Steinaker et al v. Southwest Airlines Company et al

Filing 241

ORDER that the Clerk of Court shall strike Defendants Graham and Russell's Reply in Support of Their Motion for Summary Judgment (Doc. 239 ) as untimely. IT IS FURTHER ORDERED that Plaintiff's Motion for Summary Judgment Against Defendant s Graham and Russell (Doc. 202 ) and Plaintiff's Motion for Summary Judgment Against Defendant Southwest Airlines Co. (Doc. 205 ) are denied. IT IS FURTHER ORDERED that Defendants Graham and Russell's Motion for Summary Judgment (Doc. [ 221]) and Defendant Southwest's Motion for Summary Judgment (Doc. 223 ) are granted. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in favor of Defendants and terminate this action. See document for complete details. Signed by Judge Steven P Logan on 7/28/2022. (WLP)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

Renee Steinaker, et al.,

9
10

Plaintiffs,
vs.

11
12

Southwest Airlines Company, et al.,
Defendants.

13
14

)
)
)
)
)
)
)
)
)
)
)
)

No. CV-19-05022-PHX-SPL
ORDER

15

Before the Court are Plaintiff’s Motion for Summary Judgment Against

16

Defendants Graham and Russell (Doc. 202), Plaintiff’s Motion for Summary Judgment

17

Against Defendant Southwest Airlines Co. (Doc. 205), Defendants Graham and Russell’s

18

Motion for Summary Judgment (Doc. 221), and Defendant Southwest’s Motion for

19

Summary Judgment (Doc. 223). The Motions have been fully briefed. (Docs. 226, 229,

20

230, 231, 232, 233, 235, 237, 238, 239).1 The Court now rules as follows.2

21

I.

22

Plaintiff Renee Steinaker is a flight attendant employed by Defendant Southwest

23

Airlines Company (“Southwest”). (Doc. 108 at 5). Defendants Terry Graham and Ryan

BACKGROUND

24
25
26
27
28

The Court notes that Defendants Graham and Russell’s Reply (Doc. 239) was
untimely filed. Defendants never sought an extension of the deadline nor did they provide
any explanation for their untimeliness. Accordingly, the Court will strike Defendants
Graham and Russell’s Reply (Doc. 239) as untimely.
1

2

Because it would not assist in resolution of the instant issues, the Court finds the
pending motions are suitable for decision without oral argument. See LRCiv. 7.2(f); Fed.
R. Civ. P. 78(b); Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

1

Russell are pilots employed by Southwest. (Doc. 108 at 6). On February 27, 2017,

2

Captain Graham and First Officer Russell flew Southwest Airlines Flight 1088 from

3

Pittsburgh, Pennsylvania to Phoenix, Arizona with four flight attendants on board,

4

including Plaintiff. (Doc. 109 at 7–8). While in the air, pursuant to airline protocol,

5

Defendant Graham requested that a flight attendant report to the cockpit so he could use

6

the forward lavatory. (Doc. 109 at 8). When Plaintiff entered the cockpit and Defendant

7

Graham left to use the lavatory, Defendant Graham’s iPad in the cockpit displayed a

8

video showing Defendant Graham in the lavatory. (Doc. 109 at 12). Plaintiff asked

9

Defendant Russell if the iPad was showing a live video stream of the lavatory, and he

10

responded that it was a new, secret Southwest security measure. (Doc. 109 at 13).

11

Plaintiff took a picture of the iPad on her cell phone, showed it to Defendant Russell, and

12

told him that she would be reporting it to Southwest. (Doc. 109 at 15). When Defendant

13

Graham returned to the cockpit, he did not answer her questions about whether there

14

were cameras in the lavatory. (Doc. 109 at 17).

15

After Plaintiff left the cockpit, the flight attendants searched the lavatories for

16

cameras but did not find any. (Doc. 109 at 22). As soon as Plaintiff disembarked in

17

Phoenix, Plaintiff reported to two Southwest managers that the plane’s lavatories were

18

being livestreamed. (Doc. 109 at 24). Nonetheless, Southwest permitted Defendants

19

Graham and Russell to proceed with their next scheduled flight to Nashville on the same

20

aircraft about an hour after Flight 1088 landed, without taking any investigative

21

measures. (Doc. 109 at 33–34). Southwest directed Plaintiff and the other Flight 1088

22

flight attendants not to talk to anybody about what happened on Flight 1088. (Doc. 109 at

23

36–37).

