Circuit vacates discrimination ruling in Delta Air Lines racial discrimination case

In June 2022, the Court of Appeals issued ruling that rejected a Delta flight attendant's discrimination claims under the New York City Human Rights Law. I wrote about that case at this link. On the plaintiff's motion for a rehearing, the Court has now vacated that ruling, stripping it of any precedential value, and replaced it with a non-precedential summary order that alters the analysis. The plaintiff still loses.

The case is Leroy v. Delta Air Lines, issued on October 21. The original published opinion was worrisome for plaintiffs' lawyers because it arguably did not expansively interpret the City law as required by the statutory construction baked into the law, which the City Council amended in 2006 and 2016. So this is better news for the plaintiffs' bar than it is for plaintiff herself, who loses the case for good.

It all started when an airline passenger called plaintiff a "black bitch," prompting plaintiff to complain to the pilot, who first demanded that plaintiff step out onto the jet bridge with the passenger before asking the Operations Control Center to remove plaintiff from the flight after she objected to the jet bridge demand. OCC removed plaintiff from the flight. Plaintiff then had to complete a FACTS report on the incident. According to the report, when the pilot asked Leroy “if [she] wanted to resolve the situation,” she said “the situation was resolved.” Also, a departure delay was announced prior to the passenger’s racial slur. Thereafter, after Carns intervened, Leroy spoke to the OCC “a couple of times” while on the plane and informed the OCC that she “was very ok” and “serving [her] first class [passengers] laughing and trying to smooth over the ATC delay with them.” When plaintiff complained about this incident to another supervisor, Gilmartin, she was removed from a working trip over a drug test, which led to her suspension even though plaintiff was not taking any drugs. While Gilmartin told plaintiff she was wrongfully suspended, she was fired 17 days later when Delta accused plaintiff of not showing up for a substance test.

In this Rule 12 posture, the majority (Bianco and Walker) issues two holdings: (1) Delta is not liable for the passenger's discriminatory remark, and (2) the pilot's response to her complaint was not discrimination under the City law, hence no discrimination claim. 

1. The airline is not liable for the passenger's racist remark because plaintiff has not alleged that the airline's negligence permitted or facilitated the passenger's conduct. She does not allege that Delta did not monitor the workplace, failed to respond to complaints, or discouraged employees from complaining about incidents like this. And Gilmartin had plaintiff fill out the FACTS report two days after the incident. As for the pilot's response to plaintiff's complaint, she said the situation was "resolved" and she told OCC she was "ok." 

2. What about the retaliation claim? Plaintiff can sue for retaliation if she complained about employment discrimination in good faith. That forgiving standard does not help plaintiff because the passenger's comment was not an employment practice, and her own account, as reflected in the FACTS report, shows it was not unreasonable for Delta not to take further remedial action, as plaintiff said the situation was resolved and she was OK. 

Judge Bianco dissents on the retaliation holding, stating that the FACTS report, which informs much of the majority's reasoning, is not properly before the court as plaintiff did not quote or reply upon it in her complaint. Nor does the FACTS report doom the claim, Judge Bianco says, because it says the pilot ordered plaintiff to resolve the dispute with the racist passenger, and she was fired shortly thereafter. "In short, the complaint alleges Leroy was terminated after complaining of an unlawful employment practice by Delta in response to a racial epithet by a passenger, and the FACTS report (even if it could be properly considered on a motion to dismiss) in no way renders these allegations of retaliation implausible."

The summary order that the Court of Appeals issued in this case on October 21 reads like a different case than the published opinion that the Court issued in June, as the Court rules against plaintiff on different grounds than it did the first time around. Second Circuit junkies will wonder why the Court did not issue the October 21 ruling in June, or why the case now appears as a summary order. This is also the first Second Circuit summary order I've seen that has a dissenting opinion. Usually, dissents justify making the ruling presidential. Finally, while the summary order in this case does not expressly state that the published ruling in June 2022 is vacated, the docket sheet contains such a notation.