Petition for Writ of Certiorari — Russell v. American Airlines, Inc.

Vy) Supreme Court, U.&

FILED

00 551 OCT 4-209

No. 00-

Ur ittc ULERK

IN THE

Supreme Court of the United States

OSWALD S. RUSSELL,

Petitioner,

Vv.

AMERICAN AIRLINES, INC., AMERICAN EAGLE

AIRLINES, INC. and FLAGSHIP AIRLINES, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

STEWART LEE KARLIN KENNETH J. KAVANAUGH P.A.

400 SE 8" Street Counsel of Record

Fort Lauderdale, FL 33316 400 SE 8" Street

(954) 462-1201 Fort Lauderdale, FL 33316

(954) 462-5255

Attorneys for Petitioner

162611 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

Rk i \

28S ee Sees eerie

QUESTIONS PRESENTED

Whether the Court erred in affirming the granting of

summary judgment regarding a continuous hostile work

environment claim due to insufficient notice when racially

offensive posters appeared frequently in the workplace, a

noose was hung, racial cartoons appeared with regularity on

the walls, racial slurs were common, numerous EEOC

charges had been filed by other black employees, and when

Petitioner had on several occasions complained to the union

and base manager who is the highest official at the facility

regarding the hostile work environment.

Is Petitioner required to utilize the internal procedure of

respondent by filing a complaint out of state with the Human

Resources Director in order to survive a summary judgment

under Faragher.

PARTIES TO THE PROCEEDINGS

Petitioner Oswald Russell was employed at the

Respondents as an aircraft mechanic at the Miami

International Airport. He was the plaintiff in the district court

and appellant in the Eleventh Circuit Court of Appeals.

Respondents American Airlines Inc., American Eagle

Airlines Inc. and Flagship Airlines Inc. were defendants in

the district court and appellees in the Eleventh Circuit Court

of Appeals. ;

Sees. 7

il

TABLE OF CONTENTS

Page

Questions Presented ........---- ++ ee eee reeee I

Parties to the Proceedings .........---+++e+++> il

Table of ContemtS ........2c ccc nccscnrcsccens i]

Table of Cited Authorities ..........----52205: V

Table of Appendices .........--0- e+ seer eeeees Vil

Opinions Below ........-----++ sees r trees l

Statement Of Jurisdiction ..........----++++55: l

Statutory Provision Involved .......--..+-+++>: |

Statement Of The Case .........----- essere: 2

A. Proceeding Below .........--++-++++55: 3

Reasons For Granting The Writ .........-.----. 4

1. The Decision Of The Eleventh Circuit Court

Of Appeals Conflicts With The Decision Of

The Supreme Court And With Other Circuits.

ONO « REO re ee 4

A. The Respondents Knew or Should

Have Known of the Racially Hostile

Env.ronment and Never Took Remedial

ee eee eee 4

iv

Contents

Page

B. There Was No Notice of EEO Policies

Given to Subordinate Employees ..... 7

II. The Questions Presented Are Important ... 9

Ill. The Decision Of The Court Of Appeals

Has A Particularly Debilitating Effect On -

Minority Employees ................... 10

RAINE das ns eRe ea exch desetih se ee 1]

ies, co eer er

eT ee ee eNO

Pe eS ee Nae eed

TABLE OF CITED AUTHORITIES

Page

Cases:

Anthony Lee v. American Eagles, et al., Case No.:

O7-07 2d METERS ova ie hve ce ee 8

Coates v. Sundor Brands Inc., 164 F.3d 1361

COS Ee CONE 5 oc Sikes 2 eae ee ka nee 7

Dobson Collins v. Flagship, Case No. 96-1104-CIV

LP PSL REL eee Ee TT ee ee Ee ay oe CRS 6

Faragher v. City of Boca Raton, 118 S. Ct. 2275

PE Si nas CESS Reed CARER UEKR RADA e Oa Oe

Farley v. American Cast Iron Pipe, 115 F.3d 1548

1b gk tee nreer eee a ereemrer ge 10

Madray v. Public Supermaarkets Inc., 208 F.3d 1290

CRO, BOE as beak eo eee nen sin Kew 9,10

Moore v. Kuka Welding Systems & Robot Corp.,

wih BOrey al & Ae | ee ee 5

Yamagucchi v. United States Air Force, 109 F.3d

eds ae ® So) Pee ree Tere eee eT ere 6

Statutes:

28 U.S.C

28 U.S.C

28 U.S.C

28 U.S.C

42 U.S.C

42 U.S.C.

42 U.S.C.

42 U.S.C.

STP

SS

ST

LS

LY.

ee

STP

Cited Authorities

1254(1) ...

129]

198]

2000, et seq

OR en ON at ee a piaies

2000e(5)(f)

Page

tod

‘ad

tyd

a)

we)

ae)

TABLE OF APPENDICES

Appendix A — Per Curiam Opinion And Judgment

Of The United States Court Of Appeals For The

Eleventh Circuit Dated And Filed July 6, 2000

Appendix B — Order And Final Judgment Of The

United States District Court For The Southern

District Of Florida, Miami Division Dated And

Filed April 21, 1999 ....... cece ence ce neens

Page

la

Vhe ode See

l

Petitioner respectfully petitions for a writ of certiorari

to review the judgment of the Eleventh Circuit Court of

Appeals in this case.

OPINIONS BELOW

The Eleventh Circuit (App. A) is an unreported judgment

and opinion to wit Oswald Russell v. American Airlines Inc.,

American Eagle Airlines Inc. and Flagship Airlines Inc.,

Case No. 99-11187. The district court (App. B) opinion and

judgment is unreported to wit: Oswald Russell vy. American

Airlines Inc., American Eagle Airlines Inc. and Flagship

Airlines Inc., Case No.98-377-MOORE.

STATEMENT OF JURISDICTION

The judgment of the Eleventh Circuit Court of Appeals

was entered on July 6, 2000.

The jurisdiction of this Court is invoked under

28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

This case involves Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-2(a)(1).

Section 2000e-2(a)(1) states in relevant part:

It shall be an unlawful employment practice for

employer —

(1) to fail or refuse to hire or to discharge

any individual or otherwise to discriminate

2

against any individual with respect to the

compensation, terms, conditions, or privileges of

employment, because of such individuals’s race,

color, religion, sex or national origin. -

STATEMENT OF THE CASE

Petitioner commenced an action in the United States

District Court based in part on a racially host. » environment

which violated 42 U.S.C. § 2000e(2)(a)(1).

