E.E.O.C. v. Trans States Airlines, Inc.

• Decision Date: 19 September 2006
• Docket Number: No. 05-2010.,No. 05-2009.,No. 05-2046.,05-2009.,05-2010.,05-2046.
• Citation: 462 F.3d 987
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant/Cross-Appellee, Mohammed Shanif Hussein, Intervenor, Plaintiff-Appellant/Cross-Appellee, v. TRANS STATES AIRLINES, INC., Appellee/Cross-Appellant, Airline Pilots Association Int., (AFL-CIO), Defendant.
• Court: U.S. Court of Appeals — Eighth Circuit

462 F.3d 987

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Appellant/Cross-Appellee Mohammed Shanif Hussein, Intervenor, Plaintiff-Appellant/Cross-Appellee, v. TRANS STATES AIRLINES, INC., Appellee/Cross-Appellant, Airline Pilots Association Int., (AFL-CIO), Defendant.

No. 05-2009.

No. 05-2010.

No. 05-2046.

United States Court of Appeals, Eighth Circuit.

Submitted: March 16, 2006.

Filed: September 19, 2006.

Jerome J. Dobson, Jonathan C. Berns, Michelle D. Neumann, Weinhaus & Dobson, St. Louis, MO, Appellant/Cross-Appellee.

James N. Foster, Jr., William B. Jones, Christopher M. Sanders, McMahon & Berger, David John Arthur Hayes, III, Trans States Airlines, Inc., St. Louis, MO, for Appellee/Cross-Appellant.

Before SMITH, JOHN R. GIBSON, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

The Equal Employment Opportunity Commission ("EEOC") brought this action alleging that Trans States Airlines terminated Mohammed Shanif Hussein in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2. Hussein subsequently intervened, asserting claims under Title VII and the Missouri Human Rights Act. Mo.Rev.Stat. § 213.010 et seq. Trans States moved for summary judgment on all claims, and moved for attorneys' fees. The district court^* granted summary judgment for Trans States, but denied its motion for fees. We affirm the judgment of the district court.

I.

Hussein is a man of Indian descent who is a native of the island of Fiji, where he was raised as a Muslim. He moved to the United States in 1997. Trans States, which is based in St. Louis, Missouri, hired Hussein as a pilot on February 26, 2001. On September 13, 2001, when commercial air travel was suspended as a consequence of the terrorist attacks on September 11, Hussein returned a Trans States plane to the St. Louis airport. He then rented a room at a nearby Howard Johnson's hotel.

At some time between September 14 and September 17, 2001, Captain Daniel Reed, Trans States's vice president of flight operations, received what he said was an anonymous phone call regarding Hussein. According to Reed's testimony in this case, the caller reported that a pilot in a Trans States uniform had been in a bar at the Howard Johnson's hotel making comments about the attacks of September 11, and that a bartender had asked him to leave. Reed said that he asked how the caller knew the person was a Trans States pilot, and the caller replied that he had read the pilot's identification tag and then gave his last name as Hussein. Reed remembered the caller saying that a Trans World Airlines pilot had followed Hussein out of the bar, at which time Hussein took off some of his uniform pieces and went into another bar at the hotel.

Reed testified that he asked his flight managers about Hussein, and they confirmed that Trans States employed a pilot named Mohammed Hussein. Reed said he asked a manager on his staff to verify that Hussein was in St. Louis at the time of the reported incident. He recalled that within an hour, he received a report that Hussein should have been in the St. Louis area, and that he was a probationary employee. Reed stated that he then decided to dismiss Hussein and directed one of the flight managers to carry out the termination.

Michael Swoboda, then a flight manager at Trans States, informed Hussein of his termination on September 18. Swoboda testified that when Reed returned from taking the anonymous telephone call, he asked for information about Mohammed Hussein. Swoboda recalled telling Reed that Hussein was a first officer based in St. Louis, and that he was probably a probationary employee. Swoboda testified that Reed then directed Swoboda to terminate Hussein's employment. Another flight manager, Rodney Aman, overheard Reed speaking on the telephone when he received the anonymous call about Hussein. Paraphrasing the conversation, Aman remembered Reed saying, "It doesn't matter," and "It doesn't matter, he was in a bar in uniform," during the course of the call.

