Ultimax Transp., Inc. v. British Airways, Inc.

• Decision Date: 30 September 2002
• Docket Number: No. CIV.A.1:01-CV-0361-JEC.,CIV.A.1:01-CV-0361-JEC.
• Citation: 231 F.Supp.2d 1329
• Parties: ULTIMAX TRANSPORTATION, INC., Plaintiff, v. BRITISH AIRWAYS, PLC, Defendant.
• Court: U.S. District Court — Northern District of Georgia

231 F.Supp.2d 1329

ULTIMAX TRANSPORTATION, INC., Plaintiff, v. BRITISH AIRWAYS, PLC, Defendant.

No. CIV.A.1:01-CV-0361-JEC.

United States District Court, N.D. Georgia, Atlanta Division.

September 30, 2002.

COPYRIGHT MATERIAL OMITTED

John D. Wales and Barbara M. Heyne, Office of John D. Wales, Atlanta, GA, for Plaintiff.

James D. Johnson and C. Bradford Marsh, Swift Currie McGhee & Heirs, Atlanta, GA, for Defendant.

ORDER

CARNES, District Judge.

The above-captioned action is before the Court on defendant's Motion for Summary Judgment [20] and defendant's Motion to Strike Affidavits of Michael Wright, Grant Steele, Demetrius Johnson, and Jo-Ann Saunders [27]. The Court has reviewed the record and the arguments of the parties and, for the reasons set forth below, concludes that defendant's Motion to Strike Affidavits of Michael Wright, Grant Steele, Demetrius Johnson, and Jo-Ann Saunders [27] should be GRANTED IN PART, and defendant's Motion for Summary Judgment [20] should be DENIED.

FACTS

This is an action for race discrimination in the formation of contracts pursuant to 42 U.S.C. § 1981. Plaintiff Ultimax Transportation, Inc., filed the Complaint [1] in this action on February 7, 2001, alleging that defendant British Airways PLC terminated its oral contract with plaintiff and refused to enter into another contract with plaintiff because plaintiff is owned and operated by African-Americans¹ and is staffed primarily with African-American employees.

Unless otherwise indicated, the Court draws the undisputed facts from "Defendant British Airways PLC's Local Rule 56B Statement of Material Facts to Which There is No Genuine Issue to Be Tried" ("SMF") [20]. If, however, plaintiff has disputed any of those facts, the Court has viewed all evidence and factual inferences in the light most favorable to plaintiff, as required on a defendant's motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir.1994); Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993). Accordingly, the following facts are viewed in the light most favorable to plaintiff, and are assumed true only for the purposes of this discussion.

Defendant British Airways PLC ("British Airways") operates an international passenger airline that does business at Hartsfield International Airport ("Hartsfield") outside Atlanta, Georgia. (See Compl. at ¶¶ 11-13.) Plaintiff Ultimax Transportation, Inc. ("UTI") is a Georgia corporation that operates a baggage delivery service at Hartsfield and also provides passenger pick-ups and limited cargo services. (Id. at ¶ 12-13.) Keith Burwell ("Burwell"), an African-American, is the President, Chief Executive Officer ("CEO"), and sole shareholder of UTI; UTI is also staffed primarily by African-American employees. (Id. at ¶¶ 14-15; SMF at ¶ 2.)

In 1996, Ronnie Jennings ("Jennings"), the Service Delivery Manager for British Airways at Hartsfield, made the decision to allow UTI to deliver some of the mishandled luggage for British Airways at Hartsfield.² (SMF at ¶ 5.) UTI thereafter delivered mishandled luggage for British Airways from June, 1996, through January, 1999. (Id. at ¶ 3.) There was never any written contract or agreement between the parties regarding the luggage delivery services. (See id. at ¶ 9; plaintiff's response to SMF [24] at ¶ 9.) According to Burwell, however, there was a "verbal okay" for plaintiff's employees to enter the offices of defendant in order to take its mishandled luggage for delivery to passengers. (Pl.'s Resp. to SMF [24] at ¶ 9.) Throughout that same time period that UTI was performing luggage delivery services for British Airways, another company, Atlanta Baggage Express ("ABE") also delivered mishandled luggage for defendant. (Id. at ¶ 4.)

At some point prior to February, 1999, British Airways employees informed employees of UTI that defendant was dissatisfied with the quality of services performed by plaintiff. (Id. at ¶ 6.) In approximately February, 1999, Jennings decided that British Airways would no longer use the services of UTI for luggage delivery. (Id. at ¶ 5.) Jennings contends that he based his decision on reports made to him of passenger complaints regarding untimely deliveries by UTI. (Id. at ¶ 7.)

According to UTI, it was the general "policy" throughout Hartsfield that the first baggage delivery service to call on an airline would get the bags that needed to be delivered. (Plaintiffs' Statement of Material Facts ["Pls. SMF"] [24] at ¶ 2; Wright Aff. at ¶ 5.) UTI employees routinely went to the baggage area of British Airways to ask whether any mishandled luggage needed to be delivered, but, according to these employees, on many occasions British Airways employees told them there no bags to be delivered. (See Pls. SMF at ¶¶ 1, 3-5, 7.) UTI employee Michael Wright states that approximately 75 percent of the time he called on British Airways for luggage, he was informed by its employees that there was no luggage to be delivered. (Id. at ¶ 3; Wright Aff. at ¶ 6.) Later, however, he would witness ABE employees taking luggage away from British Airways. (Pls. SMF at ¶ 3; Wright Aff. at ¶ 7.) According to Wright, most of the ABE employees he saw were Caucasian. (Wright Aff. at ¶ 8; Pls. SMF at ¶ 9.)

