Opinion
07-CV-3775 (SLT) (MG).
January 29, 2010
MEMORANDUM and ORDER
Mala Amarsingh ("Plaintiff") commenced this action on September 11, 2007, pursuant to the Railway Labor Act ("RLA"), 45 U.S.C. § 151 et seq., against JetBlue Airways Corporation ("JetBlue" or "Defendant") seeking relief for wrongful termination. In her complaint, Plaintiff alleges that her termination amounted to a violation of the RLA, 45 U.S.C. § 152 Third and Fourth, on the grounds that Defendant's animus toward Plaintiff's union-related activities was a causal factor in her termination. Defendant is a "common carrier by air engaged in interstate or foreign commerce" as defined in § 201 of the RLA, 45 U.S.C. § 181 and thus, this Court retains jurisdiction over this federal question under 28 U.S.C. § 1331. Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56.1.
For the following reasons, Defendant's motion for summary judgment is granted.
BACKGROUND
In a motion for summary judgment, the Court shall construe the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F. 32 47, 50 (2d Cir. 2001). The following facts are undisputed or uncontroverted by any evidence offered by Plaintiff, and are described in the light more favorable to the Plaintiff, the non-moving party.
I. Plaintiff's Union Activity
Plaintiff began working as a flight attendant for Defendant in July 2000. Compl. ¶ 3. In late 2006 or early 2007, Plaintiff began participating with the Association of Flight Attendants ("AFA" or "Union") in efforts to organize the JetBlue flight attendants. Pl. Dep. 100: 10-25; 107: 11-15. On January 12, 2007, Plaintiff participated in a conference call organized by AFA organizer Danny Cambell. Campbell Decl. ¶ 2. Plaintiff participated in a subsequent conference call on January 26, 2007 and agreed to begin compiling a contact list to track AFA support. Id. ¶ 5. Plaintiff attended an AFA organizer training workshop on February 14, 2007. Id. ¶ 9. Plaintiff also joined AFA conference calls on the 9th and 23rd of February, and was appointed as the AFA's campaign chairperson for the flight attendants stationed at New York's John F. Kennedy ("JFK") Airport. Id. ¶¶ 8, 10. In April 2007, Plaintiff began working on a data entry project to compile flight attendant contact information for the organizing campaign. Id. ¶ 11. Plaintiff also contends that she distributed AFA authorization cards and spoke with co-workers during the course of her involvement with the campaign starting in January, 2007, until she was terminated by Defendant on July, 12 2007. Id. ¶¶ 6, 10; Pl. Dep. 195: 19-20.
II. Defendant's Knowledge and Statements Related to Plaintiff's Union Activity
On January 12, 2007, shortly after the AFA's first organizing conference call with flight attendants at JetBlue, Vice President of In-Flight Services Vicky Stennes wrote an email to all JetBlue flight attendants asking about "rumors that some Inflight Crewmembers met with officials about forming a union at JetBlue," and suggested that "if the time ever arrives when we need a third-party to facilitate our company communication, then we've lost a truly special part of our JetBlue Culture." Pl. Rule 56.1(b) Statement of Material Facts ("SMF") ¶ 122. On January 30, 2007, Stennes sent another email to JetBlue flight attendants in which she stated, " I believe bringing in a union would be divisive and would fundamentally alter our JetBlue Culture by damaging our direct relationship with each other which has most certainly played a critical role in our success." Stennes Dep. Ex. 1 (emphasis in original).
In a subsequent February 9, 2007 email, Stennes stated:
Your JetBlue Leadership Team wants to make sure that you know that while Crewmembers have the legal right to unionize (and JetBlue respects that right), you also have the legal right to choose not to unionize and to encourage others to do the same. If you agree that a union would be a bad idea for our Inflight Crewmembers and would have a negative impact on our JetBlue Culture, I urge you to make your opinions heard among your fellow Inflight Crewmembers — especially if you have worked for a unionized airline before and know what it is really like to belong to a union.
What can you do if you don't want a union at Jetblue? The first step is the make sure that you and your fellow Crewmembers don't sign a union authorization card .
Stennes Dep. Ex. 2 (emphasis in original).