The hostile work environment was pervasive and

ongoing for many years. For example, “Asshole nigger,

asshole nigger lead” was written just outside the crew chief

office, racial jokes were told on a daily basis to the point

that there was a daily racial hate hour among co-workers to

exchange racial jokes at the workplace, cartoons frequently

appeared on the walls of the facility with the cartoons stating

“kill all niggers”, racially offensive posters were hung up in

the supervisors’ trailer’s office for substantial periods of time

(over a week at a time) such as a picture of a gorilla with

Petitioner’s name on the poster, a poster of a basketball player

with a mop drawn on the head carrying a watermelon, and a

poster of an African Warrior, also a stuffed animal with

petitioner’s name and a rope around the neck, a noose hung

from the supervisors’ trailer with the words “to hang Dobson”

on it, a Polaroid picture of black background with “smiley

faces” drawn white correction fluid with a reference to

petitioner and a black coworker were found at the job site.

(App B at 7a-9a).

Petitioner complained to the union representatives,

Frank Gonzalez and Jessie Riviera, union stewards and to

John Cordero, union president. Petitioner also complained

3

on more than one occasion to the base manager, the highest

official at the facility concerning the racial harassment.

(R‘1-58-1-10). In addition, there have been four other black

employees claiming that defendant has discriminated against

them based in part on racial harassment prior to and during

the time that petitioner claims to have been subjected to

racially hostile work environment. (R1-53).

A. Proceeding Below

Petitioner commenced an action in the United States

District Court for the Southern District of Florida (Moore)

alleging that he had been discriminated against by reason of

his race (black) and retaliation pursuant to the Civil Rights

Act of 1964 (Title VII) 42 U.S.C. § 2000, et seq., and

42 U.S.C. § 1981. Subject matter jurisdiction over the action

was invoked pursuant to 28 U.S.C. §§ 1331 and 1367 and

42 U.S.C. § 2000e(5)(f). The Respondents moved for

Summary Judgment and the motion for Summary Judgment

was granted by Summary Judgment dated April 21, 1999.

(R1-75-76). The notice of appeal was filed on May 11, 1999.

(R1-78). Subject matter jurisdiction rested with the Court of

Appeals as the matter was an appeal from a final order of a

United States District Court, 28 U.S.C. § 1291.

pinion “ paiatinsl te tale

The Summary Judgment was granted due to the Court

' finding that the Faragher defense applied and there was

insufficient evidence that petitioner followed internal

procedures regarding his complaints of discrimination to

charge the Respondents with notice of the racially hostile

work environment. (App. B at 23a-27a).

ET 6 new ele will

1. “R” refers to the record which was filed in the Court of

Appeals.

4

The Court of Appeals adopted the district’s court’s

opinion and affirmed the district’s court judgment.

(App. A at 1la-4a).

REASONS FOR GRANTING THE WRIT

I.

THE DECISION OF THE ELEVENTH CIRCUIT

COURT OF APPEALS CONFLICTS WITH THE

DECISION OF THE SUPREME COURT AND WITH

OTHER CIRCUITS

A. The Respondents Knew or Should Have Known of

the Racially Hostile Environment and Never Took

Remedial Action

The Court of Appeals erred in affirming the granting of

summary judgement because the racially hostile work

environment was out in the open and was known or should

have been known to the Respondents. Also, there was

insufficient notice given to Petitioner and others at his level

regarding the EEO policies and Respondents failed to

adequately respond to the complaints of Petitioner and other

coworkers.

In Faragher v. City of Boca Raton, 118 S. Ct. 2275

(1998), this Court stated that:

An employer is subject to vicarious liability to a

victimized employee for an actionable hostile

environment created by a supervisor with

immediate (or successively higher) authority over

the employee. When no tangible employment

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5

action is taken, a defending employer may raise

an affirmative defense to liability or damages,

subject to proof by a preponderance of the

evidence, see Fed. Rule Civ. Proc. 8(c). The

defense compromises two necessary elements:

(a) that the employer exercised reasonable care

to prevent and correct promptly any sexually

harassing behavior, and (b) that the plaintiff

employee unreasonably failed to take advantage

of any preventive or corrective opportunities

provided by the employer or to avoid harm

otherwise.

The Court of Appeals is in conflict with the Faragher

case. The Court of Appeals adopted the reasoning of the

district court which held that respondents satisfied both

elements of its affirmative defense. App. A at 2a However,

it is clear that there was a factual dispute as to whether the

employer exercised reasonable care to prevent and correct

promptly any harassing behavior. Unlike sexual harassment

which is often hidden, in the record developed belew was an

on going pattern of a racially hostile work environment which

was out in the open and in plain view such as the posters

hung up in the supervisors trailer for extended periods of

time, nooses being hung up, the racial hate hour and other

numerous incidents of racial harassment.

In Moore v. Kuka Welding Systems & Robot Corp., 171

F.3d 1073 (6" Cir. 1999), the Court of Appeals held that

because the supervisors knew about racial jokes and slurs

but did little to correct the problem made them vicariously

liable for the conduct, In this case, which is remarkably

similar to the case at bar, the plaintiff had been subjected to

racial jokes and slurs which the supervisors were aware of

6

but the company tolerated the behavior. Someone wrote on

the bathroom wall “kill all the niggers” References to nigger

were frequent and the term “nigger-rigging” was used when

a job was done poorly. The Court held that one must show

the employer knew or should have known about the conduct

and failed to take prompt remedial action. The Court further

held that the evidence developed at the trial supported that

the respondents knew or should have known about the

conduct. In the case at bar, the conduct was much more severe

and occurred on a frequent basis. Clearly, for purposes of

summary judgment, there was a factual dispute developed

in the record as to whether the respondent knew or should

have known of the discriminatory hostile atmosphere.

Likewise, the Ninth Circuit has reached a similar logical

result. In Yamagucchi v. United States Air Force, 109 F.3d

1475 (9" Cir. 1997), the Court held that once the employer

becomes aware of the hostile work environment, some form

of disciplinary action should be taken by the employer as

part of the remedial action. However, in the record below,

although there was a perfunctory investigation taken, no

disciplinary action was taken against one single employee

despite the severity and continuous nature of the harassment

which was confirmed by numerous witnesses.’

2. In addition, Judge Gold of the United States District Court for

the Southern District of Florida, in Dobson Collins v. Flagship, Case

No. 96-1 104-CIV held on the same exact facts since it was the same

facility and the same time Petitioner’s claim arose that the respondents

could not sustain a Faragher defense because respondents had ample

notice of the on going racially hostile work environment such as racially

offensive posters that were hanging on the supervisors’ office wall for

extended periods of time. (R1-53).