24

Plaintiff’s Fifth Amended Complaint (“FAC”) alleges that one of two scenarios

25

occurred on Flight 1088: that Defendants Graham and Russell either installed a hidden

26

camera in the forward lavatory of Flight 1088, or that Defendant Graham recorded a

27

video of himself in a lavatory months before Flight 1088, which he then played on his

28

iPad in the cockpit of Flight 1088 in collaboration with Defendant Russell, to make
2

1

Plaintiff believe that she and others had been watched and recorded in the lavatory. (Doc.

2

109 at 2). The Fifth Amended Complaint alleges five causes of action: (1) Title VII sex

3

harassment/discrimination against Southwest, (2) Title VII retaliation against Defendant

4

Southwest, (3) intentional or reckless infliction of emotional distress (“IIED”) against

5

Defendants Graham and Russell, (4) IIED against Southwest, and (5) invasion of privacy

6

against all Defendants.3

7

II.

8

Summary judgment is appropriate if “the movant shows that there is no genuine

9

dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

10

Fed. R. Civ. P. 56(a). A party seeking summary judgment always bears the initial burden

11

of establishing the absence of a genuine issue of material fact. See Celotex Corp. v.

12

Catrett, 477 U.S. 317, 323 (1986). The moving party can satisfy its burden by

13

demonstrating that the nonmoving party failed to make a showing sufficient to establish

14

an element essential to that party’s case on which that party will bear the burden of proof

15

at trial. See id. at 322–23. When considering a motion for summary judgment, a court

16

must view the factual record and draw all reasonable inferences in a light most favorably

17

to the nonmoving party. Leisek v. Brightwood Corp., 278 F.3d 895, 898 (9th Cir. 2002).

18

III.

LEGAL STANDARD

DISCUSSION
a. Title VII Sexual Harassment Against Defendant Southwest

19
20

Both Plaintiff and Southwest move for summary judgment on the first count. “A

21

plaintiff asserting a Title VII claim under a hostile work environment theory must show

22

(1) the existence of a hostile work environment to which the plaintiff was subjected, and

23

(2) that the employer is liable for the harassment that caused the hostile environment to

24

exist.” Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006). To satisfy the first element,

25

the plaintiff must show that “(1) she was subjected to verbal or physical conduct of a

26

sexual nature, (2) this conduct was unwelcome, and (3) this conduct was sufficiently

27
Plaintiff’s husband, David Steinaker, also alleged retaliation against Southwest,
but his claim was voluntarily dismissed. (Docs. 191, 196).
3

28

3

1

severe or pervasive to alter the conditions of employment and create an abusive working

2

environment.” Id. (internal quotation marks and alteration omitted). “The working

3

environment must both subjectively and objectively be perceived as abusive, and the

4

objective analysis is done from the perspective of a reasonable woman.” Fuller v. Idaho

5

Dep’t of Corrs., 865 F.3d 1154, 1161 (9th Cir. 2017) (internal quotation marks omitted).

6

Under the second element, “[a]n employer is vicariously liable for a hostile work

7

environment created by a supervisor.” Reynaga v. Roseburg Forest Prods., 847 F.3d 678,

8

689 (9th Cir. 2017). But if the perpetrator of a hostile work environment is not a

9

supervisor, an employer is liable only “if the employer knew, or should have known,

10

about the harassment and failed to take prompt and effective remedial action.” Id.

11

(internal quotation marks omitted).

12

As a threshold matter, the parties disagree as to what evidence should be

13

considered as part of the hostile work environment claim. Southwest argues that only

14

conduct related to Flight 1088 may be considered because that is the only instance of

15

alleged discrimination for which a timely administrative charge was filed. See Draper v.