In a memorandum to JetBlue inflight crewmembers dated August 22, 2007, Stennes wrote,
The AFA primarily uses signed cards to show the National Mediation Board that they have enough support among a group of employees to hold a union election. A union only needs signed cards from 35% of an employee group to get an election started. The best way to ensure that you don't help bring a union to JetBlue is to avoid an election in the first place. And the way to make that happen? Don't sign a card . Even if you sign an authorization card thinking that you are just requesting more information, your signature may be used to get the 35% required to start an election at JetBlue (remember: your signature = your support for a union).
Stennes Dep. Ex. 6 (emphasis in original).
Karen Cozzie, Defendant's Director of In-Flight Services, testified that remaining "union-free" is a "high priority" for JetBlue. Cozzie Depo. 71: 20. Darly Goodwin, an In-Flight supervisor, expressed her belief that JetBlue "can support [its] Crew members without third-party representation." Goodwin Dep. 34: 10-11. Maureen Humel, another manager, expressed her belief that bringing in the AFA would have a "negative impact on [JetBlue's] culture," and that unions represent an "us versus them" mentality that is "an old way of thinking in the industry." Humel Dep. 99: 21-24, 101: 4-15.
Defendant JetBlue was aware of Plaintiff's general support for unionization, and Plaintiff believed that Defendant was aware that a number of other flight attendants supported the AFA as well. Stennes Dep. 67-68: 15-2; Pl. Dep. 110-11: 13-15. Several of Defendant's managers were also aware of some of Plaintiff's specific organizing activities in the months prior to her termination, although specific dates relating to some of those activities are not presented in the record. Goodwin observed Plaintiff discussing the AFA with other flight attendants, and was also offered an AFA authorization card by Plaintiff, which she jokingly referred to as "kryptonite." Goodwin Dep. 39-40: 3-7, 18-10. Goodwin, Cozzie, and Humel had reviewed the list of AFA supporters on the union website where Plaintiff's name was included. Goodwin Dep. 49: 6-16; Cozzie Dep. 62: 11-21; Humel Dep. 74: 3-13. Cozzie, for her part, was aware that Plaintiff was in "open support" of the AFA at the time of an incident between Plaintiff and a JetBlue passenger that preceded her termination. Cozzie Dep. 99-100: 25-24. Vice President Stennes also became aware of Plaintiff's union activities by the time she received the recommendation to terminate Plaintiff in early July 2007. Stennes Dep. 67-68: 16-11. Defendant was clearly aware of Plaintiff's union activities up to April 2007, when Plaintiff gave an AFA authorization card to In-Flight Supervisor Shoab Nazkani, who subsequently gave the card to Humel. Nazkani Dep. 30-34: 1-8.
III. The Las Vegas Incident and Plaintiff's Termination
Defendant terminated Plaintiff after an altercation on June 27, 2007 between Plaintiff and a JetBlue passenger at Las Vegas Airport ("LAS"). Compl. ¶ 20-22. That afternoon, Plaintiff was working and preparing for a flight from LAS to New York City. While Plaintiff was in the LAS terminal, an agitated and apparently intoxicated JetBlue passenger, Danielle Shanley, approached Plaintiff and, referring to the gate at the terminal, asked, "Is this D fucking 16?" Pl. Dep. 119: 19-22, 123: 12-13; Johnson Dep. 45-47: 4. The confrontation escalated, with Shanley raising her voice while cursing and threatening Plaintiff. Pl. Dep. 120: 3-13. Meanwhile, Plaintiff obscured her ID badge from Shanley, who, according to Plaintiff, then responded by spitting on Plaintiff. Id. at 122: 3-7. At that point, Plaintiff raised her voice and hand to Shanley's face, telling her to "[g]et the fuck out of my face." Id. at 125: 11-13, 126: 10-24. Shortly thereafter, the two were separated. Id. at 132: 10-20. Plaintiff was then joined by her husband, a JetBlue pilot, and they boarded the aircraft for that evening's flight assignment. Id. at 135: 8-25. Shanley then left with her daughter and filed a complaint with Tami Johnson, a JetBlue Customer Service Manager for Las Vegas. Johnson Dep. 45: 4-18.