Wich eared et a i 26 Ace at eh ted @

7

In Coates v. Sundor Brands Inc., 164 F.3d 1361

(11" Cir. 1999) the Eleventh Circuit held that an employee

must provide adequate notice so that the employer has an

opportunity to correct the problem. Here by the multitude of

complaints by appellant and others as well as the open and

in plain view discrimination which was occurring placed

respondents on notice of the foregoing racial practices of

respondents.

There was a lack of proper response by the respondents,

as evidenced by the fact that the discrimination has continued

for years at the facility. Further, it is clear that numerous

employees were aware of bias toward black employees but

choose to do nothing including conduct which occurred in

the presence of supervisors and some of the supervisors were

also participating in the hostile work environment including

the base manager of the facility.

B. There Was No Notice of EEO Policies Given to

Subordinate Employees

For the respondents to prevail on its defense it must

prove both: (1) the exercise of reasonable care to prevent

and correct promptly any harassing behavior; and (2) that

the appellant unreasonably failed to take advantage of any

preventative or corrective opportunities provided by the

employer. Besides not being able to prove prompt remedial

action was taken, the respondents cannot prove the employer

took adequate preventive measure. Reasonable care of the

employer for the first prong of the defense is based on the

policy and procedure of the employer which is in place at

the time of the harassment, the effectiveness of that policy,

the ability of the employer to utilize that policy to promptly

and effectively respond to the employee’s complaints and to

8

correct the situation, the effectiveness of the employer’s

dissemination of information on its policy to the complaining

employee, and effective means of allowing ihe employee to

report harassment. As discussed herein, the Respondents was

entirely negligent in each of the above items. The policy in

place was weak, at best. It required Petitioner who on several

occasions complained to the base manager at the Miami

International Airport to file a complaint in Nashville,

Tennessee. The procedure to implement that policy amounted

to little more than promulgating the policy without posting

the policy or hold any seminars for its employees to educate

them regarding the existence of the policy. The dissemination

of the policy was limited to an employee who signed an

acknowledgment form when the employee is initially hired

of an employee manual.

Put simply, respondents failed to develop a

comprehensive anti-harassment policy which prohibits all

forms of harassment policy in the form of letters, posting in

the workplace, employee handbooks, training sessions,

seminars, and meetings. The respondents also failed to

provide EEO training as part of employee orientation and

did not provide harassment training. In fact, there is no

evidence that Petitioner or one single employee received any

training of the EEO policies and procedures.’

3. In a second companion case, after summary judgment was

denied, the case went to trial and the jury returned a substantial

verdict and also awarded punitive damages based upon the same

hostile work environment claim as petitioner since they were

employed at the same facility during the same time period The jury

verdict exceeded nine hundred thousand dollars. Anthony Lee v.

American Eagles, et al., Case No.: 97-0722 MIDDLEBROOKS.

pain Pt I 6s SC BES smal) Ae dott ak

BOE Rill eet He ONE dened Bean

9

In conclusion, it is clear that when the facts are applied

to the law that respondents are vicariously liable for the acts

of its supervisors and has no defense based on the handling

of Petitioner’s complaints and others and common

knowledge of the bias that existed. The lack of training

coupled with the lack of an effective posting policy that was

utilized renders respondents liable to Petitioner. The

Respondents further fails to provide effective means of

promptly responding to and correcting the harassment.

Clearly, there were issues of fact, especially when construed

in a light most favorable to the Petitioner as to whether

Petitioner was subjected to a hostile work environment

making summary judgment inappropriate.

In sum, there were issues of fact that the harassment

Was So pervasive as to infer knowledge to the respondents.

Il.

THE QUESTIONS PRESENTED ARE IMPORTANT

The questions presented are important. Further

clarification regarding the circumstances of when an

employer is vicariously liable for an on going (over several

years) continuous racially hostile work environment are of

critical importance to employers and employees. The

Eleventh Circuit appears to follow a standard that if a

personnel manual has a complaint procedure and that

procedure is not followed that is enough to insulate the

employer from liability under Faragher. In Madray v. Public

Supermaarkets Inc., 208 F.3d 1290 (11" Cir. 2000), the

Eleventh Circuit held that despite the fact plaintiff

complained to middle level managers about harassment, she

had not complained to the contact person in the employee

10

manual and thus could not be charged with notice. The

Eleventh Circuit stated it is incumbent upon the employees

to utilize the procedural mechanisms established by the

company; therefore, the Court of Appeals concluded that

Publix cannot be considered to have been placed on notice.

Madray, supra, at 1300. See also Farley v. American Cast

Iron Pipe, 115 F.3d 1548 (11" Cir. 1997). Petitioner

respectfully submits that if an employer knew or should have

known of the racially hostile work environment, and it took

no remedial action to correct the hostile environment that

the employer should also be held liable.

THE DECISION OF THE COURT OF APPEALS HAS

A PARTICULARLY DEBILITATING EFFECT ON

MINORITY EMPLOYEES

The Eleventh Circuit standard has a particularly

debilitating effect on minority employees. The procedure of

being required to file a complaint with the personnel director

of the entire company as the only vehicle to bring to the

attention harassment is insufficient. The personnel director

is located out of State. The procedure requires the employee

to go over the head of the highest official, the base manager

at Miami International Airport. Put simply, most emplovees

are not willing due to fears of retaliation to file a complaint

of this nature with the personnel director for the respondents.

The ruling allows the respondents to escape liability despite

the fact that the harassment was out in the open and was

continuing for a substantial period of time. In sum, the

respondents should not be able to allow their madequate

policy on harassment to shield themselves from liability.

i

heat MA 08 Me

1]

CONCLUSION

For the reasons set for above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

STEWART LEE KARLIN KENNETH J. KAVANAUGH P.A.

400 SE &" Street Counsel of Record

Fort Lauderdale, FL 33316 400 SE 8" Street

(954) 462-1201 Fort Lauderdale, FL 33316

(954) 462-5255

Attorneys for Petitioner

APPENDIX

la

APPENDIX A — PER CURIAM OPINION AND

JUDGMENT OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

DATED AND FILED JULY 6, 2000

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-11187'

D.C. Docket No. 00377-CV-KMM

OSWALD S. RUSSELL,

Plaintiff-Appellant,

versus

AMERICAN AIRLINES, INC., AMERICAN EAGLE

AIRLINES, INC., FLAGSHIP AIRLINES, INC..,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Florida

(July 6, 2000)

Before ANDERSON, Chief Judge, DUBINA and SMITH*.

