United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT UNITED
AIRLINES, INC.'S MOTION FOR SUMMARY JUDGMENT (DKT.
REID NEUREITER UNITED STATES MAGISTRATE JUDGE
matter is before the Court pursuant to an Order (Dkt. #89)
issued by Judge Lewis T. Babcock referring Defendant United
Airlines, Inc.'s (“United”) Motion for
Summary Judgment. Dkt. #86. The Court has reviewed the
subject motion (Dkt. 86), Plaintiff Ellis Williams'
Response (Dkt. #99), United's Reply, (Dkt. #103), and Mr.
Williams' Sur-Reply (Dkt. #108). The Court heard oral
argument on the subject motion on August 14, 2019.
See Dkt. #107. The Court has taken judicial notice
of the Court's file and considered the applicable Federal
Rules of Civil Procedure and case law. Now, being fully
informed and for the reasons discussed below, I recommend
that United's Motion for Summary Judgment (Dkt. #86) be
an employment discrimination case. Mr. Williams alleges that
during his probationary pilot training with United, he
experienced racial and national origin discrimination. He
asserts claims for discrimination and retaliation under Title
VII, 42 U.S.C. § 1981, and the Colorado
Anti-Discrimination Act (“CADA”), and for hostile
work environment. United now seeks summary judgment.
on the briefing and evidence submitted, the parties agree as
follows, unless noted. Where a dispute exists, the Court
construes the facts most favorable to Mr. Williams, the
Williams, who is black and of Antiguan descent, applied to be
a pilot at United in 2015. Dkt. #86 at 3, ¶
He was offered a position of First Officer upon the
successful completion of United's training program.
Id. at 4, ¶ 4. Mr. Williams' training had
several components, including nine days of basic
indoctrination training, seven days of systems training, six
days of procedures validation training, five days of
maneuvers training, six days of line oriented flight training
(“LOFT”), four “warm-up” sessions,
and two qualification line oriented evaluations (a
“QLOE” or “check-ride”). Id.
at 4-5, ¶ 5. While United contends that the six days of
LOFT is two more than most students need, id., as
discussed below, Mr. Williams states that he did not need the
extra training and, in any case, he did not actually fly
during those additional sessions. Dkt. #99 at 17,
Williams' training was supervised by Rob Strickland,
Senior Manager of Human Factors and Pilot Development, who is
black and who never acted in a discriminatory manner towards
Mr. Williams. Dkt. #86 at 5, ¶ 6. There were also two
other black probationary pilots in Mr. Williams' new hire
class, both of whom passed their training and remain employed
by United. Id. at 6, ¶ 7.
Williams' allegations of discrimination originate with
the behavior of First Officer Chuck Taylor, who performed the
procedures validation training. On January 31, 2016, First
Officer Taylor brought Slurpee drinks to the first training
session he had with Mr. Williams and his training partner,
Captain Cliff Davis. Id. at 6, ¶ 8. Mr.
Williams claims that he was given a watermelon-flavored
Slurpee as “an intentional racial slur” because
“the stereotype that African Americans are excessively
fond of watermelon is a racist trope historically used for
political purposes to denigrate black people[.]” Dkt
#99 at 5, ¶ C. United disputes that First Officer Taylor
bought or offered Mr. Williams a watermelon-flavored Slurpee,
and instead asserts that he brought cherry, grape, and blue
coconut-flavored frozen drinks to the training. Dkt. #86 at 6,
the procedures validation training, First Officer Taylor
observed that Mr. Williams had pacing issues, would stop
responding, and would sit there “not doing
anything.” Id. at 6, ¶ 10. Mr. Williams
claims that this criticism was unfair because Mr. Taylor
instructed him to “just sit on your hands and
watch.” Dkt. #99 at 5, ¶ D. Mr. Williams also
claims that First Officer Taylor told him, “So far, I
know of four of people who have failed and got fired, three
of which were Hispanic with heavy accents, ” which Mr.