Defendant opened an investigation into the altercation and into Plaintiff's conduct in connection with that incident. Humel Dep. 3-25; Pl. Dep. 143: 4-11, 153-154: 3-20. Cozzie, as Director of In-Flight Services, contacted Plaintiff and after Plaintiff discussed the altercation with her, asked Plaintiff to prepare a written statement. Pl. Dep. 155: 13-16. Plaintiff did so and submitted the statement to Cozzie and several others. Pl. Dep. 160: 7-10. Cozzie's investigation of the altercation led to her and Plaintiff's supervisor to recommend to Defendant's Manager of People Resources, Deidre Harris, that Plaintiff be terminated. Cozzie Dep. 154: 8-20. Upon concurring in the decision, Harris sent a termination package to Vice President of In-Flight Services Stennes, Harris Dep. 47: 19-25; Stennes Dep. 71: 21-23, who also concurred in and approved the termination decision. Stennes Dep. 74: 6-8. Plaintiff was terminated on July 12, 2007.
DISCUSSION
Defendant now moves for summary judgment on two grounds. First, Defendant contends that Plaintiff has failed to prove a prima facie case under the RLA. Second, Defendant contends, assuming arguendo that there is a genuine issue of material fact as to the prima facie case, that Defendant is entitled to judgment in its favor as a matter of law because Defendant has demonstrated that it would have terminated Plaintiff irrespective of any anti-union animus or role it may have played in the termination. Plaintiff argues in her opposition papers that the undisputed evidence establishes three of the four factors in their prima facie case and that a reasonable jury could draw an inference in favor of Plaintiff on the fourth. Furthermore, Plaintiff argues that Defendant has failed to establish a legitimate alternative basis for termination.I. Summary Judgment Standard
Summary judgment is appropriate only when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotation marks omitted). The moving party bears the burden of showing that there is no genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). If the movant meets this burden, the non-movant "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); W. World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
When evaluating a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L.B. Foster Co. v. Am. Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996).
The non-movant cannot "`escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts' or defeat the motion through `mere speculation or conjecture.'" W. World, 922 F.2d at 121 (citation omitted). Moreover, the disputed facts must be material to the issue in that they "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).
II. RLA Section 152, Third and Fourth
The RLA bars employers from engaging in discriminatory actions designed to impede or inhibit employees' exercise of their right to organize for collective bargaining purposes. Atlas Air, Inc. v. Air Line Pilots Ass'n, 232 F.3d 218, 224 (D.C. Cir. 2000). For this reason, "the real question" in RLA cases "is whether . . . the carrier has discriminated against its employees because they have engaged in activities protected by the RLA. . . ." Railway Labor Executives' Ass'n v. Boston Maine Corp., 808 F.2d 150, 157 (1st Cir. 1986). The RLA covers both air and rail carriers engaged in interstate or foreign commerce and the carriers' employees. Michael v. Futhey, No. 08-3932, 2009 WL 4981688, at *4 (6th Cir. Dec. 22, 2009) (citing 45 U.S.C. §§ 151, 181).
Section 151a(2) of the statute "forbid[s] any limitation upon freedom of association among employees or any denial, as a condition of employment or otherwise, of the rights of employees to join a labor organization." 45 U.S.C. § 151a(2). Section 152 fleshes out this protection. Section 152, Third provides that employees may select their representatives "without interference, influence, or coercion" of "any" kind. Id. § 152, Third. Section 152, Fourth further provides that:
The full text of § 152 Third follows:
Representatives, for the purposes of this chapter, shall be designated by the respective parties without interference, influence, or coercion by either party over the designation of representatives by the other; and neither party shall in any way interfere with, influence, or coerce the other in its choice of representatives. Representatives of employees for the purposes of this chapter need not be persons in the employ of the carrier, and no carrier shall, by interference, influence, or coercion seek in any manner to prevent the designation by its employees as their representatives of those who or which are not employees of the carrier.45 U.S.C. § 152, Third.
No carrier, its officers or agents, shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization. . . .Id. § 152, Fourth. "These provisions prohibit employers from interfering with, coercing or influencing the representational choices of workers and from interfering with the right of employees to organize in labor unions." Air Line Pilots Ass'n Int'l v. E. Air Lines, Inc., 863 F.2d 891, 893 (D.C. Cir. 1988).
