This case asks whether a flight attendant can sue Delta Air Lines for retaliation after she claims the pilot mishandled her complaint that a passenger had called her a racial slur. In this Rule 12 posture, the 2-1 majority says plaintiff cannot proceed with her claim because her allegations not plausibly assert that she had a good-faith, reasonable belief that Delta was engaged in an unlawful employment practice when she complained about the episode.
The case is Leroy v. Delta Air Lines, Inc., issued on June 10. After a passenger called plaintiff a "black bitch," she complained to the pilot, who told plaintiff to get out on the jet bridge with the passenger. Plaintiff refused, citing FAA regulations that prohibited her from stepping off the airplane. She also said she did not want to converse with the passenger. The pilot, Carns, then told the Operations Control Center to have plaintiff removed from the airplane for insubordination, stating, "either she goes or I go." After plaintiff reported to management the pilot's response to her complaint, she was subjected to a random drug test and suspended for 30 days even though she had no drugs in her system. Following her suspension, plaintiff was fired.
The majority (Menashi and Walker) says that even under the more plaintiff-friendly New York City Human Rights Law, plaintiff has failed to allege that Delta's "own negligence permitted or facilitated the passenger's alleged discriminatory conduct" because the single comment was not sufficiently egregious or severe to create a hostile work environment, and "the complaint's description of Carns' response to the passenger's comment does not amount to a plausible allegation that Delta permitted or facilitated that comment." For this proposition, the Court cites a district court ruling stating that "generally, an employer is not liable for failing to prevent an act of harassment by a first-time customer." That reasoning resolves the disparate treatment claim.
As for the retaliation claim, the Court holds that "the facts as alleged in Leroy’s complaint do not demonstrate that a reasonable similarly situated person would have a good-faith, reasonable belief that Delta was engaged in an unlawful employment practice." (The Court notes in a footnote that the Supreme Court has "expressly declined to endorse" the Second Circuit's doctrine that a good-faith, reasonable belief that the plaintiff is complaining about a discriminatory practice is protected activity under Title VII). First, "the passenger’s comment was not an employment practice, so it falls outside the scope of the NYCHRL" In addition, "neither would it have been objectively reasonable to believe that Carns’s conduct was a discriminatory employment practice. Leroy does not explain what Carns should have done differently under the circumstances. To the extent she argues Carns should have removed the passenger, such a remedy was not required in Summa—the case on which Leroy relies for her theory that Delta should be liable for the passenger’s conduct at all."
In dissent, Judge Bianco says the majority's holding "is contrary to the language and purpose of Title VII as construed by this Court and the United States Supreme Court. More importantly, as it relates to the claim in this case, which is solely for retaliation under the New York City Human Rights Law ('NYCHRL'), the holding is fundamentally inconsistent with New York state court precedent interpreting the NYCHRL, which gives even more extensive rights to employees than Title VII and explicitly mandates that courts interpret its terms to provide the broadest construction that is reasonably possible to protect employees facing discrimination or retaliation in the workplace." One flaw in the majority's reasoning, Judge Bianco says, is that it will "immunize employers from liability when they retaliate against employees who complain about workplace racial harassment at its inception, even before such harassment may rise to the legal threshold of a hostile work environment. By doing so, the majority requires employees in such situations to wait and endure some additional period of harassment before they can complain and be shielded from employer retaliation under the NYCHRL"
The dissent states that "the unlawful discriminatory practice of which Leroy complained here was not focused on the failure to prevent the racial harassment by the passenger, but, rather, focused on the pilot and Delta management’s failure to address the passenger’s harassment after it had already taken place, as well as on the negative treatment Leroy received after the pilot was notified of the passenger’s harassment." It is plausible that plaintiff had a good faith, reasonable belief that the pilot was able to remove the passenger from the airplane for the racial comment or take some other appropriate remedial action. It was also plausible to believe that plaintiff had a good faith belief that when the pilot did not take this remedial action and instead removed plaintiff from the flight, that the pilot had engaged in an unlawful employment practice, and that plaintiff's complaint about the pilot protected protected activity under the City law. Judge Bianco observes that, on similar facts, the Fourth Circuit in Boyer-Liberty v. Fountainbleau Corp., 786 F.3d 264 (4th Cir. 2015), found in the plaintiff's favor and rejected the dissenting opinion in that case, whose reasoning, in turn, resembles the majority opinion in Leroy's case.
Judge Bianco concludes:
In sum, given these broad standards of employer liability under the NYCHRL, it is plausible that, when Leroy complained to Delta management about her removal from the flight by the pilot after alerting him about a passenger’s racist comment to her, she was “oppos[ing] a[] practice forbidden” by the NYCHRL.8 Moreover, if Leroy’s allegations are proven to be true, Delta would be vicariously liable under the NYCHRL for the retaliatory actions of the pilot and other Delta supervisors. See N.Y.C. Admin. Code § 8-107(13)(b). Thus, Leroy’s allegations state a plausible claim for retaliation (including for vicarious liability against Delta) that preclude dismissal at this juncture.
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