Villiarimo v. Aloha Island Air, Inc.

Decision Date28 February 2002
Docket NumberNo. 00-16012.,00-16012.
Citation281 F.3d 1054
PartiesReloynne K. VILLIARIMO; Joseph Harvest, Plaintiffs-Appellants, v. ALOHA ISLAND AIR, INC., dba Island Air; Rosie Nenezich; Richard Hee, Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

G. Todd Withy (argued), Honolulu, HI, for the plaintiffs-appellants.

Richard M. Rand (argued) and Christine S.Y. Chun, Torkildson, Katz, Fonezca, Jaffe, Moore & Hetherington, Honolulu, HI, for the defendants-appellees.

Appeal from the United States District Court for the District of Hawai'i; Samuel P. King, Senior District Judge, Presiding. D.C. No. CV-99-00252-SPK.

Before: THOMPSON, O'SCANNLAIN, and BERZON, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

In this employment discrimination case, we must decide whether claims by ground personnel against an airline prevail over its termination for damage to one of its aircraft.

I

Reloynne Villiarimo worked as a ramp supervisor for Aloha Island Air, Inc. ("Aloha"). Joseph Harvest worked as a ramp agent under the supervision of Villiarimo, among others. Both were involved in an accident that occurred on April 6, 1998, which resulted in damage to one of Aloha's airplanes; thereafter, both were let go. Aloha maintains that it terminated Villiarimo for a rule violation in connection with the accident, and because it believed she had been dishonest during the investigation of the accident, and that it terminated Harvest because the occurrence was his second such accident. Although Villiarimo and Harvest admit that they in fact damaged an airplane, they nonetheless contend that "real" reasons for their terminations were more nefarious — and indeed, illegal under federal and state employment discrimination laws.

A

On April 6, 1998, Villiarimo and Harvest worked together on a flight departure on the tarmac at Honolulu International Airport, Hawaii. Villiarimo was the marshaller,1 and Harvest was the Ground Power Unit ("GPU") operator.2 Both recount the events of that fateful day as follows.

As the GPU operator, Harvest's responsibilities included driving a small vehicle (called a "tug") to which the GPU was attached, and connecting the GPU to airplane engines with a power cord for start up. After connecting the plane on which he and Villiarimo worked to the GPU, Harvest stood at the GPU and waited for the disconnect sign from Villiarimo. On receiving that signal, he was to turn off the GPU, unplug the GPU from the aircraft, board the tug, and drive the GPU away from the aircraft.

At some point, Villiarimo received a signal from the flight's captain to disconnect the GPU. She then gave the disconnect signal to Harvest. Harvest turned off the GPU. Before unplugging the GPU power cord from the aircraft, however, Harvest attempted to unlock the brake on the tug. He had difficulty unlocking the brake.

Villiarimo and Harvest both testified that Villiarimo left her position at the front of the aircraft to help Harvest. Villiarimo yelled to Harvest, "get the tug. I'll get it," meaning the GPU cord. Harvest mounted the tug. Villiarimo disengaged the brake and, while returning to her position at the front of the aircraft, signaled Harvest to drive away. Harvest drove off, but soon felt a "jerk": neither Harvest nor Villiarimo had disconnected the GPU cord from the aircraft. The cord was forcibly yanked from the plane causing severe damage. Consequently, Aloha grounded the aircraft, the flight was cancelled, and the passengers were forced to deplane.

B

Shortly after these events occurred Paul Meyer, Aloha's Security Director, opened an investigation. Both Villiarimo and Harvest filed incident reports regarding the accident. Both admitted that they failed to disconnect the GPU cord from the aircraft, and that they thereby damaged the aircraft. Three other witnesses, however — including two pilots — stated, contrary to the representations of Villiarimo and Harvest, that Villiarimo never left her marshalling position at the front of the aircraft before Harvest pulled the GPU from the aircraft.

Villiarimo took responsibility for failing to disconnect the GPU cord before telling Harvest to drive the tug away. Because of this, and because her version of the accident did not match the versions given by three witnesses, Aloha terminated her for procedural violations and for dishonesty.3 As for Harvest, it turned out that the April 6 incident was actually his second accident involving a failure to unplug a GPU before driving it away from a plane: approximately one year earlier Harvest damaged another aircraft in the same way. After investigation of that earlier occasion, Aloha suspended Harvest for one week and warned him that future ramp safety violations would result in his termination. Thus, after its investigation of the April 6 incident, and in accord with its earlier warning, Aloha terminated Harvest for repeated violations of company rules.