Circuit Judges.

* Honorable Edward S. Smith, U.S. Circuit Judge for the

Federal Circuit, sitting by designation.

2a

Appendix A

PER CURIAM:

With respect to all three of plaintiff's claims — his claim

of discriminatory discharge in December, 1996, his

retaliation claim, and his claim of racially hostile

environment — we affirm for the reasons indicated by the

district court in its Apri! 21, 1999, opinion.

AFFIRMED

3a

—

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 99-11187

Non-Argument Calendar

: District Court Docket No. 00377-CV

OSWALD S. RUSSELL,

: Plaintiff-Appellant,

E versus

i AMERICAN AIRLINES, INC., AMERICAN EAGLE

{ AIRLINES, INC., FLAGSHIP AIRLINES, INC..

Defendants-Appellees.

: Appeal from the United States District Court

; for the Southern District of Fiorida

Before ANDERSON, Chief Judge, DUBINA and SMITH*,

: Circuit Judges.

JUDGMENT

This cause came to be heard on the transcript of the

record from the United States District Court for the Southern

* Honorable Edward S. Smith, U.S. Circuit Judge for the

Federal Circuit, sitting by designation.

4a

Appendix A

District of Florida, and was taken under submission by the

Court upon the record and briefs on file, pursuant to Eleventh

Circuit Rule 34-3;

UPON CONSIDERATION WHEREOPF, it is now hereby

ordered and adjudged by this Court that the judgment of the

said District Court in this cause be and the same is hereby

AFFIRMED;

IT IS FURTHER ORDERED THAT plaintiff-appellant

pay to defendants-appellees, the costs on appeal to be taxed

in accordance with Fed.R.App.P. 39.

Entered: July 6, 2000

For the Court: Thomas K. Kahn,

Clerk

By: s/ Matt Davidson

Deputy Clerk

ISSUED AS MANDATE: AUG 14 2000

DPE SFG IO, ALIS

a LO et Os EA EPR OD EA A Bite

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APPENDIX B — ORDER AND FINAL JUDGMENT OF

THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF FLORIDA, MIAMI

DIVISION DATED AND FILED APRIL 21, 1999

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 98-377-CIV-MOORE

OSWALD S. RUSSELL,

Plaintiff,

VS.

AMERICAN EAGLE AIRLINES, INC.,

Defendant.

ORDER

THIS CAUSE came before the Court upon Defendant’s

Motion for Summary Judgment (DE # 32). Response and

Reply have been filed.

I. Background

Plaintiff Oswald Russell was an aircraft mechanic

employed by Defendant American Eagle Airlines, Inc.’

1. At the time of the alleged incidents, Plaintiff's employer

was Flagship Airlines, Inc. American is Flagship’s successor.

64a

Appendix B

Plaintiff, who is African-American, alleges that fellow

employees and supervisors who were either white or Hispanic

subjected him to various acts of racial discrimination during

the period of his employment. Plaintiff filed suit against

Defendant in February 1998, bringing claims under Title VII’

and Section 1981.’ Plaintiff's claims arise from three distinct

classes of discriminatory acts, which the Court labels as those

acts related to: (1) the crew chief demotion; (2) the cowling

incident; and (3) hostile environment. The Court describes

these classes of acts in turn.

A. Crew Chief Demotion

The first category of acts pertains to Plaintiff's

assignment and subsequent removal from a position as “crew

chief,” also known as “lead mechanic.” In August 1993,

Plaintiff applied for the position of crew chief. Plaintiff was

rejected, even though he claims that these positions were

given freely to white and Hispanic mechanics.* He only

received the crew chief position after filing a union

grievance.’ After he received the crew chief position, Plaintiff

states that in September 1993, he was forced to retake a

maintenance course that he had previously failed, even

though he had numerous licenses and experience.® Plaintiff

2. 42 U.S.C. § 2000e ef seg.

3. 42 U.S.C. § 1981.

4. See Pl.’s Resp. to Def.’s Mot. for Summ. J. at 1-2.

5. See id. at 2.

6. See id.

7a

Appendix B

was eventually removed from the crew chief position in

December 1993 for “failure to meet the requirements for crew

chief within the allotted time.”

Plaintiff filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) in February

1994. This charge was addressed towards Plaintiff's demotion

from the crew chief position.’ Plaintiff received a right-to-sue

notice in June 1996. However, Plaintiff did not file a civil

suit for his demotion from the crew chief position within the

statutory ninety-day filing period after receiving the notice.’

B. Cowling Incident

The second category of discrimination pertains to an

incident in December 1996, in which an aircraft that Plaintiff

had serviced lost its engine cowling in mid-flight and had to

make an emergency landing. Defendant conducted an internal

investigation into the incident, and determined that the

cowling had come off because Plaintiff had failed to close

certain fail-safe mechanisms on the cowling latches.'® As

7. See Crew Chief Letter dated December 6, 1993, App. to

Def.’s Mot. for Summ. J. Tab A, Ex.50.

8. See EEOC Discrimination Charge dated Feb. 23, 1994,

App. to Def.’s Mot. for Summ. J. Tab A, Ex.35.

9. See Dep. of Oswald Russell at 168-69, 251-53, App. to Def.’s

Mot. for Summ. J. Tab A (hereinafter “Russell Dep.”).

10. See AMR Inquiry Report dated December 6, 1996,

App. to Def.’s Mot. for Summ. J. Tab A, Ex.33.

8a

Appendix B

a result of the determination that Plaintiff had been at fault

in the cowling incident, as well as another incident in

February 1996 involving the landing gear of another aircraft,

Alberto Alvarez, a manager for Defendant, issued a so-called

“Career Decision Day Advisory” (“the Advisory”). An

Advisory is an internal disciplinary procedure for employees

who have committed infractions that warrant dismissal.'' The

Advisory is part of Defendant’s “Peak Performance through

Commitment” policy, designed to “induce employees to

committed service.”'? If an Advisory is issued to an employee,

he is not automati¢ally terminated. Instead, the employee

can choose one of three options: (1) retain his position by

signing a letter of commitment, in which the signor promises

to correct any performance lapses; (2) resign from

employment with severance pay; or (3) accept discharge with

the right to file a grievance under the Collective Bargaining

Agreement between Defendant and its employees." Plaintiff

chose the third option, and filed a grievance after discharge.

