Petition for Writ of Certiorari — Delta Air Lines, Inc. v. Ferris
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FILED
—_
No. 011829 JUN 11 2002
OFFICE OF THE CLERK
IN THE
Supreme Court of the United States
te i
DELTA AIR LINES, INC.,
Petitioner,
PENNY FERRIS,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
MARGUERITE H. TAYLOR GILMORE F. DIEKMANN, JR.
DELTA AIR LINES, INC. Counsel of Record
Law Department, No. 982 SEYFARTH SHAW
1030 Delta Boulevard 101 California Street, Suite 2900
Atlanta, Georgia 30320 San Francisco, California 94111-5858
(404) 715-2861 (415) 397-2823
BENJAMIN A. STONE
MUNGER & STONE, LLP
2850 First Union Plaza
999 Peachtree Street, NE
Atlanta, Georgia 30309
(404) 815-1884
Counsel for Petitioner Delta Air Lines, Inc.
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QUESTIONS PRESENTED
1. Whether an employer can be liable under Title VII
for sexual harassment based solely on an off-duty per-
sonal encounter between two non-supervisory employees
that occurs after hours, off-premises, and in a private
bedroom?
2. Whether an employer can be liable for sexual
harassment solely for not investigating reports about a
non-supervisory employee’s private sexual conduct in
his home and in a private hotel room?
il
CORPORATE DISCLOSURE STATEMENT
The case caption contains the names of all parties
to the proceeding in the Second Circuit Court of
Appeals, whose judgment is sought to be reviewed in
this matter. Petitioner Delta Air Lines, Inc. does not
have a parent corporation. Two Investment Companies
hold more than 10% of Delta Air Lines, Inc. stock—
PRIMECAP Management Company and Fidelity Man-
agement & Research.
|
TABLE OF CONTENTS
PAGE
Questions Presented..........0000000. i
Corporate Disclosure Statement.............. li
mame Of Authorities............................ iv
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TI 5.56 on sc icksdédsnsensceeesse...... 2
Statutory Provision EMVOlVOd .................... 2
Sie ctanae ELE eT 3
Reasons for Granting the Petition .......0 12
BO Sos ons cientcasetaciesesecce....., 21
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PE si vniciscsecssnsnnsisceicececess..... 19a
PM Scseekiseccsesesesstedeceses.c...., 43a
IE ios ns shes cectsnsescccaecacs....._. 45a
<7
iV
TABLE OF AUTHORITIES
Cases: PAGE
Alvey v. Rayovac Corp., 922 F. Supp. 1315
A rr rrr rrr ar err 14, 18
Ambrosio v. Price, 495 F. Supp. 381
Cs Ns BPW bo udasanasckadad napecvnnvenuns 11, 20
Anderson v. Adam’s Mark Hotels & Resorts,
211 F.3d 1277, 2000 WL 390107
(10th Cir. 2000) (table) .............. 13, 14, 17, 18
Capitol City Foods v. Superior Court,
5 Cal.App.4th 1042, 7 Cal.Rptr. 2d
ee ED acne aknesnedeevhasuancdccenontans 17, 18
Feingold v. Delta Air Lines, et al.,
No. 99-CV-0728-T (N.D. Tex.,
Oct. 20, 1999), aff’d, No. 01-10209
COG Cae, TE Big ee a6 es cnnencaxanacens 8
Ganzy v. Allen Christian School, 995 F.Supp. 340
Cs Bo. WORE co vnc cncacans¥nesnieeaenove 19
Harris v. Forklift Systems, Inc., 510 U.S. 17 |
COD ktsstiocaccwesssaesnweake bacesuneaaees 13
Haybeck v. Prodigy Services Co., 944 F.Supp. i
Te Ces Ba Re hi aes bachecunssxasekasas 20
Hennessy v. Penril Datacomm Networks, Inc., :
OP F326 13566 CIE GAR. BD ose ncdcundcinsee 18
Hirase-Doi v. U.S. West Communications, Inc.,
61. F.36 777 COG GCOk. SOOO? xs ceacccesseoass 19
PAGE
Hunter v. Countryside Ass’n for the
Handicapped, Inc., 723 F.Supp. 1277
CARA. BP cass icnvageate alee 18
Meritor Savs. Bank vy. Vinson, 477 U.S. 57
CAIMIED wien ss cnchaccecunci ina: ae eee 14
Polimeni v. American Airlines, Inc.,
No. CV 92 5702 (RJD), 1996 WL
743381 (E.D.N.Y. Dec. 18, 1996)........... 14
Tomka v. Seiler Corp., 66 F.3d 1295
(608 Che, 1909) oiccssncinctcy en 13
Thorne Vv. City El Segundo, 726 F.2d 459
PR Oe RI sais tin oa ee 20
Statutes:
Title VII of the Civil Rights Act of 1964
42 U.S.C. § 2000e-2....0 00, passim
8 USL. $1906 ise 2
ae OS. BITTE oo iihcicencsee ee 5
8 USL. OEE 56 5
N.Y. Corrections Law DF Psi icc 20
N.Y. Corrections Law 25 | Eee 2s, 20
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Aas
IN THE
Supreme Court of the United States
No.
oc. =
DELTA AIR LINES, INC.,
Petitioner,
—_—_vV.—
PENNY FERRIS,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SECOND CIRCUIT
o> 2s
PETITION FOR WRIT OF CERTIORARI
Petitioner Delta Air Lines, Inc. petitions for a writ of
certiorari to review the judgment of the United States
Court of Appeals for the Second Circuit in this case.
OPINIONS BELOW
The opinion of the court of appeals (App., infra, 1a) is
reported at 277 F.3d. 128 (2nd Cir. 2001). The opinion of
the United States District Court for the Eastern District
of New York (App., infra, 19a) is published at 102
F.Supp.2d 132 (E.D.N.Y. 2000).
2
JURISDICTION
The judgment of the Court of Appeals was entered on
December 21, 2001. (App., infra, 1a) A petition for
rehearing was denied on March 14, 2002. (App., infra,
43a) The jurisdiction of this Court is invoked under 28
U.S.C. § 1254. 5
STATUTORY PROVISION INVOLVED
Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e-2(a), is the only Statutory provision
involved in this case. It provides as follows:
Bh bain pial Si dit sa 3 *
§ 2000e-2. Unlawful employment practices
(a) Employer practices. It shall be an unlawful
employment practice for an employer—
(1) to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate
against any individual with respect to his com-
pensation, terms, conditions, or privileges of
employment, because of such individual’s race,
color, religion, sex, or national origin; or
(2) to limit, segregate, or Classify his
employees or applicants for employment in any
way which would deprive or tend to deprive
any individual of employment opportunities or
Otherwise adversely affect his status as an
employee, because of such individual’s race,
color, religion, sex, or national origin.
3
STATEMENT
The Second Circuit Court of Appeals has expanded
employer liability far beyond the intention and language
of Title VII—obliging employers to monitor and inves-
tigate the private lives of their employees. The court has
held that an employer is legally responsible under Title
VII for private sexual conduct that occurs behind a bed-
room’s closed doors during a purely social encounter
between two non-supervisory co-employees. In so rul-
ing, it has placed on employers obligations that, if
allowed to stand, will have pernicious consequences for
the privacy rights of employees throughout the country.
For the purposes of this proceeding, the facts are well
developed and not materially disputed. Delta Flight
Attendant Penny Ferris pursued an after-hours social
visit with another Delta Flight Attendant, Michael Young
in his layover hotel room in Rome, Italy. Ms. Ferris vis-
ited Mr. Young’s room solely for the purpose of drinking
a bottle of wine that they bought together, eating a meal
and socializing with him—in essence a date. There was
no work related purpose to the visit. The encounter
ended in an alleged sexual assault by Mr. Young.
Despite the private and purely social nature of the
visit between Ms. Ferris and Mr. Young, the Second Cir-
cuit held that Delta could be liable for sexual harassment
under Title VII based on the allegation that Ms. Ferris
was date raped. In so holding, it issued two unprece-
dented legal rulings. First, it expanded Ms. Ferris’ “work
environment” far beyond the sphere contemplated by
Title VII and beyond any area over which Delta had any
meaningful control. Second, the court triggered Delta’s
responsibility by ruling that the company was required
by Title VII to investigate and somehow <orrect Mr.
Young’s possible sexual misconduct during two private,
off-premises and off-duty dates that took place several
years before. Both of these holdings are directly contrary
to the law in other circuits. Moreover, if the decision
stands, employers will be placed in the untenable posi-
tion of policing the off-duty, off-premises social conduct
of their employees in an effort to control their Title VII
exposure—even when their employees are on private
dates, behind bedroom doors. The impact on employee
privacy would be dramatic.
1. The Basic Facts. In April 1998, Penny Ferris, a
flight attendant for Delta, reported that a male Delta
flight attendant had sexually assaulted her during the
prior month while she was in a hotel during a layover in
Rome, Italy. While she did not name the flight attendant
or provide anything close to a complete recitation of the
event, she indicated that the incident had occurred when
she visited the unnamed flight attendant in his hotel
room to share some wine with him. (App., infra, 3a-6a,
23a-24a, 48a-52a)
In subsequent meetings with Delta managers, Ms. Fer-
ris provided additional details. She stated that, while she
was off-duty and on layover in Rome in March 1998, she
decided to visit the hotel room of a fellow flight atten-
dant to drink wine they had purchased at a shop near the
hotel. (Id.) She stated that while she was visiting and
drinking with this flight attendant, she believed the
flight attendant had covertly placed an unknown sub-
stance in her wine. According to Ms. Ferris, after she
drank one or more glasses, she began feeling tired and
eventually passed out in his room. (Id.) She allegedly
regained consciousness after she passed out and found
the flight attendant having sex with her. Although she
was aware of this activity, she stated that she was unable
to resist. She eventually became sufficiently aware to get
up and return to her hotel room. (Id.)
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5
Ms. Ferris eventually identified the individual as the
Defendant Michael Young. Delta took the allegations
very seriously and after a thorough investigation, which
included repeated interviews with Mr. Young and other
flight attendants, the company removed Mr. Young from
the workplace. (Id. at 6a) This action was taken against
Mr. Young despite substantial information casting doubt
on the veracity of Ms. Ferris’ allegations.’
2. Plaintiff’s Action Below. Not long after she ceased
cooperating in Delta's investigation of her complaint,
Ms. Ferris filed a lawsuit asserting a variety of claims
against Delta. Pertinent to the present Petition, she stated
a claim against Delta under Title VII for creating an
unlawful “hostile work environment.” (Id. at 2a) During
her deposition, however, Ms. Ferris testified to a number
of facts that conclusively show that her encounter with
Mr. Young occurred outside her work environment—
while she was off duty and off Delta's premises.
Ms. Ferris acknowledged that when she entered the
hotel in Rome, she was not performing services for
Delta, but engaged in a personal pursuit. (Id. at 36a; 48a-
49a) She was released from any obligations to Delta and
was free to engage in any activities she chose—includ-
ing sleeping, consuming alcohol, visiting with friends,
and touring the city or the countryside. (Id. at 46a-47a)
She was never required by Delta to undertake any work-
related activity after being released from duty. She was
| {tis worth noting that a trial was held in the District Court
solely on the issue of whether Mr. Young raped Ms. Ferris. Nine out
of ten jurors concluded that Mr. Young had not in fact assaulted Ms.
Ferris. (Id. at 22a)
2 Because Ms. Ferris asserted claims under Title VII, the Dis-
trict Court’s jurisdiction was premised on 28 U.S.C. § 1331. The
District Court exercised supplemental jurisdiction over Ms. Ferris’
state law claims pursuant to 28 U.S.C. § 1367.
6
not even required to stay in the hotel—and certainly she
was not required to visit Mr. Young’s hotel room, regard-
less of whether that room was in the crew hotel or else-
where. (Id.)
Ms. Ferris also fully acknowledged that she volun-
tarily accompanied Mr. Young to his hotel room for
purely personal reasons—to eat, drink wine and social-
ize with him. (Id. at 48a-49a) The purely personal choice
she made to pursue an acquaintance with Mr. Young,
enter his hotel room, and begin drinking wine with him
was hers and hers alone: Delta had, and could have had,
nothing whatever to do with it.
3. Alleged Prior Reports. Despite the purely personal
nature of Ms. Ferris’ encounter with Mr. Young, Ms.
Ferris attempted to hold Delta liable for the alleged
assault because, during the previous six years, Delta
allegedly had received reports from two other Flight
Attendants of inappropriate sexual] behavior on dates
they had with Mr. Young. Both of the alleged reports
involved conduct that occurred in private bedrooms, far
removed from the workplace and from any location
remotely connected to the workplace. Further, the
alleged reports each concerned situations in which Flight
Attendants were on purely social visits with Mr. Young
in private bedrooms, during which Mr. Young allegedly .
“went too far” in his sexual advances.
The first alleged report to Delta came from Delta
Flight Attendant Kathleen Ballweg, and involved an
encounter with Mr. Young that took place in December
1992 while she was visiting Mr. Young and his mother in
Florence, Italy. (Id. at 62, 58a-61a) Ms. Ballweg’s
encounter with Mr. Young allegedly occurred in a pri-
vate hotel room, in a bed she was consensually sharing
with him. (Id. at 60a-62a) According to Ms. Ballweg,
after engaging in some consensual kissing with Mr. Young
Crane
COC ARR te.
7
in bed, Mr. Young continued beyond the point with
which she was comfortable. (Id. at 67a-69a) While she
made no attempt to get out of bed, or to resist further
advances beyond a single statement that “I don’t want to
do this,” and while Ms. Ballweg did not even believe she
had been assaulted until much later, she eventually
reported that she had been “attacked” by a fellow flight
attendant to an unspecified, unidentifiable person at
Delta.? (Id.) She did not state that she had been raped or
that the “attack” was a sexual one.* She refused to file a
complaint and she did not ask that the matter be inves-
tigated or that Delta do anything about her reports. (Id.)
The second alleged report came from Delta Flight
Attendant Aileen Feingold. Ms. Feingold’s encounter
with Mr. Young took place in the spring of 1995 after a
friendship had developed between them. (Id. at 7a-8a,
72a) During a purely social visit to Mr. Young’s home
in Dallas, Texas (a site far removed from the Delta
workplace), Ms. Feingold voluntarily agreed to spend
the night with him and went to sleep in his bed. (Id.
at 74a) He subsequently joined her and began caressing
and fondling her. (Id. at 77a-81a) Ms. Feingold asked
3 Ms. Ballweg did not think of her hotel room encounter with
Young as a “rape” until much later, when she related the incident to
a roommate and the roommate expressed a belief that what had
occurred had been a rape. (Id. at 62a-63a) While Ms. Ballweg alleges
that she thereafter reported that she had been “attacked,” ‘she does not
recall to whom she spoke, the person’s sex or race, Or any other
descriptive characteristics.
4 Ms. Ballweg alleges that she made a second, similar report to
another Delta employee after Mr. Young called her on the phone. (Id.
at 64a-67a) Again, she cannot name or in any way describe the Delta
representative with whom she spoke, but she alleges that she told the
second Delta employee that she had previously spoken to someone
about a fellow flight attendant who had “attacked” her on a layover
(again with no clarifying details or indications the “attack” was sex-
ual), and that he had phoned her in a way that disturbed her. (/d.)
Mr. Young “what he thought he was doing,” to which he
replied, “I’m just playing.” (Id.) She responded that this
was not a game to her and that she did not want to play.
(Id.). When he continued his advances, she said nothing
further and made no attempt either to get out of bed or to
remove him from it. She made no objections to the sex-
ual relations that followed. (Id.)
Ms. Feingold had no further contact with Young for
approximately four months, at which point she initiated
both e-mail and telephone communications with him to
secure a suitcase she had left for him to have repaired.
(Id. at 8a, 75a-76a) When these communications did not
result in the return of her suitcase, Ms. Feingold
allegedly called a Delta manager, told her about the suit-
case and e-mails, and also allegedly accused Young of
“attacking and raping” her on a prior visit to his home in
Texas. (Id.)° She allegedly asked the Delta manager to
help her secure the return of her suitcase and to put a
note in Young’s file so she could assist in case anyone
else had a similar experience with him. (Id.) Several
years later, she followed plaintiff’s lead and belatedly
filed her own lawsuit against Delta in Dallas, Texas.
That suit was dismissed, largely because of the non-work
reiated nature of the incident. Feingold v. Delta Air
Lines, et al. No. 99-CV-0728-T (N.D. Tex., Oct. 20,
1999) This decision dismissing her case recently was
affirmed by the Fifth Circuit. (No. 01-10209, May 21,
2002).°
> Delta submitted that Ms. Feingold made no such report.
¢ Delta also allegedly received a report about Mr. Young, from
Delta Flight Attendant Michelle Zachary. The report from Ms.
Zachary involved no sexual conduct at all—but instead involved an
allegation that Young had twice yelled at her in an “intimidating”
fashion (primarily because she was gossiping about him) and said
that he was going to “get her” if she continued to talk about him.
