Sexist comment not enough to win discriminatory discharge case

This case shows how a discriminatory comment by a supervisor does not necessarily mean an aggrieved plaintiff will win her case. The plaintiff sues for gender discrimination and retaliation for seeking medical leave. Her request for medical leave was met with an insensitive comment and she was ultimately fired. Plaintiff still loses the case on summary judgment

The case is Willford v. United Airlines, Inc., a summary order issued on January 19. Plaintiff was a flight attendant who was undergoing treatment for in-vitro fertilization. She was based at Dulles Airport in Washington, D.C., and requested a transfer to the New York City area, where she was undergoing the IVF treatment. Supervisor Waterman told plaintiff that if she "wanted to take time off to be a mother, then this wasn't the job for [her] and [she] should quit." If Waterman said this, that would be the last thing to say to an employee who wants medical leave. A few months later, plaintiff was fired after the airline determined that plaintiff had abused her sick leave. Waterman played a role in plaintiff's termination, but the ultimate decision to terminate was made by the Dulles Base Director, Panos, who held an internal hearing on the issue and found against plaintiff.

As plaintiff argues she did nothing wrong in using her sick leave, she argues that Waterman's role in her termination proves this was an unlawful personnel decision. But that is not how the Court of Appeals (Sack, Nathan and Jacobs) sees it, and it affirms the grant of summary judgment. While Panos made the ultimate decision to fire plaintiff, the impermissible bias of anyone during the decisiomaking process can make the ultimate decision illegal. That's the rule in Bickerstaff v. Vassar College, 196 F.3d 435 (2d Cir. 1999). I need not remind you that Bickerstaff is a great case for plaintiffs who are trying to prove discrimination infected a multi-tiered termination process.

Since Waterman conducted the initial investigation into plaintiff's use of sick leave, Bickerstaff is a useful case for plaintiff. But Bickerstaff does not save the case, though, because the investigation into plaintiff's alleged misuse of FMLA leave was initiated by someone else. Waterman only took action against plaintiff when someone else at the airline flagged plaintiff as a potential sick leave abuser. In addition, in terminating plaintiff, Panos did not passively accept Waterman's recommendation against plaintiff. Instead, Panos conducted an independent unbiased factfinding inquiry into plaintiff's alleged misuse of FMLA leave. That severs any causal link between Waterman's allegedly biased investigation and plaintiff's termination.