Williams believes is “per se evidence of national
origin discrimination, ” considering Mr. Williams
speaks English with a Caribbean accent. Id. at 6-7,
¶ G. First Officer Taylor testified that he mentioned a
previous student with a Spanish accent because he was trying
to figure out if communication issues were causing Mr.
Williams' pacing problems. Dkt. #103 at 14.
Officer Taylor then said that Captain Davis, who is white,
“isn't going to let [Mr. Williams] make him fail
his check ride, ” and further speculated to Mr.
Strickland that Mr. Williams was dyslexic because he
mis-typed one of waypoints into the computer system. Dkt. #99
at 7, ¶ H. First Officer Taylor, who is dyslexic
himself, testified that this was another attempt to diagnose
the possible cause of Mr. Williams' performance problems.
Dkt. #103 at 21-22.
Williams claims he called Mr. Strickland to complain about
this treatment, but nothing was done about it. Dkt. #99 at 7,
¶ J. At First Officer Taylor's prompting, Mr.
Strickland did give Mr. Williams some mental and
physiological tips, after which his performance improved.
Dkt. #86 at 6, ¶ 10. Mr. Strickland also reached out by
email to First Officer Kevin Mauch, who was involved in Mr.
Williams' maneuvers training, to assist Mr. Williams with
his communication issues. Dkt. #99-11. Ultimately, Mr.
Williams passed his procedures validation and maneuvers
training. Dkt. #86 at 7, ¶ 13.
First Officer Taylor passing him, Mr. Williams asserts that
First Officer gossiped about his performance with other
instructors, which influenced Mr. Williams' remaining
training experience. Dkt. #99 at 7, ¶ I. For example, on
February 3, 2016, First Officer Brad Halloran told Mr.
Williams, “Ellis, I don't find there's a
problem with you, I think you're just like a gentle
giant.” Id. at 5, ¶ F. In addition to
finding this comment prejudicial and demeaning (Mr. Williams
is 6'4” and 300 pounds), Mr. Williams claims that
it shows that Mr. Taylor's alleged biases were being
passed on to other United personnel. Id.
Williams claims that his February 14-17, 2016 LOFT sessions
with First Officer Todd Ziegler were similarly marred by
First Officer Taylor spreading “the dirty low
down” to other instructors. Id. at 8-9,
¶¶ K-M. After Mr. Williams' fourth full flight
simulator (“FFS”) ride (the first three went
fine), First Officer Ziegler wrote that Mr. Williams
“[d]oes not accurately prioritize tasks” and
“[d]oes not speak up with questions or concerns as
often as he should.” Dkt. #86 at 8 ¶ 15. Mr.
Williams claims these criticisms were “foolish”
and “preposterous, ” as well as discriminatory
because his white training partner, Captain Davis, was not
subjected to comparable reproaches. Dkt. #99 at 8, ¶ K.
First Officer Zeigler scheduled Mr. Williams for two extra
training sessions which Mr. Williams contends were not
needed. Id. at 9, ¶ M.
the LOFT sessions with First Officer Zeigler, Mr. Williams
and Captain Davis were placed on separate crews. Id.
at 9-10, ¶ N. Mr. Williams alleges that this was
discriminatory because, per United's protocols, training
partners were generally kept together, and without Mr. Davis,
Mr. Williams “no longer had a comparator” to
evaluate him against. Id. He also claims that his
eventual pairing with an instructor, “as opposed to an
actual pilot, ” harmed Mr. Williams' training
because “there's no penalty” if an instructor
performs poorly. Id. However, United claims that
First Officer Ziegler recommended that First Officer Davis
proceed to his check ride because he was ready for the
examination and “there was no reason to keep him behind
to stay with Mr. Williams for his additional training.”
Dkt. #99 at 18, ¶ 46. United further points out that its
Advanced Qualification Program (“AQP”) provides
that while “[[f]light crewmember substitution is highly
discouraged since it distracts from realism and may inhibit
good training and/or evaluations, ” it does not
prohibit such substitutions when “necessary.”
