Citations
- 546 F. Supp. 2d 703
Full opinion text
ORDER
STEPHEN M. McNAMEE, District Judge.
Currently pending before the Court are Defendant Executive Jet Management, Inc.’s (“EJM”) Motion for Summary Judgment (Doc. 123) filed pursuant to Federal Rule of Civil Procedure 56, and Plaintiffs’ Motion Requesting Two Statement of Facts Be Deemed NonAdmitted (Doc. 148). The motions are fully briefed and ripe for consideration.
As a preliminary matter, the Court will address Plaintiffs’ Motion Requesting Two Statement of Facts Be Deemed Non-Admitted (Doc. 148). Plaintiffs request that the Court issue an order finding that Plaintiffs’ responses to Statements of Fact 135 and 139 in Support of Defendant’s Motion for Summary Judgment be recognized as disputed, rather than admitted, based on the fact that Plaintiffs’ counsel inadvertently and incorrectly asserted that the statements were not in dispute. Plaintiffs’ counsel contends that they did not “intend! ] to suggest to the Court that Plaintiffs did not dispute the substance of the testimony itself or the credibility of the deponents.”
The two statements of fact pertain to the personal beliefs of EJM Executive Vice President Richard Williams and the personal opinion of EJM President A1 Pod and were drawn directly from their respective depositions. The Court finds that despite their apparent effort to remedy this situation, Plaintiffs have failed to produce evidence disputing the specific deposition testimony. Rather, Plaintiffs submitted to the Court an affidavit of Plaintiffs’ counsel attesting to her intentions in preparing the responses. Providing an affidavit of Plaintiffs’ counsel does not create a material dispute regarding the specific statements of fact, it merely substantiates counsel’s attestation regarding her own conduct, rather than calling into question the credibility of the deponents or substance of the statements of fact in question. Thus, the Court is left with no basis to justify issuing an order such as the order requested by Plaintiffs. Therefore, Plaintiffs’ motion (Doc. 148) is hereby DENIED. Moreover, a Court cannot judge the credibility of a witness when ruling on a motion for summary judgment, credibility is a matter for a jury to decide. Spring Co. v. Edgar, U.S. 645, 658 (October Term, 1878).
PROCEDURAL HISTORY
This case arises out of EJM’s decision to discharge Plaintiffs from their employment at EJM. EJM contends that there are no genuine issues of material fact in this case and EJM is entitled to judgment as a matter of law. Plaintiffs, on the other hand, contend that they would not have been discharged for engaging in inappropriate conduct toward a flight attendant had Plaintiffs been non-Caucasian employees, female employees, and/or employees of non-American descent.
On December 21, 2004, Plaintiffs Michael R. Prince (“Prince”), Aric A. Aldrich (“Aldrich”), and Gregory S. Hawn (“Hawn”)(collectively referred to as “Plaintiffs”) filed a Complaint against Defendant EJM. Therein, Plaintiffs allege that they were discriminated against based on their gender, race, and national origin with respect to their discharge and as such seek relief under Title VII of the Civil Rights Act of 1964, as Amended, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981.
BACKGROUND
Plaintiffs were all formerly employed as pilots for EJM. Prior to their employment, Plaintiffs had previously never worked with flight attendants.
Plaintiffs’ terminations all came subsequent to allegations of sexual harassment made by another EJM employee, flight attendant Robyn McCrea (McCrea). On or about January 6, 2008, McCrea lodged a verbal complaint regarding conduct allegedly engaged in by Aldrich during a two day training seminar which occurred on January 3rd and 4th of 2003. The complaint was investigated internally, and Aid-rich was disciplined on or about January 14, 2003. On the same date, EJM received a 14-page complaint from McCrea alleging additional incidents of sexual harassment against Aldrich, as well as Prince and Hawn. Therein, McCrea alleged that she was subjected to hostile work environment sexual harassment based on the alleged actions of all three Plaintiffs. Thereafter, EJM hired a third party investigator to commence an investigation into McCrea’s allegations.
