Francis, v. United Airlines, Inc.

Filing 87

ORDER re: 85 Oral Argument Hearing ruling on motion 64 . Defendant's Motion for Summary Judgment is GRANTED. The Clerk shall enter judgment in favor of Defendant on all claims. Costs shall be taxed against Plaintiff. By Judge Raymond P. Moore on 8/21/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore
Civil Action No. 12-cv-00510-RM-KMT
ANA M. FRANCIS, an individual,
Plaintiff,
v.
UNITED AIRLINES, INC., a Delaware corporation,
Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Ana Francis (“Plaintiff” or “Francis”) brings claims against her former
employer, Defendant United Airlines (“Defendant” or “United”), for discrimination and
outrageous conduct. Before the Court is Defendant’s Motion for Summary Judgment (the
“Motion”). (ECF No. 64.) For the reasons set forth below, the Motion is granted.
I.

LEGAL STANDARD
Summary judgment is appropriate only if there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc., 41 F.3d 567, 569
(10th Cir. 1994). Whether there is a genuine dispute as to a material fact depends upon whether
the evidence presents a sufficient disagreement to require submission to a jury or, conversely, is
so one-sided that one party must prevail as a matter of law. Anderson v. Liberty Lobby, 477 U.S.
242, 248-49 (1986); Stone v. Autoliv ASP, Inc., 210 F.3d 1132 (10th Cir. 2000); Carey v. U.S.

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Postal Service, 812 F.2d 621, 623 (10th Cir. 1987). Anderson v. Liberty Lobby, 477 U.S. 242,
248-49 (1986).
A fact is “material” if it pertains to an element of a claim or defense; a factual dispute is
“genuine” if the evidence is so contradictory that if the matter went to trial, a reasonable jury
could return a verdict for either party. Anderson, 477 U.S. at 248. The Court must resolve
factual ambiguities against the moving party, thus favoring the right to a trial. Quaker State
Mini-Lube, Inc. v. Fireman’s Fund Ins. Co., 52 F.3d 1522, 1527 (10th Cir. 1995); Houston v.
Nat’l General Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).
II.

BACKGROUND
The relevant facts, viewed in the light most favorable to the Plaintiff, are as follows.

Plaintiff is a black and Hispanic female who was born in 1955. (ECF No. 5 at 7; ECF No. 51 at
1.) She was employed by United as a flight attendant beginning on May 16, 1995, and ending
July 5, 2011, when she was discharged. (ECF No. 5 at 7.) According to the Amended
Complaint, the stated reason for Plaintiff’s termination was for “not protecting company
resources and supplies, misappropriate use of supplies and resources, and lack of honesty.” (Id.)
Plaintiff contends that “she was discriminated against based upon her race, national origin and
age because other younger, white, and non-Hispanic employees have engaged in similar conduct
without any discipline or repercussions.” (Id.)
On June 6, 2011, Plaintiff was assigned as a standby flight attendant at Denver
International Airport from 6 p.m. to 10 p.m. (Id.) She checked in at the coordinator desk around
5:45 p.m., and then went to the “in-flight area” located on the fourth floor of Concourse B.
(Francis Dep, ECF No. 64-1 at 5-6.) While on duty, Plaintiff became nauseous, dizzy and
disoriented, and tried to find the supervisor on duty, but could not. (ECF No. 5 at 7.) She left

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the in-flight area, intending to go to Starbucks to purchase a bottle of water, and on the way,
passed one restaurant called “It’s a Wrap,” which “appeared to be closing,” so she did not stop
there. (ECF No. 69 at 2.) “While Francis was aware that there were 50 to a 100 [sic] restaurants
on concourse B, those restaurants were on the rotunda in the opposite direction Francis was
going. Francis’ intention was to go to Starbucks because she had a gift card for purchases.” (Id.)
Plaintiff at some point says she approached her coordinator to purchase a bottle of water,
and was told that United no longer sold bottles of water to employees. (ECF No. 51 at 1.)
“Plaintiff then proceeded to Concourse B and found that most of the retailers were closed.” (Id.)
Plaintiff “never made it to Starbucks” according to her deposition because she “was feeling very
weak.” (ECF No. 64-1 at 13.) She noticed passengers deplaning a United flight at Gate B45.
(Id. at 14.)
Plaintiff asked the First Flight Attendant on that flight, an incoming flight from Tampa,
Carol Alexander, if she could have some water to take medication, and the Ms. Alexander
suggested that Plaintiff wait until the passengers had de-planed to get it. (Id. at 1-2.) “Plaintiff
proceeded into the cabin and took a bottle of water [. . . ] Plaintiff also took a salad and sandwich
that appeared to have been discarded by a passenger.” (Id. at 2.) As a result of this incident, on
June 7, 2014, Plaintiff was placed on administrative leave. (Id.) She was formally terminated on
July 5, 2011. (Id.)
United submitted as an exhibit an approximately eleven minute video that was taken from
a fixed point just outside a United aircraft, in which Plaintiff may be observed waiting on the
jetbridge for the passengers to deplane. (ECF No. 64-2.) After all the passengers and the flight
crew deplane, Plaintiff can be seen entering the aircraft, then disappearing from view down the
aisle. (Id.) She reappears shortly thereafter with something consistent in shape with plastic

