the motion for summary judgment, together with a separate volume of supporting exhibits numbered 1 through 19. On November 13, 2003, Defendant IAM filed a reply brief.

In addition, on October 20, 2003, Defendant IAM filed a Motion for Sanctions under Rule 11, F.R.Civ.P., and under 28 U.S.C. § 1927, against plaintiff and her counsel, asserting that the filing and maintenance of this action was frivolous. On November 14, 2003, plaintiff filed an opposition to the motion for sanctions. On November 25, 2003, Defendant IAM filed a reply brief in support of its Motion for Sanctions, together with a declaration from defendant's counsel in support of the motion.

On October 27, 2003 this case was transferred to the undersigned judge pursuant to the general plan for reassignment of cases. A Final Pretrial Order was entered on November 3, 2003, but the case has not been set for trial. Although Defendant IAM has requested oral argument, the Court has determined that argument will not materially assist it in determining the pending motions.

PLAINTIFF'S COMPLAINT

Plaintiff alleges that on or about January 26, 2001, she was terminated by Defendant United Air Lines, Inc. ("United") from her position as a customer service representative. The termination resulted from an internal investigation by United into activities of plaintiff which United believed to be violations of company work rules. At the time of her termination, plaintiff was a member of Defendant IAM, a union representing United employees. Plaintiff's complaint, appears to assert that United discriminated against her by terminating her on the basis of gender in violation of Title VII, and retaliated against her for complaining about gender-based discrimination, a protected activity under Title VII. She further appears to allege that the representation provided by IAM following her termination, failed to provide her with fair representation in violation of Title VII, that the union itself discriminated against her based on her gender, and that the union retaliated because she complained of gender-based discrimination by the employer. Plaintiff also alleges that the same conduct of defendants violates the provisions of the Colorado Anti-Discrimination statute, C.R.S. § 24-24-401, et seq.

On or about December 9, 2002, United filed for bankruptcy protection in the Northern District of Illinois. Accordingly, plaintiff's claims against United are stayed. Plaintiff proceeded with her claims against IAM. The motion for summary judgment and this Order, therefore, address only plaintiff's claims against the union.

UNDISPUTED FACTS

Many of the facts relevant to determination of the pending motions are stipulated in the Final Pretrial Order, which was filed after all the summary judgment briefs and therefore supercedes the statements in the briefs. According to the stipulated facts in the Final Pretrial Order, plaintiff, a female, commenced employment with United on or about May 20, 1998. Plaintiff was a member of IAM and was employed by United as a customer service representative for approximately 30 months. She was terminated on or about January 26, 2001. As a customer service representative, plaintiff's duties included handling ticketing of passengers, complaints from dissatisfied passengers, seat changes and bookings (Final Pretrial Order, p. 3).

United has promulgated a set of 50 employee rules that if violated by an employee subject the employee to discipline. The rules are enumerated in decreasing order of severity. If an employee violates one of the first 20 rules, the employee is subject to discharge for the first such offense. The rules provide that a violation "will result in discharge unless mitigating factors are considered applicable." (Final Pretrial Order, p. 4.) The first 20 rules address serious offenses, such as offenses of dishonesty or being under the influence of illegal drugs (Final Pretrial Order, pp. 3-4).

In Fall 2000, United charged plaintiff and four other Denver customer service representatives, Fernando Papi, Lee Brooks, Lita McKay and Billie Rodgers, with violations of Rule 18, which prohibits "[d]efrauding or attempting to defraud the Company." (Final Pretrial Order, p. 4.) The charges arose from perceived misuse by the employees of customer problem resolution ("CPR") certificates. Generally, an agent such as plaintiff may issue a CPR certificate, which consists of a discount on a normal fare or an upgrade in class of travel, to a customer who has been "disserviced." The CPR is usually issued at the time of the "disservice." It is "extremely unusual" for a customer service representative to issue a CPR for completely free travel. It is also an "unusual and questionable practice" to issue a CPR to a customer who is not a frequent flyer and who was not himself disserviced.

A United ticket fraud analyst, Ms. Cindy Mulligan¹, conducted an investigative interrogation of plaintiff in the presence of IAM representatives on November 30, 2000, and at a second meeting on January 2, 2001. United confronted plaintiff with several questionable issuances of CPR certificates prepared from her computer terminal. At first, plaintiff failed to answer United's questions at all, and then she claimed that she did not recognize the names of the customers presented to her. She issued a statement to that effect at the November 30, 2000 meeting (Exhibit A-7 to defendant's motion). At the end of the first meeting, United announced that it would hold plaintiff out of service without pay. At the union's insistence, United relented on its position with respect to compensating her while the investigation was ongoing, and agreed to pay plaintiff in the interim between November 30, 2000 and the next meeting, which was set for January 2, 2001 (Final Pretrial Order, p. 6).

At the second meeting, after further denials, plaintiff recanted and admitted to knowing one such customer, Scott Higgins. In addition, according to the Final Pretrial Order, plaintiff admitted, on some date not specified in the stipulated facts, that she gave CPRs to ineligible customers, including a party referred to as the Meltons, and she admitted to exercising poor judgment. Plaintiff reimbursed United for the cost of the CPRs she issued to the Meltons (Final Pretrial Order, p. 4).

Although not specified as stipulated facts in the Final Pretrial Order, Ms. Mulligan's Declaration provides additional background that clarifies the issue relating to the Melton matter. She states:

With respect to Ms. Perez' conduct, among other things we found was that she had apparently used other people's sign-in codes at their computers to issue CPRs to a party of three named Melton, that were questionable, in that she gave completely free travel worth approximately $900 to customers who were not disserviced, on a day they were not traveling, and who were not frequent United customers. The records we gathered showed that while Ms. Perez' own terminal was idle, adjacent terminals had issued CPR's to the Meltons, thus leading to the conclusion that she had waited for her neighboring customer service agent to leave his or her station in order to use that computer to cover up what she was doing. In our investigation, she was the only United employee we found who had made any such effort to cover up her activity, which in turn raised questions about the breadth of her possible improper activity.

Mulligan Declaration, ¶ 5.

Although not stated in the stipulated facts in the Final Pretrial Order, United determined to charge plaintiff with a violation of Rule 18 at the conclusion of the January 2, 2001 meeting, and this is not disputed by plaintiff. See Declaration of Rich Pijanowski, ¶ 5.

The grievance procedure under the collective bargaining agreement between United and IAM, upon which the parties rely to resolve disciplinary and other disputes arising under the agreement, calls for two hearings and ultimately arbitration if the matter is not settled and the union deems arbitration appropriate (Final Pretrial Order, p. 4-5). The first proceeding in the disciplinary process is referred to as an Investigative Review Hearing ("IRH"), where each side presents evidence and argument to a United hearing officer, who then makes a written...