Executive Jet’s President, Albert C. Pod, solicited the opinions of senior management who had reviewed the investigator’s report. Consequently, Pod determined that McCrea was “more credible than not” in her allegations against Plaintiffs and issued instructions for the discharge of Plaintiffs. The terminations took place on April 18, 2003, and were reportedly for Plaintiffs’ “inappropriate behavior.” During the course of EJM’s investigation, McCrea filed a charge of discrimination with the EEOC. Approximately three months after Plaintiffs’ termination, the EEOC’s investigation into the same allegations of sexual harassment resulted in a determination against EJM for a violation of Title VII. The EEOC found merit in McCrea’s claim of hostile work environment sexual harassment.
Thereafter, on February 27, 2004 and March 2, 2004, Plaintiffs filed their charges of discrimination with the EEOC. The Commission dismissed the charges on September 22, 2004. Notwithstanding the dismissal, Plaintiffs herein allege that they were discriminatorily discharged on the basis of gender, race, and national origin.
UNDISPUTED FACTS
1. Executive Jet Management is engaged in the business of aircraft management and air charter operations.
2. Plaintiff Aric Aldrich was employed as a phot by EJM from May 30, 2001 until April 18, 2003.
3. Plaintiff Michael Prince was employed as a pilot by EJM from July 26, 1999 until April 18, 2003. [EJM’s Response to Prince’s First Request for Production]
4. Plaintiff Gregory Hawn (“Hawn”) was employed as a pilot by Executive Jet on the shuttle operations from February 3, 2002 until April 18, 2003. [EJM’s Response to Hawn’s First Request for Production]
5. On or about January 6, 2003, a flight attendant on the shuttle operations, Robyn McCrea, contacted her supervisor, Lead Flight Attendant Amy Jackson, with a complaint regarding Aldrich’s behavior. [Chakerian Dep.]
6. Jackson reported the conduct to Chief Pilot Chakerian:
[McCrea] told me that pilots are rude not just during training, but also at work. I asked her if it was all pilots she was referring to. She said, no — specifically Aric Aldrich makes her uncomfortable when he discusses topics of a sexual nature and that he makes derogatory remarks toward women. She said that a few of the other pilots will sometimes join in, but that Aric [Aldrich] is the instigator. I asked her if she has told him that his comments make her uncomfortable. She said, yes she has told him numerous times, “I don’t want to hear it, please stop.” [Id.]
7. McCrea further told Jackson that “this type of behavior is making her work environment uncomfortable to the point that she does not want to go to work if she is scheduled to fly with [Aldrich].” [Id.]
8. Executive Jet’s Human Resources Manager, Cynthia Brusman, contacted Chakerian, “indicating that she had been contacted [by McCrea] and wanted to know what was going on” regarding the alleged conduct. [Chakerian Dep. at 14:14-17]
9. During a conference call on or about January 6 or 7, 2003, with Vice President of Flight Operations Dan O’Neal, Director of Operations George Curtis, Brusman and Chakerian, it was decided that Brusman would speak with McCrea regarding the alleged conduct of Aldrich. [Chakerian Dep.]
10. Chakerian was instructed to investigate the allegations made by McCrea against Aldrich. [Chakerian Dep. at 14:18-24]
11. During the investigation, fellow EJM employee Stoffel reported that Prince raised the subject of animals and sex shows. [Chakerian Dep. at 65:15-19]
12. With regard to the comment about animals and sex shows, Chakerian testified, “I believe what Mr. Aldrich had said was that he hadn’t said that, and that Mr. Prince had said it.” [Id. at 67:8-13]
13. Meanwhile, Brusman spoke with McCrea about the allegations and asked McCrea to put them in writing and send them to her. [Brusman Dep. at 72:8-10]
14. Chakerian then met with Brusman and EJM’s President, Albert C. Pod, regarding the results of his investigation. [Brusman Dep. at 59:7-14]
15. Brusman did not find Chakerian’s report to be credible. According to her: “Based on what I had already heard from [McCrea], and what [Chakerian] was saying, my gut feeling was it wasn’t jiving, and that he was basically defending Aid-rich. I didn’t believe a word he said.” [Id. at 59:18-25, 60:1-2]