16

Coeur Rochester, Inc., 147 F.3d 1104, 1107 (9th Cir. 1998) (“[A] claim of discrimination

17

under [Title VII] will not be sustained if it is based on an event or events that occurred

18

more than 300 days before the filing of a charge.”). Plaintiff nonetheless contends that the

19

sexual harassment she experienced as a Southwest employee prior to Flight 1088 may be

20

considered as “background evidence” in support of her claim, citing National Railroad

21

Passenger Corp. v. Morgan, 536 U.S. 101 (2002). There, the Supreme Court stated that

22

employees are not barred “from using . . . prior acts as background evidence in support of

23

a timely claim.” Id. at 113. Following Morgan and related Ninth Circuit precedent, this

24

Court concludes that Plaintiff “may not sustain a cause of action for relief” based on

25

discrimination suffered prior to Flight 1088, but such evidence may be used to assess

26

Southwest’s liability for events related to Flight 1088. Lyons v. England, 307 F.3d 1092,

27

1111–12 (9th Cir. 2002).

28

Having determined that there is only one actionable instance of harassment, the
4

1

Court finds that the conduct was not so severe or pervasive as to alter Plaintiff’s terms or

2

conditions of employment. “A single incident of harassment can support a claim of

3

hostile work environment because the frequency of the discriminatory conduct is only

4

one factor in the analysis, but for a single incident to suffice, it must be extremely

5

severe.” Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 648 (9th Cir. 2021) (internal

6

citations and quotation marks omitted). The Ninth Circuit has repeatedly held that a

7

single instance of sexual assault in the form of groping is not sufficiently severe. See

8

Brooks v. City of San Mateo, 229 F.3d 917, 922 (9th Cir. 2000) (coworker touching

9

plaintiff’s stomach, forcing his hand under her sweater, and fondling her bare breast not

10

sufficiently severe); Robello v. Mandalay Corp., 740 F. App’x 607, 608 (9th Cir. 2018)

11

(coworker grabbing plaintiff’s breasts not sufficiently severe); Milano v. Carter, 599 F.

12

App’x 767, 767 (9th Cir. 2015) (coworker looking down plaintiff’s shirt, touching near

13

her breast, and pulling up her shirt to take an unwanted picture of her pregnant stomach

14

not sufficiently severe). Rather, the Court agrees with Southwest’s assessment that the

15

Ninth Circuit has identified only even more egregious forms of hands-on sexual abuse,

16

such as rape, as examples of one-time conduct that could be sufficiently severe to create a

17

hostile work environment, although it has not foreclosed the possibility that other conduct

18

could suffice. (Doc. 237 at 7); see Little v. Windermere Relocation, Inc., 301 F.3d 958,

19

967 (9th Cir. 2002) (holding that “[b]eing raped by a business associate, while on the job,

20

irrevocably alters the conditions of the victim’s work environment”); Brooks, 229 F.3d at

21

927 n.9 (“[A] sexual assault by a supervisor, even on a single occasion, may well be

22

sufficiently severe so as to . . . give rise to a hostile work environment claim.”).

23

Here, Plaintiff does not allege that Defendants Graham or Russell ever touched

24

her, nor is there any evidence that they ever viewed her in a state of undress or even that

25

they ever placed a camera in the lavatory of Flight 1088. See infra Section III.d. Instead,

26

the evidence in the record, viewed in the light most favorable to Plaintiff, shows that

27

Plaintiff believed that her coworkers, Defendants Graham and Russell, viewed her in a

28
5

1

state of undress through a hidden camera in the lavatory.4 If physical conduct such as

2

fondling a coworker’s bare breast and exposing a coworker’s stomach to take a

3

photograph do not meet the requisite level of severity for a Title VII claim, then

4

Defendants’ conduct in this case cannot either. The Court is placed in the unenviable

5

position of comparing the severity of one type of intrusive conduct to another and does

6

not disregard the intrusiveness evoked by a belief that oneself has unknowingly been

7

filmed in the restroom. But it is no more extreme than the other types of conduct that

8

have been rejected by the Ninth Circuit and is certainly less extreme than rape or other

9

violent sexual abuse. As a matter of law, the conduct at issue in this case was not so

10

severe or pervasive as to alter the conditions of Plaintiff’s employment. See also Kohler

11

v. City of Wapakoneta, 381 F. Supp. 2d 692, 709 (N.D. Ohio 2005) (finding that a police

12

dispatcher’s discovery of a tape-recorder placed in the women’s bathroom by the chief of

13

police, together with other events, did not amount to severe or pervasive harassment).

