Gordon v. United Airlines

• Decision Date: 29 March 2001
• Docket Number: No. 99-4068,99-4068
• Citation: 246 F.3d 878
• Parties: (7th Cir. 2001) LEROY GORDON, Plaintiff-Appellant, v. UNITED AIRLINES, INCORPORATED, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 878

246 F.3d 878 (7th Cir. 2001)

LEROY GORDON, Plaintiff-Appellant, v. UNITED AIRLINES, INCORPORATED, Defendant-Appellee.

No. 99-4068

In the United States Court of Appeals For the Seventh Circuit

Argued May 16, 2000

Decided March 29, 2001

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 98 C 1378--Harry D. Leinenweber, Judge. [Copyrighted Material Omitted] Before EASTERBROOK, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge.

Leroy Gordon, a probationary flight attendant for United Airlines, Inc. ("United"), was released from his employment by the company on the ground that he had deviated without authority from his flight schedule when he did not fly a scheduled flight from Los Angeles to Seattle. The company decided that this violation of its policy, when considered in light of Mr. Gordon's overall work performance, warranted no lesser sanction. Mr. Gordon then filed this action in the district court; he alleged that United discriminated against him because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e et seq., and in violation of 42 U.S.C. sec. 1981, and because of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. sec. 623. The district court granted summary judgment for United, and Mr. Gordon now appeals. For the reasons set forth in the following opinion, we reverse the judgment of the district court and remand the case for proceedings consistent with this opinion.

I BACKGROUND

A. Facts

Leroy Gordon, an African-American male over 40 years of age, claims that United discriminated against him because of his race and his age when it terminated his employment as a probationary flight attendant. United, however, asserts that Mr. Gordon committed a violation of company policy. According to United, that violation, when coupled with his work history, justified its decision to release Mr. Gordon from his position as a probationary flight attendant.

1.

Mr. Gordon began working at United as a Baggage Systems Operator in 1995. While working in this position, he received a Notice of Concern because he had 21 incidents of tardiness and 2 absences. Mr. Gordon questioned the validity of the allegations in this notice, but he was told that the notice would not be placed in his personnel file.

Mr. Gordon then applied for and received a transfer to United's flight attendant ("FA") program in 1996. While in training, he was 20 minutes late for a training exercise, which resulted in an incident report for failing to meet minimum dependability requirements. Mr. Gordon claims that, at that time, he was told the incident would not be made a part of his personnel record as long as there were no reoccurrences. He graduated from his training class in February 1997 and then started as a probationary flight attendant ("PFA") at Chicago O'Hare International Airport ("O'Hare"). Mr. Gordon states that his supervisor, Gina Siemieniec, told him that she would not consider his training records when evaluating him as a PFA.

In May 1997, United confronted Mr. Gordon with a check it had received from him that had been returned due to insufficient funds. Mr. Gordon had written the check in July 1996, while he was still a Baggage Systems Operator, and he claims that he thought his bank already had taken care of the matter. United informed Mr. Gordon that, if he did not pay immediately, he would be subject to disciplinary action. Mr. Gordon promptly paid. Siemieniec, who brought the matter to Mr. Gordon's attention, stated that the situation was not serious and was not relevant to his performance as an FA.

Mr. Gordon's next problem at United occurred in June 1997 when a United passenger reported that no pre-landing safety announcement had been made on his flight. The First FA is the person responsible for making the announcement, and, on this particular flight, Mr. Gordon was the First FA. In response to the passenger's complaint, Siemieniec asked Mr. Gordon for a written report. In that report, Mr. Gordon wrote, "I believe the prearrival announcement was made by [the Second FA], just before I was about to make it." R.21, Ex.27. Mr. Gordon claims that he was assisting a wheelchair passenger and was about to make the announcement when the Second FA made it. Indeed, he asserts that the Second FA made the announcement early. According to Siemieniec, she did not issue Mr. Gordon a warning because she decided to overlook the matter.

Finally, United claims that Mr. Gordon was unresponsive to Siemieniec's requests for Mr. Gordon to meet with her. Mr. Gordon asserts that he had attempted to visit her, but that both he and Siemieniec had unusual schedules. Siemieniec responded that the PFAs bore the responsibility for making an appointment to meet with her if they were unable to find her in her office.