16. Chakerian testified that Aldrich admitted that “he had joked around with the crew.” [Chakerian Dep. at 79:10-16]
17. Chakerian and Aldrich also met with O’Neal and Curtis while they were in Cincinnati. [Chakerian Dep.]
18. According to Chakerian’s testimony and a letter he wrote regarding the issue, during the meeting in O’Neal’s office, O’Neal issued Aldrich a verbal warning. [Id.]
19. According to Chakerian:
Mr. Aldrich started the progressive disciplinaryrocess in early January, 2003 in Cincinnati by Mr. Dan O’Neal, Vice-President of Operations. George Curtis and I witnessed the counseling session and verbal warning he received for the behavior for which he is now being terminated. [Id.]
20. Chakerian testified that O’Neal admonished Aldrich:
You’re in a leadership position now as lead of the Arizona domicile. And joking around and being part of the group takes on a different meaning when you’re in a leadership position.... You just can’t joke with your staff as being part of that staff. You have to be more discrete.
[Chakerian Dep. at 39:21-25, 40:1-2]
21. On or about January 14, 2003, McCrea telefaxed written allegations to Brusman pursuant to the request of the Human Resources Manager. [Brusman Dep.]
22. Brusman took the document to Pod and they reviewed the additional allegations of harassment. [Id. at 76:11-17]
23. O’Neal called Pod, who indicated the Company had just received a 14-page telefax from McCrea with additional allegations of hostile environment involving Aldrich, including:
One evening at dinner with Aldrich, Tonti and EJM pilot Paul Moenning, Aldrich made rude gestures across the table at McCrea, including “mimickfing] oral sex with his tongue.” EJM’S Response to Prince’s 3rd Request for Production (“Sterling Report”)
During a meal at Denny’s Restaurant, Aldrich related to McCrea and Stoffel an incident about his prior employment with another company wherein a client “sent two naked hookers up to the cockpit and they sat on his lap.” [Id.]
Aldrich asked McCrea whether she cleaned or touched her horse’s penis, and then continued to talk about people “having sex with their horse.” [Id.] Aldrich made a remark to her regarding “tea bagging,” in reference to oral sex. [Doc. # MP02658]
Aldrich referred to his wife as a “dirty bitch” or “dirty whore” and frequently discussed “the fact that they never ha[d] sex anymore.... ” [Doc. # MP02646]
24. McCrea also claimed that Prince engaged in conduct creating a hostile work environment, including:
While returning from lunch one day, Prince commented that “he sure would love to suck on Pamela Anderson’s tits, and how does she breastfeed her kid with those?” [Doc. # MP02649]
Sending McCrea e-mail messages of a sexual nature or sexual in content. [Doe. # MP02670-MP02720]
Discussing women having sex with donkeys. [Doc. # MP02655]
Discussing a video about “a woman tied up, acting like she enjoyed it, being gang raped and assaulted.” [Id.]
Telling dirty jokes, including one with a punch line involving testicles. [Doc. # MP02656]
While seated next to Prince in an airport, he signaled to her by pointing his finger to his groin area while watching a suggestively dressed woman pass by to imply that he was having an erection or that looking at the woman gave him such an idea. [Doc. # MP02657]
25. McCrea further claimed that Hawn engaged in conduct creating a hostile work environment, including:
Pinching her on the buttocks. [Doc. # MP02650]
Discussing with Aldrich in her presence “the merits of a woman who claims to have sex with hundreds of men.” [Id.] Encouraging an EJM employee to lift up her shirt and “flash” him because it was his birthday. McCrea confronted Hawn in the crew lounge and in the presence of Stoffel, among others, told him that his conduct was “inappropriate and could be considered as sexual harassment.” [Doc. # MP02650-51 ] Telling dirty jokes, including a joke regarding oral sex. [Doc. # MP02656] Making a remark to her regarding “tea bagging” in reference to oral sex. [Doc.
