Braun v. Ultimate Jetcharters, LLC

Citation828 F.3d 501
Decision Date08 July 2016
Docket NumberNos. 13–4145/ 14–3816/ 15–3462,s. 13–4145/ 14–3816/ 15–3462
PartiesCarrie Braun, Plaintiff–Appellee/Cross–Appellant (13–4145 & 14–3816), Plaintiff–Appellee (15–3462), v. Ultimate Jetcharters, LLC, Defendant–Appellant/Cross–Appellee (13–4145 & 14–3816), Defendant–Appellant (15–3462).
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Sidney N. Freeman, McNamara, Demczyk Co., L.P.A., Uniontown, Ohio, for Appellant/Cross–Appellee Jetcharters. Donald C. LeRoy, Hamilton, Ohio, for Appellee/Cross–Appellant Braun. ON BRIEF: Sidney N. Freeman, McNamara, Demczyk Co., L.P.A., Uniontown, Ohio, for Appellant/Cross–Appellee Jetcharters. Donald C. LeRoy, Hamilton, Ohio, for Appellee/Cross–Appellant Braun.

Before: DAUGHTREY, CLAY, and STRANCH, Circuit Judges.

OPINION

CLAY

, Circuit Judge.

Defendant Ultimate Jetcharters, LLC, sometimes referred to in this litigation as Ultimate Jetcharters, Inc. (UJC), appeals from the judgment in favor of Plaintiff Carrie Braun (Plaintiff) on her claim for retaliatory discharge in violation of Ohio Rev. Code § 4112.02(I)

. Pursuant to a jury verdict in Plaintiff's favor, the district court entered an initial judgment awarding her compensatory and punitive damages. The court later granted in part and denied in part Plaintiff's motion for attorney fees, and thereafter entered final judgment incorporating such fees. That final judgment is the subject of UJC's appeal No. 13–4145 and Plaintiff's cross-appeal No. 14–3816. The district court later granted Plaintiff's Rule 60(a) motion to correct the judgment to reflect that Ultimate Jetcharters, LLC is UJC's correct moniker. UJC's appeal No. 15–3462 is taken from that amended judgment. For the reasons set forth below, we AFFIRM the district court's judgment in full.

BACKGROUND

UJC is a corporation that provides private jet charter services, flying cargo and passengers to destinations across the United States and internationally. In April 2011, UJC hired Plaintiff, who is female, to work as a co-pilot. Robert “Bob” Rossi (“Rossi”) and Floyd “Burt” Wells (“Wells”) were two male pilots that also worked at UJC. After multiple altercations between Plaintiff, Rossi, and Wells, which Plaintiff perceived to constitute sexual harassment, Plaintiff made several phone calls and eventually wrote an email to UJC management complaining about her coworkers' conduct. On March 12, 2012—roughly three weeks after she sent the email—Plaintiff's employment with UJC was terminated.

Plaintiff subsequently filed suit against Ultimate Jetcharters, Inc., Rossi, and Wells (collectively Defendants) in federal court, alleging, inter alia , that she was terminated in retaliation for her complaints. Defendants filed an answer offering a general denial of the allegations. Notably, Defendants' answer “admit[ted] that UJC was initially a corporation as alleged in paragraph #3 [of Plaintiff's complaint], but was converted to a limited liability company on September 28, 2010.” (R. 4, PageID 40.) Plaintiff did not amend her complaint in response, and Defendants' subsequent dispositive motions failed to press the issue of UJC's proper moniker or corporate form. Defendants' motions, however, proved successful at narrowing Plaintiff's case to a single cause of action against UJC for retaliation under Ohio's Title VII analogue, Ohio Rev. Code § 4112.02(I)

.1

On August 19, 2013, Plaintiff's case proceeded to trial on that remaining claim. Plaintiff served as the sole witness in support of her case. She testified that Rossi and Wells, with whom she worked on a regular basis, continually “harassed” her about her marital status, her uniform, and her off-duty behavior; she described several instances of the purported harassment in detail. Plaintiff testified that she reported the harassment to UJC's director of operations, Dave Parsons (“Parsons”), in four phone calls made over the course of her employment. In all of these calls, Plaintiff conveyed her belief that Rossi and Wells were harassing her because she was female. After the fourth report, Parsons instructed Plaintiff to put her concerns in writing. Thus, on February 20, 2012, Plaintiff sent an email to both Rossi, with whom she had had her most recent altercation, and Parsons. The subject line of the email was “Cease and desist!” (R. 44–3, PageID 415.) In the body of the email, Plaintiff asserted that both Rossi's and Wells' behavior was “bordering on harassment” and that she did not “want ... the situation to escalate as it has been doing to full fledged harassment.” (Id. )

On March 12, 2012—roughly three weeks after sending her email—Plaintiff received a phone call from John Gordon (“Gordon”), UJC's president and CEO, who informed Plaintiff that her employment was being terminated. Plaintiff testified that Gordon provided two reasons for her termination during this conversation: that Plaintiff had sent [i]nappropriate e-mails,” and that Plaintiff's [c]onduct while on the road ... while not performing job functions was not in line with [UJC's] image.”