Grant Steele worked for UTI on a part-time basis in 1998, and he also states that he routinely went to the British Airways baggage area to ask whether any mishandled baggage needed to be delivered. (Steele Aff. at ¶¶ 3-4.) According to Steele, British Airways employees would refuse to give him bags to deliver because they informed him that ABE had already been called to deliver the bags, although Steele did not see any ABE tags on the bags to indicate that they were marked for delivery by ABE. (Pls. SMF at ¶ 4; Steele Aff. at ¶ 5.) On one occasion, Steele saw that bags had just arrived from a flight and a new British Airways employee was giving Steele the bags for delivery to passengers. (Pls. SMF at ¶ 5; Steele Aff. at ¶ 6.) Before Steele could take the bags away to be delivered however, another British Airways employee said that he could not have the bags because they had "already been written up for delivery by ABE." (Pls. SMF at ¶ 5; Steele Aff. at ¶ 6.) According to Steele, "I did not understand how these bags could have been already written up for ABE when they had just come in." (Steele Aff. at ¶ 7; Pls. SMF at ¶ 5.)

Steele further contends that, on the few occasions that British Airways gave him mishandled bags to deliver, he knew that ABE employees were busy elsewhere in the airport. (Pls. SMF at ¶ 6; Steele Aff. at ¶ 8.) He also contends that three of the four ABE employees who worked the same shift that he worked were Caucasian. (Pls. SMF at ¶ 9; Steele Aff. at ¶ 9.)

Demetrius Johnson worked for UTI on a full-time basis as a night dispatcher during 1998 and 1999. (Johnson Aff. at ¶ 3.) According to Johnson, he also routinely went to the British Airways baggage area to inquire about mishandled bags that needed delivery, but although he could see bags that needed to be delivered, he was told by British Airways employees that there no bags to be delivered. (Pls. SMF at ¶ 7; Johnson Aff. at ¶¶ 4-6.) On other occasions, when he did not see any bags that needed delivery, he would "wait around" and soon afterwards he would see ABE employees coming out of the British Airways baggage area with bags. (Pls. SMF at ¶ 7; Johnson Aff. at ¶ 7.) On the few occasions that British Airways gave him bags to deliver, Johnson states that he knew that ABE was busy elsewhere in the airport. (Pls. SMF at ¶ 8; Johnson Aff. at ¶ 8.) Of the nine or ten ABE employees who worked the night shift at Hartsfield during the time he was employed by UTI, Johnson states that "six or seven" were Caucasian. (Johnson Aff. at ¶ 9; Pls. SMF at ¶ 9.)

Jo-Ann Saunders worked for British Airways as a customer service agent from August, 1998, to May, 1999, during which time one of her responsibilities was arranging for baggage deliveries. (Pls. SMF at ¶ 11; Saunders Aff. at ¶¶ 3-4.) On one occasion, Saunders was in the supply room behind the ticket counter when she overheard another British Airways employee, Pete Tamburello, say to a Caucasian employee of ABE that "when they [British Airways] get their bags delivered by Ultimax, the bags will smell like fried chicken." (Pls. SMF at ¶ 12; Saunders Aff. at ¶ 5.) She interpreted that comment as a racial slur against African-Americans, based on a racial stereotype that all African-Americans eat fried chicken. (Pls. SMF at ¶ 14; Saunders Aff. at ¶ 8.) Saunders states that Tamburello did not know she was in the room when he made that statement and when he saw her, "his face turned red and he turned away from me." (Pls. SMF at ¶ 12; Saunders Aff. at ¶ 6.)

According to Saunders, Tamburello was the person at British Airways who decided which baggage delivery service to use. (Pls. SMF at ¶ 13; Saunders Aff. at ¶ 7.) She states that it was the normal procedure that mishandled bags that needed delivery were tagged with "Baggage Delivery Orders" ("BDO's"). (Pls. SMF at ¶ 15; Saunders Aff. at ¶ 9.) Saunders observed Tamburello take bags labeled with BDO's marked "universal" and replace the tags with BDO's marked "ABE." (Pls. SMF at ¶ 15; Saunders Aff. at ¶ 9.) Saunders contends that, in her experience, UTI employees inquired more frequently about baggage deliveries than did ABE employees, and UTI's delivery times were faster than those of ABE. (Pls. SMF at ¶ 16; Saunders Aff. at ¶ 10.)

Keith Burwell, President and CEO of UTI, states that Ronnie Jennings, the British Airways Service Manager, told him that UTI employees who were unable to get in touch with a British Airways passenger in order to schedule a baggage delivery should call a toll-free "1-800" number to inform British Airways. (Pls. SMF at ¶ 17; Burwell Dep. ...