It was later revealed that the anonymous caller was a pilot employed by Trans World Airlines named Emmet Conrecode. Conrecode was staying at the Howard Johnson's hotel in St. Louis on September 13. He testified in this case that while he was in a bar at the hotel eating dinner, he observed a man walk into the bar wearing a pilot's uniform. According to Conrecode, the man drank a beer at the bar, and when a television showed a replay of an aircraft hitting one of the World Trade Center towers, the man raised his beer "as in a salute and took a swig." The man eventually left the bar, and another pilot told Conrecode that he told the man to "get out of the bar in uniform." Conrecode said the man later returned with epaulets removed from his uniform, and that during this second visit to the bar, the man announced that he was going to fly an airplane the next day. Conrecode testified that he later inquired about the man's identity at the front desk of the hotel, and the desk manager identified him as a Trans States pilot named "Hussein."

Conrecode testified that he could not sleep that night, and he decided to contact the Federal Bureau of Investigation early in the morning of September 14. He left a message, and the FBI interviewed Conrecode later that day. Conrecode stated that he also contacted the airport police when he realized that the man he observed in the bar could gain access to an aircraft if flight operations resumed in the morning. He described to the duty officer "the behavior of a pilot in uniform drinking in a bar and reporting that he was going to be flying the next day and that he was acting in a strange manner." Conrecode further testified that he called Trans States Airlines on September 14 and spoke with a manager who left a meeting to take the telephone call. Conrecode recalled that he told the Trans States manager that Hussein had been drinking in a bar in uniform, and that he "seemed to be intimidating passengers by that action." Conrecode "may have" mentioned what he perceived as Hussein's support for the September 11 terrorists. Conrecode said he was not sure whether he identified himself to the Trans States manager.

Conrecode's report to law enforcement prompted an investigation by the FBI. According to the reports of an FBI agent and airport police officer who interviewed Hussein on September 14, Hussein admitted that he was wearing an epauletted white shirt and blue pants while drinking alcoholic beverages and eating dinner in a bar at the Howard Johnson's hotel. The officer and agent, respectively, reported that Hussein acknowledged on September 14, 2001, that his attire in the bar did "identify him as a pilot" and was "indicative of a member of a flight crew." (Def.'s App. at 79, 145). Hussein testified in a deposition in 2004 that he was not wearing his uniform with epaulets on the shirt in the bar at Howard Johnson's, but he did not recall whether he had worn his uniform shirt and slacks in the bar. (Pls.' App. at 250). Hussein averred in a declaration that he never made any statement or gesture indicating that he approved of the terrorist attacks of September 11, and that he has always believed those acts were contemptible and horrific. Hussein testified that he was smiling while in the bar because he had learned earlier in the day that his wife was pregnant.

At some point after the FBI interviewed Conrecode, the FBI agent called Reed about Hussein. According to a report of Reed's interview in August 2002 with an interviewer from the EEOC, Reed said that he decided to terminate Hussein "since he had received this call" from the FBI and "since [Hussein] was already suspected of being in a drinking establishment." (Pls.' App. at 112). Reed testified at his deposition in 2004, however, that he received the call from the FBI agent after he made his decision to terminate Hussein.

On October 5, 2001, Hussein filed an initial questionnaire with the EEOC regarding his discharge, and filed a charge of discrimination in violation of Title VII with the EEOC on December 10. After an investigation, the EEOC determined that Trans States violated Title VII by terminating Hussein on account of his religion, race, or national origin. The parties entered conciliation discussions, but could not reach a settlement, and the EEOC filed this action, in which Hussein subsequently intervened as a plaintiff.

Trans States moved for summary judgment on all counts. In granting the motion, the district court found that Hussein had provided no "evidence that [Trans States] fabricated the telephone call" from Conrecode to Reed. The court also found that because of his probationary status, Hussein was not entitled to certain disciplinary procedures established by the collective bargaining agreement and employee handbook. The court further concluded that similarly-situated probationary pilots had been treated in the same way as Hussein, that Hussein provided no evidence that his religion, race, or national origin influenced Reed's termination decision, and that without more, the timing of Hussein's termination in relation to the September 11 terrorist attacks could not support a finding that Trans States's explanation for his termination was a pretext for discrimination.

Trans States also moved for attorneys' fees pursuant to 28 U.S.C. § 1927 and 42 U.S.C. § 2000e-5(k), arguing that plaintiffs frivolously and vexatiously proceeded with this action, and that the EEOC did not satisfy its duty to conciliate in good faith. The court found that although plaintiffs' claims were meritless, they were not "frivolous or groundless." The court also found that the EEOC conciliated in good faith. Accordingly, the court denied Trans States's motion for attorneys' fees.

II.

The EEOC and Hussein appeal the district court's grant of summary judgment in favor of Trans States on the plaintiffs' claims under Title VII and the Missouri Human Rights Act. Summary judgment is appropriate...