See Dkt. No. 99-5 at 2-3. The AQP also allows
instructors to serve as substitute crewmembers. Id.
issues arose during Mr. Williams' additional LOFT rides.
First Officer Greg Schuster noted in the Additional Training
Worksheet that Mr. Williams' “major trouble point
for today was not flying in the [flight director] while
hand-flying Dkt. #86 at 8 ¶ 16. However, Mr. Williams
points out that he passed this training exercise. Dkt. #99 at
10, ¶ O. Then, First Officer Dave Prewitt observed that
Mr. Williams was “below standard in Ground operations
to include Supplementary engine start procedures,
Pushback/after start, re-routes and CRM [crew resources
management]/TEM workload management.” Dkt. #86 at 8
¶ 17. Mr. Williams concedes that this report was made
but responds that these “warm-up” sessions are
normally not subject to evaluation and documentation. Dkt.
#99 at 18.
result of Mr. Williams' alleged deficiencies, Mr.
Strickland arranged for a probationary review panel to create
a remediation strategy and plan. Dkt. #86 at 9, ¶ 19.
Mr. Williams was not informed of the creation of this or any
of the subsequent panels, and no one on the panel had direct
knowledge of what happened during the FFS rides; instead,
they relied on training logs and a briefing by Mr.
Strickland. Dkt. #99 at 10, ¶ P. The panel determined
that additional training was necessary, but Mr. Williams
states he was not allowed to fly during the three added
sessions. Id. at 11, ¶ Q. Instead, he
programmed the computer and was timed “loading the box,
” i.e., coordinating the flight plan. Dkt. #86 at 10
event, on March 7, 2016, First Officer Steve Renfro, who
evaluated Mr. Williams' maneuvers training, recommended
Mr. Williams for his check ride, which is the final stage of
pilot training. Dkt. #86 at 10, ¶ 24. Check rides are
Federal Aviation Administration (“FAA”)
examinations, meaning that the FAA, not United, establishes
the relevant criteria, and each pilot must pass the exam to
receive the necessary licenses, certifications, and
endorsements. Id., ¶ 25. While the evaluators
are United employees, they are also designated
representatives of the FAA and conduct the examinations on
behalf of the FAA. Dkt. #86-2 at 6.
March 8, 2016, Mr. Williams attempted his first check ride.
Id. at 11, ¶ 27. The evaluator was Captain Dave
Wood, a United employee since 1988, and First Officer Pete
Catalano served as the captain (“captain
seat-fill”). Id. Captain Wood did not pass Mr.
Williams. Id., ¶ 28. He noted several problems,
including, “Ground ops was patchy, ”
“missed bleeds switches during pneumatic start, ”
“turned off APU gen . . . and turned on max autobrakes,
” “did not advocate for himself” while
taxiing out, and reacted inappropriately to a traffic
collision avoidance system (“TCAS”) event. Dkt.
#86-27 at 2. Mr. Williams disputes he had any of these
difficulties and claims that he “numerically passed
this check ride based on AQP Difficulty Equivalency.”
Dkt. #99 at 20. Mr. Williams also points out that the check
ride was not recorded and Captain Wood's score sheet was
“somehow” lost. Id. at 12, ¶ R.
final review panel convened on March 10, 2016 to decide Mr.
Williams's future with United, Mr. Williams was given
another opportunity to complete the training. Dkt. #86 at 12,
¶ 30. He had two additional warm-up sessions, the last
with First Officer Renfro, who then recommended a second
check ride. The evaluator this time was Captain Mark
Rosenhahn, a United employee since July 1989, with First
Officer Renfro serving as the captain seat-fill. Dkt. #86 at
10, ¶¶ 22-24.
Williams arguably fared worse on his second check ride. In
his Additional Training Report, Captain Rosenhahn noted,
among other things, that Mr. Williams:
• Had difficulties locating and completing the
appropriate checklist ...