United States District Court, D. Colorado
SENAYET TUFFA, SADIA ABDUSALEM, AGNES AIDOO, MARY BOATEMAH, AMINA BORIYO, NURIDA BORIYO, LENSSA BUBA, ABDI CHALTU, TIGEST DESTA, ELASABETH GETACHEW, ZEWDINEH GIZAW, BANCHEAMLAK HAILU, KAMIRIYA JIMJIMO, BERHANE KIDANE, MAKIDA LESISO, ADDISALEM NIGATU, OSHAIK OWMAR, MOMINA TUFA, FIKERETE WAKJIRA, ROBDU WALIO, REDA WELANSA, SHEWANARGAW WOLDETSDICK, and GEZAHEGNE WOLDHNNA, Plaintiffs,
FLIGHT SERVICES & SYSTEMS INC., Defendant
For Senayet Tuffa, Sadia Abdusalem, Agnes Aidoo, Mary Boatemah, Amina Boriyo, Nurida Boriyo, Lenssa Buba, Abdi Chaltu, Tigest Desta, Elasabeth Getachew, Zewdineh Gizaw, Bancheamlak Hailu, Kamiriya Jimjimo, Berhane Kidane, Makida Lesiso, Addisalem Nigatu, Oshaik Owmar, Momina Tufa, Fikerete Wakjira, Robdu Walio, Reda Welansa, Shewanargaw Woldepseick, Gezahegne Woldhnna, Plaintiff: Robert Mark Liechty, LEAD ATTORNEY, Cross Liechty Lane, P.C., Greenwood Village, CO.
For Flight Services & Systems, Inc., Defendant: Elizabeth A. Cordello, Pullano & Farrow PLLC, Rochester, NY; Paul F. Keneally, Underberg & Kessler LLP, Rochester, NY.
R. Brooke Jackson, United States District Judge.
The twenty-three plaintiffs in this case, all former employees of Defendant Flight Services & Systems, Inc. (" FSS" ), assert national origin and race discrimination claims under Title VII in connection with their terminations. The case is presently before the Court on Defendant's Motion for Summary Judgment [ECF No. 35]. For the reasons laid out below, the motion is denied.
The present dispute originated when Defendant FSS purchased the assets of Freedom Air, Inc. (" FAI" ), effective on or about October 16, 2009. ECF No. 35 at 2; ECF No. 36 at 1. Under the purchase agreement, FSS assumed the obligations of FAI's contract with Southwest Airlines, the Core Airport Support Services Agreement (" CASSA" ), at Denver International Airport. ECF No. 35 at 2; ECF No. 36 at 1. Plaintiffs, who had all previously worked for FAI as wheelchair attendants, were employed by Defendant in the same role. ECF No. 35 at 3; ECF No. 36 at 1; Attestation of Barry Simpson, ECF No. 36, Ex. 1 at 1. All but two or three of the plaintiffs are originally from Ethiopia; the others are from Ghana and Sudan. Attestation of Gezahegne Woldhnna, ECF No. 36, Ex. 5 at 2; Attestation of Senayet Tuffa, ECF No. 36, Ex. 6 at 2. In fact, just before FSS took over, FAI had approximately 200 employees in the field, all but 10-15 of whom were from African countries, primarily Ethiopia. Attestation of Barry Simpson, ECF No. 36, Ex. 1 at 1.
Plaintiffs' ability to speak, read, and write in English is a central issue in this
case. The CASSA requires that FSS wheelchair attendants " possess the ability to communicate effectively in English." ECF No. 35 at 2; ECF No. 36 at 1. According to FSS, the position of wheelchair attendant requires the ability to speak, read, and write in English. Collier Affidavit, ECF No. 35, Ex. B at 2. A few months before FSS took over, in August of 2009, FAI had received a letter from Southwest listing several service deficiencies, including the " [l]anguage barrier between wheelchair attendants and Employees/Customers." ECF No. 35, Ex. C; ECF No. 36 at 2 (plaintiffs admit that FAI received the notice). However, according to Barry Simpson, plaintiffs' former supervisor at FAI, all of the plaintiffs " understood English well enough to do their jobs even if they could not speak it well." Attestation of Barry Simpson, ECF No. 36, Ex. 1 at 1. Mr. Simpson was never asked to follow up on the complaint from Southwest, and he did not receive any other notice of problems with his employees' English-speaking abilities during the 2.5 years he was at FAI. Id. at 2.
Plaintiffs contend that once FSS took over, it set out to terminate all the employees of African origin. According to Mr. Simpson, " during the one or two week overlap with FSS, [he] spoke with the incoming operations manager for FSS, Tom Mills." Id. at 1-2. During their conversation, Mr. Simpson told Mr. Mills that FSS " had numerous Ethiopian employees and that they did not speak English well, but that they were good workers and we had no problems with them. [Mr. Mills] told [Mr. Simpson] something along the lines of not to worry because the company was going to get rid of them." Id. According to plaintiffs, FSS then came up with a number of reasons to terminate the employees of African origin.
First, several of the plaintiffs (Sadia Abdusalem, Mary Boatemah, Lensa Buba, Abdi Chaltu, Elasabeth Getachew, Kamiriya Jimjimo, Berhane Kidane, Makida Lesiso, Oshaik Owmar, Momina Tufa, Fikerete Wakjira, and Robdu Walio) were terminated because they failed the required the DIA security badge test. ECF No. 35 at 4; ECF No. 36 at 1. The parties agree that plaintiffs' continued employment as wheelchair attendants was conditioned upon passing the badge test, which is governed by federal regulation. ECF No. 35 at 3; ECF No. 36 at 1. FAI had always provided someone who could read the test to its employees in English. Attestation of Barry Simpson, ECF No. 36, Ex. 1 at 1. However, FSS did not provide such assistance to any employee, and the plaintiffs listed above failed the test. ECF No. 35 at 4; ECF No. 36 at 1. According to one plaintiff's account, she did not pass, as she had for several years previously, because FSS refused to provide an English reader. Attestation of Amina Boriya, ECF No. 36, Ex. 2. She attests that others failed for the same reason. Id.
A second group of plaintiffs (Agnes Aidoo, Nurida Borijo, Zewdinah Gizaw, Bancheamlak Hailu, Addisalem Nigatu, and Reda Welansa) was terminated because they did not pass a required training test administered by FSS. ECF No. 35 at 4; ECF No. 36 at 1. This test was also a written test given in English, and FSS did not provide ...