Asad v. Continental Airlines, Inc.
| Decision Date | 04 June 2004 |
| Docket Number | No. 1:99-CV-2194.,1:99-CV-2194. |
| Citation | 328 F.Supp.2d 772 |
| Parties | Richard ASAD, et al. Plaintiffs v. CONTINENTAL AIRLINES, INC. Defendant |
| Court | U.S. District Court — Northern District of Ohio |
Richard C. Haber, Roy A. Hulme, Reminger & Reminger, Cleveland, OH, for Plaintiffs.
Heather C. Logan, Matthew P. Moriarty, Tucker Ellis & West, Cleveland, OH, for Defendant.
This case involves a personal injury action against Continental Airlines, Inc. ("Continental") based on the theory that Continental was negligent by refusing to transfer its pregnant employee, Darlene Asad, with the result that her unborn child was exposed to carbon monoxide which proximately caused her son Richard Asad's birth defects. Based on Continental's purported negligence in failing to transfer his mother despite alleged fetal health concerns and her requests to do so, the child, plaintiff Richard Asad, has sued Continental for causing his injuries (Count I) and his parents, Darlene and William Asad, have advanced loss of consortium claims against Continental (Count II). (Docket # 1, Compl.).
Currently before the Court is defendant Continental's motion for summary judgment. (Docket # 92). In its motion, Continental contends that it is entitled to summary judgment on plaintiff Richard Asad's negligence claim for three separate reasons: 1) Continental has no duty to the unborn children of its employees; 2) even if it has such a duty, it did not breach this duty by failing to transfer Ms. Asad; and 3) Richard Asad's negligence claim is preempted by the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k). Based on its arguments that Richard Asad's negligence claim fails as a matter of law, Continental asserts that his parents' loss of consortium claims must fail as well. Plaintiffs Richard, Darlene, and William Asad filed their response to defendant's motion on 8 December 2003. (Docket # 104). Continental then filed a reply. (Docket # 107).
For the reasons set forth below, Continental's motion for summary judgment will be denied.
To provide the necessary context for analyzing Continental's summary judgment motion, the Court will describe Ms. Asad's employment with Continental, Continental's employee transfer policy, and Ms. Asad's pregnancy and transfer requests.
Plaintiff Darlene Asad began her employment with Continental in June of 1996 as a part-time customer service agent ("CSA"), working in the baggage room at Terminal C of the Hopkins International Airport in Cleveland, Ohio. (Docket # 93, at 16 and 67-71, Deposition Transcript of Darlene Asad ("Ms. Asad Dep.")). About six weeks later, Ms. Asad bid for and received an "on-line runner" position working on the Continental Express ramp.1 (Ms. Asad Dep. at 73-74). Shortly thereafter, near the end of 1996, Ms. Asad bid for and received a CSA position on Continental Express' ramp ("Ramp CSA"). (Ms. Asad Dep. at 80-81).
Becoming pregnant in January 1997, Ms. Asad worked, throughout her pregnancy, as a Ramp CSA on a part-time basis, which typically consisted of four five-hour shifts and one eight-hour shift per week. (Ms. Asad Dep. at 83, 91-92, 98). As a Ramp CSA, Ms. Asad performed work near inbound and outbound turboprop aircraft and her duties included directing aircraft, checking their wheels, setting up cones to delineate safety zones, plugging aircraft into ground power units, and loading and unloading baggage. (Ms. Asad Dep. at 102-105). In addition to her duties as a Ramp CSA, Ms. Asad was sometimes required to help de-ice jet aircraft at their gates. (Ms. Asad Dep. at 83-85). However, after 19 February 1997, Ms. Asad never actually participated in spraying the de-icing fluid. (Ms. Asad Dep. at 161-62).
After her son was born, Ms. Asad returned to work at Continental, last working for it in April of 1999. (Ms. Asad Dep. at 59 and 83).
Continental maintains an employment policy covering the placement and transfer of its Field Service employees, like Ms. Asad. (Broussard Aff. at ¶¶ 2-3, Ex. 1). Under Continental's bidding system, all employees must, at regular intervals, either re-bid for their current position or bid for a new position. (Ms. Asad Dep. at 97-98 and 108). The normal procedure for transferring among Field Service positions involves a modified merit, classification, and seniority-based bidding system whereby employees bid for certain vacant positions and these positions are assigned on the basis of seniority, the type of transfer being requested, and the employee's qualifications. (Broussard Aff. at ¶¶ 2-3, Ex. 1). Continental's policy outlines the following hierarchical system whereby vacancies are filled by transferring Field Service employees:
Category 1: Transfers within a classification, i.e. ASA2 to ASA or CSA to CSA are considered Category 1. When a vacancy occurs in a location, the senior team member in Category 1 for that classification will be awarded the position.