A. Implied Right of Action
Although Section 152 does not expressly grant a private right of action, courts have recognized an implied private right of action on behalf of individual employees under Section 152 Third and Fourth. See Bensel v. Allied Pilots Association, 387 F.3d 298, 318 (3d Cir. 2004) (collecting cases); Beckett v. Atlas Air, Inc., No. 95-CV-0480 (RJD), 1995 WL 498703 at *1-2 (E.D.N.Y. Aug 14, 1995) (recognizing implied right for Section 152 Fourth) (hereinafter " Beckett I"). The Third Circuit explained that "[i]mplying a private cause of action for individual employees under 45 U.S.C. § 152, Third Fourth is appropriate given that those sections prohibit carriers from discriminating against employees in connection with union organizing activities." Bensel, 387 F.3d at 318 (emphasis in original). Recently, the Second Circuit held that Section 152 First and Seventh do not provide an implied private cause of action, but distinguished those provisions from Section 152 Third and Fourth based on Bensel. See Lindsay v. Ass'n of Prof'l Flight Attendants, 581 F.3d 47, 51-53 (2d Cir. 2009).
Given the Second Circuit's favorable citation to Bensel and the reasoning found in Beckett I and other courts, the Court finds an implied right of action under Section 152 Third and Fourth. In the precertification context, such as here, without an implied private of action, the absence of a certified union and the administrative remedies that arise once a union is certified leaves individual employees injured by violations of RLA Section 152 Third and Fourth without a remedy. See Marcoux v. American Airlines, Inc., 645 F. Supp. 2d 68, 90 (E.D.N.Y. 2008); Beckett I, 1995 WL 498703 at *1-2; Bensel, 387 F.3d at 318.
B. RLA Framework
In the context of RLA Section 152 Third and Fourth claims, courts have imported the burden-shifting framework developed under the analogous National Labor Relations Act ("NLRA"). See Trans World Airlines, Inc. v. Indep. Fed'n of Flight Attendants, 489 U.S. 426, 432 (1989) ("[C]arefully drawn analogies from the federal common labor law developed under the NLRA may be helpful in deciding cases under the RLA."). Specifically, courts draw upon the NLRA framework for wrongful discharge claims established in Wright Line, a Div. of Wright Line, Inc., 251 N.L.R.B. 1083, 1980 WL 12312 (N.L.R.B. 1980), and the Supreme Court's discussion of Wright Line in N.L.R.B. v. Transp. Mgmt. Corp., 462 U.S. 393, 395 (1983), as clarified by Director v. Greenwich Collieries, 512 U.S. 267, 276-78 (1994). See, e.g., Lebow v. Am Trans Air, Inc., 86 F.3d 661 (7th Cir. 1996); Roscello v. Southwest Airlines Co., 726 F.2d 217, 222 (5th Cir. 1984); E. Air Lines, Inc., 863 F.2d at 902; Beckett v. Atlas Air, Inc., 968 F.Supp. 814 (E.D.N.Y. 1997) (hereinafter " Beckett II").
Under the two part Wright Line framework, the employee bears the burden of proving by a preponderance of evidence that the "employee's protected conduct was a `substantial' or `motivating' factor prompting the discharge." N.L.R.B. v. G T Terminal Packaging Co., Inc., 246 F.3d 103, 116 (2d Cir. 2001) (citing Transport. Mgmt. Corp., 462 U.S. at 402-04). If the employee successfully meets her burden of persuasion, the employer may avoid liability only if it demonstrates by a preponderance of the evidence "that it would have reached the same decision absent the protected conduct." Id.; see also Transport. Mgmt. Corp., 462 U.S. at 401-03 (comparing this burden shifting to an affirmative defense); Lebow, 86 F.3d at 666 ("the burden shifts to the employer to prove by a preponderance of the evidence that the employee would have been fired anyway for a valid reason"). In other words, a plaintiff has the burden of proving each element of her prima facie case for wrongful discharge; if this burden is met, the employer can avoid liability by showing its affirmative defense, by a preponderance of the evidence, that the termination would have occurred on other grounds regardless of the employee's protected activities. Beckett II, 968 F.Supp. at 818 (citing Transport. Mgmt. Corp., 462 U.S. at 401-04).
