Stroup v. United Airlines, Inc.

• Decision Date: 28 February 2022
• Docket Number: No. 19-1373,19-1373
• Citation: 26 F.4th 1147
• Parties: Jeanne STROUP; Ruben Lee, Plaintiffs - Appellees, v. UNITED AIRLINES, INC., Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

26 F.4th 1147

Jeanne STROUP; Ruben Lee, Plaintiffs - Appellees,

v.UNITED AIRLINES, INC., Defendant - Appellant.

No. 19-1373

United States Court of Appeals, Tenth Circuit.

FILED February 28, 2022

David Lane (Liana Orshan with him on the brief), Killmer, Lane & Newman, LLP, Denver, Colorado, for Plaintiffs-Appellees.

Marcy G. Glenn, Holland & Hart LLP, Denver, Colorado (Jessica E. Whelan, Holland & Hart LLP, Las Vegas, Nevada; Meghan W. Martinez and Elizabeth Imhoff Mabey, Martinez Law Group, P.C., Denver, Colorado, with her on the briefs), for Defendant-Appellant.

Before HOLMES, BRISCOE, and CARSON, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant United Airlines ("United") appeals from the district court's denial of its motion for judgment as a matter of law ("JMOL"), pursuant to Federal Rule of Civil Procedure 50, and its motion for new trial, pursuant to Federal Rule of Civil Procedure 59. A jury found that United discriminated against two flight attendants, Plaintiffs-Appellees Jeanne Stroup and Ruben Lee (collectively, the "Plaintiffs"), by terminating them because of their ages in willful violation of the Age Discrimination in Employment Act ("ADEA"). United filed its JMOL and Rule 59 motions with the district court, contending, among other things, that the jury's verdict was based on legally insufficient evidence and the court erred in admitting Plaintiffs' testimony about their emotional distress. The district court denied the motions.

United maintains this denial was error. United contends that (1) the district court erred in denying its JMOL motion because (a) there was insufficient evidence to support the jury's finding that United discriminated against Plaintiffs because of their ages in violation of the ADEA, and (b) similarly, there was insufficient evidence to support the jury's finding that United acted willfully in committing any ADEA violation; and (2) the court abused its discretion and committed reversible error when it admitted Plaintiffs' allegedly irrelevant and highly prejudicial emotional distress testimony.

We conclude there was sufficient evidence for the jury to reasonably find that, not only did United violate the ADEA by discriminating against Plaintiffs, but it did so willfully. We also determine that the district court did not commit reversible error by admitting the challenged emotional distress testimony. Thus, we uphold the district court's denial of United's JMOL motion and Rule 59 motion for a new trial and affirm its judgment.

I

Ms. Stroup and Mr. Lee were flight attendants who had worked for United for decades. Both, generally, had rendered good service in their years of employment and had received only minor discipline. At times material here, Plaintiffs were based out of the Denver International Airport.

Plaintiffs' terminations stem from a complaint against them from their fellow flight attendant, Sheila Simms. In August 2013, Ms. Simms contacted Mark Dodge, Plaintiffs' supervisor, to complain about Plaintiffs' conduct on a flight that occurred a few days before. Ms. Simms alleged that Plaintiffs "watched a video on an iPad when they were on-duty." Aplt.'s Opening Br. at 8. United's Flight Attendant Information Manual ("FAIM"), which "contains the policies, procedures and service standards for all ... flight attendants," Aplt.'s App., Vol. VII, at 1758, prohibits the use of "personal electronic devices" by flight attendants "on board the aircraft while customers are present," id. at 1849.

Mr. Dodge escalated the issue by emailing Dean Whittaker, United's Manager of In-Flight Services at Denver International Airport and the ultimate decision-maker as to Plaintiffs' employment. In response, Mr. Whittaker "asked Deepesh Bagwe, a California-based supervisor, to anonymously observe [the] Plaintiffs' job performance, including whether they would again watch a video while on-duty." Aplt.'s Opening Br. at 9. Mr. Bagwe's observation happened while Plaintiffs were working a short flight between Denver and San Francisco roughly five weeks after Ms. Simms's complaint.¹

On that flight, Mr. Bagwe catalogued several policy violations. First, Mr. Bagwe photographed Plaintiffs sitting on carrier boxes—"steel containers for stowing items in galleys"—and also sharing a pair of earbuds and watching a video on an iPad. Id. at 9–10 (citing Aplt.'s App., Vol. XIV, at 3292–93 and Aplt.'s App., Vol. V, at 1188).² Much like the video watching, Plaintiffs' use of the carrier boxes also violated the FAIM. Next, Mr. Bagwe observed Mr. Lee smoking an e-cigarette during the flight in violation of United policy. Mr. Bagwe also observed other, "less major" policy violations, such as (1) Mr. Lee not being "properly positioned" during his safety demonstration at the beginning of the flight; (2) Plaintiffs' rushed and incomplete beverage services; (3) Plaintiffs' failure to wear their aprons and name-tags; (4) Mr. Lee's giving of a free alcoholic beverage to a customer; and (5) Plaintiffs' failure to comply with sanitation procedures for the water service. See id. at 13–14.