Category 2: Transfers to a different agent classification, i.e. CSA to ASA .... After Category 1 has been exhausted Category 2 team members will be called in seniority order and awarded the position.
Category 3: Transfer from all classifications other than agent positions will be considered Category 3. Once Categories 1 and 2 have been exhausted, an interview process will be conducted to select the person best suited/qualified within Category 3. Seniority will be used as a tie breaker when all else is equal.
Category 3 must be exhausted and positions awarded prior to moving to Category 4 unless team members in Category 3 are deemed to be not suited for the position. The need for training will not deem a team member unsuited for the position.
Category 4: Team members from Continental Express, Inc. submitting a bid to move employment to Continental. Once Categories 1, 2, and 3 have been exhausted, an interview process will be conducted to select the person best suited/qualified within Category 4.
(Broussard Aff. at ¶ 2, Ex. 1, at 24-25).
While Continental's Manager of Human Resources, Stephanie Broussard, asserts that "hardship transfers" for documented medical reasons also may be available, but that there was no exception to the transfer policy for "able-bodied" employees with medically undocumented health concerns, no such "hardship transfer" policy is outlined in Continental's transfer policy manual. (Broussard Aff. at ¶¶ 2-4, Ex. 1).
When Ms. Asad became pregnant in January 1997, she began to develop concerns about air quality in her workplace, her exposure to certain substances, and the health of her fetus. (Ms. Asad Dep. at 17-18, 54-55, and 181). She first mentioned her concerns about air quality to Jack Ziegelmayer, who was the supervisor of the Continental Express ramp at the time, and asked him about Continental's policy concerning pregnant ramp workers. (Ms. Asad Dep. at 156-59). Mr. Ziegelmayer responded that Continental had no policy specifically related to pregnant workers and that her options were limited to either bidding for a different position according to the regular bidding process or taking a leave of absence. (Ms. Asad Dep. at 160-61). Around the same time, Ms. Asad conducted internet research on the possible effects of workplace exposure to jet fumes. . On or about 19 February 1997, Ms. Asad delivered a letter to Steven Marvin, Continental's Director of Terminal Operations, enclosing some of her research on workplace exposure to jet fumes, expressing health concerns related to her fetus, and requesting a transfer. . In her letter, Ms. Asad wrote, in part:
I recently spoke to Jack to let him know that I just found out that I was pregnant and am concerned about the effects of de-icing fluids and fumes from the planes and various equipment outside on the COEX ramp and what they may potentially do to an unborn child.... Since I couldn't afford to take the [leave of absence] I had to try to day trade as much as possible and wait for the new bid. I am worried that I won't be able to get a line on escorts when the new bid comes due to my low seniority.
* * * * * *
I would like to make clear to you that I am NOT asking for anyone to excuse me from work; I am just asking that during my pregnancy I be allowed to work a different line that won't expose myself and my baby to these fumes.
* * * * * *
I hope that you will be able to help me find a temporary line to work in during my pregnancy (if I am not able to bid escorts) so that I will not have to worry so much where the health of my unborn child is concerned.
(Ms. Asad Dep., Ex. G). Ms. Asad received no response to this letter despite following up with Director Marvin's office. (Ms. Asad Dep. at 164-65).3
On or about 10 June 1997, Ms. Asad delivered a second letter reiterating her concerns regarding the jet fumes and requesting a transfer. (Ms. Asad Dep. at 167).4 She addressed this letter generically to "Terminal Operations" because she thought that perhaps her first letter was addressed to the wrong person. (Ms. Asad Dep. at 167). Ms. Asad wrote:
This is a follow up to the first letter that I sent to Steve Marvin back in February, 1997. I am again writing this one out of concern for the safety of my unborn child.
As previously discussed, I was going to try to bid a line on escorts (for all bids during my pregnancy) but I did not have the seniority needed. This makes me more concerned about the fumes effecting [sic] my pregnancy.... I have already had a few days where the fumes made me physically ill forcing me to come inside.
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