Under the first part of the Wright Line framework, a plaintiff can satisfy her prima facie burden by demonstrating that "(a) [s]he was engaged in activity protected by the RLA; (b) defendant was aware of that activity; (c) defendant harbored animus toward the protected activity; and (d) the animus was a causal factor in plaintiff's termination." Id. at 817 (citing Carry Cos. of Ill., Inc. v. N.L.R.B., 30 F.3d 922, 927 (7th Cir. 1994)); see also McGaw of Puerto Rico, Inc. v. N.L.R.B., 135 F.3d 1, 8 (1st Cir. 1997). The Court notes that the Second Circuit has not expressly adopted this formulation of the "substantial" or "motivating" factor inquiry. Nevertheless, it is consistent with Second Circuit precedent. See, e.g., Gaetano Assoc., Inc. v. N.L.R.B., Nos. 05-2261-ag, 05-3126-ag, 2006 WL 1359913, at **3 (2d Cir. May 16, 2006) (considering circumstantial evidence of "anti-union animus," the company's knowledge of the employees' union activity, "numerous unfair labor practices in response to [a] union campaign," and temporal proximity between the adverse decision and the protected activities in question under the Wright Line test). Other courts have relied on similar formulations of relevant factors. See, e.g., N.L.R.B. v. E.I. DuPont De Numours, 750 F.2d 524, 529 (6th Cir. 1984) (anti-union motivation may be inferred from a "company's expressed hostility towards unionization combined with knowledge of the employee's union activities, . . . proximity in time between the employee's union activities and his discharge, . . . and disparate treatment of the discharged employee compared to other employees with similar work records or offenses.") (internal citations omitted). Accordingly, for the sake of clarity, the Court adopts the Beckett II four part test in determining whether Plaintiff's union activity played an impermissible motive in her termination. In considering this question, courts may consider all the evidence in the record, including the employer's explanation for the action it took, Holo-Krome Co. v. N.L.R.B., 954 F.2d 108, 113 (2d Cir. 1992) (hereinafter " Holo-Krome II"), and circumstantial or direct evidence, G T Terminal Packaging Co., Inc., 246 F.3d at 116.
C. Substantial or Motivating Factor Inquiry
i. Plaintiff's Protected Activity and Defendant's Awareness of Activity
In this case, the first two elements of Plaintiff's prima facie case are not contested. It is undisputed that Plaintiff began engaging in protected union activity in late 2006 or early 2007, SMF ¶ 35, and that Defendant was fully aware of Plaintiff's activities from the beginning of the campaign, Pl.'s Opp. At 6. See, e.g., Cozzie Dep. 100: 8-24. In January 2007, Plaintiff participated in campaign's initial conference calls. SMF ¶¶ 104, 108. In February 2007, Plaintiff was appointed the campaign's "Chairperson" for flight attendants at JFK Airport. Id. ¶ 113. In April 2007, Plaintiff began working on a data-entry project, compiling a database of union supporters. Id. ¶ 113. Plaintiff also gave in-flight supervisor, Nazkani, an AFA card in April, 2007, who gave that card to another JetBlue manager, Humel. Nazkani Dep. 30: 2-5, 32-33: 18-15. Plaintiff also contends that she continued to distribute authorization cards and answer flight attendants questions up to her termination on July 12, 2007. SMF ¶ 115. The fact of Plaintiff's union support was presented to Vice President Stennes in Plaintiff's termination recommendation. Accordingly, the record establishes that Plaintiff engaged in activities protected by the RLA and that Defendant was aware of Plaintiff's active support of the AFA's unionization efforts.
ii. Anti-Union Animus
The Court next turns to the third element — whether Defendant harbors an animus toward Plaintiff's unionize efforts. As evidence that Defendant harbored an anti-union animus, Plaintiff presents the email messages and statements of various JetBlue managers. First, Plaintiff points to a series of emails and memoranda written by Vice President of In-Flight Services Stennes. In one email sent shortly after unionization efforts began at JetBlue, Stennes wrote about "rumors that some Inflight Crewmembers met with officials about forming a union at JetBlue," and suggested that "if the time ever arrives when we need a third-party to facilitate our company communication, then we've lost a truly special part of our JetBlue Culture." SMF ¶ 122. Stennes later sent an email stating that, " I believe bringing in a union would be divisive and would fundamentally alter our JetBlue Culture by damaging our direct relationship with each other which has most certainly played a critical role in our success." Id. (emphasis in original). Additionally, while recognizing the employees' legal right to unionize, Stennes stated in another email,
If you agree that a union would be a bad idea for our Inflight Crewmembers and would have a negative impact on our JetBlue Culture, I urge you to make your opinions heard among your fellow Inflight Crewmembers — especially if you have worked for a unionized airline before and know what it is really like to belong to a union.