(R. 120, PageID at 1666–67.) According to Plaintiff, Gordon refused to clarify to which emails or what conduct he was referring.

At the close of Plaintiff's case in chief, UJC made an oral motion for judgment as a matter of law (“JMOL”) pursuant to Federal Rule of Civil Procedure 50(a)

. In so doing, UJC's counsel stated: “The reason for [JMOL] is very specific. The evidence shows that no complaint about sexual harassment or about discrimination was made by Ms. Braun.” (R. 121, PageID 1782.) The subsequent colloquy focused on whether Plaintiff had engaged in protected activity necessary for establishing a retaliation claim by submitting a legally sufficient “complaint” to UJC management, and whether Plaintiff's email to Rossi and Parsons satisfied that requirement. The district court ultimately denied UJC's motion, and the trial continued with UJC's defense.

UJC proffered the testimony of some fourteen witnesses. As relevant here, Gordon testified that Plaintiff's termination had nothing to do with her complaints of harassment; rather, she was terminated because of her performance on the job. As examples of Plaintiff's performance issues, Gordon stated that he had received reports that Plaintiff had violated the “sterile cockpit rule” by using her cell phone while piloting an aircraft below 10,000 feet; that on one occasion, Plaintiff became intoxicated and danced inappropriately at a bar while spending the night in Atlantic City as part of her shift; that Plaintiff had once dangerously performed a turning maneuver while piloting an aircraft that she had leveled off at an altitude of 400 feet; and that Plaintiff had a habit of unnecessarily executing so-called “steep attitude” or “max performance” climbs, which involve climbing steeply after takeoff. Gordon admitted on cross examination that he had been informed of Plaintiff's verbal complaints of “harassment” by Rossi and Wells, but that he did not think their behavior constituted harassment. Parsons also testified at the trial, stating, inter alia , that he [a]bsolutely” provided input on the decision to terminate Plaintiff. (R. 121, PageID 1873.)

Plaintiff was recalled to provide rebuttal testimony, during which she denied any inappropriate conduct or provided explanations for the purportedly inappropriate conduct that allegedly motivated her termination. The jury also heard testimony, including by admission on cross examination of UJC's own witnesses, that UJC's male pilots often engaged in some of the same behavior, such as violating the “sterile cockpit rule,” that allegedly motivated Plaintiff's termination. Before the case was submitted to the jury, UJC again moved for JMOL. UJC's counsel provided no additional support for that motion, but stated that UJC was renewing solely for the purpose of “protect[ing] the record.” (R. 123, PageID 2490–91.) The district court once again denied the motion.

On August 26, 2013, the jury returned a verdict in favor of Plaintiff, awarding her $70,250.00 in compensatory damages and $100,000.00 in punitive damages. Plaintiff thereafter filed a motion for attorney's fees; UJC filed a motion for remittitur of punitive damages and a Rule 50(b)

renewed motion for JMOL or for a new trial. See Fed. R. Civ. P. 50(b) (allowing a renewed motion for JMOL to “include an alternative or joint request for a new trial under Rule 59). On July 30, 2014, the district court issued an order and opinion denying UJC's motion for JMOL or a new trial, denying UJC's motion for remittitur, and granting in part Plaintiff's motion for attorney's fees. Both Plaintiff and UJC timely appealed.2

When Plaintiff later attempted to collect on her judgment against Ultimate Jetcharters, Inc., she received a letter from UJC's counsel stating, in pertinent part:

The company you sued is Ultimate Jetcharters, Inc. Ultimate Jetcharters, Inc. was closed and is out of business without assets. It was the operating company owned by investors from whom Ultimate Jet, LLC, (the holding company which owns Ultimate Jetcharters, LLC) purchased the assets of Ultimate Jetcharters, Inc. several years ago. Irrespective of the fact that Ultimate Jetcharters, Inc., the Defendant in your action, has no assets, Mr. Gordon, on behalf of Ultimate Jetcharters, LLC, wants to continue to attempt to resolve the issues and settle this matter.... To that end, Mr. Gordon has authorized me to re-extend the offer made in mediation of [$125,000.00]....

(R. 171–1, PageID 3033.) As the district court later summarized, [i]t seemed ... that plaintiff had never been employed by Ultimate Jetcharters, Inc., but, instead, had been employed by Ultimate Jetcharters, LLC.” (R. 185, PageID 3192.) Plaintiff thereafter filed a motion to correct the judgment pursuant to Federal Rule of Civil Procedure 60(a)

.

On March 31, 2015, the district court granted Plaintiff's motion and entered a new final judgment listing ...

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