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9
4. Judge Weinstein's Decision. The Honorable Jack
B. Weinstein, sitting in the district court, recognized
that, under the facts set forth above, Delta was entitled
to summary judgment on Ms. Ferris’ hostile work
environment claims under Title VII. For two separate
reasons, he ruled that Delta could not be held liable
based on the events that occurred in Mr. Young’s
bedroom.
First, Judge Weinstein noted that, “[a]s a general
proposition, employers are not responsible under Title
VII for hostile sexual acts resulting from non-work-
related, off-duty interactions between co-employees.”
(Id. at 29a) While he recognized that, in a minority of
cases (particularly in the context of supervisor/employee
interactions), the work environment can extend beyond
the traditional work place, this case involved a purely
social interaction between two co-employees in a private
hotel] room—a setting that was too far removed from the
workplace to suggest liability:
In the instant case the environment was not work-
related. Plaintiff was not only off-duty, she volun-
tarily associated with defendant—someone who had
no supervisory authority over her—for purely per-
sonal reasons. No evidence has been presented link-
ing her decision to go to Defendant’s room with her
employment with Delta.
(Id. at 36a) Judge Weinstein concluded that to hold an
employer like Delta liable for an off-duty, private assault
would require employers to begin closely monitoring
and controlling their employees’ off-duty conduct—
something that the drafters of Title VII never envisioned
Ms. Zachry’s alleged report had no sexual overtones or content at all,
did not even hint at a sexually hostile work environment. (Id. at
82a)
10
and that conflicted with fundamental notions of personal
privacy. In Judge Weinstein’s words:
To hold an employer liable in these circumstances
would be to encourage unacceptable inquisitorial
snooping and intrusiveness by employers into the
private lives of their employees, contrary to fun-
damental American notions of privacy.
(Id. at 22a)’
Judge Weinstein also recognized a second, indepen-
dent basis for dismissing Delta from the case, hold-
ing that there was no basis on which to conclude that,
even if Ms. Ferris had been harassed in the workplace by
Mr. Young, Delta should be liable for the assault. Judge
Weinstein correctly rejected Ms. Ferris’ argument that
Delta was on “notice” of prior sexual assaults by Mr.
Young because it allegedly had received reports of his
conduct with respect to Ms. Ballweg (in a hotel room
while visiting his mother’s house) and Ms. Feingold (in
his own home):
Plaintiff contends that because Delta might have
been aware of two earlier reports of her attacker’s
off-duty, non-work related improper sexual conduct,
it had constructive notice. . . . Although knowl-
edge that a co-worker has allegedly assaulted other
persons may in some instances be sufficient to put
an employer on constructive notice that a sexual
assault is likely to occur, the facts of this case pre-
sent no material question of constructive notice.
Earlier complaints of sexual improprieties involved
non-work related, off-duty encounters, substantially
7
Judge Weinstein also recognized that Ms. Ferris’ minimal
contact with Defendant Young in the workplace after the alleged
assault was not sufficient to create a hostile work environment under
Title VII. (Id. at 38a-39a)
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curtailing both the practical ability and the legal
authority of Delta to investigate. Cf. Ambrosio v.
Price, 495 F. Supp. 381, 386 (D. Neb. 1979) (“An
employer cannot be expected to exercise control
over the personal, as opposed to business, activities
of its employees in order to protect third persons.”).
(Id. at 38a) (some citations omitted).
5. The Second Circuit’s Decision. The Second Circuit
Court of Appeals reversed Judge Weinstein’s decision.
Departing from other state and federal courts that have
considered the issue, the court held in its published opin-
ion that, while Ms. Ferris’ choice to visit with Mr.
Young was purely personal and voluntary, an employer
like Delta could be held liable for any conduct that
occurred in Mr. Young’s bedroom because it was fore-
seeable that some Delta flight attendants would “social-
ize as a matter of course” while off-duty on layovers,
and that some of them might choose to enter bedrooms
together. (Id. at 12a) In other words, because Delta knew
that some of its flight attendants would strike up rela-
tionships—and some might even date—the court placed
Delta in the position of being required to monitor and
regulate their private sexual activity.
The Court also held that Delta’s liability in this case
could be premised on the allegation that Delta had
received reports—from Ms. Ballweg and Ms. Feingold—
of private, off-duty sexual acts on dates they had with
Mr. Young. According to the Court, these reports of dat-
ing misconduct provided Delta with “notice of Young’s
proclivity to rape co-workers” and thus provided a basis
for Title VII liability. (Id. at 14a-16a) The court did not
suggest what Delta should or could have done had it
investigated the incidents and learned the truth—that the
circumstances of the two incidents were unclear and
very much a matter of subjective interpretation.
12
REASONS FOR GRANTING THE PETITION
The Second Circuit’s opinion epitomizes the adage
that hard cases make bad law, and extremely hard cases
make extremely bad law. With not one, but two distinct
rulings, the court has dramatically broadened employer
responsibilities to employees under federal law. It in
essence has required employers to monitor off-duty dates
and sexual encounters between employees any time 2
employers know such encounters are likely, and it has
declared that employers are responsible under Title VII
for ensuring that their employees do not go “too far”
during these private dates. Succinctly put, the court’s
opinion has expanded employers’ responsibility, author-
ity, and liability under Title VII into the private bed-
rooms of employees.
The Second Circuit’s first ruling is that an employer
may be liable for sexual harassment under Title VII
when two non-supervisory employees voluntarily go to
a private bedroom after work, for purely social reasons.
The sole prerequisite to converting the bedroom to the
workplace is the foreseeability of social interaction
between fellow employees—a matter as foreseeable as
night and day. Second, the Court held that an employer’s
Title VII liability to an employee for such social inter-
actions can be predicated solely on constructive know]l-
edge of prior allegations of private misconduct that also
occurred off-duty, off-premises, behind locked bedroom
doors.
These rulings, which purport to be based on an inter-
pretation of a narrow employment discrimination statute,
expand employer liability further than ever before and
place the Second Circuit squarely in opposition with the
other United States Court of Appeals that has addressed
the issue. They also run counter to the growing number
of statutes and cases that place limits on an employer’s
13
right to monitor, investigate and control an employee's
off-duty activities and relationships. Indeed, until now,
whether co-employees chose to socialize, and certainly
whether they became intimate enough to enter a bed-
room together (not to mention what they did in that bed-
room) have been purely private matters far beyond the
reach of the persons’ employers and far beyond the
scope of Title VII.
1. The Court of Appeals Decision Dramatically
Expands Title VII to Areas and Subjects Unrelated to the
Workplace. For an employer to be found liable for hos-
tile work environment sexual harassment under Title
VII, it must engage in misconduct that causes the work-
place to be “permeated with discriminatory intimidation,
ridicule, and insult. . .” Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). Courts have occasionally rec-
ognized that the “work environment” in which unlawful
sexual harassment can occur may reach beyond the
actual premises of the employer. But, when sexual acts
occur away from the work premises, courts also have
required an employee to demonstrate a substantial con-
nection between the improper conduct and the employ-
ment relationship as a prerequisite to employer liability
under Title VII. See e.g., Anderson v. Adam's Mark
Hotels & Resorts, 211 F.3d 1277, 2000 WL 390107 (10th
Cir. 2000) (table); Tomka v. Seiler Corp., 66 F.3d 1295,
1306 (2nd Cir. 1995).
Many courts have recognized that unwelcome or hos-
tile sexual acts that occur during off-duty interactions
between co-employees are too remote to the employment
relationship to implicate Title VII. Because Title VII is
aimed at immunizing employees’ work environments
from sexual intimidation, employers are not liable for
unwelcome or hostile sexual acts that occur during off-
duty dates, in private quarters, between two co-workers.
14
Anderson, 2000 WL at *1; Alvey v. Rayovac Corp., 922
F. Supp. 1315, 1330 (W.D. Wis. 1996). Such off-duty,
off-premises conduct does not have the requisite con-
nection with the employment relationship to cause
employers to be liable. /d.
The statutory basis and policy rationale behind this
principle is sound. Employers cannot effectively comply
with Title VII in the private social world, over which
they have no realistic control. Thus, to hold employers
liable in that context requires them to override all rea-
sonable notions of employee privacy and to engage in a
host of monitoring, investigative and regulatory activi-
ties that have no otherwise rational connection to the
workplace or the employer's business.
As this Court has made clear in prior precedent, a sex-
ually hostile environment can be created in a variety of
ways—from intimate physical contact, to conversations
in the workplace, to displays of photos. See, e.g., Mer-
itor Savs. Bank v. Vinson, 477 U.S. 57, 67 (1986). See
also Polimeni v. American Airlines, Inc., No. CV 92
5702 (RJD), 1996 WL 743381 (E.D.N.Y. Dec. 18, 1996).
If the “work environment” includes private bedrooms
and hotel rooms, as the Second Circuit now holds, to
prevent a Title VII “hostile environment” claim, employ-
ers will be obliged to police the private conduct of
employees within those areas (including their touching,
television viewing, reading, conversations, efc.).
Employers would, for instance, be expected to discipline
employees who watched risqué shows on television
while being visited by other employees. Cautious
employers would have to prohibit any sexual activity of
any kind between employees, including consensual
activity by adult employees, to protect against romances
and liaisons gone bad and the cross-allegations they fre-
quently spawn. Employees, the general public and the
15
drafters of Title VII would no doubt find such results to
be astounding and an invasion of the right to engage in
the most basic private activities. Yet, that is exactly what
the Second Circuit’s published opinion now requires.
There certainly are state law claims—separate and
apart from claims under Title VII—that are available to
employees when fellow employees injure them. Such
incidents and injuries are what tort and workers’ com-
pensation laws are designed to remedy. The Second Cir-
cuit decision, however, expands Title VII into this field,
making it a general tort statute rather than an employ-
ment discrimination statute, and applying it to alleged
conduct that occurs nowhere near the work environment.
In so doing, it turns workplace employment discrimi-
nation law on its head.
2. The Court of Appeals Bases Its Expansion of Title
VII On An Employers Knowledge that Its Employees are
Likely to Socialize—Knowledge Common to Every
Employer Subject to the Act. The Second Circuit's
premise for holding Delta liable for private sexual con-
duct is its knowledge that its Flight Attendant employ-
ees. because they frequently travel, are likely to engage
in social interaction. The Court’s reasoning, in its
entirety, is as follows:
The flight crew members repeatedly spend brief lay-
overs in a foreign country with little opportunity to
develop private lives in that place. Most likely they
do not speak the local language. In all likelihood,
they do not have family, friends or their own resi-
dences there. Although it is not mandatory for them
to do so, they generally stay in a block of hotel
rooms that the airline reserves for them and pays
for. The airline in addition provides them as a group
with ground transportation by van from the airport
to the hotel on arrival, and back at the time for
16
departure. It is likely furthermore in those circum-
stances that the crew members will have no other
acquaintances in this foreign place and will band
together for society and socialize as a matter of
course in one another’s hotel rooms. Even though
the employer does not direct its employees as to
how to spend their off-duty hours, the circumstances
of the employment tend to compel these results.
(App., infra, 12a)
Putting aside the fact that most of these factual asser-
tions are conjecture unsupported by the record, the
implications of the court’s rationale are profound. While
the court is certainly correct that some Delta employees
may “band together for society and socialize as a matter
of course,” in this regard Delta employees are no dif-
ferent from employees at any other job. Delta is cer-
tainly no different from any other employer who knows
that its employees—because of busy work schedules,
common commutes, travels away from home, or simply
having common interests—will socialize together, and
even date one another, when away from work. This
knowledge of employee camaraderie, however, has never
formed the basis for imputing liability to an employer
when two non-supervisory co-employees begin social-
izing together and the relationship goes awry.
If mere knowledge of a “propensity to socialize” is
enough, employers face ever-increasing liability (under
Title VII, no less) for anything that happens when co-
employees are together—no matter where, when or how
they socialize with each other. The implications are sig-
nificant, as employers now are being placed in the
untenable position of having to control off-duty social
interaction between their employees.
17
3. The Court of Appeal’s Decision Conflicts With
Decisions of other Courts of Appeal and Generally
Accepted Limits on Employers’ Interests and Responsi-
bilities. Prior to the Second Circuit’s opinion in this
case, every court considering this issue has recognized
that off-duty, private encounters between co-workers are
far outside the working environment and cannot form the
basis of a “hostile work environment.” In Anderson v.
Adam’s Mark Hotels & Resorts, 211 F.3d 1277, 2000
WL 390107 (10th Cir. 2000) (table), for instance, the
plaintiff, who was employed by the Adam's Mark Hotel,
alleged that the manager of the hotel’s nightclub sexu-
ally assaulted her in one of the hotel’s rooms that had
been provided by the employer to the accused employee.
In other words, the alleged assault took place in a hotel
room on the employer hotel’s premises. The assault
occurred after the plaintiff accepted the accused
employee’s offer to share his hotel room in lieu of driv-
ing home following a round of social drinks after work.
The court rejected the plaintiff’s statutory discrimination
claims (as well as her other claims) because the alleged
“sexual harassment” occurred outside the workplace,
after work hours, in an area where the employer lacked
full access. Because plaintiff’s work environment was
not implicated by the off-duty conduct of her fellow
employee, she was not able to establish the requisite
“hostile work environment.” Her Title VII claim there-
fore was dismissed.
Similarly, in Capitol City Foods v. Superior Court,
5 Cal.App.4th 1042, 7 Cal.Rptr. 2d 418 (1992), the Cal-
ifornia Court of Appeals rejected a statutory sexual
harassment claim that was based on the allegation that
the plaintiff’s supervisor raped her in his home during an
after hours date that was arranged while the two were
working together. The court noted that the plaintiff had
voluntarily accompanied the supervisor to his home, had
eee ee
—___ En — —w
18
not objected to being with him, and had not indicated
she had been coerced into accepting his invitation. It fur-
ther noted that both employees were off-duty at the time,
that the conduct had not occufred in the workplace, and
that the incident was not work related. Based on those
facts, the court held that there was no basis for holding
the employer liable for statutory sexual harassment.
5 Cal.App. 4th at 1050, 7 Cal.Rptr.2d at 423. See also
Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d
1344 (7th Cir. 1995) (recognizing that, standing alone,
conduct that occurred after plaintiff voluntarily went to
a strip bar after work hours could not form the basis for
a Title VII claim); Alvey v. Rayovac Corp., 922 F.Supp.
1315, 1330 (W.D. Wisc. 1996) (holding that off-premises,
off-duty conduct “has no relevance to plaintiff’s work-
place environment”); Hunter v. Countryside Ass’n for
the Handicapped, Inc., 723 F.Supp. 1277 (N.D.IIl. 1989)
(employer not liable under Title VII for an alleged rape
committed when employee visited co-worker at his
me).
The Second Circuit’s extensive opinion does not
address, or even attempt to reconcile, any of the cases
like Anderson, Capitol City Foods, or Hennessy, or oth-
erwise to legally support its finding that a private bed-
room can constitute a “hostile work environment,”
particularly when two co-employees voluntarily enter it
for purposes of socializing and drinking. However, the
fact that the Second Circuit did not attempt to reconcile
or expound upon its opinion does not render it any less
significant to employers.
4. The Court of Appeals Decision Imposes Upon
Employers An Obligation to Inquire Into, Investigate
and Regulate the Private Lives of Their Employees
and Thereby Substantially Impairs Significant Personal
Privacy Rights. The Second Circuit’s second rationale
19
for its decision underscores the court’s requirement that
employers necessarily engage in inquisitorial snooping
into the private lives of their employees. Specifically,
the court ruled that Delta could be held liable for the
alleged conduct of Mr. Young in his private hotel room
because, during the six year period prior to the
encounter, it allegedly had received two reports about
his sexual activity during private dates in his home (with
Ms. Feingold) and in a private (non-layover) hotel room
(with Ms. Ballweg).
The Second Circuit is the first court ever to hold that
an employer may be found liable for creating a hostile
work environment based upon its knowledge of alleged
conduct by an employee indisputably outside the work
environment. There is certainly no prior Title VII hold-
ing that in any way obligates an employer to regulate,
investigate, and/or penalize an employee for off-duty
social behavior, be it sexual or otherwise. To the con-
trary, courts have held that such liability can be
premised only on knowledge of conduct that involves
alleged harassment in the workplace, in the course and
the scope of the accused employee’s employment, that iS
also near in time to the events about which the employee
complained. See, é.g., Hirase-Doi v. U.S. West Commu-
nications, Inc., 61 F.3d 777, 783-4 (10th Cir. 1995).
The law “generally prevents interference with the
privacy of sexual relationships,” and only “Irjeligious
institutions . . . are provided leeway under federal con-
stitutional and statutory law in regulating the sexual con-
duct of those in their employ. . . .” Ganzy v. Allen
Christian School, 995 F.Supp. 340, 359 (E.D.N.Y. 1997)
(Weinstein, J.). An employer should not even have the
right, much less a court-imposed obligation, to police its
employee’s constitutionally protected private sexual con-
duct. Thorne v. City El Segundo, 726 F.2d 459, 468 (9th
20
Cir. 1983). See also, Ambrosio v. Price, 495 F. Supp.