Stennes Dep. Ex. 2 (emphasis in original). In this email, she concluded, "What can you do if you don't want a union at JetBlue? The first step is the make sure that you and your fellow Crewmembers don't sign a union authorization card ." Id. (emphasis original).
In a memorandum dated August 22, 2007, Stennes repeatedly urged JetBlue crewmembers not to sign a union authorization card. The memorandum stated, "The best way to ensure that you don't help bring a union to JetBlue is to avoid an election in the first place. And the way to make that happen? Don't sign a card ." Stennes Dep. Ex. 6.
Defendant argues that these statements cannot establish an inference of anti-union animus because the statements are protected under the NLRA. Defendant relies upon Holo-Krome Co. v. N.L.R.B., 907 F.2d 1343, 1346 (2d Cir. 1990) (hereinafter " Holo-Krome I") for the proposition that employer statements regarding their preference to remain non-union may not be used as evidence of anti-union animus as long as they do not contain a threat or promise. Def.'s Mem. L 6. Nevertheless, Holo-Krome I was a statutory holding based on a reading of Section 8(c) of the NLRA. See 29 U.S.C. § 158(c). The Supreme Court has warned courts that not all NLRA precedent may be casually transferred to the RLA context. See Chicago North Western Ry. Co. v. United Transp. Union, 402 U.S. 570, 579 n. 11 (1971). The Court is not aware of any analogous provision under the RLA and nothing compels applying this provision to the RLA. But cf. Air Line Pilots Ass'n Int'l v. Flying Tiger Line, 659 F.Supp. 771, 774-75 (E.D.N.Y. 1987) (employer communications to employees regarding unionization efforts without an expression of unfair dealing cannot constitute a violation of the RLA). Because of the disposition of this summary judgment motion, the Court need not ultimately decide this question here.
Second, Plaintiff points to other statements set forth in the record reflecting Defendant's hostility toward unions. For example, the Director of In-Flight Services Cozzie testified that remaining "union-free" was a "high priority" for JetBlue. Cozzie Depo. 71: 20. Goodwin, an in-flight supervisor, expressed her belief that JetBlue "can support [its] Crew members without third-party representation." Goodwin Dep. 34: 10-11. At one point, Plaintiff handed Goodwin a union authorization card, which she jokingly referred to as "kryptonite." Id. at 40: 3-7. Humel, another manager, expressed her belief that bringing in the AFA would have a "negative impact on [JetBlue's] culture," and that unions represent an "us versus them" mentality that is "an old way of thinking in the industry." Humel Dep. 99: 21-24, 101: 4-15.
Furthermore, another in-flight supervisor, Shoaib Nazkani allegedly told Thomas McNichols, Plaintiff's husband and a JetBlue pilot, that "all Inflight Supervisors had been instructed by JetBlue management to report any union organizing activity." McNichols Decl. ¶ 3. Nazkani also allegedly told McNichols to tell Plaintiff "to be careful because they are watching her." Id. 6 On August 18, 2007, Plaintiff allegedly had a conversation with Dean Melonas, JetBlue Vice President for Recruitment at JFK. According to Plaintiff, Melonas told her that he was sorry she had been terminated, but expressed his dismay and disappointment that the JetBlue flight attendants were seeking to obtain union representation. SMF ¶ 131.