# MP02658]
26. On January 27, 2003, McCrea filed a Charge of Discrimination alleging hostile work environment with the Equal Employment Opportunity Commission (“EEOC” or “Commission”). [Brusman Dep. at 113:11-19]
27. Executive Jet retained the services of International Security Associates (“ISA”) to investigate the new allegations of hostile work environment by McCrea. [Pod Dep. at 29:1-6]
28. James (“Jim”) Sterling was assigned to the fact-finding investigation. During the period from January 31 through March 24, 2003, Sterling interviewed 21 individuals, including McCrea, a third party trainer, and current and former EJM employees. [Sterling Report]
29. At the outset of his interview with Prince, Sterling noted in his report that “Capt. Prince appeared to be very nervous throughout the interview. He excused himself twice during the interview to go to the bathroom. The first time was shortly after we started.” [Doc. # MP02599]
30. Sterling also reported that Prince was not forthcoming with revealing a certain e-mail address at the outset of the interview. [/<£]
31. Prince reported to Sterling that McCrea “hit him on the butt twice.” [Doc. # MP02603 ]
32. Sterling continued: “I asked him if he reported it to anyone and he said no.” [Id.]
33. Sterling further reported: “I asked him if there was anything else that he wanted to add and he replied no, but I do have a question for you. I said okay, and he asked me if he should start looking for another job? I explained to him that was not my call. I shared with him that the company would review my report and that they would decide what if anything should be done.” [Id.]
34. Subsequent to the meeting with Sterling, Prince became concerned that his job was in jeopardy based on the content of the meeting and the nature of the questions asked by Sterling. [Prince Dep. at 100:22-25,101:2]
35. Aldrich and Sterling met for approximately three hours. [Aldrich Dep. at 92:20-21 ]
36. During the meeting, Aldrich had an opportunity to rebut McCrea’s allegations. [Id. at 94:8-18]
37. During his interview, Aldrich denied relating a story to McCrea and Stoffel wherein “two naked hookers [came] up front and [sat] on his lap.” [Doc. # MP02604]
38. Sterling reported: “When I asked him to describe what he said to McCrea he replied: ‘he was relating a situation where a customer had two (2) strippers flying with him and that they said hello to him, that’s all.’ ”[Id.]
39. Sterling reported that Aldrich admitted to telling “dirty jokes” in the cockpit. [Doc. # MP02605]
40. Sterling reported: “I asked him if this was documented and he said no. I then asked why none of these ‘talks’ were ever documented? He explained that Mr. Chakerian had told him ‘to talk to them, not to write anything down.’ ” [Id.]
41. At the conclusion of the interviews, Sterling presented a written report of the fact-finding investigation, with exhibits, to E JM. [Doc. # MP02576-MP02745]
42. Brusman read the report. [Brusman Dep. at 79:25, 80:1 ] She was of the opinion that Prince, Hawn and Aldrich should be terminated. [Brusman Dep. at 49:12-16, 66:3-5, 66:15-25, 67:1; Pod Dep. at 15:17-25]
43. Vice President O’Neal was also of the opinion that Prince, Hawn, and Aldrich should be terminated. [Pod Dep. at 14:8-25]
44. Executive Vice President Richard Williams read the Sterling Report and believed that a majority of McCrea’s allegations had been substantiated; that sexual harassment had occurred; and that the Plaintiffs should be terminated. [Id. at 12:17-19,13:10-18]
45. President A1 Pod inquired of Brusman and/or O’Neal “how they saw the facts.” [Pod Dep. at 25:4-25, 26:1-12] He also asked Williams for his opinion. [Williams Dep. at 11:17-18] Pod, likewise, read Sterling’s report and was of the opinion that McCrea was “[m]ore credible than not.”. [Pod Dep. at 8:16-17; 33:14-19]
46. Pod decided to terminate Prince, Hawn and Aldrich. [Response No. 9, EJM’s Responses to Prince’s First Set of Interrogatories; Response No. 1, EJM’s Responses to Hawn’s First Set of Interrogatories; Response No. 1, EJM’s Responses to Aldrich’s First Set of Interrogatories]