381, 386 (D. Neb. 1979) (“An employer cannot be
expected to exercise control over the personal, as
opposed to business, activities of its employees. . . .”)®
The Second Circuit’s ruling that Delta was obligated
to investigate unverifiable reports about Mr. Young’s
off-duty, private sexual conduct is remarkable when con-
sidered in light of the privacy implications of such an
approach and the express provisions of federal and state
law. To impose such a duty on employers would force
them to monitor “the most intimate aspects of their
[employees’] off-duty lives,” which in turn would con-
travene other laws and public policies that prohibit
employers from inquiring into private sexual matters and
their employees’ off-duty behavior with others. Haybeck
v. Prodigy Services Co., 944 F.Supp. 326, 331 (S.D.N-Y.
1996). Title VII does not impose such a duty upon
employers, and the Second Circuit’s holding that it
does—and that employers essentially must employ
“social police” like those Henry Ford employed early in
8 If employers not only have a right, but also an obligation, to
investigate the private sexual conduct of those in their employ, and to
refrain from hiring those whoever have engaged in any form of sex-
ual misconduct (e.g., spousal abuse), the obligation would run counter
to a variety of express statutory and public policy obligations—
including the express laws and policies of New York where this case
was heard. It is the express public policy of New York “to encourage
the . . . employment of persons previously convicted of one or more
criminal offenses.” N.Y. Corrections Law § 753. Based on this public
policy, the New York legislature has made it unlawful (except in nar-
row circumstances) to deny employment “by reason of being con-
victed of one or more criminal offenses. . . .” N.Y. Corrections Law
§ 752. The Second Circuit’s proposed expansion of employment dis-
crimination law to impose an obligation on employers not only to
investigate peoples’ sex lives outside of work, but also to refrain from
hiring, or even to terminate, those whose past includes potentially
criminal sexual misconduct outside the workplace, would run counter
to these express provisions of New York law.
21
the Twentieth Century to monitor the most private
aspects Ford's employees’ lives—warrants review by
this Court.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
GILMORE F. DIEKMANN, JR.
Counsel of Record
SEYFARTH SHAW
101 California Street, Suite 2900
San Francisco, California 94111-5858
(415) 397-2823
BENJAMIN A. STONE
MUNGER & STONE, LLP
2850 First Union Plaza
999 Peachtree Street, NE
Atlanta, Georgia 30309
. MARGUERITE H. TAYLOR
DELTA AIR LINES, INC.
Law Départment, No. 982
1030 Delta Boulevard
Atlanta, Georgia 30320
Counsel for Petitioner
Delta Air Lines, Inc.
APPENDIX
la
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2000
(Argued: January 17, 2001
Decided: December 21, 2001)
Docket No. 00-7921
PENNY FERRIS,
Plaintiff-Appellant,
ihn
DELTA AIR LINES, INC.,
Defendant-Appellee,
—and—
MICHAEL YOUNG, :
Defendant.
~ Before:
VAN GRAAFEILAND, NEWMAN, and LEVAL,
Circuit Judges.
2a
The plaintiff, a female flight attendant employed by
defendant Delta Air Lines, Inc., appeals from summary
judgment granted by the United States District Court for
the Eastern District of New York (Weinstein, J.), dis-
missing her claims for sexually hostile work environ-
ment under federal, New York State, and New York City
law, and tort claims under New York State law, all aris-
ing from plaintiff’s rape during a layover in Rome by a
male flight attendant employed by Delta. The Court of
Appeals (Leval, Circuit Judge) holds that the judgment
is (1) vacated, insofar as it dismissed the sexual harass-
ment claims under federal law, and (2) affirmed, insofar
as it dismissed the state tort claims.
Affirmed in part, vacated in part, and remanded.
—
ALLEGRA FISHEL, Beranbaum Menken Ben-
Asher & Fishel LLP, New York, NY
(John A. Beranbaum on the brief), for
Plaintiff-Appellant.
GILMORE F. DIEKMANN, Jr., Seyfarth Shaw,
San Francisco, CA (Lisa Barnett Sween
on the brief), for Defendant-Appellee.
LEVAL, Circuit Judge:
Plaintiff Penny Ferris, a flight attendant employed by
defendant Delta Air Lines (“Delta”), appeals from a
grant of summary judgment by the United States District
Court for the Eastern District of New York (Weinstein,
J.), dismissing her claims for (1) sexual harassment
under Title VII of the 1964 Civil Rights Act, 42 U.S.C.
3a
§ 2000e, et seqg., the New York State Human Rights Law,
N.Y. Exec. L. § 290 et seqg., and the New York City
Human Rights Law, N.Y.C. Admin. Code § 8-107, and
(2) numerous other torts under the law of New York,
including negligent hiring, retention, and supervision of
an employee; assault, battery, false imprisonment, and
intentional infliction of emotional distress. The suit
arises from a male flight attendant’s rape of Ferris dur-
ing the crew’s brief layover between flights in Rome. We
vacate the grant of summary judgment as to the federal
sexual harassment claims because a reasonable factfinder
could find that Delta was responsible for a sexually hos-
tile work environment that caused injury to Ferris. We
affirm the grant of summary judgment as to the claims
under New York State and New York City law.
BACKGROUND
A. Events giving rise to this lawsuit.
In reviewing a grant of summary judgment in favor
of the defendant, we are obligated to consider all facts
in the light most favorable to the plaintiff. They are as
follows:
1. Young’s rape of Ferris
In March 1998, Penny Ferris and Michael Young, both
Delta flight attendants, were employed together on the
crew of a Delta flight from New York City to Rome,
Italy. When the flight arrived in Rome on March 17, the
crew (including Ferris and Young) boarded a Delta bus
to be driven to the Savoy Hotel, where Delta had
reserved and paid for a block of rooms to be used by the
crew until their return flight to New York on March 18.
That afternoon, Ferris and Young had shopped together
4a
for wine for Ferris to bring home as a present. Young
told her he had brought a bottle of a vintage Ferris was
considering and offered to let her taste it in his room
when they returned to the hotel. Upon their return, Fer-
ris went to Young’s room, where he had a glass of wine
ready for her. After drinking about half a glass, Ferris
felt faint. She tried to return to her room, but could not
make her legs move. She blacked out. While she was
unconscious, Young took off her clothes and raped her
vaginally, orally, and anally. She partially regained con-
sciousness intermittently during the multiple rapes, at
one point telling Young to stop before blacking out
again.
That night, at dinner with the other flight attendants,
Ferris was in shock and confusion. During the dinner,
she began to feel nauseous, and went to the bathroom
and vomited. The following day, she flew back to New
York, serving as crew together with Young.
On March 30, 1998—about two weeks after the rape—
Ferris recounted what had happened to Vanessa Bray,
who had been the “On-Board Leader” (the lead flight
attendant) on the March 16-18 flights. She told Bray that
she thought that she might have been drugged because
she was unable to do anything about what was happening
to her. Ferris then asked Bray not to repeat what she had
said, and Bray did not.
On April 11, 1998—about three weeks after the rape—
Ferris reported the rape to Anne Estall, the Delta Duty
Supervisor. In the course of a one-hour meeting, Ferris
informed her that she had been raped by a flight atten-
dant who was an Italian speaker on a March 1998 flight
to Rome. Ferris refused to give Young’s name. Using the
Delta computer system, Estall narrowed the suspects
down to two male, Italian-speaking flight attendants who
had been on the March 16-18 flights. She then set up a
5a
meeting between Ferris and Maritza Biscaino, the Delta
Base Manager at John F. Kennedy International Airport
(JFK) for six days later.
At the meeting on April 17, 1998, Ferris told Biscaino
about the rape in an interview that lasted approximately
two hours. Biscaino requested a written report and the
rapist’s name, both of which Ferris refused to give her.
In follow-up conversations with Ferris around May 4,
1998, Biscaino eventually persuaded Ferris to disclose
her assailant’s name.
On May 5, 1998, Biscaino and her co-base-manager
Kevin Grimes interviewed Michael Young for approxi-
mately two hours. He said that, upon arriving in Rome,
he had gone to the gym, returned to his room for a nap,
and spent the night with another flight attendant, Jaycee
Kantz. The same day, he provided a written statement to
this effect. Biscaino interviewed Kantz shortly after, and
Kantz confirmed that Young had spent the night with
her.
Sometime in early June 1998, flight attendant Carolyn
Gordon overheard a conversation between Young and
another flight attendant in which Young said that he had
been accused of drugging and raping a Delta flight atten-
dant. This prompted Gordon to handwrite a memo to
Delta on June 22, 1998, which recounted an experience
that Gordon had had with Young in December, 1997.
Gordon had accepted Young’s invitation to come to his
room during a layover in Rome for a glass of wine.
When she got there, two glasses of wine were already
poured on the nightstand. Gordon’s memo implied that
the wine Young gave her may have been drugged and
that he took advantage of her drugged state to have sex
with her, although she acknowledged that she may have
suffered an adverse reaction between the wine and anti-
depressant medications she had been taking.
6a
On June 25, 1998, Ferris gave Biscaino her first writ-
ten report of the incident. Ferris’s written report repeated
the events as previously recounted to Vanessa Bray,
Estall, and Biscaino. On June 29, 1998, Biscaino and
Grimes again met with Young, confronting him with the
information in Ferris’s written report.’ At the conclusion
of the meeting, Biscaino and Grimes suspended Young
and removed his Delta workplace identification. Delta
continued to investigate Ferris’s claims over the next
several months, while Young was on suspension. Young
refused to cooperate with the investigation, and was rec-
ommended for termination on November 5, 1998. At
some point, Young submitted a handwritten resignation
to Delta.
2. Delta’s prior notice of Young’s sexually abusive
conduct with co-workers
a. Kathleen Ballweg
At Christmas time, 1993, Kathleen Ballweg and
Young were flight attendants together on a Delta flight
from New York to Milan. During the flight, Young
invited several flight attendants to accompany him to see
the Christmas Eve service in Florence. Several agreed,
but changed their minds by the time the plane arrived in
Florence, leaving Ballweg as the only flight attendant
accompanying Young to Florence. Young raped Ballweg
in her hotel room in Florence.
| The written report stated that the rape occurred in the after-
noon. Biscaino and Grimes seem to have thought that Ferris had
stated that she was raped in the evening, so that Kantz could provide
Young with an alibi. However, Ferris was virtually certain that she
had told Biscaino in her initial interview that the rape had occurred
during the afternoon.
Ta
Upon returning to the United States, Ballweg reported
the incident to a Delta supervisor at JFK. She said the
supervisor should know about somebody who is poten-
tially dangerous, and she identified Young by name.
Although she believed she did not use the word “rape,”
she told the supervisor that she had been attacked, and
clearly communicated that the attack was sexual in
nature. She told the supervisor that she wanted to be
anonymous, and the supervisor replied that Delta could
do nothing about it unless Ballweg made a written, for-
mal complaint, which Ballweg did not want to do. Ball-
weg told the supervisor that she would spread the word
about Young’s dangerousness, and later warned many
flight attendants about Young.
Ballweg later encountered Young during a Delta lay-
over in Frankfurt. Young called Ballweg several times in
her hotel room that night, saying she should spend the
night with him, and berating her with comments about
sex. Ballweg again reported her experiences with Young
to a Delta supervisor. She told the supervisor about the
attack in Florence, noted that she had already told a
supervisor about it, and told the supervisor that she
thought that Young was still dangerous.
Ballweg flew with Young only one more time after the
phone calls in Frankfurt. Whenever she was flying to
Rome or Milan, she would check the flight attendant list
to see if Young was on the flight, and tried to avoid
assignment to a flight if she saw that Young would be
working on it.
Delta took no action in response to Ballweg’s reports.
b. Aileen Feingold
In March 1995, Delta flight attendant Aileen Feingold
visited Young in Dallas for sightseeing. Young had
invited her to stay at his house, telling her she would
(8a
have a separate bedroom. On the night that Feingold
spent at Young’s house, Young entered the bedroom
where she was sleeping and raped her while she was
asleep.
Feingold was so distraught after the rape that she
failed a training test that she took the next day. Delta
subsequently cancelled one of Feingold’s scheduled trips
so that she could re-take the test.
Feingold later warned several Delta flight attendants
that Young was a rapist. About four months after the
rape, Feingold contacted Young about a suitcase that she
had left at his house. Young emailed her, telling her that
it was her problem to take care of her things, that he had
heard that she was talking negatively about him, and that
she had better stop because Young had friends that could
get her in a lot of trouble, specifically mentioning Delta
supervisor Nancy Ruhl, who was manager of in-flight
service for JFK. Young also left messages at her home,
telling her to shut her mouth, or he would take care of
her.
Feingold then contacted Ruhl, the Delta supervisor
that Young had mentioned. Feingold told Ruhl about the
rape. Feingold also read Ruhl the emails that she had
received, and offered to bring her file of Young’s emails
by Ruhl’s office. Ruhl said that that would not be nec-
essary. Feingold said that she believed she was not the
first person that Young had raped, as it seemed to her
that Young had a method of operation that was down pat.
Feingold offered to write up a report to put in Young’s
file to document her allegations. She told Ruhl that she
wanted to do something so that Young would not rape
anyone else. Ruhl told Feingold that she would talk to
Young and that she would take care of the situation, and
that it was not necessary for Feingold to provide a writ-
ten report.
9a
The next day, Ruhl called Feingold and told her that
she had talked to Young, that he would not bother her
again, and that she had taken care of everything. She
instructed Feingold never to talk to Young, and not to
talk to anyone about what had happened.
Delta took no action in response to Feingold’s report.
3. Michelle Zachry
Michelle Zachry, another Delta flight attendant, had
also reported to Delta that Young had behaved hostilely
and aggressively toward her during their work on a flight
after she refused to go out to dinner with him.
Zachry flew with Young to Rome in July 1997. During
the flight, Young made sexual comments to her, told her
about his illegal steroid use, told her that he was
involved in a sexual affair with another flight attendant,
and invited Zachry to go to dinner. Later, Young called
Zachry in her hotel room to ask her to go to dinner, and
after she turned him down, called her back and became
belligerent.
After landing from the return flight from Rome,
Young came up to Zachry and began cursing and scream-
ing at her. Passengers turned around to look at him, and
another flight attendant eventually interposed himself
between Young and Zachry and told Young that he
needed to “chill out.”
Zachry reported this incident to a supervisor. She did
not give Young’s name, but told the supervisor that a
flight attendant had gone crazy because she would not go
out to dinner with him. The supervisor did not ask any
questions of her, and did not make a formal report.
In the meantime, Zachry had spoken with the flight
attendant that Young had said he was having an affair
with. About one week later, Zachry encountered Young
on a Delta tram in the Dallas airport. Young called
10a
Zachry obscene names, and threatened to kill her. Zachty
feared that Young might physically attack her.
After the incident on the tram, Zachry told Cheryl
Merit, a Delta supervisor, that she was going to report an
incident. Merit then accompanied Zachry to the office of
Kathy Goldberger, a Delta supervisor. This time, Zachry
identified Michael Young by name, and told Goldberger
what had happened on the plane, on the tram, and how
Young had boasted of his illegal steroid use. Goldberger
asked Zachry to make a written report, telling her that
they could not do anything unless Zachry made a written
report, and Goldberger told Zachry that Delta “[did not]
have anything on [Young].” Zachry was not willing to
make a written report. Afterwards, Zachry would not fly
to Rome because of her fear of encountering Michael
Young.
Delta took no action in response to Zachry’s report.
B. The district court’s decision
In July 1999, Ferris brought this action against Young
and Delta. Judge Weinstein ordered a separate initial
trial on the question whether the rape had occurred. This
resulted in a mistrial when the jury was unable to agree
on a verdict. Delta then moved for summary judgment.
The court rejected plaintiff’s sexual harassment claims.
See P. v. Delta Air Lines, Inc., 102 F. Supp. 2d 132
: (E.D.N.Y. 2000) (hereinafter “P.”). With respect to the
| rape itself, the court ruled that Ferris could not prevail
because Young’s hotel room in Rome was not a “work
| environment” within the ambit of Title VII. See id. at
141. As to the claim based on Ferris’s anxiety and dis-
tress at the prospect of thereafter encountering Young at
Delta, the court concluded that plaintiff’s claimed injury
was too hypothetical and speculative to support a claim
:
lla
of hostile work environment harassment. See id. at 142-
43.
The court also rejected plaintiff’s state tort claims.
Plaintiff has not sought review of most of these rulings.
On the claims for negligent retention and supervision,
which plaintiff has pursued on appeal, the district court
concluded that Delta could not be heid liable for Young’s
actions because Young was not on Delta’s premises Or
using Delta’s chattels when he raped plaintiff. See id. at
144. Rae
Judgment was entered on July 20, 2000. On this
appeal, Ferris argues the district court erred in granting
summary judgment to Delta on her sexual harassment
claim and on her claims for negligent supervision and
retention of Young.
DISCUSSION
A. Sexual harassment claims
1. Young’s rape of Ferris during the layover in Rome
The district court granted summary judgment to Delta
on Ferris’s claim based on the rape in Rome. Because
Young had no supervisory authority over Ferris and she
associated voluntarily with him, and there was no evi-
dence that Delta had affirmatively encouraged flight
attendants to visit each other’s rooms, the court con-
cluded that the attack in Young’s hotel room could not,
as a matter of law, be found to have occurred in a “work
environment.” See P., 102 F. Supp. 2d at 141.
