Sawyer v. Southwest Airlines Co.

Decision Date05 February 2003
Docket NumberNo. CIV.A. 01-2385-KHV,CIV.A. 01-2385-KHV
PartiesLouise SAWYER, Plaintiff, v. SOUTHWEST AIRLINES CO., Defendant. Grace Fuller, Plaintiff, v. Southwest Airlines Co., Defendant.
CourtU.S. District Court — District of Kansas

Todd W. Amrein, Phoenix, AZ, John W. Cowden Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, Mary C. O'Connell, Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, MO, for Southwest Airlines Co.

Elizabeth Drill Nay, Lewis, Rice & Fingersh, L.C., Kansas City, MO, Scott A. Wissel Lewis, Rice & Fingersh, L.C., Kansas City, MO for Louise Sawyer.


VRATIL, District Judge.

Louise Sawyer and Grace Fuller bring suit against Southwest Airlines Co. ("Southwest"), alleging that it violated their rights under 42 U.S.C. § 1981 and intentionally inflicted emotional distress under Kansas law. Fuller also alleges that Southwest negligently inflicted emotional distress. The matter is before the Court on Defendant Southwest Airlines Co.'s Motion To Exclude The Testimony Of Plaintiffs' Expert Valdenia Winn (Doc. # 78) filed November 15, 2002 and Defendant Southwest Airlines Co. `s Motion For Summary Judgment (Doc. # 79) filed November 15, 2002. For reasons stated below, the Court sustains each motion in part.

Summary Judgment Standards

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252, 106 S.Ct. 2505.

The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir.1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Sees., Inc., 912 F.2d 1238, 1241 (10th Cir.1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir.1991). The nonmoving party may not rest on her pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.

The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51, 106 S.Ct. 2505. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir.1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505.

Factual Background

The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiffs.

I. Plaintiffs' Experience With Southwest

Plaintiffs are African-American. On February 12, 2001, plaintiffs—who are sisters—flew from Kansas City, Missouri to Las Vegas, Nevada on Southwest Airlines. Their return flight, number 2441, was scheduled to leave Las Vegas at 9:30 a.m. on February 15, 2001.

A. Flight 2441

On February 15, 2001, plaintiffs arrived at the Las Vegas airport around 8:30 a.m. They waited in the Southwest check-in line for about 45 minutes and arrived at the departure gate at 9:22 a.m. Southwest customer service agent Laura Gonzalez, who was at the gate, refused to let plaintiffs board because their check-in time was less than ten minutes before the scheduled departure and they were subject to Southwest's ten minute rule.1 Plaintiffs did not know about the ten minute rule, so Gonzalez showed Fuller that it was printed on her ticket.2 Although Gonzalez was stern, she and plaintiffs had a civil conversation.3 Because Flight 2441 was full and plaintiffs had checked in late, Gonzalez placed them on the "priority standby" list at no additional cost, for the next available Southwest flight to Kansas City. That flight, Flight 524, was scheduled to leave at 12:00 p.m. Fuller was irritated that she was not allowed to board Flight 2441, but she did not experience any stress which resulted in physical symptoms. According to Sawyer, Fuller was "a little tee'd off, upset and irritated," and Sawyer herself was irritated. Plaintiffs, however, do not believe or claim that they should have been exempted from the ten minute rule.

Gonzalez has been a customer service agent for Southwest since October of 1996, working at the ticket counter and boarding gate. She testified that she applies the ten minute rule equally to all passengers, that she does not discriminate on the basis of race or national origin, and that she has never prohibited a passenger from boarding based on race or national origin. Plaintiffs have cited no contrary evidence.

B. Flight 524

After it boarded all non-standby passengers on Flight 524, Southwest allowed plaintiffs to board. When plaintiffs first boarded, they could not find open seats. As plaintiffs stood in the aisle, searching for seats, Southwest flight attendant Jennifer Cundiff said over the intercom, "eenie, meenie, minie, moe, pick a seat, we gotta go." Plaintiffs recognized the comment as a reference to a racist nursery rhyme which began: "eenie, meenie, minie, moe; catch a nigger by his toe ..." Plaintiffs were the only passengers standing in the aisle and in response to Cundiff s comment, many passengers snickered and directed their attention to plaintiffs. After the comment, Sawyer sat down in a seat near the front of the airplane. Because no other seats were open, Fuller remained standing until another Southwest employee instructed a different flight attendant, who was an unticketed passenger on the flight, to give up her seat for Fuller.

Defendant's conduct humiliated, angered and alienated plaintiffs. Fuller did not feel that she had received the same treatment as other passengers on the flight. Plaintiffs worried that the comment would cause Fuller to have a seizure on the plane. After Cundiffs comment, a male flight attendant gave Fuller special attention by offering her drinks and peanuts and trying to make her comfortable. As Fuller sat on the airplane, she became more angry and embarrassed at the way she was treated. During the flight, her hands were shaking. She took epilepsy medication and tried to calm down. When the airplane landed, Fuller's hands were still shaking. Fuller has significant and unexplained memory gaps about Flight 524 and her drive home from the airport.4 Fuller rested when she got home because she was drained and upset. Fuller had a grand mal seizure on the evening of February 15, 2001 and was bedridden for three days, but she was uninsured and she therefore did not seek medical attention.5

After February 15, plaintiffs wrote letters of complaint to Southwest. Southwest instigated an investigation and asked Cundiff to write a report. In her report, Cundiff wrote "the statement I made on Flight 524 was not racist or discriminating, and I am offended that because I have white skin suddenly I am a racist. Maybe those that run around pointing fingers yelling racist should stop and turn that finger around." Cundiff Deposition, Exhibit 6 in Plaintiffs' Response To Defendant's Motion For Summary Judgment (Doc. #87) filed December 30, 2002. Southwest did not believe the phrase was racist and did not reprimand Cundiff for using it or instruct her to stop using it. Cundiff no longer uses it, however, because of the ordeal it has put her and Southwest through.

II. Southwest Flight Attendants

Southwest flight attendants are responsible for the safety and enjoyment of passengers on the aircraft, and Southwest is known for using humorous announcements over the intercom.6

Flight attendants attend four weeks of initial training. The training includes a video called "It's a Matter of Respect," by Herb Keller. It and the Southwest flight attendant manual cover racial sensitivity. Flight attendants are required to attend recurrent training at least once every 13 months. Recurrent training, which lasts one day, keys in on the most essential information like how to evacuate the aircraft, CPR and rescue breathing, and security. Southwest also uses "read before flies," memoranda which are posted in a briefing book at every base to communicate with flight attendants. Flight attendants are required to read the information before they fly. These memoranda are used to get information to flight attendants on short notice. Paula Gaudet Deposition at 11-12, Exhibit 5 in Plaintiffs' Response (Doc. # 87). Training programs and "read before flies" do not discuss comments, words or phrases that flight attendants should or should not use over the aircraft intercom. Id. at 7-10.

III. Jennifer Cundiff

Cundiff has worked as a...

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