Plaintiff also filed a charge of discrimination with the

EEOC in December 1996. In this second charge of

discrimination, Plaintiff claimed racial discrimination and

retaliation as the bases of his dismissal pursuant to the

cowling incident and the Advisory.'* Plaintiff received

11. See Decl. of Colleen Scanlon at 1-2, App. to Def.’s Mot.

for Summ. J. Tab C.

12. Id. at 1.

13. See id. at 2.

14. See EEOC Discrimination Charge dated December 6, 1996,

App. to Def.’s Mot. for Summ. J. Tab A, Ex.1.

9a

Appendix B

a right-to-sue notice in November 1997, and filed the present

action in February 1998. While this present action was

pending, a neutral arbitrator was appointed in October 1998

under the grievance settlement procedure. The arbitrator

conducted an evidentiary hearing. Plaintiff was represented

by counsel. The arbitrator issued a report in December 1998

specifically finding that the engine cowling had fallen off

the aircraft due to “human error” on the part of Plaintiff."

The arbitrator further held that Plaintiff could still obtain

reinstatement to his position if he signed the letter of

commitment originally offered to him in December 1996.

It appears that Plaintiff subsequently signed the letter in

February 1999 and has since returned to work.

C. Hostile Environment

In addition to the two discrete acts of demotion and

dismissal, Plaintiff also alleges that there has been a continuing

pattern of racially offensive acts committed against him by

white and Hispanic co-workers. While not all of these alleged

acts are racial in character, and few have evidentiary support,

the following are the more notable incidents:

(1) Someone wrote the words “Asshole nigger, asshole

nigger lead” on a blackboard outside the crew chiefs’ office.'®

(2) Acrew chief checked Plaintiff’ s bag for a misplaced

tool. Plaintiff was the only African-American on that shift,

15. Arbitral Award at 8, App. to Def.’s Mot. for Summ. J.

Tab A, Ex.41.

16. Pl.’s Resp. to Def.’s Mot. for Summ. J. at 3.

10a

Appendix B

and no other mechanics were checked. The tool was later

located.'’

(3) Co-workers told racial jokes and drew cartoons on

the blackboard in the crew chiefs’ office,'* as well as putting

up a stuffed animal with Plaintiff's name and a rope around

its neck.”

(4) During a so-called “racial hour,” workers would get

together at the end of the night shift to tell racially offensive

jokes and make derogatory comments about racial minorities.”°

(5) Someone hung a noose from the mechanics’ trailer

with the words “To Hang Dobson,” referring to another

African-American mechanic.’!

(6) Someone posted a Polaroid picture of a black

background with two “smiley faces” drawn with white

correction fluid. The picture contained the caption: “In the

ramp at 10:00 P.M., Dobson and Ozzy,” referring to Plaintiff

and another African-American mechanic.” Defendant now

17. See id.

18. See id. at 4.

19. See Russell Dep. at 114.

20. See id. at 120, 133.

21. See Pl.’s Resp. to Def.’s Mot. for Summ. J. at 7.

22. See id.

lla

Appendix B

moves for summary judgment. Response and Reply have

been filed.

II. Summary Judgment Standard

As an initial matter, the Court notes that under Rule 56(c)

of the Federal Rules of Civil Procedure:

The judgment sought shall be rendered forthwith

if the pleadings, depositions, answers to

interrogatories and admissions on file, together

with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter

of law.”

Summary judgment may be entered only where there is no

genuine issue of material fact.* The moving party has the

burden of meeting this exacting standard.” In applying this

standard, the district court must view the evidence and all

factual inferences therefrom in the light most favorable to

the party opposing the motion.”°

However, the non-moving party “[m]Jay not rest upon

the mere allegations and denials of [its] pleading, but [its]

23. Fed. R. Civ. P. 56(c).

24. See Twiss v. Kury, 25 F.3d 1551 (11th Cir. 1994).

25. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

26. See id.

12a

Appendix B

response, by affidavits or as otherwise provided in this rule,

must set forth specific facts showing that there is a genuine

issue for trial.”’’ “The mere existence of a scintilla of

evidence in support of the [non-movant’s] position will be

insufficient; there must be evidence on which the jury could

reasonably find for the [non-movant].’”* The party opposing

summary judgment “must do more than simply show that

there is some metaphysical doubt as to the material facts.””’

In fact,

the plain language of Rule 56(c) mandates the

entry of summary judgment ... against a party

who fails to make a showing sufficient to establish

the existence of an element essential to that party’s

case, and on which that party will bear the burden

of proof at trial.*°

The failure of proof concerning an essential element of the

non-moving party’s case necessarily renders all other facts

immaterial and requires the court to grant the motion for

summary judgment.”!

27. Fed. R. Civ. P. 56(e).

28. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

29. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574,

586 (1986).

30. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

31. See id.

13a

Appendix B

III. Discussion

In its Motion, Defendant seeks summary judgment on

the grounds that: (1) Plaintiff's claims are time-barred;

(2) Plaintiff's negligent role in the cowling incident was

a legitimate, non-discriminatory reason for issuing the

Advisory; (3) there is no causal link between Plaintiff s filing

of an EEOC charge in 1994 and the issuance of the Advisory

in 1996, and (4) Plaintiff never reported any racially hostile

actions to Defendant’s management through established

grievance procedures. The Court addresses these arguments

in turn. 2

A. Time Bar

The Court finds that it must grant summary judgment as

to that element of Plaintiff's Complaint based on Plaintiff's

demotion from the crew chief position in 1993. It is

undisputed that Plaintiff received an EEOC right-to-sue

notice in June 1996. It is also undisputed that Plaintiff was

aware of the ninety-day period in which to file a civil suit

based on that right-to-sue notice, and did not in fact file suit

within that period.” Failure to file a suit on the alleged

discriminatory acts within the ninety-day period is grounds

for dismissal of that action.*

32. See Russell Dep. at 251-53.

33. See 42 U.S.C. § 2000e-5(f)(1); see, e.g., Norris v. Florida

Dept. of Health & Rehabilitative Servs., 730 F.2d 682 (11th Cir.

1984).

l4a

Appendix B

In addition, Plaintiff's demotion occurred in December

1993, but the Complaint was not filed until February 1998.