Although we think the question is close, we respect-
fully disagree with the district court’s conclusion. In our
view, the rape could be found to have occurred in a work
environment within the meaning of Title VII. The cir-
12a
cumstances that surround the lodging of an airline’s
flight crew during a brief layover in a foreign country in
a block of hotel rooms booked and paid for by the
employer are very different from those that arise when
stationary employees go home at the close of their nor-
mal workday. The flight crew members repeatedly spend
brief layovers in a foreign country with little opportunity
to develop private lives in that place. Most likely they do
not speak the local language. In all likelihood, they do
not have family, friends, or their own residences there.
Although it is not mandatory for them to do so, they
generally stay in a block of hotel rooms that the airline
reserves for them and pays for. The airline in addition
provides them as a group with ground transportation by
van from the airport to the hotel on arrival, and back at
the time for departure. It is likely furthermore in those
circumstances that the crew members will have no other
acquaintances in this foreign place and will band
together for society and socialize as a matter of course in
one another’s hotel rooms. Even though the employer
does not direct its employees as to how to spend their
off-duty hours, the circumstances of the employment
tend to compel these results. In view of the special set of
circumstances that surround such a foreign layover, we
disagree with the district court’s conclusion. A jury
could properly find on these facts that Young’s hotel
room was a part of Ferris’s work environment within the
terms of Title VII.?
2
We recognize that cases that have found or implied that sex-
ually abusive conduct committed by supervisors away from the place
of employment can sustain employer liability depend at least in part
on a significantly different theory. See, e.g, Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 748 (1998) (plaintiff’s allegations of harass-
ment included an allegation that while she and a supervisor were on
a business trip, the supervisor had invited her to the hotel lounge,
made remarks about her breasts, and, when she gave no encourage-
13a
The Supreme Court has stated that “whether an envi-
ronment is ‘hostile’ or ‘abusive’ can be determined only
by looking at all the circumstances. These may include
the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a
mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.” Har-
ris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). A plain-
tiff establishes a claim for hostile environment sexual
harassment if she demonstrates (1) harassment that was
sufficiently severe or pervasive to alter the conditions of
her employment, creating an abusive working environ-
ment, and (2) a sufficient basis for imputing the conduct
that created the hostile environment to her employer. See
Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir.
1997).
Although a continuing pattern of hostile or abusive
behavior is ordinarily required to establish a hostile
environment, a single instance can suffice when it is suf-
ficiently egregious. We have no doubt a single incident
ment to him, told her to “loosen up” and warned her, “I could make
your life very hard or very easy at Burlington.”); Meritor Sav. Bank
vy. Vinson, 477 U.S. 57, 60 (1986) (plaintiff's allegations of harass-
ment included allegations that her supervisor had invited her out to
dinner and, at the dinner, suggested that they go to a motel and have
sexual relations and that her supervisor had made repeated demands
upon her for sexual favors, both during and after business hours);
Tomka v. Seiler Corp., 66 F.3d 1295, 1301-02 (2d Cir. 1995) (plain-
tiff’s allegations of harassment included an allegation that plaintiff
had gone out for a “business dinner” with two supervisors and a co-
worker that consisted of having about 40 drinks and a small quantity
of food at a bar, after which the thtee men raped her in the back seat
of a rental car), abrogated on other grounds by Burlington Indus., Inc.
vy. Ellerth, 524 U.S. 742 (1998); McGuinn-Rowe v. Foster’s Daily
Democrat, 1997 WL 669965, at *3 (D.N.H. 1997); Enders v. Asso-
ciated Co., Inc., 1995 U.S. Dist. LEXIS 14525, at *5 (D. Kan. 1995);
Huitt v. Market St. Hotel Corp., 1993 WL 245744 (D. Kan. 1993).
l4a
of rape can satisfy the first prong of employer liability
under a hostile work environment theory. See Tomka v.
Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995) (“{Elven
a single incident of sexual assault sufficiently alters the
conditions of the victim’s employment and clearly cre-
ates an abusive work environment for purposes of Title
VII liability.”), abrogated on other grounds by Burling-
ton Indus., Inc. v. Ellerth, 524 U.S. 742 (1998).
Ferris’s evidence must also satisfy the second prong
by showing a sufficient basis for imputing responsibil-
ity to Delta for Young’s conduct. Where the harassment
was done by a co-employee without supervisory author-
ity over the plaintiff, liability will be imputed to the
employer “only if it is negligent, that is, if it either pro-
vided no reasonable avenue for complaint or knew of the
harassment but did nothing about it.” Richardson v. New
York State Dep’t of Corr. Serv., 180 F.3d 426, 441 (2d
Cir. 1999) (internal quotation marks omitted); see
Faragher v. City of Boca Raton, 524 U.S. 775, 799
(1998) (noting agreement among the circuits that lia-
bility should be imputed to employers in cases of co-
worker harassment only if the employer was negligent).
A reasonable factfinder might conclude that Delta’s
negligence made it responsible for Ferris’s rape. Delta
had notice of Young’s proclivity to rape co-workers. The
fact that Young’s prior rapes were not of Ferris but of
other co-workers is not preclusive. If an employer is on
notice of a likelihood that a particular employee’s pro-
clivities place other employees at unreasonable risk of
rape, the employer does not escape responsibility to
warn or protect likely future victims merely because the
abusive employee has not previously abused those par-
ticular employees.
Supervisory personnel at Delta had been notified that
Young had twice raped female co-workers and had
es ih Lin SOR aS
15a
engaged in other abusive, sexually hostile conduct
toward the rape victims and a third co-worker. Not only
did Delta do nothing about it, but a Delta supervisor
(Ruhl) took affirmative steps to prevent the filing of a
formal complaint that might have resulted in protective
steps and even to prevent a prior victim (Feingold) from
informally spreading cautionary words among the flight
attendants about Young. Given all the circumstances, a
reasonable factfinder could find that Delta was negligent
in failing to take steps that might have protected Ferris
from Young’s proclivity to rape female co-workers.
The district court rejected the proposition that the
Ballweg and Feingold rapes could constitute notice to
Delta as to the harassment Ferris suffered. It reasoned
that the “[eJarlier complaints of sexual improprieties
involved non-work-related, off-duty encounters, sub-
stantially curtailing both the practical ability and the
legal authority of Delta to investigate.” P., 102 F. Supp.
2d at 142. We disagree. Had the earlier non-work related
incidents consisted of less grave conduct, such as off-
duty flirtation, sexual innuendo, or crude talk, we might
agree that such off-premises, off-duty conduct does not
reasonably give notice of a likelihood that the person
will represent a danger to co-employees or import his
harassment into a work environment and therefore does
not give rise to an employer’s duty to protect co-work-
ers. But rape is obviously a far more serious matter. The
more egregious the abuse and the more serious the threat
of which the employer has notice, the more the employer
will be required under a standard of reasonable care to
take steps for the protection of likely future victims. The
district court may have been correct that Delta’s ability
to investigate was curtailed by the fact that the Feingold
and Ballweg rapes occurred off-duty. It does not follow,
however, that the off-duty nature of the rapes absolved
}
a
l6a
Delta of all responsibility to take reasonable care to pro-
tect co-workers, much less justified a supervisor’s affir-
mative steps to prevent a victim from filing a written
complaint and warning co-workers.
2. Ferris’s subsequent distress at the prospect of
encountering Young at Delta once she was back in
New York.
Because Ferris did not work with Young again after
their return to New York, the district court granted sum-
mary judgment to Delta with respect to Ferris’s fear of
further encounters with Young on the ground that “such
trepidation, standing alone, is too hypothetical and spec-
ulative to support a contention that there was an ‘objec-
tively hostile or abusive work environment.’ ” P., 102 F.
Supp. 2d at 142. We think the evidence, viewed in the
light most favorable to Ferris, showed that she suffered
real emotional trauma from her fear of seeing Young
again while both were working as flight attendants. Fer-
ris endeavored to keep abreast of Young’s work schedule
in efforts to ensure that she would not ever work on a
flight he was on. But she suffered anxiety attacks at
work due to her fear that she might again encounter
Young, sought psychiatric help and took antidepressants.
Under the circumstances, we do not think that Ferris’s
fear of encountering her rapist at her workplace is too
hypothetical and speculative to sustain an award of dam-
ages. We do not rule out, however, that Ferris may be
chargeable with partial, or even full, responsibility for
this later injury or its duration by reason of her failure to
mitigate her damages when she delayed reporting the
event to Delta and naming her assailant.
17a
B. New York negligent retention and supervision claims
Ferris originally brought claims against Delta for var-
ious intentional torts under the doctrine of respondeat
superior, as well as claims for negligent hiring, reten-
tion, and supervision. The district court granted sum-
mary judgment for Delta on all of Ferris’s state tort
claims. See P., 102 F. Supp. 2d at 143-44. On appeal,
Ferris pursues only her negligent retention and super-
vision claims.
The district court granted summary judgment for Delta
on Ferris’s negligent retention and supervision claims on
the grounds that employers are only liable for the torts
of negligent retention and supervision when the torts are
committed on the employer’s premises or with the
employer’s chattels, and that the hotel room in Rome
was neither Delta’s premises nor its equipment. P., 102
F. Supp. 2d at 143-44.
We affirm the grant of judgment by reason of the New
York’s Workers’ Compensation statute. It provides that:
“The right to compensation or benefits under this chap-
ter, shall be the exclusive remedy to an employee. . .
when such employee is injured. . . by the negligence or
wrong of another in the same employ... .” N.Y.
Workers’ Comp. Law § 29(6) (McKinney 1993 & Supp.
2001), see also N.Y. Workers’ Comp. Law § 11 (Mc-
Kinney 1993 & Supp. 2001). We held in Torres v. Pisano,
116 F.3d 625 (2d Cir. 1997), that the New York Workers’
Compensation Law barred a common law negligence
claim that was asserted on the basis of an alleged hostile
work environment because of co-worker harassment. Jd.
at 640. Ferris’s state common law negligence claims are
therefore precluded by the exclusive remedy provisions
of New York’s Workers’ Compensation statute. See id.;
see also Ross v. Mitsui Fudosan, Inc., 2 F. Supp. 2d 522,
533 (S.D.N.Y. 1998) (dismissing New York common law
|
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i
’
i
18a
negligence claims arising out of sexual harassment law-
suit as barred by exclusive remedy provisions of New
York Workers’ Compensation Law), Burlew v. Am. Mut.
dns £2, 472 NUE.2d 682 (N.Y. 1984). We therefore
affirm the district court’s grant of summary judgment on
Ferris’s negligent retention and supervision claims.
CONCLUSION
The district court’s grant of summary judgment in
Delta’s favor as to Ferris’s federal sexual harassment
claims is vacated and the case remanded for further pro-
ceedings. The district court’s grant of summary judg-
ment in Delta’s favor as to Ferris’s state law claims for
negligent retention and supervision is affirmed. The
award of costs and disbursements to Delta is vacated.
The costs of the appeal are awarded to Ferris.
19a
Appendix B
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
99 CV 4127
Filed June 29, 2000
Pas
Plaintiff,
—against—
DELTA AIR LINES, INC., and M.,
Defendants.
AMENDED PARTIAL JUDGMENT,
MEMORANDUM AND ORDER
APPEARANCES:
Attorneys for Plaintiff:
Timothy C. Davis
Lorelle J. Chin
Kristy L. Capogrossi
Clapp, Moroney, Bellagamba, Davis and Vucinich
4400 Bohannon Drive, Suite 100
Menlo Park, CA 94025
Allegra L. Fishel
Beranbaum, Menken, Ben-Asher & Fishe!
Three New York Plaza
New York, NY 10004
20a
Richard O’ Keeffe
| O’ Keeffe & Lindgren
707 Westchester Ave.
White Plains, NY 10604
Attorneys for Defendant Delta:
Janine Syll Simerly
Gilmore F. Deikmann, Jr.
Simone A. Pam
Seyfarth, Shaw, Fairweather & Geraldson
101 California Street, Suite 2900
San Francisco, CA 94111
Benjamin A. Stone
Delta Air Lines, Inc.
Law Department — 982
P.O. Box 20574
Atlanta, GA 30320
Attorneys for Defendant M.:
Robert J. Conway
Steven L. Sonkin
Marshall, Conway & Wright, P.C.
116 John St.
New York, NY 10038
JACK B. WEINSTEIN,
Senior District Court Judge:
2la
TABLE OF CONTENTS
E.'S eas WIE 6 ket cndcdued ci csccatuenas ic 3
Oe 2 ES daha Schau eesendana css kaauesatios 4
III STATUTORY SEXUAL HARASSMENT... 6
Bia: RRR i ctnvdndinsddncdavessdnstee ays 7
1. Hostile Work Environment......... 8
a. Hostile or Abusive Conduct... 8
b. Work Environment ............ 10
2. Employer Imputed Liability ....... 13
a. Reasonable Avenue of
RANE sc idietcakadtadacareias 15
b. Notice and Response.......... 15
B. Application of Law to Facts............ 17
1. Sexual Assault in Rome............ 17
2. Flight from Rome en eer rer 18
3. Fear of Additional Encounters..... 20
Sor NE nek Na canadnasdsApens Sikdawnuaenes 21
Bi: DR: cidapccvesscndcnnknn Sededeawns 21
ee seer ke i picashinwas 22
i EEE bed actnabsdecscsichesctacewsss 24
cca lie
|
22a
I INTRODUCTION
P. (Plaintiff) sues Delta Airlines, Inc., which employs
her as a cabin flight attendant, and M. (Defendant), who
was formerly so employed, for rapes Defendant
allegedly committed on her while the two were off-duty
following a Delta flight to Rome, Italy. She contends
that he administered a “date rape” drug and then com-
mitted the sexual assaults.
After a mistrial in which a ten member jury split nine
to one in favor of defendants on the underlying question
of whether a rape had in fact occurred, Delta moves for
summary judgment. See Fed.R.Civ.P. 56. The motion is
granted. To hold an employer liable in these circum-
stances would be to encourage unacceptable inquisitorial
snooping and intrusiveness by employers into the private
lives of their employees, contrary to fundamental Amer-
ican notions of privacy.
Both Defendant and Plaintiff are mature; one is
approaching forty, the other is almost fifty, and both
were previously married. Delta can not be faulted for
failure to warn this plaintiff that years before, in private
residences far removed in time and place from any Delta
related work activities, Defendant may have engaged in
non-consensual intercourse with fellow employees, nor
that he had sexual relations with a number of female
employees between Delta trips to and from Rome (a mat-
ter it could not have known about before plaintiff’s com-
plaint).
Arguably, if Defendant were a sexual predator who
should have been known by his employer to be a danger
to females, Delta would have had an obligation to warn
her or to decrease the hazards of his sexual rapacity by
not providing the pair with adjacent hotel rooms.
Arguably, were Plaintiff an immature person requiring
special protection and advice, Delta would have had an
Me Lines REN LENTT R NE BeNOR Ee te NE TT ECM OT Tene ee “ass a hs ech etn Al es Oy ak AGA ae laa
s ‘ ae Ph ia, Bee Fn PEN ter be SENT eae TNE Tha . FIT aL eee OY ME ee Te Pee ae . Tey ee = Te meg e® oh ‘
23a
obligation to not expose her to this danger or to provide
an appropriate chaperon. Arguably, were it mooted about
by employees that Defendant was a sexual hazard to be
avoided and guarded against, Delta would have had an
obligation to prevent the degeneration of work related
surroundings by his presence. The evidence supports
none of these hypotheses.
II FACTS
Analyzing the evidence to favor Plaintiff’s version,
see Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587-88 (1986), this story may be briefly
summarized from her point of view.
She was a long time Delta cabin flight attendant
assigned to her first flight from J.F.K. International Air-
port to Rome. He was a cabin flight attendant regularly
assigned to Delta’s New York-Rome flights. They had
neither met nor heard of one another prior to the March
16, 1998 trip to Rome. Neither had supervisory author-
ity over the other.
Upon arriving in Rome on the morning of March 17,
Plaintiff and Defendant, together with the rest of the
flight crew, were driven in a Delta bus to a hotel where
the airline had arranged for the crew to stay until the
return flight to New York on March 18. Responding to
his offer of some wine, Plaintiff went to his hotel room
at about 11 a.m. There he served her wine spiked with a
“date rape” drug.
Within a short period Plaintiff fell comatose on his
bed, awakening only intermittently, but realizing during
these periods of partial consciousness that Defendant
was raping her. She was unable to defend herself. After
five hours, Plaintiff came-to. She returned to her hotel
room where she slept until awakened at 7 p.m. by a tele-
phone call to join crew members for dinner. While dress-
|
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24a
ing for dinner, she found no seminal fluid on her clothes
or body, but threw away her undergarments.
During dinner Plaintiff did not discuss the sexual
assault. He was not present.
Plaintiff and Defendant both vorked aboard the March
18th return flight to New York. Neither then nor upon
landing in New York did she report the incident.
Two weeks later, on March 30, 1998, Plaintiff com-
plained about the rape to a fellow flight attendant who
had worked as lead attendant on the March 16 and 18
trips to and from Rome, but she asked that the informa-
tion not be relayed to Delta management; it was not.