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containers containing food sold on aircrafts wrapped in her sweater. (Id.) She then appears to
take a bottle of water from a cabinet. (Id.) The video also shows, as Plaintiff emphasizes, a
white pilot exiting the aircraft with a bottle of water. (ECF No. 69 at 3.) This video was viewed
and relied upon by United in deciding to terminate Plaintiff.1
Todd Ebertowski, a United Customer Service Representative, happened to come aboard
the plane in connection with an unrelated customer complaint about being seated next to a
customer with a service dog. (ECF No. 69-6.) He had a brief conversation with Plaintiff, the
content of which is disputed, and reported his disagreement to a supervisor. (ECF No. 64 at 6.)
The resulting investigation led to the discovery of Plaintiff being aboard a plane to which she
was not assigned and leaving with items from that flight which did not belong to her.
Plaintiff was placed on administrative leave, and on June 8, 2011, she attended a meeting
with a supervisor and her union representative. (ECF No. 64-1 at 28.) In connection with that
meeting, Plaintiff submitted a written Flight Attendant Report in which she stated that she took
“a salad and a chicken wrap” and a “bottle water” from the plane. (ECF No. 64-4.) She stated
that she took the food from the “old-inbound galley.” (Id.) Plaintiff also advised that she
“would like to apologize for my unprofessional behavior.” (Id.)2

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Plaintiff objected to the Court’s consideration of the video. (ECF No. 71.) It was submitted to the Court as an
exhibit to the affidavit of Dean Whittaker, the United official who terminated Plaintiff, and was described by him as
“a true and accurate copy” of the video he reviewed. The objection is that the authenticity of the videotape (in the
sense of its actual portrayal of the events of June 6, 2011) has not been established. The objection is overruled.
2
After June 8, 2011, Plaintiff’s explanation of the location of the salad and wrap changed. Plaintiff’s latter
explanation, which she maintains to date, is that she saw the salad and wrap in a clear plastic trash bag in the aisle of
the plane and removed it from the garbage. Plaintiff originally said she took the food from the galley, but at some
point thereafter, she changed her description of where the food she took was, stating that “the salad and the chicken
wrap were found on the floor near the forward aft bathroom of the back galley” in a plastic trash bag. (See ECF No.
69 at 3.) However, there is no dispute that Plaintiff initially advised United that these items were taken from the
galley. Nor is there any dispute that the items did not belong to her, but were the property of United. At the hearing
on this matter held on August 12, 2014, counsel for Plaintiff conceded as much. (See Hearing Tr. Aug. 12, 2014 at
27 (“THE COURT: So isn’t company trash, company property? MR. ALSTON: Um, as long as it was still on that
plane, yes. THE COURT: Then she stole company property. MR. ALSTON: Yes. THE COURT: All right.”).)
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On June 28, 2011, she attended another meeting, this time with Dean Whittaker, United’s
Director of Inflight Services, also along with her union representatives. (Id. at 28, 31.) Mr.
Whittaker terminated Plaintiff’s employment by written letter on July 5, 2011.3 The letter
advised:
Specifically, you acted inconsistently with United Airlines’ Working Together
Guidelines with respect to Honesty and Professionalism when on June 6, 2011
while on standby and in the Denver International Airport (DEN); you failed to
protect the property of the company from theft. You were observed on video
footage while on the passenger loading bridge at gate B45, waiting for all
customers and inbound crew members to deplane. You then boarded the aircraft
at 20:41:53 MDT and based on your own admission on June 8, 2011, removed a
bottle of water, a salad and a chicken wrap sandwich from the galley. The items
did not belong to you and your actions did not reflect favorably on the Company,
yourself or your co-workers.
(ECF No. 64-2.) Plaintiff has not alleged that she experienced any workplace discrimination
based on race, gender, national origin, or age prior to her termination. She has also not alleged to
have had any adverse experiences with Mr. Whittaker prior to her termination. Defendant has
asserted repeatedly in both briefing and at the hearing on this matter that there were no such
adverse experiences or discrimination.
III.