It is therefore also time-barred under Section 1981, which

borrows Florida’s four-year statute of limitations for personal

injury actions.**

B. Legitimate, Non-Discriminatory Rationale for Issuing the

Advisory

In addition to his claim for demotion from the crew chief

position, Plaintiff also claims that Defendant’s issuance of

the Advisory in 1996 was based on an intent to discriminate

on the basis of race. As an initial matter, the Court notes

that there is no direct evidence that Defendant’s issuance of

the Advisory was racially motivated. Plaintiff states that

“Ti]t’s possible,” that his race played a role in the decision,

but admits that “[he] do[es]n’t know.”*° Where there is no

direct evidence of discriminatory intent, Title VII discharge/

disparate treatment claims undergo a three-part analysis.

First, a plaintiff bears the burden of establishing a prima

facie case, i.e., the establishment of a legally mandatory,

rebuttable presumption, rather than simply putting forth

enough evidence to permit a trier of fact to infer the fact at

issue.*° This generally involves meeting the four-part test

34. See Baker v. Gulf & Western Indus., Inc., 850 F.2d 1480,

1483 (11th Cir. 1988).

35. Russell Dep. at 296.

36. See Texas Dep’t of Community Affairs v. Burdine, 450 U.S.

248, 253, 254 n.7 (1981); Evans v. McClain of Georgia, Inc.,

131 F.3d 957, 963 (11th Cir. 1997).

15a

Appendix B

articulated by the Supreme Court in McDonnell Douglas

Corp. v. Green.*’ In order to establish a prima-facie case

under McDonnell Douglas, a plaintiff must show that: (i) he

is a member of protected minority; (ii) he was qualified;

(111) he was subjected to an adverse employment action; and

(iv) the defendant treated similarly situated employees

outside the class more favorably.** The burden then shifts to

the defendant to produce a legitimate, non-discriminatory

explanation for the adverse action.*® If defendant can do so,

the burden then shifts back to the plaintiff to rebut

defendant’s explanations;“ ultimately, the plaintiff bears the

burden of carrying his case.*!

The Court finds that it must grant summary judgment

against Plaintiff. Assuming, arguendo, that there is enough

evidence to support a prima facie case,*? Defendant has

37. 411 U.S. 792 (1973).

38. See id.; Combs v. Plantation Patterns, 106 F.3d 1519, 1539

n.11 (11th Cir. 1997).

39. See Burdine, 450 U.S. at 253; Evans, 131 F.3d at 963.

40. See Burdine, 450 U.S. at 253; Evans, 131 F.3d at 964-65.

41. See Burdine, 450 U.S. at 253; Evans, 131 F.3d at 963.

42. At the very least, Plaintiff can meet the first three

conditions: (1) As an African-American, Plaintiff is a member of

a protected minority; (2) Plaintiff was qualified to do his job; and

(3) the Advisory was an adverse employment action. However, as

discussed more fully infra, there is some dispute as to whether

similarly situated non-African-American employees were treated

more favorably.

l6a

Appendix B

presented a well-supported legitimate, non-discriminatory

rationale for issuing the Advisory. In response, Plaintiff has

not advanced sufficient evidence to create a material issue

of fact as to whether Defendant’s legitimate, non-discriminatory

rationale for issuing the Advisory is pretextual.

Defendant’s legitimate, non-discriminatory explanation

for why Plaintiff was issued the Advisory is that Plaintiff

failed to properly secure an engine cowling on an aircraft he

serviced, and as a result of that failure, the engine cowling

came off in mid-flight, forcing the aircraft to make an

emergency landing. This rationale is amply supported by the

evidence. Defendant’s management conducted an internal

investigation and concluded that the incident was the result

of Plaintiff's failure to engage certain fail-safe mechanisms

on the cowling latches.** Specifically, the investigators found

that “[t]he chain of events leads to the conclusion of the

[Plaintiff] closing cowling door, pushing latches (both) to

the closed position, but not fully engaging the fail safe

mechanism of the latch.~** The conclusions of the internal

investigation were subsequently affirmed by the neutral

arbitrator in December 1998. After hearing the parties’

presentation of evidence and arguments, the arbitrator found

that “the most probable cause of the opening of the cowling

hood was human error on part of grievant.”** While neither

43. See AMR Inquiry Report dated December 6, 1996,

App. to Def.’s Mot. for Summ. J. Tab A, Ex.33.

44. Id.

45. Arbitral Award at 8, App. to Def.’s Mot. for Summ. J.

Tab A, Ex.41.

17a

Appendix B

the results of the internal investigation nor the findings of

the arbitrator have any dispositive effect on this Court’s

consideration of the evidence, the Court accords them

substantial weight, especially in light of the fact that Plaintiff

has not intimated that the arbitrator was anything but neutral

and competent.*®

“A satisfactory explanation by the defendant destroys

the legally mandatory inference of discrimination arising

from the plaintiff's initial evidence.”*’ Plaintiff must, at this

point, reestablish the validity of his prima facie case through

rebuttal evidence.* In order to properly rebut a defendant’s

legitimate, non-discriminatory rationale, a plaintiff “may not

... Merely rest on the laurels of her prima facie case in the

face of powerful justification evidence offered by the

defendant.” Against the weight of the evidence that appears

to show that Defendant issued the Advisory because of

Plaintiff's failure to properly secure the cowling latch, which

forced a passenger airplane to make an emergency landing,

46. The findings of an arbitration proceeding can be highly

probative, and federal courts should weigh the probity of such

findings based on: (1) the degree of procedural fairness in the arbitral

forum; (2) the adequacy of the record; and (3) the competence of

the arbitrator. See Graef v. Chemical Leaman Corp., 106 F.3d 112,

117 (Sth Cir. 1997).

47. Burdine, 450 U.S. at 255-56 n.10.

48. See id.; Evans, 131 F.3d at 964-65.

49. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 596

(11th Cir. 1987).

18a

Appendix B

Plaintiff offers three lines of argument, all notably lacking

in evidentiary support.

First, Plaintiff appears to attack the validity of the

conclusions of the internal investigation and the arbitrator.

He claims that he closed the cowling latches, and as the

detached cowling was never found, the Court should

disregard the findings of both the internal investigators and

the neutral arbitrator and instead embrace another

explanation, 1.e., that the cowling fell off for some other,

unspecified mechanical reason. Aside from his protestations

of innocence, Plaintiff offers absolutely no evidence to show

that there was in fact another explanation for the incident.