More than three weeks after the assault, on April 11,
1998, Plaintiff informed a Delta flight attendant super-
visor of the assault, but declined to give her attacker’s
name. A month after the assault she informed a Delta
J.F.K. base supervisor that she had been raped, but
_ declined to identify the attacker; in contravention of
Delta’s printed policy statement requiring immediate
reports of sexual harassment, Plaintiff refused a specific
request to provide a written statement detailing the
event.
Finally, some month and a half after the rape Plaintiff
told Delta her attacker’s name. Defendant was immedi-
ately interviewed by Delta officials. He denied that the
incident had taken place and submitted a written state-
ment detailing his actions on March 17.
More than two months after the attack, on June 25,
1998, Plaintiff gave Delta a first written report. Upon
receiving it, Delta suspended Defendant without pay. He
resigned or was fired a few months later without ever
having been permitted to return to work.
Though no evidence appears in Delta’s records, it is
alleged (and assumed to be true) that the airline knew
that some years before: (1) another female flight atten-
25a
dant visited Defendant for the night at his home in Texas
where he seduced her; and, (2) yet another female flight
attendant slept with him in his family’s home in
Florence, Italy, where sexual congress ensued without
her full consent.
During the trial two other sexual encounters Defen-
dant had engaged in with female flight attendants were
revealed—one a fully consensual liaison and the other a
repeated voluntary sexual partnership that may have
begun by his spiking wine with a “date rape” drug. It is
not contended that Delta had any knowledge of either of
these affairs prior to the sexual assault on Plaintiff.
III] STATUTORY SEXUAL HARASSMENT
Plaintiff asserts claims for unlawful workplace sexual —
harassment under federal law as well as under New York
State and City laws. See, e:g., 42 U.S.C. §8§ 2000e, et
seq.; N.Y. Exec. L. §§ 296.1, 296.6, & 296.7; N.Y.C.
Admin. Code § 8-107. For purposes of this motion, New
York State and City discrimination laws are assumed to
mirror federal law. See, e.g., Cruz v. Coach Stores, Inc.,
202 F.3d 560, 565 n.1 (2d Cir. 2000). (“consideration of
claims brought under the state and city human rights
laws parallels the analysis used in Title VII claims”);
Smith v. Xerox Corp., 196 F.3d 358, 363 n.1 (2d Cir.
1999) (“claims under the [New York State Human Rights
Law] are analyzed identically to claims under. . . Title
VII”). i
A. Law
Title VII of the Civil Rights Act of 1964 provides in
pertinent part:
[i]t shall be an unlawful employment practice of an |
employer. . .to. . . discriminate against any indi-
26a
vidual with respect to. . . conditions, or privileges
of employment, because of such individuals. . .
sex[.]
42 U.S.C. § 2000e-2(a)(1). “[S]Jexual harassment in the
workplace violates Title VII’s broad rule of workplace
equality.” Karibian v. Columbia University, 14 F.3d 773,
777 (2d Cir. 1994) (internal quotation marks omitted);
see Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57,
66 (1986). Claims of workplace sexual harassment can
be advanced under two theories: (1) quid pro quo, and
(2) hostile environment. See, e.g., Torres v. Pisano, 116
F.3d 625, 630 (2d Cir. 1997); Carrero v. New York City
Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989).
Quid pro quo harassment occurs “when ‘submission to
or rejection of [unwelcome sexual] conduct by an indi-
vidual is used as the basis for employment decisions
affecting such individual.’ ” Karibian, 14 F.3d at 777
(quoting 29 C.F.R. § 1604.11(a)(2)) (changes in origi-
nal); see also id. (prima facie case consists of “evidence
that [the plaintiff] was (1) subject to unwelcome sexual
conduct, and (2) that her reaction to that conduct was
then used as the basis for decisions affecting the com-
pensation, terms, conditions or privileges of employ-
ment” (internal quotation marks omitted)). No such
harassment is alleged here.
A hostile work environment exists when gender-based
“intimidation, ridicule, and insult . . . is sufficiently
severe Or pervasive to alter the conditions of the victim’s
employment and create an abusive working environ-
ment.” Oncale v. Sundowner Offshore Serv., Inc., 523
U.S. 75, 78 (1998); (emphases added). To state an
actionable claim, a plaintiff must establish that (1) “the
harassment was ‘sufficiently severe or pervasive to alter
the conditions of the victim’s employment and create an
abusive working environment[,]’ ” and (2) “that a spe-
27a
cific basis exists for imputing the conduct that created
the hostile environment to the employer.” Perry v. Ethan
Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997); see
Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957
F.2d 59, 63 (2d Cir. 1992).
1. Hostile Work Environment
In order to establish the first element—an abusive
work environment—a plaintiff must identify hostile or
abusive conduct and establish a connection between that
conduct and the work environment.
a. Hostile or Abusive Conduct
Whether unwelcome conduct by a fellow employee “is
‘hostile’ or ‘abusive’ depends on the totality of cir-
cumstances.” Quinn v. Green Tree Credit Corp., 159 F.3d
759, 767-68 (2d Cir. 1998). A plaintiff must establish
both an “objectively hostile work environment, as well
as a subjective perception by the plaintiff that the envi-
ronment was abusive[.]” Hirase-Doi v. U.S. West Com-
munications, Inc., 61 F.3d 777, 782 (10th Cir. 1995);
see Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993). Factors considered include: “ ‘the frequency of
the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offen-
sive utterance; and whether it unreasonably interferes
with an employee’s work performance.’ ” Quinn, 159
F.3d at 767-68 (quoting Harris, 510 U.S. at 23).
Though this inquiry is not subject to “a mathemati-
cally precise test,” Harris, 510 U.S. at 22, the court of
appeals for the Second Circuit has provided benchmarks:
As a general matter, isolated remarks or occasional
episodes of harassment will not merit relief under
Title VII; in order to be actionable, the incidents of
28a
harassment must occur in concert or with a regu-
larity that can reasonably be termed pervasive.
However, where the conduct is sufficiently severe,
it may alter the plaintiff’s conditions of employment
without repetition: [E]ven a single incident of sex-
ual assault sufficiently alters the conditions of the
victim’s employment and clearly creates an abusive
work environment for purposes of Title VII liability.
Quinn, 159 F.3d at 768 (internal citations and quotation
marks omitted) (change in original). As the Supreme
Court has advised, “[t]hese standards for judging hos-
tility are sufficiently demanding to ensure that Title VII
does not become a ‘general civility code.’ ” Faragher v.
City of Boca Raton, 524 U.S. 775, 788 (1998); see also
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 67
(1986).
The sexually charged acts constituting a hostile work
environment need not be directed at the plaintiff—either
in whole or in part—to create a viable claim. See, e.g.,
Perry, 115 F.3d at 151 (“Evidence of the harassment of
women other than [plaintiff], if part of a pervasive or
continuing pattern of conduct, [is] surely relevant to
show the existence of a hostile environment.”); Hicks v.
Gates Rubber Co., 833 F.2d 1406, 1416-17 (10th Cir.
1987) (quoting approvingly: “Even a woman who
was never herself the object of harassment might have
a Title VII claim if she were forced to work in an atmo-
sphere where such harassment was pervasive.”); see also
Hirase-Doi, 61 F.3d at 782 n.2; Drinkwater v. Union
Carbide Corp., 904 F.2d 853, 863 (3d Cir. 1990);
Leibovitz v. New York City Trans. Auth., 4 F.Supp.2d
144, 150-53 (E.D.N.Y. 1998).
In relying on sexual acts directed at others to make out
a hostile work environment claim, the plaintiff “may
only rely on evidence relating to harassment of which
29a
she was aware.during the time that she was allegedly
subject to a hostile work environment.” Hirase-Doi, 61
F.3d at 782. This limitation results from the requirement
that the plaintiff must have had a subjective perception
that the environment was abusive. A plaintiff who did
not know of the sexual acts directed at co-workers dur-
ing the time in which she claims to have experienced a
hostile work environment cannot assert them as a basis
for believing her general work environment was so abu-
sive as to effectively alter her working conditions. See
id.
b. Work Environment
For purposes of stating a hostile work environment
claim, the “work environment” in which the abusive and
hostile acts can occur reaches beyond the traditional
“work place.” Nonetheless, when the sexual acts occur
outside the work place, the plaintiff must identify suf-
ficient facts from which to infer a connection between
the abusive and hostile sexual conduct and the employ-
ment. See, e.g., Tomka v. Seiler Corp., 66 F.3d 1295,
1306 (2d Cir. 1995); Huitt v. Market Street Hotel Corp.,
No. 91-1488-MLB, 1993 WL 245744, at * 5 (D.Kan.
June 10, 1993).
Because Title VII is aimed at immunizing employees’
work environment from sexual intimidation and repres-
sion, employers can avoid liability for unwelcomed or
hostile sexual acts resulting from off-duty interactions
between co-workers. See, e.g., Alvey v. Rayovac Corp.,
922 F.Supp. 1315, 1330 (W.D.Wis. 1996). As a general
proposition, employers are not responsible under Title
VII for hostile sexual acts resulting from non-work-
related, off-duty interactions between co-employees.
Determining whether unwelcome sexual conduct out-
side the work place is sufficiently work related to fall
30a
within Title VII’s reach may be difficult because work
relations often blossom into intense personal relation-
ships.
As the work force grows and people spend more of
their time at work, the workplace inevitably
becomes fertile ground for the dating and mating
game. It is certainly not unusual, and it may even be
desirable, for love to bloom in the workplace. Con-
tiguity can lead to sexual interest, which can lead to
soft music, candlelight dinners, serious romance,
and marriage, or any stops along the way.
Hennessy v. Penril Datacomm Networks, Inc., 69 F.3d
1344, 1353 (7th Cir. 1995) (“[We] should not be in the
business of throwing a wet blanket over activities that
can lead to consensual amour.”); see also Ganzy v. Allen
Christian Sch., 995 F.Supp. 240, 350-59 (E.D.N.Y.
1998).
A more difficult—though related—question is: can an
actionable Title VII claim for hostile work environment
be brought against the employer because the victim of an
off-duty non-work-related sexual assault is subsequently
forced to work alongside the attacker? The answer is
yes. When a violent sexual assault on a co-worker occurs
outside of the work environment during the employees’
off-duty personal hours, continuing resentment and fear
on the job can affect employment “terms, conditions, or
privileges[.]” 42 U.S.C. § 2000e-2(a)(1).
Depending on the nature of the off-duty conduct
alleged, the employer may face liability for continuing
to employ the victim and the attacker in close proximity
where the presence of the attacker can reasonably be
expected “to alter the conditions of the victim’s employ-
ment[,]” and the victim in fact experiences such a
change. Harris, 510 U.S. at 21; see Faragher v. City of
3la
Boca Raton, 524 U.S. 775, 787 (1998) (“[A] sexually
objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person
would find hostile and abusive, and one that the-victim
in fact did perceive to be so.”). .
A contrary conclusion—that an employer is never
obligated to mitigate the work related consequences of
an off-duty, violent sexual assault by one co-worker on
another—would have the effect of penalizing the victim
by “detract[ing] from job performance” and “dis-
courag[ing] [her] from remaining on the job” because of
predictable psychological pressures. Harris, 510 U.S. at
ye &
To avoid liability for the work-related consequences
from off-duty sexual attacks, therefore, an employer
must provide a reasonable avenue for complaint. Addi-
tionally, once put on notice of the off-duty sexual assault
and its consequences to the victim’s work environment,
the employer must take prompt corrective action. See
infra Part IV.A.2..
2. Employer Imputed Liability
The second element required for a hostile work envi-
ronment claim is “a specific basis. . . for imputing the
conduct that created the hostile environment to the
employer.” Perry, 115 F.3d at 149; Tomka, 66 F.3d at
1305; Karibian, 14 F.3d at 780 (“[A] plaintiff seeking to
establish harassment under a hostile environment theory
must demonstrate some specific basis to hold the
employer liable for the misconduct of employees.”).
Relevant to this inquiry is the status of the employee-
harasser; the degree to which employers are held liable
for sexual harassment of employees varies depending on
whether “the alleged harasser is the plaintiff’s supervi-
sor [or]. . . her co-worker.” Karibian, 14 F.3d at 779.
32a
When a supervisor creates an actionable hostile work
environment, the employer is automatically subject to
vicarious liability. Burlington Indus., Inc., v. Ellerth, 524
U.S. 742, 763 (1998); Faragher, 524 U.S. at 807. A
“supervisor's power and authority invests his or her
harassing conduct with a particular threatening charac-
ter, and in this sense, a supervisor always is aided” in
Carrying out the harassment by his employment position.
Burlington Indus., 524 U.S. at 765.
When a fellow employee harasses, the victim can
walk away or tell the offender where to go, but it
may be difficult to offer such responses to a super-
visor, whose “power to supervise—[which may be]
to hire and fire, and to set work schedules and pay
rates—does not disappear. . . when he chooses to
harass through insults and offensive gestures rather
than directly with threats or promises of promotion.
Faragher, 524 U.S. at 803. Employers also have “a
greater opportunity to guard against misconduct by super-
visors”; they can “screen them, train them, and monitor
their performance.” Jd. at 803; see also McKennon v.
| Nashville Banker Pub. Co., 513 U.S. 352, 358 (1995)
(“Congress designed the remedial measures in [Title
VII] to serve as a ‘spur or catalyst’ to cause employers
‘to self-examine and to self-evaluate their employment
practices and to endeavor to eliminate, so far as possible,
the last vestiges’ of discrimination. Deterrence is one
object of these statutes.” (internal citations omitted)).
In contrast, where an employee of equal or inferior
rank and authority is responsible for the harassment,
the employer generally will not be liable unless the
employer either (1) provided no reasonable avenue for
complaint, or (2) knew of the harassment but did noth-
ing about it. See, e.g., Perry, 115 F.3d at 149; Tomka, 66
ee
33a
F.3d at 1305; Karibian, 14 F.3d at 780; see also Quinn,
159 F.3d at 767 (“In contrast to allegations of harass-
ment by co-workers. . . , employers are presumptively
liable for all acts of harassment perpetrated by an
employee’s supervisor.” (citing Burlington Indus., 524
U.S. at 765)); cf. 29 C.F.R. § 1604.11(d) (“With respect
to conduct between fellow employees, an employer is
responsible for acts of sexual harassment in the work-
place where the employer . . . knows or should have
known of the conduct, unless it can show that it took
immediate and appropriate corrective action.”).
a. Reasonable Avenue of Complaint
Whether an employer has provided a reasonable
avenue for complaint varies with the structural organi-
zation of the company and the resources available to it.
Factors to consider include whether: 1) the employer has
an anti-harassment policy in place; 2) that policy makes
it clear that harassment is strictly prohibited; 3) the pol-
icy is seriously enforced; 4) employees are informed
how to report sexual harassment; 5) the policy is effec-
tively communicated to employees; and 6) other pro-
grams or actions are taken by the employer to eliminate
sexual harassment. See, e.g., Fiscus v. Triumph Group
Operations, Inc., 24 F.Supp.2d 1229, 1240-41 (D.Kan.
1998); Duran v. Flagstar Corp., 17 F.Supp.2d 1195,
1202 (D.Colo. 1998).
b. Notice and Response
As a general matter, an employer must have actual
notice of the hostile work environment before it is
required to take remedial action. Nevertheless, the
employer is assumed to know what a reasonably astute
and concerned employer would have known under the
circumstances. See, e.g., Torres v. Pisano, 116 F.3d 625,
34a
634 n.9 (2d Cir. 1997) (“An official’s actual or con-
structive knowledge of harassment will be imputed to
the employer when principles of agency law so dic-
tate.”). Employers will be deemed to have constructive
notice of harassment “if officials sufficiently high in the
management hierarchy should have gained knowledge of
it through the exercise of reasonable care.” Torres, 116
F.3d at 634 n.9. If a co-worker has knowledge of a
harassee’s complaint and that co-worker is “charged with
substantial responsibility for relaying employee com-
plaints to management, particularly where management
is located away from the workplace[,]” the employer
may also be deemed to have constructive knowledge of
the harassment. Id. at 637.
When an employer is aware of evidence of sexual
harassment against other employees “that is similar in
nature and near in time” to the plaintiff’s allegations this
too may be sufficient to establish notice. Hirase-Doi v.
U.S. West, 61 F.3d 777, 784 (10th Cir. 1995). Liability
may be imputed to the employer because it “reasonably
should have anticipated that the plaintiff would become
a victim of sexual harassment in the workplace and yet
failed to take action reasonably calculated to prevent
such harassment.” Paroline v. Unisys Corp., 879 F.2d
100, 107 (4th Cir. 1986), vacated in part on other
grounds, 900 F.2d 27 (1990) (en banc); see also Perry,
115 F.3d at 151 (“Evidence of the harassment of women
other than [plaintiff], if part of a pervasive or continu-
ing pattern of conduct, . . . could have been found
probative of the company’s notice of that environment
~s ae
Once an employer has knowledge of a co-worker’s
harassing conduct, “the law imposes. . . a ‘duty to take
reasonable steps to eliminate it.’” Torres, 116 F.3d at
636. Though the reasonableness of the employer’s
35a
response will necessarily vary based on the underlying
allegations of harassment, at a minimum an employer
should promptly investigate the allegations and take
effective steps to ensure that the conduct does not recur.