We note several other relevant factors about Mr. Gordon's record at United. First, while a PFA, Mr. Gordon never received an "Interim Evaluation." An Interim Evaluation typically is given to an employee for substandard performance. After the employee receives the first Interim Evaluation, the second incident of unacceptable conduct by the employee will result in termination. Moreover, in Mr. Gordon's five-week reviews, no problems were ever documented. Finally, Mr. Gordon received awards as a PFA, including PRIDE awards for perfect attendance and Service in Every Sense awards for above-average customer service.

2.

The incident that led to Mr. Gordon's termination occurred on August 5-6, 1997. On August 5, Mr. Gordon was assigned to work a flight from O'Hare to Portland, Oregon, and then to fly deadhead (fly but not work) to Los Angeles International Airport ("LAX"). Once in Los Angeles, he was to be reassigned. When he arrived at LAX, he received his next assignment--a flight from Los Angeles to Seattle--that was to begin 21 hours later. He then was transported to a Days Inn where United had assigned him to stay the night so that he could rest before his next scheduled flight. In a report Mr. Gordon later wrote about the incident, he explained that he had experienced problems with his motel room at the Days Inn:

I was [given] a ground level unit. This is a drive up style motel, there was a car backed up 3 to 5 feet from my door with the engine running, so when I entered the room there were exhaust fumes present. (The car moved a short time later, but the smell remained). It was a very hot night in L.A. ([around] 90 ). The room had one window style air conditioning unit in the living room, but none in the bedroom. The carpet was dirty, there were holes in the walls, and insects flying around the room. There were what appeared to be unsecured window in the bathroom and kitchen sections, and there was one TV set in the living room, (with no remote control). I did not feel this room was safe, sanitary or acceptable. I also was under the impression the flight attendant union agreement would not allow FA to be housed on first floor units for security reasons.

R.21, Ex. 30 at 1-2.¹ He attempted to move to another room, but the Days Inn did not have one available. He called the United Crew Desk at LAX for help finding a room in a different hotel, but he was told that none were available at that time. Mr. Gordon also spoke with United's National Crew Desk which was unable to help him.

Mr. Gordon then returned to LAX. Upon arriving at the airport, he discovered that the United Crew Desk had closed. At this point, Mr. Gordon decided to take a red-eye flight from Los Angeles back to Chicago. As he explained in his report, "I thought this would give me an opportunity to shower, change clothes, and still return to LAX" in time to work his next scheduled flight. Id. at 2. He arrived at O'Hare at 6 a.m. on August 6, 14 hours before his scheduled flight from Los Angeles to Seattle.

In this litigation, United concedes that, at this point, Mr. Gordon had done nothing to warrant sanctions. If he had returned to Los Angeles and made his scheduled assignment, he would not have been terminated. As United states: "It is true that if Plaintiff had returned to Los Angeles and flown his scheduled flight, he would not have been subject to discipline." Appellee's Br. at 16. However, Mr. Gordon did not return to Los Angeles to work his scheduled flight.

Once Mr. Gordon returned to O'Hare, he checked in with the United Crew Desk and spoke to the Crew Desk Supervisor, Henry Velasco. According to Mr. Gordon's report, he explained the hotel problems to Velasco and "asked if [he] should return to work the trip [from Los Angeles to Seattle], or if [he] could be excused from the [trip] because [he] had not had a legal rest."² R.21, Gordon's Report to Siemieniec, Ex.30 at 4. Mr. Gordon informed Velasco that, if his request presented a problem, he would return to Los Angeles to make his assigned flight. Velasco told him that it would not be safe for him to return to Los Angeles that day and that it was not a problem to take him off the assignment, Mr. Gordon wrote, but that he should discuss the situation with his supervisor. Mr. Gordon also explained in his report that he was not sure that the Crew Desk understood his request, that is, that he would be commuting to Los Angeles and not that he would be working a flight to Los Angeles. Finally, as Mr. Gordon concluded in his written report, "my improper deviation was unintentional. . . . This mistake was caused by my lack of understanding of the regulations, but my intent was not malicious in any manner." Id. at 3.

Velasco also wrote a report for Siemieniec that discussed the incident. In that report, he explained that Mr. Gordon had been unhappy with his hotel and had been unable to contact the LAX Crew Desk. Velasco then wrote that Mr. Gordon had "decided to DV8 from LAX back to ORD [O'Hare] without authorization from any crew desk." R.21, Ex.32. Once at Chicago, the report...