. This is clearly inadequate to rebut the conclusion that as a

factual matter, the cowling fell off due to Plaintiff's

maintenance failure.*°

50. While Plaintiff has failed to discuss a legal framework for

assessing his argument that the engine cowling detached for other

reasons, the doctrine of res ipsa loquitur compels the inference that

Plaintiff's negligence caused the accident. Under this doctrine, it is

possible to infer negligence if: (1) the instrumentality involved was

within the exclusive control of the defendant at the time of the injury;

and (2) the injury is one which would not ordinarily occur in the

absence of negligence. See Burns v. Otis Elevator Co., 550 So. 2d

21, 22 (Fla. Dist. Ct. App. 1989). It seems fair to say that engine

cowlings do not normally come off in mid-flight, absent some sort

of negligence. In addition, it appears that Plaintiff was in exclusive

control of the engine cowling, having been the last person to close

the cowling while the plane was taxing on the runway. This leads

the Court to believe that the evidence overwhelmingly supports the

inference that Plaintiff was responsible for the cowling incident. In

reply, Plaintiff claims that the cowling came off “because a nut,

(Cont'd)

19a

Appendix B

Secondly, Plaintiff seems to suggest that the engine

cowling may have fallen off due to the work of unnamed

saboteurs. He claims, without evidence other than his own

statements to the effect, that in late 1993, someone let the

air out of the tires on an aircraft for which Plaintiff was

responsible.*' He further claims that in 1994, someone

removed a seat belt that Plaintiff had installed.*? Finally,

Plaintiff claims that in late 1994, Plaintiff saw another

mechanic “interfering” with a beacon light on a plane for

which Plaintiff was responsible, and that this mechanic had

been “around” during previous acts of sabotage.* If Plaintiff

is suggesting that co-workers sabotaged aircraft and

endangered passengers’ lives to lay the blame on him for

the accidents that might result, he needs more and better

evidence than this specious conspiracy theory.

Plaintiff's final line of rebuttal is that even if he was

responsible for the cowling incident, Defendant’s response

(Cont'd)

washers and cotter pin were never installed by the mechanic that

conducted the original installation.” See Pl.’s Resp. to Def.’s Mot.

for Summ. J. at 6-7. However, Plaintiff again fails to provide any

evidence to support his statements. Plaintiff cannot rely on such

unsubstantiated speculation about other possible explanations to

defeat the inference of negligence. See McDougald v. Perry,

716 So. 2d 783, 786 (Fla. 1998).

51. See Pl.’s Resp. to Def.’s Mot. for Summ. J. at 4.

52. See id.

53. See id. at 4-5.

20a

Appendix B

must have been racially motivated because other non-

African-American mechanics were never disciplined as

harshly for similarly negligent repairs or maintenance.

Plaintiff claims that there were numerous incidents,

including: (1) In 1993, a mechanic named Felix Sorda

damaged the engines on an aircraft that caused “$100,000’s

of thousands of dollars,” and grounded the aircraft for three

days.** (2) In 1995, a mechanic named Larry Sheet caused

damage to an aircraft resulting in “thousands of dollars” in

damage, but was never reprimanded.* (3) In 1997, three

white mechanics negligently damaged an aircraft resulting

in “$1 million in damage.” While they were not disciplined,

their African-American supervisor was suspended.*° (4) In

1998, an aircraft lost an engine exhaust covering in mid-

flight. The white mechanic “responsible for this incident”

was never disciplined.*’ (5) In 1999, an aircraft had to make

an emergency landing because its engine cowling was

“partially torn open.” Plaintiff states that the two Hispanic

mechanics who had serviced the aircraft were never

disciplined, even though this was “similar” to the incident

for which Plaintiff was disciplined.*

54. Id. at S.

ao. &.

56. Id. at 6.

57. Id.

58. Id.

2la

Appendix B

The Court finds that this last line of rebuttal must also

be rejected. Plaintiff has not submitted any evidence to

support these contentions aside from his own statements that

such events occurred.*’ There is no way to know where

Plaintiff is getting such information, or to assess the validity

of his conclusions regarding fault, circumstances, or amount

of damage. There is absolutely, and inexplicably, no evidence

from any other source, such as company records or other

witnesses, to corroborate Plaintiff's statements. Without such

evidence, the Court cannot begin to determine whether these

other incidents were suitably “similar” to the cowling

incident™ to raise an inference of discriminatory intent behind

the issuance of the Advisory.

In the near-total absence of evidence to rebut

Defendant’s legitimate, non-discriminatory rationale for

disciplining Plaintiff, the Court holds that summary judgment

must be granted against Plaintiff on his Title VII claim arising

from the issuance of the Advisory. Furthermore, the Court holds

that summary judgment must be granted against Plaintiff to

the extent that his claims also arise out of Section 1981.°

59. See Pl.’s Aff. 99] 33-34, 39-42.

60. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)

(requiring plaintiff to show existence of other “similarly situated”

employees in a disparate treatment claim).

61. The McDonnell Douglas framework for proving intentional

race discrimination in the Title VII context is applicable to Section

1981 claims. See Patterson v. McLean Credit Union, 491 U.S. 164,

185-87 (1989); Robertson v. Home Depot, Inc., 976 F. Supp. 1467,

1477 n.9 (S.D. Fla. 1997).

22a

Appendix B

C. Causality

Plaintiff also claims that the Advisory was issued in

retaliation for his filing of his first EEOC charge in 1994.

Title VII retaliation claims undergo an analysis similar to

the one for disparate treatment claims. A plaintiff must

establish a prima facie case; he must show that: (1) he was

engaged in a protected activity; (2) there was an adverse

employment action; and (3) there was a causal connection

between the protected activity and the resultant adverse

action.” The Court finds that it must grant summary

judgement against Plaintiff's retaliation claim because there

is no evidence to create a material issue of fact as to the

causal connection between the filing of the EEOC charge

and the issuance of the Advisory.

It is undisputed that the Advisory was issued in

December 1996, nearly three years after the filing of the first

EEOC discrimination charge in February 1994. Such a long

time interval between the EEOC discrimination charge and

the alleged act of retaliation,® coupled with the fact that there

is no evidence of causality between the two events, leads

this Court to conclude that Plaintiff has failed to establish

a prima facie case of retaliation.

62. See Meeks v. Computer Assocs. Int'l, 15 F.3d 1013, 1021

(11th Cir. 1994).

63. See, e.g., Balletti v. Sun-Sentinel Co., 909 F. Supp. 1539

(S.D. Fla. 1995) (finding a lack of causality where there is

a significant length of time between the protected activity and the

alleged act of retaliation).

