10-784-cv
Amarsingh v. Jet Blue Airways Corp.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 10th day of February, two thousand eleven.
5
6 PRESENT: GUIDO CALABRESI,
7 GERARD E. LYNCH,
8 Circuit Judges,
9 DENISE COTE,
10 District Judge.*
11 _______________________________________
12
13 MALA AMARSINGH,
14 Plaintiff-Appellant,
15
16 v. No. 10-784-cv
17
18 JETBLUE AIRWAYS CORPORATION,
19 Defendant-Appellee.
20 ______________________________________
21
22 FOR APPELLANT: Deirdre E. Hamilton, Association of
23 Flight Attendants, Washington, DC.
24
*
Honorable Denise Cote of the United States District
Court for the Southern District of New York, sitting by
designation.
1
2 FOR APPELLEE: Patricia G. Griffith, Ford &
3 Harrison LLP, Atlanta, GA.
4
5 Appeal from the United States District Court for the
6 Eastern District of New York (Sandra L. Townes, Judge).
7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
8 AND DECREED that the judgment of the district court is
9 AFFIRMED.
10 Mala Amarsingh was employed as a flight attendant for
11 JetBlue Airways Corporation (“JetBlue”) and, while working
12 for JetBlue, participated in a campaign to unionize
13 JetBlue’s flight attendants. Amarsingh’s employment was
14 terminated shortly after an incident at the Las Vegas
15 Airport (the “Las Vegas incident”), in which Amarsingh told
16 an unruly JetBlue customer to “[g]et the fuck out of my
17 face.”
18 Following the termination of her employment, Amarsingh
19 brought a wrongful discharge suit against JetBlue, alleging
20 that the company unlawfully interfered with her right to
21 participate in union-related activities, in violation of the
22 Railway Labor Act (“RLA”), 45 U.S.C. § 152, Third & Fourth.
23 The district court granted summary judgment in JetBlue’s
24 favor, and Amarsingh now appeals. We assume the parties’
2
1 familiarity with the other facts and procedural history of
2 this case.
3 We review a district court’s grant of summary judgment
4 de novo. Fagan v. N.Y. State Elec. & Gas Corp., 186 F.3d
5 127, 132 (2d Cir. 1999). Summary judgment is warranted when
6 there is no genuine issue of material fact and the moving
7 party is entitled to judgment as a matter of law. Fed. R.
8 Civ. P. 56(a).
9 JetBlue does not question the district court’s
10 determination that the relevant provisions of the RLA
11 afforded Amarsingh an implied right of action against
12 JetBlue. And neither party challenges the district court’s
13 decision to analyze Amarsingh’s RLA claims under the Wright
14 Line burden-shifting framework, which we have used to
15 evaluate similar wrongful termination claims under the
16 National Labor Relations Act. See, e.g., NLRB v. G & T
17 Terminal Packaging Co., 246 F.3d 103, 116 (2d Cir. 2001)
18 (citing Wright Line, A Division of Wright Line, Inc., 251
19 N.L.R.B. 1083, 1083-88 (1980)). We therefore address only
20 whether the district court properly applied the Wright Line
21 framework to the facts of this case.
22 Under this framework, the employee first bears the
3
1 burden of making out a prima facie case for wrongful
2 termination. To do so, she must show by a preponderance of
3 evidence that her “protected conduct was a ‘substantial’ or
4 ‘motivating’ factor prompting the discharge.” G & T Terminal
5 Packaging Co., 246 F.3d at 115. If the employee successfully
6 meets this burden, the employer may avoid liability only if
7 it demonstrates by a preponderance of the evidence “that it
8 would have reached the same decision absent the protected
9 conduct.” Id. at 116.
10 The district court concluded that Amarsingh failed to
11 carry her initial burden under the Wright Line test. In
12 making this determination, the court relied on a four-
13 pronged formulation of the “substantial or motivating
14 factor” requirement, under which an employee must show that
15 “(a) [s]he was engaged in activity protected by the RLA; (b)
16 [the employer] was aware of that activity; (c) [the
17 employer] harbored animus toward the protected activity; and
18 (d) the animus was a causal factor in plaintiff’s
19 termination.” Beckett v. Atlas Air, Inc., 968 F. Supp. 814,
20 817 (E.D.N.Y. 1997) (citing Carry Cos. Of Ill., Inc. v.
21 NLRB, 30 F.3d 922, 927 (7th Cir. 1994)). Both parties have
22 relied on this four-part test on appeal, and we therefore
23 assume its applicability to this case.
4
1 It is undisputed that Amarsingh participated in
2 activities protected by the RLA and that JetBlue management
3 was aware of Amarsingh’s participation in these activities.
4 And the record clearly supports a reasonable inference that
5 JetBlue did not look favorably upon Amarsingh’s ongoing
6 protected activities. But we cannot conclude that the
7 Amarsingh has raised a triable issue of fact regarding the
8 causal connection between JetBlue’s opposition to
9 unionization and its decision to fire her. We therefore find
10 that Amarsingh has failed to carry her burden with respect
11 to the fourth requirement of the Wright Line test.
12 Amarsingh’s behavior during the Las Vegas incident was
13 manifestly enough to justify her discharge, and she has not
14 proffered sufficient evidence to permit a jury to find, by a
15 preponderance of the evidence, that anything other than this
16 behavior was a substantial or motivating factor in her
17 discharge. What she did was in clear violation of
18 established JetBlue policy, which prohibits “all forms of
19 threats, harassment or intimidation . . . including verbal,
20 physical or psychological assaults by any Crewmember against
21 another Crewmember, Customer or Business Partner,” and which
22 provides that JetBlue employees may be fired on account of
23 “one occurrence of a severe single issue.” What’s more, she
5
1 herself admitted that shortly after the incident, she
2 herself worried that her “us[e] of the F word” would lead to
3 her getting fired. Significantly, Amarsingh did not imply
4 that she feared a retaliatory firing; the clear implication
5 of her testimony is that she understood that she had
6 violated company policy in a manner that made discipline
7 likely, and firing at least possible. Moreover, she has
8 failed to identify even a single other instance in which
9 JetBlue (or for that matter any other airline) has applied
10 less severe disciplinary measures in response to similar
11 behavior by a flight attendant.1 The burden at this stage
12 was hers, and that burden was not met.
13 Accordingly, we conclude that the district court
14 properly granted summary judgment on the ground that
15 Amarsingh failed to make out a prima facie case under the
16 Wright Line test. For this reason, we need not and do not
1
We do not suggest that Wright Line would require an
employee to identify instances in which her employer (or
a similarly-situated employer) treated identical behavior
differently. But Amarsingh needed to give the factfinder
some basis to conclude that her termination was something
other than an ordinary disciplinary response to her
behavior in Las Vegas. Given the absence of any other
indicator to this effect, her failure to identify any
episode in which JetBlue–-or, indeed, other airlines--
responded more leniently to comparable behavior by an
employee not involved with the union is a relevant
consideration.
6
1 address the district court’s alternative holding that if
2 Amarsingh had made out such a case, JetBlue would
3 nonetheless have carried what would then have become its
4 burden of showing that Amarsingh would have been fired even
5 if she had not engaged in the protected activities.
6 We have considered Amarsingh’s remaining arguments on
7 appeal and find them to be without merit. The judgment of
8 the district court is therefore AFFIRMED.
9
10 FOR THE COURT:
11 Catherine O’Hagan Wolfe, Clerk
12
7