Under the requirements of the collective bargaining agreement that governed the employment relationship between United and Plaintiffs, Mr. Dodge met with Plaintiffs and their union representative, Ken Kyle, to discuss the policy violations. Coming out of that meeting, Mr. Dodge apparently thought both Plaintiffs were dishonest based on their responses to his questions.³

After follow-up meetings and more investigation, Mr. Dodge issued Letters of Charge to Plaintiffs. Under the governing collective bargaining agreement, "termination of a flight attendant could not be based on violations other than those listed in a Letter of Charge." Aplees.' Resp. Br. at 7.⁴

Ms. Stroup's Letter of Charge stated that "[her] actions" on Mr. Bagwe's observational flight were "inconsistent with [United's] Working Together Guidelines" in specified ways. See Aplt.'s App., Vol. V, at 1181. First, "[w]ith respect to Professionalism and Responsibility, [she was] observed on two separate occasions by [Mr.] Bagwe watching and listening to a video on an [iPad] in a cart while seated on a carrier box in the aft galley." Id. "In addition to being unavailable and inattentive to ... customers during this time, [Ms. Stroup was] observed using ear phones and a personal electronic device onboard the aircraft," in violation of FAIM policies. Id. "Additionally," Ms. Stroup "did not follow uniform guidelines when [she] failed to wear [her] apron and [her] name bar during the flight." Id. The Letter also noted Ms. Stroup's "current Performance record [would] be subject to review" at her hearing on the Letter's charges. Id.

Mr. Lee's Letter of Charge was identical to Ms. Stroup's as to the foregoing matters. Mr. Lee's Letter further stated that he was "observed smoking an electronic cigarette" in violation of United's policies and federal regulations. Id. at 1185. The Letter leveled three more accusations against Mr. Lee: (1) he "failed to follow company policy when [he] stood sideways in the aisle during the automated safety demonstration" and "left [his] assigned demo position prior to the completion of the safety demonstration"; (2) he "failed to follow company policy ... when [he] took a vodka bottle from first class and gave it to a customer ... without charging [him]"; and (3) he "failed to follow service guidelines when [he] gave out full unopened beverage cans without following the United Economy beverage service guidelines during the beverage service and again when [he] did a water service with a bottle of water with glasses [ ]stacked on one another instead of using a pickup pan." Id. at 1185–86.

The Letters of Charge never expressly mentioned any safety-related violations or Plaintiffs' alleged dishonesty.

United held disciplinary proceedings about a month after the Letters of Charge were issued. Plaintiffs submitted written and oral statements, participating in the proceedings with the assistance of Mr. Kyle, who was acting in his capacity as their union representative. Mr. Dodge presented the evidence at these proceedings that he had compiled. Mr. Whittaker served as the hearing officer. After the proceedings, Mr. Whittaker, apparently, "did not find either Plaintiff credible at the hearings, based on their own admissions of dishonesty; their inconsistent and evasive statements; and discrepancies between their statements, [and the] objective evidence[,] ... and information received from persons who had no motive to be untruthful [like United employees and investigators]." Aplt.'s Opening Br. at 20 (citing Aplt.'s App., Vol. XV, at 3593–97, 3607 (Tr. Dean Whittaker Test., dated Mar. 2, 2018)). In short, Mr. Whittaker decided to terminate Plaintiffs' employment "in ‘large part’ because he ‘didn't find them trustworthy.’ " Id. (quoting Aplt.'s App., Vol. XV, at 3606–07).⁵ Mr. Whittaker advised Mr. Kyle of his decision, and based on Mr. Kyle's request, agreed that Plaintiffs could instead retire. Plaintiffs retired effective November 18, 2013, around three months after Ms. Simms filed her complaint. When their employment with United ended, Ms. Stroup was 55 years old, and Mr. Lee was 61 years old. They served 29 and 41 years as flight attendants, respectively.

After these events, Plaintiffs filed suit against United, alleging they were terminated from their jobs because of their age. Plaintiffs' claims were heard over a five-day trial. At trial, in its defense, United focused heavily on several matters: Plaintiffs' lack of direct evidence of age discrimination; Plaintiffs' failure to complain of that type of discrimination prior to termination; and Plaintiffs' admission of policy violations and dishonesty during the disciplinary process. Distilled to its essence, United's argument was that Plaintiffs' evidence failed to establish they had been terminated because of their ages.

For their part, Plaintiffs broadly sought to convince the jury that United's proffered,...