14

Southwest is thus entitled to summary judgment on the Title VII harassment claim.
b. Title VII Retaliation Against Defendant Southwest

15
16

“To make out a prima facie case of retaliation, an employee must show that

17

(1) [s]he engaged in a protected activity; (2) [her] employer subjected [her] to an adverse

18

employment action; and (3) a causal link exists between the protected activity and the

19

adverse action.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). Plaintiff’s

20

Response to Southwest’s Motion for Summary Judgment does not address Southwest’s

21

arguments that she has failed to make a sufficient showing to establish the first or third

22

elements. (See Doc. 235). Plaintiff has thus conceded that she cannot meet her burden of

23
4

24
25
26
27
28

Plaintiff asserts that Defendants Graham and Russell were her supervisors
because pilots have authority over flight attendants during a flight. (Doc. 232 at 3). But
only a specific type of authority makes one a supervisor under Title VII: a person is a
supervisor “only when the employer has empowered that employee to take tangible
employment actions against the victim, i.e., to effect a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.” Vance v. Ball
State Univ., 570 U.S. 421, 431 (2013) (internal quotation marks omitted). Plaintiff has
not provided any evidence that Defendants Graham and Russell had authority to take
such actions against her, so they are treated as Plaintiff’s coworkers under Title VII.
6

1

proof on the retaliation claim.5 See M.S. v. County of Ventura, No. CV 16-03084-BRO

2

(RAOx), 2017 WL 10434015, at *24 n.20 (C.D. Cal. Mar. 7, 2017) (“Failure to respond

3

to the merits of one party’s argument constitutes a concession of that argument.”); see

4

also Mendoza v. City of Peoria, No. CV-13-00258-PHX-DJH, 2015 WL 13239816, at *4

5

(D. Ariz. July 31, 2015) (construing the plaintiff's “silence” on an argument as a

6

concession). Southwest is entitled to summary judgment on this claim.
c. Intentional Infliction of Emotional Distress

7
8

Defendant Southwest argues that Plaintiff’s state-law tort claims must be

9

dismissed because they are barred by Arizona workers’ compensation laws.6 Defendants

10

Graham and Russell join in Southwest’s argument.7 (Doc. 238). Generally, in Arizona,

11

workers’ compensation “is the exclusive remedy against [an] employer or any co-

12

employee” for work-related injuries suffered by an employee. A.R.S. § 23-1022(A); see

13

also McKee v. State, 388 P.3d 14, 18 (Ariz. Ct. App. 2016). “An employee can elect to

14

maintain an action at law for damages in lieu of receiving workers’ compensation only

15

where an employer’s wilful misconduct caused the employee’s injury . . . .” McKee, 388

16

P.3d at 18 (citing A.R.S. § 23-1022(A)). The statute defines “wilful misconduct” as “an

17

act done knowingly and purposely with the direct object of injuring another.” A.R.S.

18

§ 23-1022(B). To maintain a wilful misconduct action, an employee must establish four

19
20
21
22
23
24
25
26
27
28

Regardless, Southwest’s argument as to the third element, in particular, is welltaken. Plaintiff has not provided evidence that those who took the retaliatory actions
alleged in the FAC knew of her report and complaint regarding Flight 1088. See Cohen v.
Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (“Essential to a causal link is
evidence that the employer was aware that the plaintiff had engaged in the protected
activity.”); see also Tavares v. ASARCO LLC, No. CV-20-01596-PHX-SPL, 2022 WL
1811166, at *6 (D. Ariz. June 2, 2022).
5

Despite Defendants’ arguments that the IIED and invasion of privacy claims are
both barred by workers’ compensation exclusivity, the Court addresses them separately
because the claims are based on distinct sets of facts.
6

Although Defendant Graham and Russell’s Joinder was untimely filed, because
workers’ compensation exclusivity is a jurisdictional issue, the Court will consider
whether it has subject matter jurisdiction over the tort claims against all Defendants. See
Bonner v. Minico, Inc., 766 P.2d 598, 601 (Ariz. 1988); Nevada v. Bank of Am. Corp.,
672 F.3d 661, 673 (9th Cir. 2012).
7

7

1
2
3
4
5
6
7

elements:
(1) the employer’s wilful misconduct must have been the
cause of the employee’s injury,
(2) the wilful misconduct must have been an act done
knowingly and purposely with the direct object of injuring
another,
(3) the act that caused the injury must have been the personal
act of the employer, and

8

(4) the act must have reflected a wilful disregard of the life,
limb or bodily safety of employees.