Cf. Kotcher v. Rosa and Sullivan Appliance Center, Inc.,
957 F.2d 59, 63 (2d Cir. 1992) (“[N]Jot every response to
a complaint [of sexual harassment] should take the form
of a discharge[.]”).
B. Application of Law to Facts
Plaintiff alleges two encounters with her attacker
which serve as the basis for her hostile work environ-
ment claims against Delta. The first was the alleged
assault in Defendant’s Rome hotel room. The second was
working with him on the return Delta flight from Rome
to New York. Plaintiff alleges no other contact between
the two.
1. Sexual Assault in Rome
With respect to Delta’s liability for the sexual assault
in Rome, the threshold issue is whether Plaintiff’s pres-
ence in the hotel room was sufficiently related to her
employment that the room was effectively a “work envi-
ronment” falling within Title VII. Inquiries of this nature
are inherently fact based, but off-site encounters
between employees may be sufficiently related to the
employment to constitute a “work environment.” See,
e.g, Tomka, 66 F.3d at 1306.
For example, in Tomka, two of the plaintiff’s super-
visors and one co-worker were alleged to have raped her.
The rape occurred immediately after a business dinner
attended by the four during which a substantial quantity
of alcohol was consumed. Id. at 1301-02, 1306. There
was a sufficient connection between plaintiff’s employ-
ment and the assault to raise a material question as to
36a
whether it occurred in a “work environment”; the plain-
tiff’s supervisors may have “used their actual or appar-
ent authority to accomplish the rape.” Id. at 1306.
Relevant though not explicitly addressed was the fact
that dinners such as the one which preceded the rape
were encouraged by the employer. See id. 1301 (“com-
pany policy for. . . employees. . . to transact business
during these meals”).
It is possible that a sexual assault during a flight lay-
over could be found to occur in a “work environment,”
implicating Title VII liability of the employer. The
employees are away from home and together because of
their employment.
In the instant case the environment was not work-
related. Plaintiff was not only off-duty, she voluntarily
associated with defendant—someone who had no super-
visory authority over her—for purely personal reasons.
No evidence has been presented linking her decision to
go to Defendant’s room with her employment by Delta.
Had Defendant been a supervisor or had he had super-
visory authority, an inference that Plaintiff felt coerced
into going to his room might present a fact question of
whether the attack occurred in a “work environment.”
Alternatively, had Plaintiff introduced evidence that
Delta had a policy or practice of encouraging flight
attendants to commingle in one another’s rooms a fact
question might exist as to whether the attack took place
in a “work environment.” No. such evidence has been
presented.
Also lacking is evidence that Delta was, or could have
been, aware that the attacker was a sexually dangerous
predator who should not have been placed in close prox-
imity to a fellow employee. See infra Part III.B.2.
37a
2. Flight from Rome
During the time Plaintiff was forced to work in close
proximity with her attacker on the March 18 flight back
to New York, Delta was potentially liable for the work-
related consequences of the assault. Given the violent
and traumatic nature of rapes, it cannot be said as a ‘nat-
ter of law that Plaintiff did not experience both an objec-
tively and subjectively “sexually objectionable” work
environment during this period, satisfying for purposes
of this motion the first element of a hostile work envi-
ronment claim. See Faragher, 524 U.S. at 787; see also
Merritor, 477 U.S. at 65.
Plaintiff must also establish a basis for imputing lia-
bility to Delta for her unease during the flight back—the
second element of a hostile work environment claim. See
Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957
F.2d 59, 63 (2d Cir. 1992). As earlier noted, where a
non-supervising co-worker “is the alleged harasser, an
employer will generally not be liable unless the
employer either [1] provided no reasonable avenue for
complaint or [2] knew of the harassment but did nothing
about it.” Tomka, 66 F.3d at 1305.
With respect to the first prong, Delta provided a rea-
sonable avenue for complaint. It had a comprehensive
anti-discrimination policy that covered sexual harass-
ment. Delta informed its employees and supervisors
about the policy through training sessions, manuals,
posters, memoranda, brochures, and mailings. It took
reasonable steps to ensure that employees were aware of
the host of reporting options, including availability
of the employee’s supervisor, any manager in the
employee’s department, and Delta’s Equal Opportunity
office. Both Plaintiff and Defendant were aware of the
airline’s policy and its available reporting procedures at
all relevant times.
38a
As to the second prong—that the employer knew of
the harassment but did not reasonably take action to pre-
vent it—there is no dispute that at the time of the return
flight from Rome Delta was not aware, and could not
have known, that a sexual assault had occurred.
Plaintiff contends that because Delta might have been
aware of two earlier reports of her attacker’s off-duty,
non-work related improper sexual conduct, it had con-
structive notice. Cf. Hirase-Doi v. U.S. West Communi-
cations, Inc., 61 F.3d 777, 784 (10th Cir. 1995).
Although knowledge that a co-worker has allegedly
assaulted other persons may in some instances be suffi-
cient to put an employer on constructive notice that a
sexual assault is likely to occur, the facts of this case
present no material question of constructive notice.
Earlier complaints of sexual improprieties involved
non-work related, off-duty encounters, substantially cur-
tailing both the practical ability and the legal authority
of Delta to investigate. Cf. Abrosio v. Price, 495 F.Supp.
381, 386 (D.Neb. 1979) (“An employer cannot be
expected to exercise contro] over the personal, as
opposed to business, activities of its employees in order
to protect third persons.”).
Having provided reasonable avenues for complaint and
having had no notice of the off-duty, non-work related
sexual assault, Delta cannot be held liable for any anxi-
ety plaintiff experienced during the flight from Rome.
3. Fear of Additional Encounters
Although Plaintiff concedes that she never worked
with or even encountered her attacker after the return
flight from Rome, she contends that the continuing pos-
sibility and uncertainty of being forced to work with
Defendant again (until his suspension) had the effect of
sustaining an on-going hostile work environment for
39a
which Delta is responsible. Such trepidation, standing
alone, is too hypothetical and speculative to support a
contention that there was an “objectively hostile or abu-
sive work environment.” Harris v. Forklift Systems, Inc.,
510 U.S. 17, 21 (1993). This conclusion is supported by
the fact that Plaintiff’s continuing fear of again encoun-
tering her attacker at work was caused by her own delay
in identifying him to Delta.
IV TORTS
With respect to state causes of action, the Plaintiff and
Delta have consistently asserted that New York law
applies; they are deemed to have consented to its appli-
cation. See Celle v. Filipino Reporter Enterprises, Inc.,
209 F.3d 163, 175 (2d Cir. 2000) (implied choice of law).
Plaintiff has asserted claims of assault, battery, false
imprisonment and intentional infliction of emotional dis-
tress against Delta under the doctrine of respondeat
superior. She has also advanced claims for negligent
hiring, retention ind supervision.
A. Intentional
Under the doctrine of respondeat superior, an
employer may be held vicariously liable for a tort “com-
mitted by an employee while acting within the scope of
his employment.” Tomka, 66 F.3d at 1317 (citing Riviello
v. Waldron, 47 N.Y.2d 297, 302 (1979); Heindel v.
Bowery Savings Bank, 525 N.Y.S.2d 428 (App.Div. 3d
Dep’t 1988)). “However, an employer is not liable for
torts committed by the employee for personal motives
unrelated to the furtherance of the employer’s business.”
Tomka, 66 F.3d at 1317 (citing Heindel, 525 N.Y.S.2d at
428; Island Assoc. Coop., Inc. v. Hartmann, 500
N.Y.S.2d 315, 316 (App.Div. 2d Dep’t 1986)); see Judith
v. Sisters of Charity Hospital, 93 N.Y.2d 932, 933 (1999)
~~
40a
(“Assuming plaintiff’s allegations of sexual abuse are
true, it is clear that the employee here departed from his
duties for solely personal motives unrelated to the fur-
therance of the Hospital’s business.”). An employer is
| not liable for the unpredictable intentional acts of an
| employee committed for purely personal reasons.
There is no basis to conclude that the claimed sexual
assault was anything other than a purely personal act. As
in Tomka, this defect is fatal. See Tomka, 66 F.3d at
1317; see also, e.g., Moore v. Sam’s Club, 55 F.Supp.2d
177, 195 (S.D.N.Y. 1999) (“[T]he intentional torts of
employees related to sexual misconduct ‘arise from
personal motives and do not further an employer’s busi-
ness, even when committed within the employment con-
text.’ ”). Plaintiff cannot, as a matter of law, sustain
actions against Delta for assault, battery, false impris-
onment, or emotional distress stemming from the assault.
B. Negligent
| As to Plaintiff’s negligence claims, it is assumed—
without deciding—that the New York Workers Com-
pensation Act does not operate to bar employee suits
against employers for tortious acts by a fellow employee
in a foreign setting arranged by the employer for its ben-
efit. See N.Y. Work. Comp. Law § 29(6) (preempting
actions against an employer for injuries sustained by an
employee in the course of employment).
New York recognizes claims of negligent hiring, reten-
tion and supervision against employers for employee’s
whose conduct causes harm. See Kenneth R. v. Roman
Catholic Diocese, 654 N.Y.S.2d 791, 795 (App.Div. 2d
Dep’t 1997) (“In instances where an employee cannot
| be held vicariously liable for its employee’s torts, the
employer can still be held liable under theories of neg-
ligent hiring, negligent retention, and negligent super-
vision.”).
With respect to the negligent hiring claim, Plaintiff
has produced no evidence that Delta knew or should
have known of any hostile sexual acts committed—either
in the workplace or elsewhere—by Delta when it hired
him. See Kenneth R., 654 N.Y.S.2d at 795. This absence
of evidence is fatal to plaintiff’s claim for negligent
hiring.
The negligent supervision and negligent retention
claims also have no merit. An employer does not owe a
duty, and is not liable, to persons who are injured by its
employees while the employees are off duty, not then
acting for the employer’s benefit, not on the employer’s
premises, and not using the employer’s equipment. See,
e.g., D’Amico v. Christie, 71 N.Y.2d 76, 78 (1987)
(Kaye, J.) (employer’s liability for torts committed by its
employees outside the course and scope of their employ-
ment “is limited to torts committed by employees on the
employer’s premises or with the employer’s chattels”);
Ross v. Mitsui Fudosan, Inc., 2 F.Supp.2d 522, 533
(S.D.N.Y. 1998) (same); see also Anderson v. Adam's
Mark Hotels and Resorts, No. 99-1100, 2000 WL
390107, at *2 (10th Cir. 2000); Feingold v. Delta Air
Lines, Inc., 3:99-cv-0728-T, (N.D.Tex. Oct. 20, 1999)
(Maloney, J.) (slip-op); Ambrosio v. Price, 495 F.Supp.
381, 386 (D.Neb. 1979) (“An employer owes no duty to
persons who are injured by its employees while the
employees are off duty and not on the employer’s
premises.”).
There is no dispute that Plaintiff and Defendant were
off duty and not acting on Delta’s behalf at the time of
the assault. Cf. Rich v. Delta Air Lines, Inc., 921 F.Supp.
767, 776-77 (N.D.Ga. 1996). Although Plaintiff and
Defendant were staying in hotel rooms paid for by Delta,
42a
the airline neither had control over activities in those
rooms, nor did it have access to the rooms. The hotel
accommodations cannot be considered the airline’s
“premises” or “equipment” as support for a claim of neg-
ligence against Delta for the assault.
V CONCLUSION
Delta’s motion for summary judgment is granted.
Costs and disbursements are assessed against Plaintiff.
There being no just reason for delay, entry of a final
judgment in favor of Delta is directed. See Fed.R.Civ.P.
54(b).
The action against the individual defendant—the
alleged attacker—will proceed.
SO ORDERED
/s/ JACK B. WEINSTEIN
JACK B. WEINSTEIN
U.S. Senior District Judge
Dated: Brooklyn, New York
June 28, 2000
Appendix C
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Dkt No: 00-7921
Filed March 14, 2002
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Unsted States Court-
house, Foley Square, in the City of New York, on the
14th day of March two thousand two.
PENNY FERRIS,
Plaintiff-Appellant,
—
DELTA AIR LINES, INC.,
Defendant-Appellee.
A petition for panel rehearing and a petition for rehear-
ing en banc having been filed herein by the appellee
Delta Air Lines.
Upon consideration by the panel that decided the
appeal, it is Ordered that said petition for rehearing
is DENIED.
It is further noted that the petition for rehearing en banc
has been transmitted to the judges for the court in
regular active service and to any other judge that heard
| the appeal and that no such judge has requested that a
| vote be taken thereon.
FOR THE COURT
ROSEANN B. MACKECHNIE, Clerk
By: ARTHUR M. HELLER
Arthur M. Heller,
Administrative Attorney
45a
Appendix D
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
No. 99-CIV4127
(JBW-RLM)
PENNY FERRIS,
Plaintiff,
meant, i. means
DELTA AIR LINES, INC., a corporation qualified to do
business in California, and MICHAEL YOUNG, an indi-
vidual, ‘
Defendants.
VIDEOTAPED DEPOSITION OF PENNY FERRIS
November 16, 1999
VOLUME II
(Pages 260-514)
Reported By: Delaine Hall CSR 10164 JN: 1-86067
* * *
46a
[312] Q. While you are on layover you are free to pur-
sue whatever personal business you like consistent with
your legal obligations and the commission of violations
ofNeltaapuar yp ounce? .
A. What do you mean free? What do you mean by
legal?
Q. You can go to—you can go to a nightclub if you
want, right?
A. Not all night long.
Q. You’re free to go to a nightclub if you [313] wish?
Yes?
A. Yes.
Q. You’re free to take a trip out in the countryside if
you wish as long as you’re back when the next flight
leaves?
A. You need to let someone know where you’re
| going. The coordinator is usually the one.
Q. You’re free to go to a grocery store?
| A. Yes.
Q. You’re free to take a nap?
A. Yes.
| Q. You're free to visit friends in that location if you
| wish?
| A. Leave a number.
Q. You’re free to do that?
A. Yes.
Q. So basically your obligation is to make sure peo-
ple know where to find you if they need to contact you,
but otherwise you’re free to do whatever you want?
| A. No. You’re not free to do whatever you want.
Q. You’re as free to do whatever you want as you
would be if you were in your home in the United
States?
47a
[314] A. I don’t understand.
Q. Do you have any less degree of freedom on lay-
over than you do when you’re at home in your days off?
An. Vees.
Q. In what way?
A. We’re still on layover and we’re still being paid by
the company. We have expense money. We get expense
money the minute the plane pushes back.
Q. You get reimbursed for your expenses. That’s fine.
In what way are you less free to engage in your personal
pursuits on layover than you are when you are at home
on a day off?
A. Depends on what you’re going to do.
Q. In what way are you not free to do something on
layover that you are free to do when you're at home on
your day off?
A. Can’t drink eight hours before a flight.
Q. Can’t do that while you’re at home either, can
you?
A. True.
Q. What can’t you do on layover that you can do
when you’re at home on your days off?
A. Right now I can’t think. I am getting tired.
* * *
[320] Q. What conversations did you have with him?
A. I asked him if he could recommend any nice red
wine and that’s what I—because he’s an Italian speaker
and flies there all the time. _
Q. Did you know that from the flight over?
A. No.
Q. How did you know that he flies to Rome all the
time?
A. He’s an Italian speaker.
Q. How did you know he flew to Rome all the time?
48a
A. Normally they have to bid it to keep their—I’m not
a language speaker, but they need to fly so many months
in order to—if they are language-qualified, they need to
bid that.
Did you know he was language-qualified?
He’s one of the Italian speakers.
On the plane?
Right.
Did he tell you that, or did you just observe that?
. Well, I believe he told me that and I think that
mi ight be on the rotation.
Q. And so what did he say to you when you asked
[321] him to recommend some wine?
A. He said, “why don’t you just bring your sandwich
over and you can try”—he had in his hand a bottle of
wine and it was red. And he said, “you can try this. If
you like it, you can go back and buy it.” And that was it.
There’s a counter in the sandwich shop?
Very tall counter.
Do people—from which people eat sandwiches?
No.
Drink beverages?
Mainly cappuccinos.
But it’s a counter where people consume what they
buy in the store?
A. You can stand and consume it.
Q. Okay. Did you discuss whether you were going to
eat your sandwiches or drink the wine there?
A. Excuse me?
Q. Did you discuss with him whether you were going
to eat the sandwiches and drink the wine while you were
there?
A. He told me to bring my sandwich, to come over
and I can try the wine he’s purchasing.
(PO>O>O
O>O>O>O
49a
Q. And you assumed—you assumed him to mean
[322] to come back to the hotel to drink the wine and eat
the sandwiches?
A. Yes.
Q. What other conversations did you have with him in
the store?
A. That was it.
Q. Did you say you would do that?
A. I said, “oh, that sounds nice” or something like
that.
Q. Did you discuss with him that you were going to
be eating the sandwich and consuming the wine in his
room?