At best for Defendant, these statements express Defendant's lawful determination to remain union-free. See Air Line Pilots Ass'n Int'l v. Flying Tiger Line, 659 F.Supp. 771, 774-75 (E.D.N.Y. 1987) (employer communications to employees regarding unionization efforts without an expression of unfair dealing cannot constitute a violation of the RLA); see also Grosschmidt v. Chautauqua Airlines, Inc., 1986 WL 10077, at *5 (N.D. Ohio Apr. 11, 1986) (defendant's expression that the employer could better meet employee requirements without a union intermediary alone does not establish an aggressive anti-union stance).
At worst, taken all together, these statements evince a general hostility towards unionization which could lead a trier of fact to conclude that Defendant harbored an animus toward Plaintiff's union activities in particular. Plaintiff's activities could be read to directly threaten Defendant's priority to remain union free, possibly leading to an inference of animus toward her activities. See E.I. DuPont De Nemours, 750 F.2d at 529 (anti-union animus can be inferred from company-expressed hostility toward unions in conjunction with knowledge of the employee's union activity). Nevertheless, because of the disposition of this summary judgment motion, the Court assumes without ultimately deciding that Plaintiff meets this third element and moves on to the fourth and final element — the causal connection between this putative anti-union animus and Plaintiff's discharge.7
iii. Causal Connection Between Plaintiff's Termination Defendant's Animus
In this case, both Plaintiff and Defendant focus on temporal proximity to support their case under the "causal connection" prong. According to Plaintiff, she engaged in union activity in close proximity to her termination and Defendant even considered this union support at the time of its termination decision. According to Defendant, it gained knowledge of Plaintiff's union activity so far removed from the termination decision that it could not serve as a causal connection of her discharge.
The timing and abruptness of a discharge may serve as persuasive evidence of anti-union motivation. See N.L.R.B. v. Am. Geri-Care, Inc., 697 F.2d 56, 60 (2d Cir. 1982) (citing N.L.R.B. v. Advanced Business Forms Corp., 474 F.2d 457, 465 (2d Cir. 1973)); see also Roscello, 726 F.2d at 223 (the timing of a discharge "at the heel of a union organizing campaign" may be taken into account in determining whether an employee was wrongfully discharged). In Am. Geri-Care, an employee received a tardiness notice, a denial of vacation leave, and a discharge within one week of appearing at a union representation meeting. 697 F.2d at 60-63. The Second Circuit upheld the inference of anti-union animus there because "the timing of the employer's actions was `stunningly obvious.'" Id. at 60 (quoting N.L.R.B. v. Long Island Airport Limousine Serv. Corp., 468 F.2d 292, 295 (2d Cir. 1972)). In Long Island Airport, the anti-union inference was established when an employee was fired the day after soliciting other employees to sign a union authorization card. 468 F.2d at 294. Furthermore, the Second Circuit also upheld an anti-union inference based on temporal proximity where a company undertook massive layoffs on the same day that a union representative informed an employer's management that the company's carpenters sought union representation, followed by the company's immediate hiring of several new carpenters in the following week. See Gaetano, 2006 WL 1359913, at **2.
In this case, Plaintiff's discharge did not abruptly follow any particular protected activity. As recounted above, Defendant was aware of Plaintiff's union activity for at least six months prior to her termination and knew of Plaintiff's specific union activity up to April 2007 when she handed Nazkani a union card, approximately three months prior to her termination. Although Plaintiff contends that she continued to distribute authorization cards and answer flight attendants questions up to her termination on July 12, 2007, see SMF ¶ 115, she nevertheless presents no evidence showing that Defendant was aware of this particular activity. See Grosschmidt v. Chautaqua Airlines, 1986 WL 10077, at *6 (N.D. Ohio 1986) ("[I]t is inconceivable that [temporal proximity] alone could be considered circumstantial evidence that plaintiff was discharged even in part, for her anti-union activity when there is no direct or circumstantial evidence that [the defendant] had any knowledge of this activity.") (finding no causation where employee engaged in intervening acts of insubordination between union activity and termination). In cases finding causation based on temporal proximity, the discharge occurred within days or a few weeks of the union activity. Here, months elapsed between Plaintiff's last known union activity and her termination. Thus, it cannot be said that her discharge came "at the heel of [her] union organizing campaign," Roscello, 726 F.2d at 223, or that the timing was "stunningly obvious," Am. Geri-Care, 697 F.2d at 60.
