United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT UNITED
AIRLINES, INC.'S PARTIAL MOTION TO DISMISS
PLAINTIFF'S FIRST AMENDED COMPLAINT OR, IN THE
ALTERNATIVE, MOTION FOR A MORE DEFINITIVE STATEMENT (DOCKET
NO. 35)
MICHAEL J. WATANABE UNITED STATES MAGISTRATE JUDGE
This
matter is before the Court on Defendant United Airlines,
Inc.'s (“United”) Partial Motion to Dismiss
Plaintiff's First Amended Complaint or, in the
Alternative, Motion for a More Definitive Statement. (Docket
No. 35.) Judge Lewis T. Babcock referred the subject motion
to the undersigned Magistrate Judge. (Docket No. 36.) The
Court has reviewed the subject motion (Docket No. 17),
Plaintiff Ellis Williams' (“Plaintiff”)
Response (Docket No. 37), and Defendant's Reply. (Docket
No. 38.) The Court has taken judicial notice of the
Court's file, and considered the applicable Federal Rules
of Civil Procedure and case law. The Court now being fully
informed makes the following findings of fact, conclusions of
law, and recommendation.
I.
BACKGROUND
The
following allegations are taken from Plaintiff' First
Amended Complaint (Docket No. 34) and are presumed to be true
for the purposes of this motion.
Plaintiff,
who is a black man from Antigua and Barbuda with a noticeable
Caribbean accent, is a former United employee. (Docket No. 34
¶¶ 1 & 6.) For more than a decade, Plaintiff
was a pilot for United Express-the brand name for the branch
of United Airlines that operates short and medium regional
flights-first as an officer, then as a captain. (Id.
¶ 8.) On January 5, 2016, Plaintiff was hired by United
as a first officer. (Id. ¶ 9.) While pilots are
covered by a collective bargaining agreement
(“CBA”) between United and the airline pilot
union, Air Line Pilots Association, International, they must
first serve a probationary period during which they cannot
file a grievance concerning discipline or discharge.
(Id. ¶ 10.)
Plaintiff
had his orientation in Denver, Colorado, where he scored well
on a written test and underwent a flight simulator
evaluation. (Id. ¶¶ 11-12.) During the
orientation, Plaintiff was promised that United is an equal
opportunity employer that did not discriminate, and diversity
was represented as a core value of the company. (Id.
¶ 11.) Plaintiff was teamed up with Cliff Davis-a white,
non-Caribbean man-for the simulations. (Id. ¶
12.)
Plaintiff
alleges that he was subject to the following acts of
harassment and discrimination during the training process:
• On January 28, 2016, Pilot Instructor
(“PI”) Jebb Baum permitted Davis to leave the
simulation early due to a previous engagement, while
Plaintiff had to complete the four-hour session.
(Id. ¶ 13.)
• When they returned on January 28, 2016, PI Charles
Taylor offered Williams a watermelon flavor Slurpee drink and
offered a cherry flavor to Davis, which Plaintiff alleges was
an intentional racial slur. (Id.)
• During another training session on February 2, 2018,
Taylor instructed Plaintiff to “just sit on your hands
and watch, ” and then criticized him for not doing
anything, refusing to acknowledge that he had told Plaintiff
to only sit and watch. (Id. ¶ 14.)
• On February 3, 2018, PI Brad Halloran told Plaintiff
and Davis, “I think both of you are doing a great job,
” and “[i]f I was giving you your evaluation you
both would have no problem passing.” He then addressed
Plaintiff, “Ellis, I don't find there's a
problem with you, I think you're just like a gentle
giant, ” which Plaintiff alleges is “reflective
of race discrimination and racial profiling by which large
black men [like Plaintiff] are considered dangerous.”
(Id. ¶ 15.)
• On February 4, 2016, Plaintiff alleges that Taylor
disparaged his abilities, and told him, “So far, I know
of four people who had failed and got fired, three of which
were Spanish with heavy accents.” Considering his
Caribbean accent, Plaintiff alleges that Taylor's
remarks, which were directed only at him, reflect national
origin discrimination. Taylor's behavior caused Plaintiff
to feel humiliated and nervous, so much so he had to take a
break during the training. (Id. ¶¶ 16-19.)
• Plaintiff passed this evaluation, but PI Taylor told
him that he needed to take Plaintiff to his boss over his
worry that Plaintiff would not be able to handle an actual
emergency because he does not talk. Meanwhile, Davis, who
also passed, got to leave. (Id. ¶ 20.)
• Plaintiff was never properly debriefed about what he
did right or wrong during the training exercise; instead, PI
Taylor took him to Rob Strickland, the Human Factor Manager.
(Taylor's boss was out of the office.) While they were
waiting, Taylor told Plaintiff that if it was not for Davis,
he would not have passed the evaluation, and then repeated to
Strickland his concerns about Plaintiff's ability to
handle himself in an emergency. Plaintiff informed Strickland
and Taylor that he had flown during actual emergencies.
Taylor then criticized a typographical error Plaintiff made,
and falsely implied that Plaintiff is probably dyslexic. On
leaving the meeting, Taylor stated that he was going to give
Plaintiff's next instructor/evaluator “the dirty
down low” about Plaintiff. (Id. ¶¶
21-22.)
• Plaintiff spoke to Halloran after he left
Strickland's office, but he did not tell him what
happened with Taylor out of fear of retaliation.
(Id. ¶ 23.)
• During his next few training sessions with instructors
Kevin Mauch and Steve Renfro, Plaintiff passed his
evaluations without incident. (Id. ¶ 24.)
• During the final phase of training, Plaintiff was
given extra training that Davis was not required to complete,
even though it was Davis, not Plaintiff, that needed it.
(Id. ¶¶ 25-29.)
• On March 8, 2016, Plaintiff failed his “check
ride” with Standards Captain Dave Wood due to
“frivolous” and pretextual concerns that
demonstrate that Wood made up his mind to fail him before the
evaluation even started. (Id. ¶¶ 30-31.)
• Strickland told Plaintiff, who was ill, to go home and
get some rest, so Plaintiff flew home to Washington D.C. When
he arrived, he discovered that he was actually scheduled for
training the next day, so he had to fly back, even though he
was sick. Plaintiff alleges that Davis was given time off,
and that he should have as well. (Id. ¶ 32.)
• On March 15, 2018, during his second ”check
ride, ” Plaintiff was subjected to discrimination by
Standards Captain Mark Rosenhahn and “seat-fill”
instructor Steve Renfro, when they failed for follow the
normal and proper conduct of a “check ride” and
did not abide by standard procedures. Rosenhahn then made
false comments to Flight Evaluator Bryan Wright, and
Plaintiff ended up failing the evaluation. (Id.
¶¶ 33-46.)
• On March 21, 2018, Plaintiff was given the option to
resign or be fired. He chose termination. ...