Koslosky v. Am. Airlines, Inc.
| Decision Date | 27 April 2020 |
| Docket Number | Case No. 2:18-cv-04654-JDW |
| Parties | Colleen KOSLOSKY, Plaintiff, v. AMERICAN AIRLINES, INC., Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
David M. Koller, Sarah R. LaVelle, Koller Law PC, Philadelphia, PA, for Plaintiff.
Christina Mae Michael, Fisher & Phillips LLP, Radnor, PA, Daniel E. Farrington, Margaret Jacobsen Scheele, Fisher & Phillips LLP, Bethesda, MD, for Defendant.
As social media has become ubiquitous, people must grapple with its pros and cons. It is an efficient, unfiltered way to reach a mass audience. It is an easy way to stay in touch with long-lost friends and professional contacts. It is a way to disseminate news and opinion to a broad audience. But posts often lack nuance. It does not allow for body language, facial expression, or tone of voice to affect a listener's understanding of the words used. Most posts are short and tend to be spur-of-the-moment, without benefit of editing.
Colleen Koslosky learned first-hand the danger of social media posts while working for American Airlines in 2017. Over a short period of time, she made several posts on her Facebook account containing inflammatory and racially insensitive sentiments that went viral. The posts created a firestorm. American's employees complained, as did some of its customers. So American fired her. In this lawsuit, she claims that American's decision to terminate her employment was discriminatory, either because it was a pretext for some discriminatory intent or because American was influenced by discriminatory subordinates. She does not have the evidence to support her claims, though. Instead, the evidence points to one conclusion: American fired her for her posts on social media.
For over 30 years, Ms. Koslosky worked as a customer service agent for American at the Philadelphia International Airport. Customer service agents work at the ticket counter, gates, internal recheck, Special Services, and the Passenger Operations Center ("POC"). All customer service agents are on the same pay scale and receive the same benefits, regardless of their role. American uses a seniority-based bidding process to determine which role a customer service agent will perform. Because Ms. Koslosky is among the most senior customer service agents, she can bid for—and hold—any customer service role. Ms. Koslosky chose to work as a gate agent. Gate agents receive daily assignments. And although an agent will usually only work one gate per shift, in cases of poor weather, mechanical delays, and diverted flights, a gate agent may need to be reassigned to another gate in a different terminal.
Ms. Koslosky was diagnosed with melanoma
and underwent two surgeries to remove it. Her second surgery, in September 2013, caused nerve damage and edema in her lower right leg, which limited her ability to walk. On August 15, 2016, Ms. Koslosky submitted a form requesting an accommodation that she be assigned only to gates in Terminal B because it is cooler and requires less walking.
American denied the request. It concluded that assigning Ms. Koslosky to gates in a single terminal would limit the company's ability to manage its operations and that the company could offer comparable positions to Ms. Koslosky. On August 22, 2016, American sent her a letter informing her of its decision and reminding her that she was free "to bid and hold a ticket counter" role. (ECF No. 28-3, Ex. 7.) There is some dispute among the parties about whether American's Managing Director of Customer Care, Beth Norton, told Ms. Koslosky that American would grant Ms. Koslosky an accommodation around that same time, but the dispute is immaterial because American did not grant her an accommodation.
Even though American denied Ms. Koslosky's request, it suggested that she consider working a different customer service role, However, Ms. Koslosky refused to do so. Instead, on July 18, 2017, Ms. Koslosky submitted another request for accommodation. Her second request asked for the same accommodation—that she work only at gates in Terminal B. After Ms. Koslosky's second request for accommodation, Bob Yori, a Human Resources Manager, asked Ms. Koslosky to reconsider working one of the other customer service roles. He indicated that if Ms. Koslosky changed roles, American would provide any additional training she needed. On July 26, 2017, American denied Ms. Koslosky's second request to work only in Terminal B.
Ms. Koslosky again refused to work another service role. Instead, she immediately submitted the same request to Olympia Colasante, who was American's most senior executive in Philadelphia. Ms. Colasante granted the request "solely for the purpose of helping Colleen" and despite the potential disruption to operations. (ECF No. 28-5, 35:19-23.) Ms. Koslosky worked only in Terminal B for two months before American ended her employment.