47. On Friday, April 18, 2003 Pod instructed Hal Raber, Director of Operations, to discharge Prince, Hawn and Aid-rich. [Hal Raber Dep. at 7:4-10, 17:15-20]
48. Pod did not discuss with Raber the nature of the allegations against Prince, Hawn, and/or Aldrich. [Id. at 16:22-25, 17:1-5,17:21-25]
49. Raber traveled to Phoenix on Sunday, met with each pilot, and advised each of his termination from EJM. [Id. at 16:16-21; Prince Dep. at 101:3-25, 102:1-21; Hawn Dep. at 39:8-23; Aldrich Dep. at 105:1-12]
50. Prince testified that he understood that his termination was based on the allegations of Robyn McCrea: “I figured it had to do something with the investigation and the investigation led me to believe Robyn McCrea.” [Id. at 102:10-21 ]
51. The termination letters read, in part:
It has been determined that you have exhibited job behaviors that are in violation of the Executive Jet Management Employee Handbook Policy # 126. Therefore your employment with Executive Jet Management is terminated, effective immediately. [Prince Dep.; Hawn Dep.;Aldrich Dep.]
52. On July 16, 2003, the EEOC issued a determination finding merit to McCrea’s charge of discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964. According to the Commission:
Examination of the evidence revealed that Respondent fostered a hostile work environment created by demeaning, crude, derogatory sex-based remarks and touching by male managers and employees. Despite Respondent’s denial, the evidence shows that the charging party was required to work in a hostile environment in which derogatory, sex-based vulgar comments were regularly used and inappropriate touching occurred ...*** [Id.]
53. Plaintiffs identify their race as “Caucasian.” [Complaint ¶ 7, Docket No. 1, filed December 21, 2004.]
54. Prince testified that he did “not necessarily” believe that EJM targeted him for discharge because he is Caucasian. [Prince Dep. at 64:22-25, 65:2-3]
55. Prince further testified that he did not know what EJM’s motivation was in terminating his employment. [Id. 65:10-11]
56. Hawn testified that he believed he was terminated by EJM “to let EJM wash their hands of the situation and make themselves right in the eyes of the EEOC,” and “to appease the EEOC of the lawsuit by Robin [sic] McCrea.” [Hawn Dep. at 34:10-18,105:16-20]
57. Aldrich testified that he “was terminated due to the sexual harassment charges.” [Aldrich Dep. at 102:20-23]
58. Prince identified his national origin as “born in the United States.” [Prince Dep. at 62:15-16]
59. Hawn identified his national origin as “American.” [Hawn Dep. at 104:20-25, 105:1]
60. Aldrich identified his national origin as “Caucasian American of European descent.” [Aldrich’s Responses to EJM’s First Set of Interrogatories, Requests for Admissions and Production of Documents]
61. Brusman testified that if an employee sends a sexually explicit e-mail message from his/her home account to another employee’s home account, EJM does not become involved in the matter because the Company “can’t regulate what they do at home.” [Brusman Dep. at 31:3-8] However, if the recipient of the e-mail complains to EJM, the Company investigates the matter, “even if [the e-mail is] sent to their home.” [Id. at 31:22-24]
62. Executive Jet’s business e-mail accounts end with “EJMJets.com” or “NetJets.com.” [Brusman Dep. at 119:14-16]
63. Kropoff forwarded e-mail messages identified by Jim Sterling in his report as “Exhibit # 9” through “Exhibit # 19” to Prince, among others. [Doc. # MP02670-MP02720].
64. Prince subsequently forwarded the emails to McCrea. [Id.]
65. McCrea provided these e-mail messages to Sterling during his investigation into her complaints of sexual harassment. [Doc. # MPO2594-MP02595]
66. Kropoff used the following e-mail account when forwarding the e-mail messages . to Prince: “Brandy Kropoff’