Indeed, this case is far more similar to Grosschmidt than to either Gaetano or Am. Geri-Care. In Grosschmidt, the plaintiff alleged that her termination eight days following management's discovery of a union pamphlet gave rise to an inference of anti-union motivation in her firing. 1986 WL 10077 at *6. Nevertheless, in the intervening week, the court found that the plaintiff twice committed "blatant acts of insubordination." Id. The court held that such intervening acts countered the inference of anti-union motivation despite the close temporal proximity between the discharge and the protected union activity. Id. Cf. Adam v. Glen Cove Sch., No 06-CV-1200 (JFB) (MLO), 2008 U.S. Dist. LEXIS 13039, at *42 (E.D.N.Y. Feb. 21, 2008) ("an inference of causation is defeated . . . if there was an intervening causal event that occurred between the protected activity and the allegedly retaliatory discharge.") (internal quotation marks omitted). By contrast, the courts in Gaetano and Am. Geri-Care found the defendant's proffered reasons for discharge were unsupported or flatly contradicted by evidence in the record.
Here, Plaintiff was terminated immediately following an incident at the Las Vegas Airport. According to a JetBlue investigation, on June 27, 2007, Plaintiff raised her voice and hand to a customer's face, telling her to "[g]et the fuck out of my face." Pl. Dep. 125: 11-13, 126: 10-24; see also SMF ¶¶ 84, 89-90, 93. Plaintiff herself testified that her actions on that day were serious, "against JetBlue values," and could lead to her termination. Pl. Dep. 186: 5-25. Plaintiff was terminated approximately two weeks after this incident. Thus, if anything is "stunningly obvious," it is that this June 27, 2008 altercation was the basis of her termination. Although Vice President Stennes was informed of Plaintiff's union support at the time she decided to terminate Plaintiff, this fact only establishes Defendant's knowledge of her union activity and, standing alone, it does not prove that this protected activity was a substantial or motivating cause of her discharge, especially in light of the significant time elapse since her union activity became known and the intervening misconduct on Plaintiff's part. Indeed, to hold otherwise would immunize employees from reasonable discipline so long as they participate in protected union activity. Cf. E. Air Lines, Inc., 863 F.2d at 902 ("[U]nions should not be able to immunize their members from market forces merely by engaging in conduct virtually certain to provoke anti-union feeling.").8
Accordingly, since Plaintiff cannot establish that her protected union activity was causally connected to her termination, she has failed to demonstrate that her protected union activity was a substantial or motivating factor in her termination. Consequently, her RLA Section 152 Third and Fourth claim must fail.
D. Plaintiff's Termination Regardless of Her Protected Activity
Even if Plaintiff could establish her prima facie case of wrongful termination, her RLA claims would still fail based on Defendant's ability to demonstrate by a preponderance of evidence that her termination would have occurred regardless of her protected activity.
JetBlue's policy prohibits "all forms of threats, harassment or intimidation" including "verbal, physical or psychological assaults by any Crewmember against another Crewmember, Customer or Business Partner." Def. Ex. 3, JetBlue Crewmember Blue Book I.4. As recounted above, Plaintiff was terminated for violating JetBlue rules and procedures when she yelled at a customer, put her hand in the customer's face, and told the customer to "[g]et the fuck out of my face." Pl. Dep. 125: 11-13, 126: 10-24; see also SMF ¶¶ 84, 89-90, 93. Defendant conducted an investigation, speaking to Plaintiff and other witnesses and collecting written statements from Plaintiff, witnesses to the incident, and the customer service supervisor to whom the customer was well within Defendant's right to discipline an employee who raised a hand and cursed at a customer, regardless of whether the customer was drunk and abusive toward Plaintiff. This Court will not second-guess this employment decision in the absence of an impermissible motivation. See, e.g., Byrnie v. Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) ("[The court's] role is to prevent unlawful hiring practices, not to act as a superpersonnel department that second guesses employers' business judgments."). Accordingly, Plaintiff's RLA Section 152 Third and Fourth claim must fail because Defendant has established it would have terminated Plaintiff in the absence of any protected activity.
CONCLUSION
For the reasons set forth above, Defendant's motion for summary judgment is granted. The Plaintiff's complaint is hereby dismissed in its entirety and the Clerk of the Court is directed to close this case.