ANALYSIS
Plaintiff’s Amended Title VII Complaint initially brought five enumerated causes of

action, which are less than clear in alleging concrete violations, so the Court has had to engage in
some amount of interpretation: (1) wrongful discharge based on race, sex, and age in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (“Title VII”)4; (2)
“discrimination in discipline,” which the Court believes is a claim for disparate treatment based
3

The Court received a letter directly from Plaintiff on August 14, 2014; it is not clear whether Plaintiff’s counsel
was aware of this communication. Plaintiff’s letter, which has since been filed as ECF No. 86 by the Court,
recounts the events of June 6, 2011 from her perspective, and also discloses her gratitude to the Court and her beliefs
as a Jehovah’s Witness. The Court has disregarded the contents of this letter, which was an ex parte communication
made after the Court had decided this matter.
4
Plaintiff’s Amended Complaint specifically refers only to age and racial discrimination, but she also checked a box
for sex discrimination, so that is addressed herein.
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on race and age in violation of Title VII; (3) “genetic information,” which the Court believes is a
claim for unlawful discrimination under the Americans with Disabilities Act; (4) “breach of
implied contract;” and (5) “outrageous conduct.” (ECF No. 5.) Of these, only the discrimination
and outrageous conduct claims remain.5
Because there is no direct evidence of discrimination in this case, the McDonnellDouglas burden-shifting test applies to each of Plaintiff’s Title VII claims, and also to her ADEA
claim. See McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Garrett v.
Hewlett-Packard Co., 305 F.3d 1210, 1216 (10th Cir. 2002). Under McDonnell-Douglas,
Plaintiff must first establish a prima facie case of employment discrimination. 411 U.S. at 802.
If Plaintiff makes out a prima facie case, the burden shifts to Defendant to come forward with a
legitimate, non-discriminatory basis for its employment decision. Id. If Defendant does so, the
inference of discrimination drops out and the burden shifts back to Plaintiff. She, then, must
offer evidence to show that race (or national origin, sex or age) was a determinative factor in the
employment decision or that Defendant's non-discriminatory reason was merely pretext. Id. at
804.
Defendant has moved for summary judgment on all claims. The Court will address each
in turn below.
A. Wrongful Discharge/Discrimination
Plaintiff’s first cause of action is that of wrongful discharge. (ECF No. 5 at 7.) Plaintiff
also brings a claim for discrimination based on sex, race, and/or national origin, alleging that she
was treated less favorably than non-minority employees. These two claims, though presented as

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Plaintiff and Defendant filed a Joint Stipulation for Plaintiff to Dismiss the Third and Fourth Causes of Action
(ECF No. 60) on October 17, 2013. Thus, those causes of action are hereby dismissed, and will not be addressed
further herein.
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distinct and separable in the Amended Complaint, are based on the same set of facts and same
adverse employment action – namely, Plaintiff’s termination.
The first claim alleges that Plaintiff was placed on administrative leave and ultimately
terminated based upon the pretext that she misappropriated company resources, “even though
United has no written policy on perishable food items on terminating flight [sic].” (ECF No. 5 at
7.) Plaintiff said that she “believes she was discriminated against based upon her race, national
origin and age because other younger, white, and non-Hispanic employees have engaged in
similar conduct without any discipline or repercussions.” (Id.) Plaintiff’s second claim alleges
the same conduct, but cites Plaintiff’s employment history of receiving only one disciplinary
action in 16 years, and none within 3 years, as well as an alleged United policy that states “that
any discipline actions two year or older [sic] are obsolete.” (Id.) Plaintiff alleges that “United
violated its own policy when it considered prior obsolete discipline against the Plaintiff in
making its discharge decision.” (Id. at 8.) She goes on to again allege discrimination based upon
race, national origin, and age, but with no additional allegations of fact beyond that “younger,
white, non-Hispanic flight attendants receive lesser discipline for the same or similar offenses.”
(Id.) From the Court’s review of the Amended Complaint, it is difficult to discern how this
claim is different from the Title VII claim for wrongful discharge. (This is especially true where
no evidence has been proffered suggesting that the termination was in any way tethered to prior
discipline.) In the Court’s view, these causes of action are indistinguishable, with the second
merely re-alleging the same discrimination based upon the same grounds as the first. Thus, they
will be treated as one herein.
To establish a prima facie case for discrimination, Plaintiff must show: (1) she is a
member of a protected class; (2) she suffered an adverse employment action; and (3) the