Both Harvest and Villiarimo appealed their terminations through company procedures. The composition of the boards that reviewed both appeals was identical; the same three Aloha officers sat on both boards. Both terminations were affirmed.

C

Despite the evidence against them, both Villiarimo and Harvest contend that they were not actually let go because they damaged the airplane on April 6. Instead, they allege that various discriminatory or otherwise unlawful animuses actually led to their firings.

Villiarimo argues that she was actually fired for discriminatory reasons, namely (i) that she is a woman, or (ii) that she once filed a Wage & Hour Complaint against Aloha, or (iii) both.

Villiarimo contends that her firing was motivated by gender-based discrimination. She points out that in her action before the Hawai'i Department of Labor and Industrial Relations ("DLIR"), appealing an administrative officer's decision that she was not qualified for unemployment benefits because of her termination, the DLIR determined that she was discharged for reasons other than misconduct connected to her work. She also contends that there is evidence that she was replaced by a male.4 Villiarimo even marshals statistics: she states that only three of thirty-three (or 9.1%) of Aloha's ramp agents on Oahu between January 1995 and February, 2000 were women — and that, between 1995 and her termination in 1998, she was the only female ramp supervisor. Finally, she claims that male ramp agents who accidentally pulled out GPU plugs were punished less severely than she was.5

Villiarimo also contends that she was fired in retaliation for filing a wage and hour complaint against Aloha with the DLIR.6 Although Villiarimo cannot remember when she filed the complaint, a letter from the DLIR indicates that it was filed sometime before June 18, 1997.

Like Villiarimo, Harvest contends that he was actually let go for discriminatory reasons. He offers three possible reasons: (i) that he had complained that Lisa Wall was sexually harassing him, or (ii) that he signed an authorization for the DLIR to review his employment records in connection with the investigation stemming from Villiarimo's Wage & Hour complaint, or (iii) both.

Harvest alleges that Aloha terminated him in retaliation for his having complained about sexual harassment at the hands of Lisa Wall, Aloha's Honolulu Station Manager. As Station Manager, Wall was several managerial rungs above Harvest on the Aloha corporate ladder. Harvest alleges that Wall harassed him, and points to two different instances of harassment, both of which occurred in or before December, 1996. Harvest testified that, in front of Villiarimo and two other of Harvest's supervisors, Wall once rubbed the middle of Harvest's chest through his tanktop and commented, "[I] never saw a chest like this before." He also testified that Wall referred to him as "JJ, my man." Harvest testified that he complained to his immediate supervisor, Robert Lorin, telling him that Wall's behavior made him feel "funny." Lorin asked him to put his complaint in writing, noting that it was "serious." Harvest eventually did so. He admits that, after an investigation of his complaint, Wall apologized to him in front of Villiarimo.7

Harvest also claims that he was terminated as a result of Villiarimo's Wage & Hour complaint. Unlike Villiarimo, Harvest did not himself make any such complaint; rather, Harvest alleges that he "facilitat[ed]" the investigation spawned by Villiarimo's claim. Although Villiarimo testified that she never discussed the complaint with Harvest, he appears to contend that his authorizing the DLIR to review his employment records was sufficient to incur Aloha's wrath.

D

After their terminations, both Harvest and Villiarimo filed complaints with the Hawai'i Civil Rights Commission ("HCRC"). Villiarimo alleged that she was "terminated due to [her] Sex (Female)," based on three reasons: "I was the only female Ramp Agent working for [Aloha]," "Male Ramp Agents, who were involved in similar procedural violations were not terminated," and "I believe that were it not for my sex I would not have been terminated from my position."

The HCRC returned a finding of "no cause." In its decision it explained to Villiarimo that you could not rebut [Aloha's] contention that you were involved in procedural violations though you insisted that the accident report you submitted was accurate. You also indicated that the male ramp agent involved in this accident was also terminated. You could not rebut [Aloha's] contention that there have been and are female ramp agents and other management personnel employed by [Aloha]. And, you could provide no additional evidence to support your allegation that sex was a factor in your termination.

The HCRC then issued Villiarimo a "right to sue" letter.

Harvest alleged that he was terminated from his position "in retaliation for filing a sexual harassment complaint"...

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