23a

Appendix B

D. Hostile Environment

The Court finds that there is sufficient evidence in the

deposition testimony of co-workers to create a material issue

of fact as to whether Plaintiff was subjected to a racially

hostile work environment. These incidents — of which the

hanging of a noose is particularly appalling — have

absolutely no place in our society, and there can be no doubt

that such incidents would create a “working environment{ ]

so heavily polluted with discrimination as to destroy

completely the emotional and psychological stability of

minority group workers.’

However, as deplorable as these incidents are, the Court

finds that it must grant summary judgment against Plaintiff

on his claim for hostile environment. Plaintiff has failed to

present any evidence to create a material issue of fact as to

Defendant’s affirmative defense under Faragher v. City of

Boca Raton.® The Faragher defense states that an employer

cannot be held vicariously liable for a hostile environment

created by co-workers if two conditions are met: (1) the

employer exercised reasonable care to prevent and correct

promptly any harassing behavior; and (2) the plaintiff

employee unreasonably failed to take advantage of any

64. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 66 (1986). The

Court notes that Defendant does not deny that the “hanging rope”

incident occurred, but merely that it was directed at another

employee. See Def.’s Reply at 6.

65. 118 S.Ct. 2275 (1998).

24a

Appendix B

preventive or corrective opportunities provided by the

employer or to avoid harm otherwise.”

Defendant has met both conditions of the Faragher

defense. The promulgation of an anti-harassment policy with

a complaint procedure is generally sufficient to address the

first prong of the defense.*’ Defendant has submitted

evidence to show that it has an internal grievance procedure,

outlined in 1ts Employee Handbook. The Handbook states

that “American Eagle maintains a workplace which is free

from discrimination or harassment .... Reports of sexual

or any other form of harassment should be reported

immediately to the Personnel Director.” In addition, there

is evidence that the policy was sufficiently disseminated to

the employees, and that Plaintiff knew about Defendant’s

internal grievance procedure. Plaintiff signed the Employee

Handbook Notice.® Furthermore, Plaintiff stated in his

deposition that “there was a policy with regard to

66. See id. at 2292. A third, implicit condition is that the hostile

environment did not involve a tangible employment action. See id.

The Court finds that this third condition is also satisfied because

there is no evidence that the tangible employment actions in this

case, the crew chief demotion and the Advisory, were related to the

incidents creating the hostile environment.

67. See id. at 2293.

68. Employee Handbook § 3 at 2, App. to Def.’s Mot. for

Summ. J. Tab A, Ex.7.

69. Employee Handbook Notice, App. to Def.’s Mot. for

Summ. J. Tab A, Ex.6.

25a

Appendix B

harassment,”” and that he was aware of such a policy,

possibly as early as 1994.7!

The second prong of the Faragher defense is satisfied

because there is no evidence — aside from his own

nonspecific allegations — to show that Plaintiff ever brought

the incidents that allegedly created the hostile environment

to the attention of Defendant through those internal

procedures.” Plaintiff states that he went repeatedly to

management and “nothing happened.”’”? However, Plaintiff

has not pointed to any corroborating evidence to show that

he in fact filed complaints with management and that no

action was taken. Unable to support his claims that he went

to management to complain about the racially hostile

incidents, Plaintiff offers up the explanation that he “knew

management was not going to do anything about it,” and

he had “given up on management.”

To the contrary, the evidence that is available suggests

that Plaintiff never raised these racially hostile incidents even

70. Russell Dep. at 53.

71. See id. at 54.

72. See id. at 116 (Plaintiff stating that he never brought the

incidents to the attention of Human Resources).

73. Id. at 98.

74. Id. at 112.

75. Id. at 115.

26a

Appendix B

in the face of ample opportunities to do so. Neither the

February 1994 nor the December 1996 EEOC discrimination

charges mention any of the racially hostile incidents. At one

point, Defendant invited Plaintiff come to Nashville,

Tennessee to participate in its investigation of Plaintiff's

1994 EEOC charge regarding his crew chief demotion. There

is no evidence that shows that Plaintiff took advantage of

this opportunity to raise these incidents with Defendant’s

investigators. Instead, it appears that the investigation only

dealt with the crew chief demotion itself. It appears that

Defendant again invited Plaintiff to participate in a follow-up

investigation into the crew chief demotion in January 1995.

According to his deposition, Plaintiff refused to attend this

second investigation, based on his opinion that Defendant

was taking too long with its investigations and that the whole

process was “disingenuous.”’”®

While the Court is certainly sympathetic to Plaintiff's

claim that his co-workers created a racially hostile

environment, its hands are bound if Plaintiff cannot

demonstrate that he first attempted to resolve the situation

through Defendant’s internal complaint procedures. For this

reason, the Court must grant summary judgment against

Plaintiff on his claim for hostile environment.”

76. See id. at 276-77.

77. In no way should Defendant read this Order as a carte

blanche to indulge in any complacency regarding the racial environment

at its facilities. To the extent that Defendant now has clear notice

that employees at its facilities may very possibly have engaged in

racially offensive acts in the past, it should make sure that such

behavior is completely eradicated and does not reoccur in the future.

ee LL LL AL —g—yww——y——y—y—yy——_—_—_—__ eee

27a

Appendix B

IV. Conclusion

Based on the foregoing, it is ORDERED AND

ADJUDGED that Defendant’s Motion for Summary

Judgment (filed February 25, 1999, DE # 32) be, and the

same is hereby, GRANTED.

DONE AND ORDERED in Chambers at Miami, Florida,

this 21st day of April, 1999.

s/ K.M. Moore

K. MICHAEL MOORE

UNITED STATES DISTRICT

JUDGE

28a

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

Case No. 98-377-CIV-MOORE

~ OSWALD S. RUSSELL,

Plaintiff,

VS.

AMERICAN EAGLE AIRLINES, INC.,

Defendant.

FINAL JUDGMENT

THIS CAUSE came before the Court upon Defendant’s

Motion for Summary Judgment (DE # 32). On April 21st,

1999, the Court entered an Order granting Defendant’s

Motion for Summary Judgment. Accordingly, it is

ORDERED AND ADJUDGED that Final Judgment is

entered in favor of Defendant American Eagle Airlines, Inc.,

and against Plaintiff Oswald S. Russell. Plaintiff Oswald S.

Russell shall take nothing.

LET EXECUTION ISSUE.

29a

Appendix B

The Clerk of the Court is directed to mark this case as

CLOSED. All pending motions not otherwise ruled upon are

DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida,

this 21st day of April, 1999.

s/ K.M. Moore

K. MICHAEL MOORE

UNITED STATES DISTRICT

JUDGE