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challenged action took place under circumstances giving rise to an inference of discrimination.
EEOC v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007).
The first and second prongs of the prima facie standard are not in dispute in this case. As
a black, Hispanic, and female employee, Plaintiff is a member of a protected class. Plaintiff’s
termination undisputedly constitutes an adverse employment action.
Thus, the only issue is whether Plaintiff has shown that her termination occurred under
circumstances giving rise to an inference of discrimination. Plaintiff attempts to show an
inference of discrimination in two ways: First, relying on Munoz v. St. Mary-Corwin Hosp., 221
F.3d 1160 (10th Cir. 2000), Plaintiff argues that a prima facie case always is made where a
member of a protected class qualified for her job establishes that she was discharged and that the
job was not eliminated following discharge. Second, Plaintiff argues that she was treated
differently than similarly situated younger, white, non-Hispanic employees. If she can show that
similarly situated non-minority employees were treated in a more favorable manner, this gives
rise to an inference of discrimination and satisfies Plaintiff’s prima facie burden. English v.
Colorado Dep’t of Corrections, 248 F.3d 1002, 1011 (10th Cir. 2001).
Plaintiff’s claim that a prima facie case of discrimination is established whenever a
qualified person of color or other protected class is terminated and her job is not eliminated goes
too far. There certainly are instances where an inference of discrimination is justified under such
circumstances. A termination for convenience might give rise to such an inference. A
termination preceded by targeting of the minority employee for criticism or other adverse action
might suffice. Even a circumstance where the terminated employee is replaced by someone
outside of the protected class may be sufficient. But none of these circumstances are present
here.

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This was a termination for cause stemming from an event which was captured on
videotape. No evidence has been put forward to suggest that Plaintiff was targeted or had any
prior adverse action taken against her by Mr. Whittaker or any other superior at United. Plaintiff
cannot even establish that her replacement was not a member of her protected class. Instead, she
professes that United hires “in such large volumes, it is not possible to identify the flight
attendant who replaced her.” (ECF No. 69 at 11.)
To the extent Plaintiff seeks to interpret Munoz as constituting the inflexible law of the
Tenth Circuit, she goes too far. Later cases make clear that what is required is some evidence
tending to support an inference of discrimination. See Plotke v. White, 405 F.3d 1092, 10991101 (10th Cir. 2005). Plaintiff’s termination for cause, here, standing alone, is not enough –
notwithstanding her status as a member of a protected class and her qualifications.
As for the contention that other employees were treated in a more favorable manner,
Plaintiff’s only support is that one white male pilot is observed on the video exiting the plane
with a water bottle, and Plaintiff’s assertion that “United is not aware of any flight attendants
who were removed, counseled or disciplined for the removal of discarded items or trash items.”
(ECF No. 69 at 4.) Neither of these is sufficient to meet Plaintiff’s burden of making out a prima
facie case of discrimination. For one, United’s lack of awareness of comparable discipline is not
sufficient to suggest that Plaintiff was treated in a discriminatory manner here. She does not and
cannot deny that she took water and food, and that that was the avowed reason for her
termination. She points the Court to no other instance where Mr. Whittaker was aware of
comparable conduct involving a flight attendant’s removal of United property – trash or
otherwise – from a flight without imposition of discipline. She focuses on making the argument
that United’s termination rationale was pretextual, but in doing so, she misses the first step,

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wherein she must offer or allege some factual evidence that would give rise to an inference of
discrimination, and she has not done so here.
As for the pilot, his actions and lack of discipline do not establish Plaintiff’s prima facie
case either. United submitted an affidavit from Mr. Whittaker with respect to the pilot issue.
(ECF No. 64-2.) That affidavit remains unchallenged as it pertains to the pilot. Mr. Whittaker
advises that United provides bottled water to its pilots before flights. United has also advised
that, additionally, pilots can and do obtain water during flights. (ECF No. 69-9.) Mr. Whittaker
advises also that he does not supervise pilots. Thus, pilots leaving planes with water is not a
comparable situation to flight attendants – much less flight attendants not assigned to a flight.
And, of course, the pilot did not take food. But even if pilots and flight attendants were similarly
situated employees – which they are not – Mr. Whittaker does not supervise pilots. Thus, any
difference in potential discipline, assuming cause existed, would not give rise to an inference of
discrimination on the part of Mr. Whittaker in his dealings with Ms. Francis.
Plaintiff has failed to meet her burden of a prima facie case under the McDonnellDouglas analysis. On this basis alone, Defendant is entitled to summary judgment. Because
Plaintiff has failed to show that she was treated differently than any similarly situated younger
employee, or otherwise proffer any evidence which would support an inference of discrimination
based on age, the Court finds that Plaintiff has failed to meet her prima facie burden as to the
ADEA aspects of her claims as well.
Although this Court can and does find that Plaintiff’s claims do not meet the first step of
the McDonnell-Douglas test, I will nonetheless touch on pretext for analytical completeness.
Once the plaintiff establishes a prima facie case (which, as shown above, Plaintiff has not done
here), the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for