Ms. Koslosky had a public Facebook account that included almost 100 of her coworkers as friends. On September 23, 2017, Koslosky posted two controversial messages on her Facebook account. One post contained a purported quote from Dan Phaum, which read:
If I were Black in America, I think I'd get down on my knees every day and thank my lucky stars that my ancestors were brought over here as slaves, because when you look at the amazing rights, privileges, and benefits that come along with U.S. citizenship, and then compare that to the relentless poverty, violence, and suffering in Africa, it's like winning the Super Lotto a hundred times over. But I guess I'm old-fashioned that way, believing as I do in the importance of gratitude, humility, and respect.
The second post, which linked to an article from "Businessinsider.com," stated, (ECF No. 28-3, Ex. 16.) Ms. Koslosky also posted an image of a t-shirt with the words, "Have you Lost Your Cotton Pickin’ Mind?" written on it. (ECF No. 28-3, Ex. 15.)
Ms. Koslosky's posts went viral. At least one person posted them on American's official Facebook and Twitter pages, and many people identified Ms. Koslosky as an American employee. Ms. Koslosky heard from an American employee in Ft. Lauderdale that customers and employees as far away as Seattle were discussing her posts. Employees both in Philadelphia and elsewhere complained to the company through various channels, including to the company's CEO. American passengers also complained. In her deposition, Ms. Colasante stated that Ms. Koslosky's posts generated "significant turmoil" with a "lineup at her door constantly." (ECF No. 28-5, 62:5-62:10.) Some employees reported that they were not comfortable working with Ms. Koslosky.
To address the fallout from the posts, Ms. Colasante had to send an e-mail to all Philadelphia-based employees reaffirming the company's commitment to diversity and inclusion. On September 27, 2017, American suspended Ms. Koslosky with pay, pending an investigation. On September 29, Ms. Koslosky met with American's duty managers Jenny O'Neill and Nicole Blanchard. During the meeting, Ms. Koslosky acknowledged that she posted the content but maintained that her intent was not racist. She also claimed that the posts were taken out of context and were in reference to the NFL. However, Ms. Colasante determined that Ms. Koslosky had posted comments that employees, customers, and the company perceived to be racist in nature. Ms. Colasante therefore concluded that the posts violated American's social media, passenger service conduct, and work environment policies. On October 6, 2017, American terminated Ms. Koslosky's employment. In the termination letter, American indicated that it was "no longer able to trust [Ms. Koslosky] to engage with [her] co-workers and serve [the company's] customers in a way that demonstrates the Company's core values." (ECF No. 28-3; Ex. 19.)
Ms. Koslowski identifies Tom Doersam as a comparator employee. Mr. Doersam was an American customer service supervisor who posted inflammatory social media comments to Facebook, but his comments tended to be critical of President Trump and his supporters. These comments included "[g]et rid of ignorant rednecks," and "Trump supporter [equals] Nazi sympathizer [equals] stay away from me." (ECF No. 31-3, Ex. I.) Although Mr. Doersam had a Facebook account that identified himself as an American employee, no one complained to the company about his comments. American never disciplined Doersam for violating its policies.
On February 14, 2018, Ms. Koslosky dual-filed an administrative charge with the EEOC and PHRC, alleging gender and disability discrimination, failure to accommodate, and retaliation. On October 29, 2018, Ms. Koslosky filed this action, asserting claims for gender discrimination in violation of Title VII and the PHRA (Counts I and II), disability discrimination under the ADA and the PHRA (Counts III and IV), and retaliation under the ADA and the PHRA (Counts V and VI). However, during her deposition, Ms. Koslosky testified that American did not terminate her because of her disability or in retaliation for her accommodation requests. Nevertheless, she refused to withdraw these claims. After discovery, American moved for summary judgment on each of Ms. Koslosky's claims. The Motion is now ripe for disposition.
Federal Rule of Civil Procedure 56(a) permits a party to seek, and a court to enter, summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "[T]he plain language of Rule 56 [ (a) ] mandates the entry of summary judgment, after adequate time for discovery and upon...
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