A. He had said bring over your sandwich to my room.
Q. So you did discuss?
A. To his room, yeah. “Just bring your sandwich. You
can try this wine. If you like it, you can go back and try
it.”
* * *
[454] Q. You did see him on a side view after you woke
up?
A. It was like a silhouette.
Q. Could you tell whether—do you have any knowl-
edge based upon the events that took place in the hotel
room whether he is hairy or smooth-skinned in his chest,
back area?
Ms. FISHEL: Both or one at a time?
MR. DIEKMANN: Q. Or either.
A. No.
Q. Do you have any knowledge based upon the events
that took place in that hotel room whether he is cir-
cumcised or not? ~
A. No.
50a
Q. Did you see the time of day on a room clock
before you left the room?
A. No.
Q. And I assume from your prior testimony you didn’t
ask him what time it was before you left the room?
A. After I said “I’m leaving,” I just left.
Q. As of the time you woke up was the window back
open?
S5la
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Case No. 99 Civ. 4127
PENNY FERRIS,
Plaintiff,
—against— -
DELTA AIR LINES, INC., a corporation qualified to do
business in California, and MICHAEL YOUNG,
Defendants.
November 22, 1999
9:18 a.m.
Continued Videotaped Deposition of PENNY FERRIS,
taken by Defendants, pursuant to Notice, at the offices of
Seyfarth Shaw Fairweather & Geraldson, Esqs., 1270
Avenue of the Americas, New York, New York, before
Phyliss Salimbene, a Registered Professional Reporter
and Notary Public within and for the State of New York.
(86307)
52a
[618] Q. All right. Now, the first question I have, is:
How did you choose Ms. Estall as the individual to
whom to make this report?
A. I believe I looked at the photos that are on the wall
in Our, our crew lounge. And I went in to the, it says
operational supervisor, and I went into that area and
that’s when I met with her.
Q. Was there some reason you choose her as opposed
to your normal supervisor?
A. Well, I didn’t want to go to a male supervisor.
Q. Was your normal supervisor a male?
A. At the time, yes.
Q. All right. And did you see her in—the memo indi-
cates the conversation took place in the hallway, ini-
tially, and then it went into her office, is that correct, is
that the way it [619] began?
A. I believe I started talking. She was at her desk.
And we went into the oe into another room so it
would be private.
Q. Is her desk in the open, in a public area?
A. Yes.
Q. Okay. All right.
What did you say to her to begin the conversation?
A. In so many words, I went over what’s in my report,
what had happened to me on this rotation, on this trip.
Q. So you explained to her in some detail what had
happened?
A. Yes.
Q. Now, in the memo she indicates that you did not
give the name of the individual but described the event
in some detail, is that an accurate statement on her part?
Were you reluctant at this point to mention who it was?
A. I just had told her it was an Italian-speaking male.
* * *
53a
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
Case No. 99 Civ. 4127
PENNY FERRIS,
Plaintiff,
—against—
DELTA AIR LINES, INC., a corporation qualified to do
business in California, and MICHAEL YOUNG,
; Defendants.
November 23, 1999
9:36 a.m.
Continued Videotaped Deposition of PENNY FERRIS,
taken by Defendants, pursuant to Notice, at the offices of
Seyfarth Shaw Fairweather & Geraldson, Esqs., 1270
Avenue of the Americas, New York, New York, before
Phyliss Salimbene, a Registered Professional Reporter
and Notary Public within and for the State of New York.
(86308) Wa ana
|
|
i
j
j
54a
[824] person, I just was walking there by myself.
Q. I want to know what you told her in the meeting if
it’s different than what she says you told her?
A. I believe it’s different.
Q. All right. What did you tell her?
A. That I went over to the deli.
Q. Okay.
A. Then, the other thing that’s not accurate is the next
sentence: Ms. Ferris pointed out after returning from
purchasing the wine, she proceeded to the male flight
attendant’s room. What’s inaccurate is that I didn’t pur-
chase wine.
Q. Okay. What’s the next inaccurate statement?
A. And the next inaccurate statement is the very next
sentence, because she puts down that there had been two
glasses of wine already poured and there was only one.
Q. Did you tell her in this meeting that two glasses of
wine had been poured?
A. No.
Q. You told her that one had been [825] poured, right?
A. Right, when I had already come into the room.
Q. Okay.
A. And then, let’s see, the next sentence: Because
I had drank approximately half a glass and I remember
he filled it up again to make the glass full and so as far
as the second glass, I don’t believe that’s accurate, too,
that I said.
Q. You told her that you had finished part of the first
glass and he filled it up?
A. Yes. .
Q. All right. what else is inaccurate?
By the way, he filled it up out of the bottle?
| A. Yes.
| And the next sentence is inaccurate. I—I wonder if she
| really listened.
55a
She—okay. Her words: She remembers being pene-
trated anally and wanting to struggle to resist but being
unable to.
Q. What is inaccurate about that sentence in terms of
what you told her?
[826] A. Well, that wasn’t the first thing I told her.
Q. She doesn’t say it was the first thing you told her.
A. Okay.
MS. FISHEL: Not emotions, just—
THE WITNESS: Oh, okay. Not emotions. I was just try-
ing to—
MS. FISHEL: No, I know you’re trying to answer can-
didly.
THE WITNESS: okay.
A. And...
Q. So that sentence is accurate, right?
A. Well, well, that I—okay, she remembers being—
and wanting to struggle to resist but being able. . .
Those weren’t my words.
Q. All right. Let’s deal with the first part. Did you tell
her—
A. I could—
Q. Let’s deal with the first part. Did you tell her that
you remembered being penetrated anally in this con-
versation?
A. I remember saying he did everything to me. And,
yes, it was penetration of the anus.
[827] Q. Did you tell her that you wanted to struggle?
A. All I—I didn’t say the word, “struggle.”
Q. What did you say?
A. I said, how I said no, stop, get out of there and
how—
56a
Q. Wait a minute. Did you tell her that you wanted to
resist him?
A. But I couldn’t move my body.
Q. Did you tell her that you wanted, in this conver-
Sation, that you wanted to resist what he was doing?
A. In another sentence prior to this. I said, when I was
on my back and he was try—pulling my pants down
I tried to move my hand and I couldn’t, so I wanted to
resist him. ,
Q. But you didn’t tell her you wanted to resist any
other actions?
A. I couldn’t because I couldn’t move my muscles.
57a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Sips
Index No.: 99Civ.4127
PENNY FERRIS,
Plaintiff,
—against—
DELTA AIRLINES, a corporation qualified to do busi-
ness in New York and MICHAEL YOUNG, an individual,
Defendants.
Three New York Plaza
New York, New York
December 16, 1999
9:50 A.M.
EXAMINATION BEFORE TRIAL OF KATHLEEN BALL-
WEG, the witness herein, taken by the attorneys herein,
pursuant to Subpoena, and held before Therese Ferrara,
a Notary Public of the State of New York at the above-
Stated time and place.
58a
[21] Q Sounds fun.
A It was okay, because I was enjoying it. It was beau-
tiful. The countryside in Italy is gorgeous.
Q Do you remember any conversations you had with
Michael Young in the car or with this man in the car?
A Not really because the way I remember it is they
were talking in Italian most of the time. I was just taking
in the scenery, enjoying the opportunity to see a little bit
more of Italy.
Q What was your understanding of the destination
when you arrived in Florence?
A We were going to go right to his mother’s house.
The man drove us right to Michael’s mother’s home,
which is right across—when you look out her window
you could see right into the garden where Dante wrote
the Inferno, and the man came in with us and we all had
a glass of wine.
The man was very nice. He said good-bye and left.
I remember at some point before we even got [22] in the
car he had given me his business card, which I no longer
have, and I don’t remember anything about it.
Q Do you remember anything about what that gen-
tleman looked like that gave you the ride?
A No, I just remember he was older, Italian, a busi-
nessman.
Q Do you remember anything about what the car
looked like other than it being small?
A No, I’m sorry.
Q So you arrived at Michael Young’s mother’s house.
Did you meet his mother upon your arriving?
A His mother and his aunt were there.
Q Do you remember his mother’s name?
A No.
Q Do you remember his aunt’s name?
A No.
59a
Q Do you remember what his mother looked like?
A His mother was an attractive lady. She had short hair,
nice figure. His aunt was taller than her, dark hair, wore
glasses, shawls. She was a bit more flamboyant like than
his mother. [23] That’s it. They mostly spoke Italian, so
it’s not like I could really have a conversation with them.
Q Did either of them speak any English?
A His mother spoke some English because I under-
stand Michael’s father is American.
Q How did you find out Michael’s father was Amer-
ican?
A At some point during a conversation. I don’t know
if it was on the plane or when we were in Florence or at
a dinner or what, because he had an unusual middle
name. I asked him how he got his middle name.
Q What was that middle name?
A Buddy.
Q How did he get-that middle name?
A The way I remember him telling me is that it was
his father’s name, or nickname and what I remember, or
what I think he said was that his father was a military
man and that when he was born his mother gave him that
name, so I don’t know if it was a nickname or his
father’s real, given name.
Q Did you meet his father that day?
A No, I didn’t. As far as I understood, [24] Michael
hasn’t seen his father in years.
Q Did Michael Young tell you that?
A Yes.
Q Was it your belief when you were traveling to
Florence that you would be staying at Michael Young’s
mother’s house that evening?
A No.
Q Where did you understand you would be staying
that evening?
A We had at some point on the plane talked that
I would be getting a small Pancione, a room somewhere,
and that his mother knew plenty of them. There would
be no problems finding one.
Q Did you arrange for the Pancione room or did
somebody else?
A His mother did.
Q If.you recall, how far was the Pancione from where
Michael’s mother’s house is located?
A I remember Michael walked me over there and it
wasn’t that far.
* * *
[39] Q Michael Young walked you up to your room?
A Yes.
Q What happened next?
A I went in and I remember turning to say good-night
to him and to thank him for a nice evening and he started
coming in the room and I was like—you know, “I really
want to call it a night. I’m really tired, thank you for a
lovely evening.” He goes, “Oh no, I can’t go back to my
mother’s house.” I said, “Well, you can’t stay here”, and
he goes “Well, I have to stay here”, and I said, “Why?”,
and he goes, “I don’t know if my mother’s home. I don’t
have a key.”
I mean, it was like a whole list of things, “It’s too late
to wake her up”, and I was like—I said, “But you can’t.
That isn’t my understanding that you could spend the
night here”, and he goes, “Well, I have to spend the night
here. That’s all there is to it”, and he [40] said, “I have no
place to go. I can’t walk the streets of Florence”, and
I was like, “Well, okay”, I said.
I suppose for me, after even being with Delta and
T.W.A. that little bit of time there comes a kind of an
unspoken trust with crew members. You feel like you
6la
kind of know them and I thought he was gay, so I let him
in the room.
Q Did you have any discussion of where he was going
to sleep when he stayed in the room?
A Well, I don’t specifically remember doing it but
I think I probably did, so not that I specifically remem-
ber, but I can’t imagine that I didn’t.
Q I don’t remember you describing it. Was there any
kind of couch or anything that you could sleep on?
A No.
Q Were you planning on having him sleep on the
floor?
A No. I have lots of gay friends. I’ve shared beds
with them a lot and traveled with them. It’s never been
a problem, so I think I just figured well, okay.
[41] Q So at that point when he said, “I can’t go back to
my house”, and you had this conversation you were still
under the impression that Michael Young was gay at that
point?
A Yes.
Q So you agreed to let him stay in the room that
night?
A Yes.
Q Once you both were in the room what happened
next? |
A I didn’t have any pajamas or nightgown or anything
with me so while he was in the bathroom doing some-
thing, I don’t know, whatever, I took my clothes off and
I had like a body suit, so I put my body suit on and got
under the covers. I was under the covers already when he
came out of the bathroom and I remember I was lying on
my side facing the wall.
Q Did you talk to him at all as to whether he was
going to sleep outside of the covers or under the covers?
A No.
62a
Q What was the next thing that you remember?
[42] A I just remember him getting in the bed turning
the light off and just laying really still for a while and it
was like—lI think I may have said, “Good night, thank
you for a nice evening”, and then that was it for a while.
Q Did you fall asleep?
A I don’t know. I don’t remember.
Q What is the next thing you do remember?
A I remember Michael’s penis on my back and from
that point on it was like being in bed with an octopus. He
kept wrestling with me, trying to kiss me, and I remem-
ber his—some time during the evening or the flight he
had told me that he was a triathlete so he shaved his
body and I remember his entire body was covered with
stubbles, his legs, his arms, his chest, everything.
Q You said he was like an octopus. Could you
describe what you mean by that?
A I was like, “What are you doing? You were just
supposed to be spending the night here.” I said, “You
know, I am not interested in you that way. I thought we
were having a nice”—you know, I can’t remember the
conversation and I
* * *
[187] Q You said when you got home from Milan that
you wanted to just get home. Where was your home at
the time? Was that New York?
A Yes, it’s here in Queens. Well, there in Queens.
Q Did you ever report the incident with Mr. Young in
Milan to any police authorities at all?
A No.
Q Why is that?
Ms. VAN HERICK: Asked and answered.
Q Why is that?
63a
A All I could think about was getting home and like
I said before, I don’t think until my commuter roommate
and I were talking that it really clearly was in my head
that I had been raped and at that time it was the first
time that I really kind of stepped back from it and really
looked at it and realized that that’s what had happened.
Q At least up until that point when your roommate
mentioned that to you did you, in your own mind, con-
sider the situation a relatively gray [188] one?
A No.
Ms. VAN HERICK: Objection, vague and ambiguous.
A Well, what do you mean by gray?
Q You said several times in your testimony you
referred to areas of gray and shades of gray and so basi-
cally, in that context.
A In an emotional sense I knew that I had been vio-
lated. I had felt trapped but I don’t think it was until
I really kind of—it’s hard to explain. You get a feeling
like you have pins and needles in your head. You hear it
constantly and at that time all I was thinking about was
getting home. I just wanted to get home, get in my own
apartment, sit down and that was the first time I could
really, really breathe about it and I remember running it
over in my mind and thinking how awful it was, but the
word rape never entered my mind until my roommate
said it. :
Q How soon after your return to New York did your
roommate first indicate to you an opinion on her part
that you had been raped?
A Probably a couple of days because I
* * *
64a
[224] Q What exactly did Mr. Young say to you in the
telephone calls that he made to you that night in your
hotel room?
Ms. VAN HERICK: Asked and answered.
A That I should come and spend the night with him or
he should come and spend the night with me. This
wasn’t all in one conversation. We didn’t even have con-
versations. It was just like hello, why don’t you come
down here? Michael, I am going to sleep, click. Why are
you so frigid? Click. The phone rings again, what’s
wrong with you? You know, I am a great catch. It was
like a series of phone calls, so finally, like I said, I just
stopped answering the phone. It was stupid.
Q Was he threatening you in any way?
[225] A No.
Q I get the idea he was persistent—
A He was very persistent.
Q —In his request, but did he in any way attempt to
intimidate you or did he get angry over the telephone?
A Well, what he started saying started becoming a lit-
tle bit more personal. Why are you frigid? It was like sex
is good, you know, we would go good together, so that in
and of itself is intimidating. It wasn’t being intimidating
on the phone, just by the nature of what he was saying
was disturbing.
Q What made you decide then following that incident
to go back to the duty supervisor?
A Because it indicated to me that his behavior hasn’t
changed.
Q Then you walked up to the duty desk again and you
asked to see somebody about something personal?
Ms. VAN HERICK: Asked and answered.
Q Was that the way that worked the second time?
65a
A I don’t know if I went up to the duty [226] desk the
second time more comfortable in Kennedy now or just
walked back there myself and found a supervisor. I’m
not exactly sure at that particular time because I was
much more comfortable down there now. As a relatively
new flight attendant you’re a little bit more timid, so you
felt a certain ownership after you have been at a certain
place a while.
Q Was this particular supervisor that you spoke with
a male or female?
A I don’t remember.
Ms. VAN HERICK: Asked and answered.
Q You have no details of who the person was or what
they looked like at all?
A I don’t remember. -
Q Is there any way you’re able to say here now that it
was, in fact, a supervisor with whom you spoke?
A Other than the fact that they were in a supervisor’s
office, in that whole section everybody that is in those
offices are supervisors.
Q What did you say when you walked in?
Ms. VAN HERICK: Asked and answered.
[227] A I stuck my head in. Sometimes it’s just a mat-
ter of finding a supervisor. A lot of times they’re not
there. You walk along and you stick your head in a cou-
ple of doors until you find someone or the doors are
closed and there is a sign out that says they are in a con-
ference.
I stuck my head in a couple of doors and asked do you
have a minute? Could I talk to you about something kind
of private? That would have been how I would have
Started it.
66a
Q Is there any reason, by the way, why you didn’t go
to your assigned supervisor on either of these two visits?
A No reason in particular, probably just because
that’s when [ got the nerve to do it. Probably you know,
thinking about it and saying okay, do it now kind of a
thing.
Q Is there any reason why you didn’t go to one of the
base managers?