9

McKee, 388 P.3d at 19 (quoting Gamez v. Brush Wellman, Inc., 34 P.3d 375, 378 (Ariz.

10

Ct. App. 2001)).

11

The Court considered workers’ compensation exclusivity extensively at the

12

motion-to-dismiss stage. Initially, the Court dismissed Plaintiff’s IIED and invasion of

13

privacy claims, as well as a claim for failure to train, supervise, investigate and discipline,

14

as barred by the exclusivity provision. (Doc. 76 at 10). The Court found that Plaintiff had

15

failed to adequately plead that Defendants had acted with an intent to inflict injury,

16

meaning the wilful misconduct exception did not apply. (Doc. 76 at 9).

17

Plaintiff filed a Motion for Reconsideration, asking the Court to reconsider its

18

dismissal of the IIED and invasion of privacy claims. (Doc. 81). The Court declined to do

19

so as Plaintiff’s Motion reasserted the same legal and factual arguments previously

20

rejected. (Doc. 93 at 2).

21

Six months later, however, the Court sua sponte reconsidered its Order denying

22

Plaintiff’s Motion for Reconsideration and revived Plaintiff’s IIED and invasion of

23

privacy claims. (Doc. 107 at 1). The Court relied on Craig v. M & O Agencies, Inc., 496

24

F.3d 1047 (9th Cir. 2007)—where the Ninth Circuit affirmed the grant of summary

25

judgment on a negligent investigation, hiring, supervision, and retention claim as barred

26

by Arizona workers’ compensation exclusivity but considered the IIED and invasion of

27

privacy claims on their merits—to hold that Plaintiff’s IIED and invasion of privacy

28

claims were not barred by workers’ compensation exclusivity. (Doc. 107 at 3–7). It is
8

1

important to note, however, that at that time, the Court was considering whether the

2

factual allegations in the Third Amended Complaint met the pleading standard. (Doc. 107

3

at 1). The Court did not hold that all IIED and invasion of privacy claims fall within the

4

wilful misconduct exception, but rather that Plaintiff’s claims had met the applicable

5

standard at that stage.

6

Notably, the IIED claims in the Third Amended Complaint alleged that

7

Defendants’ “intentional acts . . . were committed with the intent to cause [Plaintiff] to

8

suffer emotional distress or in reckless disregard of the likelihood that their actions would

9

proximately cause Plaintiff to suffer extreme emotional distress.” (Doc. 28 at 18, 21).

10

Now, though, Plaintiff argues primarily that Defendants’ conduct was reckless with

11

respect to its effect on her. (See, e.g., Doc. 202 at 7, 11; Doc. 205 at 16; Doc. 231 at 4).

12

To the extent Plaintiff argues that Defendants’ conduct was intentional, she makes that

13

argument with respect to the physical acts themselves—not that those actions were taken

14

with an intent to inflict injury. (See, e.g., Doc. 231 at 4; Doc. 232 at 4; Doc. 235 at 12–

15

13). That is insufficient to establish that Defendants acted “knowingly and purposely with

16

the direct object of injuring” Plaintiff, as is required to establish that the wilful

17

misconduct exception applies. A.R.S. § 23-1022(B).

18

Plaintiff’s only argument that she has met this element is to ask, if “these acts were

19

not intended to harm [Plaintiff] . . . what were they for, then?” But that question is

20

completely beside the point; at this stage, it is Plaintiff’s burden to present evidence

21

sufficient to establish that Defendants acted with an intent to inflict injury. She has not

22

met that burden. The workers’ compensation statute is “most restrictive” as to this

23

element. Gamez, 34 P.3d at 379 (internal quotation marks omitted). For example, in

24

Gamez, the Arizona Court of Appeals held that even if the employee had presented

25

evidence that the employer “acted knowingly or maliciously or that it disregarded the

26

dangers its employees face” while working with a hazardous substance, that the employer

27

“intentionally failed to warn its employees of . . . a substantial certainty that they will

28

develop” a disease as a result, and that the employer “sacrificed employee safety for
9

1

higher profits,” it would not suffice to establish an intent to injure. Id. The court cited

2

favorably to another case holding that “‘regardless of whether the employer acted in a

3

calculated fashion to maximize its profits in utter disregard of the certainty of injury to its

4

employees,’ a claim by an employee is statutorily barred unless the employee can

5

establish that the employer intended to injure him or her.” Id. at 380 (quoting Davis v.