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the adverse employment action. Jaramillo v. Colorado Judicial Dep't, 427 F.3d 1303, 1307 (10th
Cir. 2005). Here, Defendant has met that burden through submission of the videotape, Plaintiffs’
written statement, and the termination letter, amongst other evidence. Defendant’s legitimate,
non-discriminatory reason was that United believed that Plaintiff took water and food that did
not belong to her from an aircraft to which she was not assigned. It based its decision on the
videotape and on statements Plaintiff made in writing on June 8, 2011. Whether or not United
was hasty, mistaken, disproportionate, or anything else, it clearly had a non-discriminatory
reason to do what it did. That is all that the law requires, and United has met its burden even if
the McDonnell-Douglas analysis were able to proceed to the second stage. Accordingly,
Plaintiff would be required to show that the stated reasons were pretextual.
Plaintiff attempts to establish pretext in one of three ways. First, Plaintiff alleges a
change in position by United, claiming that at various points in time post-termination, United
referred to the food and water as items for resale and at other times not. (See ECF No. 69 at 10,
18.) Plaintiff believes that this establishes that the proffered reason for termination is false. This
difference in description is insignificant. See Hardy v. S.F. Phosphates Ltd. Co., 185 F.3d 1076,
1081 (10th Cir. 1999). Plaintiff was terminated for taking items that did not belong to her, and
which counsel admitted belonged to United. See note 2, supra. Second, Plaintiff attempts to use
her claim that the food items were garbage as a way to establish pretext. Alleging that United
lacks any policy regarding “garbage,” Plaintiff claims that termination for taking garbage –
especially in the absence of a prohibitory policy – is facially pretextual. (See ECF No. 69 at 15.)
Plaintiff overlooks the fact that she was terminated for matters reflected on videotape and as
admitted in her original written statement. In her written statement, she admitted that she took
items which did not belong to her from the “galley.” Plaintiff’s changing explanations of her

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conduct do not create evidence of pretext. Finally, Plaintiff alleges an inadequate investigation
in that the flight attendant who supposedly told Plaintiff that she could get water was not
interviewed. However the investigation is characterized, it was not superficial. United met
twice with Plaintiff, involved her union, and based its decision on a videotape and Plaintiff’s
own statements. Thereafter, an appeal process involving Plaintiff’s union representatives was
also conducted. (See ECF No. 69-9 at 4.) Such conduct simply does not suggest pretext.
Plaintiff has failed both to establish a prima facie case of discrimination and to overcome
United’s legitimate non-discriminatory reason for termination. Thus, Defendant’s Motion for
Summary Judgment is granted with respect to the discrimination claims.
B.

Outrageous Conduct
Plaintiff also sues under a cause of action she labels “outrageous conduct,” alleging that

“Defendant’s conduct in the termination of Plaintiff Francis was so outrageous and so extreme in
degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and
utterly intolerable in a civilized society.” (ECF No. 5 at 9.) This claim also alleges that “the
Defendant intentionally and recklessly caused the Plaintiff to suffer emotional distress.” (Id.)
Plaintiff’s final claim is devoid of any factual allegations, much less evidence, in support
of an intentional infliction of emotional distress claim. It appears to the Court that this final
claim is nothing more than a re-casting of her prior causes of action as a new and distinct tort
claim. Indeed, Plaintiff’s only allegations supporting this claim are that “Defendant had no
policy on the use of disposable items” and that “Defendant terminated the Plaintiff for allegedly
taking food that was not for resale and by law would have been disposed.” (Id.) These facts
were already considered and fully addressed in the sections on the prior claims, above. Since
Plaintiff fails to allege any new facts or assert any different and distinct theory of liability as to

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this claim, the Court finds that it is sufficiently addressed by the above analysis regarding her
prior claims.
Accordingly, the Court finds that Plaintiff has failed to show a trial-worthy issue as to
any “outrageous conduct” or intentional infliction of emotional distress claim. Defendant’s
Motion for Summary Judgment is also granted as to Plaintiff’s final claim.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment is
GRANTED. The Clerk shall enter judgment in favor of Defendant on all claims. Costs shall be
taxed against Plaintiff.
Dated this 21st day of August, 2014.
BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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