# Petition for Writ of Certiorari — Delta Air Lines, Inc. v. Ferris > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1339%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2002 - **Citation:** 537 U.S. 824 ## Text rn, Up Vo VvyuTt, Wo. 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. li6eq re REN e aa 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 ~ at tetiadlEEEE ] 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 = hon a eee la PE si vniciscsecssnsnnsisceicececess..... 19a PM Scseekiseccsesesesstedeceses.c...., 43a IE ios ns shes cectsnsescccaecacs....._. 45a 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 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. Pp ee as® rikctie lit wor 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_1339%3A1. Public record. Not legal advice.