6

U.S. Emps. Council, Inc., 934 P.2d 1142, 1149 (Or. Ct. App. 1997)). Instead, the court

7

stated, an employee must present evidence of “a genuine intentional injury, comparable

8

to an intentional left jab to the chin.” Id. (internal quotation marks omitted).

9

Here, with respect to Southwest’s actions surrounding Flight 1088, at most,

10

Plaintiff has presented evidence that its investigation showed a reckless disregard for the

11

safety of its passengers and employees, including Plaintiff, and that the company’s

12

actions were calculated to protect its reputation. But there is no evidence that Southwest

13

intended to harm Plaintiff. Likewise, with respect to the actions of Defendants Graham

14

and Russell, all of the evidence leads to a conclusion that they acted with an intent at

15

humor, not that they intended to injure Plaintiff. Even if their utterly misguided sense of

16

humor showed a reckless disregard for Plaintiff, that is insufficient to invoke the wilful

17

misconduct exception. From the evidence presented, no reasonable juror could conclude

18

that Defendants’ actions were performed “knowingly and purposely with the direct object

19

of injuring another.” A.R.S. § 23-1022(B). As such, the Court lacks subject matter

20

jurisdiction over the IIED claims, and Counts 3 and 4 must be dismissed.

21

d. Invasion of Privacy

22

Finally, Defendants move for summary judgment against Plaintiff on Count Five,

23

invasion of privacy. While the FAC does not specify which type of invasion of privacy

24

tort it alleges, only the tort of inclusion upon seclusion plausibly applies to the facts. See

25

Godbehere v. Phx. Newspapers, Inc., 783 P.3d 781, 784 (Ariz. 1989). “A claim for

26

intrusion upon seclusion requires the Plaintiff to prove two elements: (i) an intentional

27

intrusion, physically or otherwise, upon the solitude or seclusion of another or his private

28

affairs or concerns and (ii) that the intrusion would be highly offensive to a reasonable
10

1

person.” Davis v. HDR Inc., --- F. Supp. 3d ---, 2022 WL 2063231, at *9 (D. Ariz. June

2

8, 2022) (citing Hart v. Seven Resorts, Inc., 947 P.2d 846, 853 (Ariz. Ct. App. 1997)).

3

Plaintiff concedes that she cannot prove that Defendant Russell invaded her privacy, so

4

summary judgment will be granted in his favor. (Doc. 233 at 8).

5

Plaintiff also concedes that she cannot prove that there was a camera in the

6

lavatory on Flight 1088 such that Defendants Graham or Southwest intruded upon her

7

private affairs. Instead, Plaintiff argues that Defendants spoiled potential evidence of this

8

claim because Southwest did not search the plane and did not confiscate Defendant

9

Graham’s iPad for seven months after Flight 1088. (Doc. 233 at 7; Doc. 235 at 11–12).

10

But “[t]he case law on spoilation is clear that the burden for showing spoilation occurred

11

requires more than a mere suggestion or implication.” Galicia v. Nat’l R.R. Passenger

12

Corp., No. CV 17-8020-JFW (JCx), 2018 WL 6314191, at *4 (C.D. Cal. July 20, 2018)

13

(rejecting spoilation sanctions where plaintiff presented no evidence that cameras had

14

captured the incident at issue); see also Kinnally v. Rogers Corp., No. CV-06-2704-PHX-

15

JAT, 2008 WL 4850116 (D. Ariz. Nov. 7, 2008) (“In cases where courts have found

16

spoilation, there was a clear showing of destruction of evidence.”). Here, there is no

17

evidence in the record to support Plaintiff’s suggestion that there was actually a camera in

18

the lavatory on Flight 1088; to the contrary, the evidence supports Plaintiff’s allegations

19

in the alternative that Defendant Graham prerecorded the video of himself in the lavatory

20

that Plaintiff saw during Flight 1088 on an entirely different plane four months earlier.