A No, I don’t think I thought about it that much. I
think I just wanted to tell somebody. It may not have
been the right judgement or may not have been the wis-
est way to go about it, but I think I just wanted to talk to
[228] a supervisor.
Q Have you ever had any difficulty getting along with
your own assigned supervisor?
A No.
Q So that would not have been a reason why you
didn’t go to her or him?
A No, as a matter of fact, for a while there every time
I would make an appointment for a supervisor for like a
review or whatever you have to do, make an appoint-
ment, by the time the day would come along that super-
visor was no longer there.
Q Would there be an interim person?
A Then it would be to make the appointment with that
person or whatever, so there was a period of time when
I had a different supervisor a lot, so a lot of times it’s
just a matter of getting somebody, you know? I have had
a couple of supervisors that I really, really liked. Other
than that, it’s just the people, you know, you talk to fer
whatever it is you have to talk to them about.
Q On this second visit you walked in, asked if they
had a moment to talk about something [229] personal
and then what happened? What did you say and what did
they say to you?
67a
Ms. VAN HERICK: Asked and answered.
A I said briefly that I had come in and spoken about
a flight attendant previously that had attacked me on a
layover and that he had made a few phone calls. It was
disturbing and I just came in to tell them about it, didn’t
file any paperwork or anything. I just wanted them to
know and that something happened and I just had a
trip where he was on a layover that happened to be in
the same city at the same time and that that night in
the hotel he made a few phone calls and they were
disturbing.
I just wanted to come back and tell them that appar-
ently, his behavior is still at best, eccentric, and I found
it disturbing and I eventually stopped answering the
phone in the hotel room which I didn’t like to do
because if something would have happened and Delta
would have needed to get in touch with me I wouldn’t
have been answering the phone. I just wanted them to
know that he was still—I thought he was a spooky guy,
a creepy guy, that they should know.
* * *
[245] Q You said the bed in the room was like an
American double bed, as far as not being like a single
person’s bed? i
A No, most people have queen size beds now. It was
a double bed. It’s smaller than a queen and bigger than
a double—I mean, bigger that a twin.
Q You said you were wearing a body suit. Would you
describe what a body suit and/or what that body suit
was?
A It was like a white, stretchy tank top, kind of like a
white swim suit.
Q Did it have long arms? : _
68a
No, it was like a swim suit. It had a tank top.
No legs?
No.
No legs, no arms, just a swim suit type thing?
Yes, white, stretchy knit.
>O>O>
MR. PERRY: Is it like a leotard?
THE WITNEsSs: Yes, like a leotard. You wear it under-
neath your clothes if you’re [246] cold. It’s not appro-
priate to wear on the beach, but it’s shaped like a
leotard.
Q Did you have underwear on underneath?
A It was one piece, that was it.
Q When Michael Young came out of the bathroom
and got into the bed was he clothed?
A I don’t remember. I was facing the wall.
Q How much time expired between the time he got in
bed and the time there was any physical contact between
you?
A I couldn’t say, but I think I was just starting to drift
off to sleep.
Q Was there any level of consensual touching, kissing
or petting at the beginning?
A I remember he was trying to kiss me. I was like no,
Michael, stop it. I remember him putting his arms
around me and then kind of, he left me alone and then
when I drifted off to sleep he was behind me then.
Q Was there any reciprocal touching or kissing or pet-
ting of any kind?
A That’s not the way I remember it.
Q Do you recall any conversation with Ms. [247]
Taylor in which you indicated there was some at the
beginning?
A He may have like kissed me, or it just wasn’t right
and I remember whatever it was that was going on
69a
was stopping. It wasn’t like—it was such an awk-
ward situation. He would like try to kiss me and
then it kind of became kind of a wrestling match, so he
kissed me. I thought maybe if I just kiss him it will stop,
but it didn’t. It seemed to like escalate, so it really
became more of a wrestling match. It wasn’t reciprocal
at all.
Q There may have been some kissing at the beginning
in which there was not a significant level of resistance
but then he began to press and you began increasingly to
resist?
A I imagine that would be the best way to describe it.
Q Were you touching him in any way in the initial
stages?
A Not that I remember.
Q At what point after the initial physical touching
started did it get to the point where it started to be a
wrestling match?
[281] Q When you went into the room the first time do
you recall whether the individual supervisor asked you
whether the assault was sexual in nature?
A What? Say that again.
Q Do you recall whether the individual supervisor
you were speaking to asked you when you said that there
had been an assault, whether the individual asked you
whether the assault was sexual in nature?
MR. DIEKMANN: I think the word she used was attack.
Q Whether the attack was sexual in nature?
A I don’t remember them asking me that.
Q The first time you went in did the Delta supervisor
you talked to offer you any sort of confidentiality in
making the complaint?
A No, but they were answering questions.
x * x
Tila
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
No. 99-CV-4127 (JBW-RLM)
PENNY FERRIS,
Plaintiff,
—vs.—
DELTA AIR LINES, INC., and MICHAEL YOUNG,
Defendants.
ORAL DEPOSITION OF AILEEN (CORI) FEINGOLD
ANSWERS AND DEPOSITION OF AILEEN (CORI)
FEINGOLD, a witness produced on behalf of the Plain-
tiff taken in the above-styled and -numbered cause, on
the 30th day of November, 1999, from 1:10 p.m. to 5:31
p.m., before Cynthia Lyn Conyers, a Certified Shorthand
Reporter in and for the State of Texas, at the offices of
Gillespie, Rozen & Watsky, P.C., located at 3402 Oak
Grove Ave., Suite 200, in the City of Dallas, County of
Dallas, and State of Texas, in accordance with the Fed-
eral Rules of Civil Procedure.
* * x
72a
[155] Q. When you left the restaurant, where did you
drive to in his car?
A. To his house.
Q. I assume that you drove from the restaurant to his
house in his car?
A. Correct.
Q. And where was his house located? Do you recall
the community or place where it was located?
A. I want to say something about Ulysses. I don’t
know why. I don’t know if that’s the street he lived on or
if that’s a city or a suburb. He lived in the suburbs ina
little house on a little street. They all look alike to me.
I have no good sense of direction.
Q. And was the house one or two stories, if you can
recall?
A. One story.
Q. And when the two of you arrived there at his home
in his car, did he park in the driveway or did he pull into
the garage or what?
A. I recall that he parked on the street in front of the
house.
Q. Okay. And I assume he’s the one who drove from
the restaurant to his house?
A. Yes.
73a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
No. 99-CV-4127 (JBW-RLM)
PENNY FERRIS,
Plaintiff,
—vs.—
DELTA AIR LINES, INC., and MICHAEL YOUNG,
Defendants.
ORAL DEPOSITION OF AILEEN (CORI) FEINGOLD
VOLUME 2
ANSWERS AND DEPOSITION OF AILEEN (CORI)
FEINGOLD, a witness produced on behalf of the Plain-
tiff taken in the above-styled and -numbered cause, on
the 1st day of December, 1999, from 9:15 a.m. to 4:50
p.m., before Cynthia Lyn Conyers, a Certified Shorthand
Reporter in and for the State of Texas, at the offices of
Gillespie, Rozen & Watsky, P.C., located at 3402 Oak
Grove Ave., Suite 200, in the City of Dallas, County of
Dallas, and State of Texas, in accordance with the Fed-
eral Rules of Civil Procedure.
* * *
74a
[191] Q. Notwithstanding the behavior and comments
he had made, did you in your own mind, on retiring to
go to bed, feel scared or intimidated physically by him?
A. Not physically, no. I didn’t—I didn’t—I mean,
I think I still thought he was gay or whatever. I wasn't
afraid of him at that point. I just knew he was not my
type of person. You know, he’s not the kind of person
I would even like to have another coffee with or some-
thing.
You just thought he was weird?
He's a real weird guy.
Okay. Now—
I think I nicknamed him weirdo—and sorry.
In your own mind, you mean, or how?
Well, when I tried to get my stuff back from him,
I no longer called him by his first or last name. I just
called him “weirdo.”
[192] Q. By “stuff,” you mean your suitcase?
A. Yeah.
Q. Did you go to sleep?
A. Yeah, I went to sleep.
Q. So you went to sleep in his bed alone with your
pajamas on, correct?
A. Correct.
Q. Do you know if you had panties on underneath
your pajama bottoms?
A. Yes.
Q. Okay. That’s customary for you?
A. Yes.
Q. Okay. And—
MR. DIEKMANN: By the way, do I still have my stand-
ing objection on all leading questions?
>O>O>L
Mr. DAVIS: You de.
75a
Q. (By Mr. Davis) Did you have trouble getting to
sleep that evening, if you recall?
A. I don’t recall. I don’t usually—I don’t recall.
Q. Now, from the time you first went into his bed-
room to retire for the evening until the time you actually
went to sleep, did Mr. Young ever come into the bed-
room to say or do anything?
A. No.
* ~ ~
[221] Q. At some point did you call and talk to Nancy
Conn-Ruhl?
A. Well, when I decided not to talk to Michael Young
anymore, I called around JFK’s—the supervisors’ offices
and got her personal—her direct number; and I called
her up and talked to her about the whole incidence.
Q. Now, why did you call her?
A. Well, there are a couple off reasons. Because he
specifically mentioned her as his ally that would get me
fired for him if—if ever I double-crossed him or any-
thing like that. And he also-—he named her so many
times as his good friend; and then I had met the pilot
‘at was her boyfriend that said she didn’t want anything
to do with him, so I assumed that it’s not as friendly as
he thought.
And, also, I—he had told me that they worked
together in a different capacity; and I wanted her to
know, first of all, what he was saying about her [222] so
that she could know that here is this—you know, you're
moving up the ladder and here is this guy using your
name to threaten and intimidate other flight attendants.
So I called and I told her about the e-mails that I had,
We—we talked for a long time. I told her about the
e-mails I had. I told her about going to his house before
jet recurrent. I told her that he had attacked and raped
76a
me and that he was manipulating me through her name,
and I also told her about the suitcase. I told her that
I believed that he was victimize—at the time, I believed
this. I don’t believe it anymore, but that he was victim-
izing new flight attendants, those of us that didn’t know
better, and that part of his whole spiel or his whole—
I don’t know what you would call it—seduction or—
Q. MO?
A. Yeah, his method of operation. Thank you. His
method of operation definitely included using her as his
big, you know, supervisor friend that would do anything
for him and owed him favors. So I told her everything.
* * *
[321] Q. And what did you see that led you to conclude
that he shaved his body hair?
A. A lack of body hair.
Q. Okay. Did you see any tattoos?
A. Yes.
Q. Where?
A. On one of his arms he had something going on. I
don’t know which arm.
What was it?
Right in this area (indicating).
What tattoo was it?
I don’t know.
What about on his torso?
He had his torso covered. I don’t know.
Was the vest buttoned?
Yes.
>OP>OPO>DO
MR. PERRY: Just let the record [322] reflect that pre-
viously when the witness was asked about the tattoos,
she indicated that Mr. Young had a tattoo on his right
bicep.
T7a
A. Yeah. It was here (indicating). It was his bicep.
I don’t know if it was his right, but—I can’t recall if it
was his right or his left.
Q. (BY MR. DIEKMANN) Anything on his left arm?
A. I can’t recall. I don’t remember. He had one major
tattoo on his bicep. 50% chance it was on his left; 50%
chance it was on his right.
Q. Just on one, though”?
A. That I can remember.
Q. So he—you awaken and he is groping you. What
was he doing exactly?
He had his hands on me.
On your chest, on your arm, on your—
Everywhere. Yes.
What was he doing?
He was touching me.
Was he stroking you or just touching you?
At some point he put his fingers inside my vagina.
During—at the time you awoke, what was he
doing: stroking you or just touching you?
[323] A. He had his hands on me. I do not recall what
exactly he was doing. He was violating me.
Q. You knew that he was doing something you didn't
want him to?
A. And he knew that he was doing something that I
didn’t want him to.
Q. Strike the question, please.
Did you know that he was doing something that you
didn’t want him to do?
ee ee >
MR. DAVIS: Objection, asked and answered.
MR. DIEKMANN: Certainly asked, not answered.
A. Yes—
78a
MR. DAVIs: Yes, it has been.
A.
Q.
—lI knew that.
(By MR. DIEKMANN) All right. And you
screamed?
ord
>O>O>0% ror O>O>
No, I did not scream.
But you did say something to him?
Yes.
What did you say?
I asked him what he thought he was doing.
Why didn’t you say “Stop that”?
I probably did. I don’t recall all my [324] exact
s. I recall asking him what he thought he was doing.
What did he say?
He said he’s just playing.
And then you said, I’m not interested in playing—
That’s right.
—this game? Then what did you say?
I don’t recall all my words. I recall those words.
Those are the words that I gave you.
Q. Did you at that point make any effort to physically
detach him from you?
A.
Q.
A.
Q.
A.
I made as much effort as I felt safe making.
Did you make any physical effort—
Yes. I was——
—to remove him from the bed?
—squirming from him. I made some effort. And
there’s some point where you just don’t make any effort
anymore.
Q.
What effort did you make—
MR. DAVIs: One second. You’ve got to wait until he
finishes his whole question. He has to wait until you fin-
ish your whole answer. We’re having a jumbled record.
ee eee
79a
[325] Q. (BY MR. DIEKMANN) What effort did you
make to remove him from the bed—physical effort did
you make to remove him from the bed?
A. I didn’t make a physical effort to remove him from
the bed.
Q. How long did he continue to fondle or grope you
before he penetrated you?
A. Not long.
Q. Well, how long is that? Seconds? Minutes?
A. It was probably minutes. I honestly cannot tell you
what the time frame was.
Q. During the time that he continued to fondle or
grope you, did you have further conversation with him
than the one that we’ ve just discussed?
A. At some point I just stopped talking.
Q. When was that?
A. When I was crying and he wasn’t stopping and
I realized there was no point. .
Q. So at some point while he was still fondling or
groping you, you started to cry?
A. Yes.
Q. Did you say anything while you were crying?
A. I don’t remember.
Q. And did he say anything when you started crying?
[326] A. No. I mean, nothing about my crying. I don’t
know what your—
- Q. Were you sobbing or were you just weeping, if you
know the difference?
A. What is the difference?
Q. Okay. Sobbing would be there was—there were
audible sounds coming out of your mouth or—
A. He knew I was crying. It was audible.
Q. Okay. Not just tears?
A. He knew I was crying.
Q. How did he know? Well, that calls for speculation.
ns
80a
How do you know—what makes you say that he knew
you were crying in a dark room where you couldn’t see
him?
MR. GILLESPIE: I’m going to object. She’s already
answered that. Is there some reason for picking on her?
MR. DIEKMANN: No, she hasn’t. She hasn’t—
MR. GILLESPIE: She said it was audible; I was crying
out loud. He could have heard it. Now, I can hear this
stuff.
MR. Davis: How do you know it’s raining outside,
Gil, on a dark night?
[327] MR. GILLESPIE: I don’t know why you would be
picking on her. She’s a Delta employee. She’s been
through a bad experience, and I would like her to be
treated with some respect. At least hear what she says. If
this—if there’s going to be any area in which you only
ask a question once—get an answer and move on—this
should be it.
Q. (BY MR. DIEKMANN) How did he know that you
were crying?
MR. PERRY: Over my objection, she can answer.
A. He must have heard my patterns of breathing
changing. He must have felt tears. He must have known.
He had to know. It is not speculation. if I start crying
here, you will know even if I turn out the lights.
Q. (By MR. DIEKMANN) Did he touch or fondle your
face in any respect?
A. I don’t remember.
Q. You were awake throughout the entire attack?
A. Yes.
8la
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
No. 99-CV-4127 (JBW-RLM)
PENNY FERRIS,
Plaintiff,
—vVs.—
DELTA AIR LINES, INC., and MICHAEL YOUNG,
Defendants.
ORAL DEPOSITION OF MICHELLE ZACHRY
ANSWERS AND DEPOSITION OF MICHELLE
ZACHRY, a witness produced on behalf of the Plaintiff
taken in the above-styled and -numbered cause, on the
2nd day of December, 1999, from 12:40 p.m. to 3:55
p.m., before Cynthia Lyn Conyers, a Certified Shorthand
Reporter in and for the State of Texas, at the offices of
Gillespie, Rozen & Watsky, P.C., located at 3402 Oak
Grove Ave., Suite 200, in the City of Dallas, County of
Dallas, and State of Texas, in accordance with the Fed-
eral Rules of Civil Procedure.
* * *
82a
[139] Q. Did you discuss his sexual comment about “If
the wind blows, I get hard”?
A. I don’t recall.
Q. Do you recall, if you did, any response made by
either Cheryl or Kathy?
MR. STONE: She just said she didn’t remember if she
did it.
MR. Davis: No. I agree with that, Ben, and I agree the
question probably is objectionable.
Q. (By MR. DAVIS) But the only reason I ask it is, as
you sit here now, do you remember Kathy or Chery!
making any kind of comment about any sexual comment
Michael Young said or made?
A. No. ;
Q. Was the subject of sexual comments by Young,
including ones like “If the wind blows, I get hard,” the
subject of any discussion there in the meeting you had
with Kathy and with Cheryl?
A. No. I don’t recall it being a sexual nature in con-
tent.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.