21

The flight attendants, including Plaintiff, did not find any cameras when they searched

22

Flight 1088. Moreover, the lavatory video that was eventually found on Defendant

23

Graham’s iPad appears to match the photo that Plaintiff took of the iPad during Flight

24

1088. (Doc. 224 at 6–7; Doc. 236 at 7). Plaintiff has not met her burden to show

25

spoilation, and as a result, there is no evidence that Defendants invaded her privacy.

26

IV.

CONCLUSION

27

In sum, Plaintiff has failed to present evidence sufficient to establish any of her

28

claims at trial. Defendants should not, however, take this result as a condonation of their
11

1

actions. Defendants Graham and Russell’s poor excuse for humor was juvenile, crude,

2

and unprofessional. There is nothing funny about leading a colleague whom they had

3

never met before to believe that she—and everyone else on the plane—was being

4

watched in the lavatory, which is without question a private space. The pilots showed a

5

complete disregard for the perspectives of anyone but themselves and, by failing to reveal

6

to Plaintiff that their so-called “prank” was not real, demonstrated a callousness to the

7

potential effects of their actions. Southwest’s response was equally, if not more, callous.

8

By instructing the Flight 1088 flight attendants to keep the incident to themselves, by

9

allowing Defendants Graham and Russell to proceed to fly the same aircraft to their next

10

destination without inspection despite having no indication at that time that the lavatory

11

video was prerecorded, by conducting a shockingly bare investigation,8 and by imposing

12

minimal discipline on Defendants Graham and Russell,9 Southwest prioritized its

13

reputation and its pilots over the safety of its crew members and passengers. Meanwhile,

14

other Southwest employees have publicly, and likely privately, denigrated Plaintiff for

15

reporting what she reasonably believed to be the recording of passengers and employees

16

in the lavatory. (Doc. 204 at 7; Doc. 227 at 6; see Doc. 204-1 at 102–12). The Court does

17

not doubt that Plaintiff has suffered from the events of Flight 1088 and her pursuit of

18

accountability for Defendants’ actions and inaction. But under the law and the record in

19
20
21
22
23
24
25
26
27

To be specific, Southwest’s Employee Relations department did not conduct an
investigation and expressed concerns about the incident making it outside the company.
(Doc. 225 at 10–11). The Corporate Security department did not investigate, despite
receiving a call from Plaintiff about Flight 1088, because it was told by a supervisor in
Plaintiff’s department that she had called Corporate Security in error. (Doc. 225 at 14;
Doc. 206-1 at 215). Instead, the investigation was left to a Chief Pilot, Mark
Montgomery, in the Flight Operations department, which manages Southwest’s pilots.
(Doc. 225 at 14). Mr. Montgomery had no formal training in investigations, relied
primarily on what Defendant Graham told him, did not ask Defendant Graham for his
iPad or a copy of the lavatory video, did not interview the Flight 1088 flight attendants,
and believed that the flight attendants were taking advantage of the company. (Doc. 225
at 14–18). Mr. Montgomery could not recall if he took notes during the investigation, but
his standard practice is to shred his notes once an incident is resolved. (Doc. 206-1 at
223–24).
8

9

28

Defendant Graham received a Letter of Reprimand while Defendant Russell
received a Memo of Record, which is the lowest level of discipline. (Doc. 206-1 at 238).
12

1

this case, such as they are, Defendants cannot be held liable.

2

IT IS THEREFORE ORDERED that the Clerk of Court shall strike Defendants

3

Graham and Russell’s Reply in Support of Their Motion for Summary Judgment (Doc.

4

239) as untimely.

5

IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment

6

Against Defendants Graham and Russell (Doc. 202) and Plaintiff’s Motion for Summary

7

Judgment Against Defendant Southwest Airlines Co. (Doc. 205) are denied.

8

IT IS FURTHER ORDERED that Defendants Graham and Russell’s Motion for

9

Summary Judgment (Doc. 221) and Defendant Southwest’s Motion for Summary

10
11

Judgment (Doc. 223) are granted.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment in

12

favor of Defendants and terminate this action.

13

Dated this 28th day of July, 2022.

14
15

Honorable Steven P. Logan
United States District Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
13