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Slimmarie Perrywatson v. United Airlines

January 10, 2011


The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole


Slimmarie Perrywatson was a flight attendant with United Airlines from 1978 until she was terminated on May 18, 2007. She appealed her termination, along with earlier disciplinary actions, through her union -- the Association of Flight Attendants ("AFA") -- before an arbitration panel. The hearing process concluded on August 6, 2008, and the panel upheld the termination and disciplinary charges on December 26, 2008. She filed discrimination charges with the Equal Employment Opportunity Commission ("EEOC") on May 7, 2009. She received a right-to-sue-letter about two weeks later because her charges were untimely.

Ms. Perrywatson then filed suit in the Northern District of Ohio on August 19, 2009, and the case was transferred here. Her three-count Amended Complaint is somewhat difficult to follow and is not as faithful to the commands of Rule 8(a) and (d)(1), Federal Rules of Civil Procedure, as it might be. The allegations regarding age discrimination, disability discrimination, retaliation for having filed grievances and workers' compensation claims are combined indiscriminately and incorporated by reference in each of the three Counts, which purport to be based on separate theories -- at least according to their captions. The allegations of Count One are fully incorporated by reference in Counts Two and Three and the allegations of Counts One and Two are fully incorporated by reference in Count Three.*fn1

Count One, captioned "Retaliation," alleges that United fired Ms. Perrywatson for having filed grievances against United in 2004 and 2005 and for pursuing claims through the Illinois Workers' Compensation Commission. (¶20). While Count Two, captioned "Disability and Age Discrimination," predictably charges that Ms. Perrywatson's termination in May 2007 by United was an act of "age and disability discrimination against her," it then goes on to allege that the "actual reason" for her termination was, in addition to her age and disability, her having filed "grievances from [United's] disciplinary actions and her [having] fil[ed] workers' compensation claims." (Count Two, ¶24). Count Two is also brought against the Association of Flight Attendants. Count Three, captioned "Wrongful Discharge," alleges that United failed to observe its own rules and regulations and contractual agreements regarding termination of employees. Count Three concludes with the allegations that plaintiff has been damaged "in an amount in excess of $25,000." (¶33). This allegation of damages also appears in Count One. (Id. at ¶21).

The Amended Complaint explicitly bottoms jurisdiction on 28 U.S.C.§§ 1331 and 1343 and alleges that the action is brought pursuant to the Americans With Disabilities Act of 1990, 42 U.S.C. § 12111 et seq, and the Age Discrimination in Employment Act of 1967, as amended. There are no allegations regarding the parties' citizenship or that the damages exceed $75,000, exclusive of interest and costs, as required by 28 U.S.C. §1332 where subject matter jurisdiction over one or more counts is based on diversity of citizenship. Finally, there are no references to any state statute or regulation on which a claim for wrongful discharge or retaliation might independently rest. To the extent that the Amended Complaint was intended to raise independent state law claims based upon Ms. Perrywatson having filed grievances and having made workers' compensation claims, there is supplemental jurisdiction. See Anderson v. AON Corp., 614 F.3d 361, 364 (7th Cir. 2010); Miller v. Herman, 600 F.3d 726, 738 (7th Cir. 2010).*fn2 United has moved for summary judgment.




Summary Judgment Procedure Under Local Rule 56.1 As always, the facts underlying this summary judgment proceeding are drawn from the parties' Local Rule 56.1 submissions. Local Rule 56.1 requires a party seeking summary judgment to include with its motion "a statement of material facts as to which the ... party contends there is no genuine issue and that entitle the ... party to a judgment as a matter of law." Local Rule 56.1(a)(3); Ciomber v. Cooperative Plus, Inc., 527 F.3d 635, 643 (7th Cir. 2008). Each paragraph must refer to the "affidavits, parts of the record, and other supporting materials" that substantiate the asserted facts. Local Rule 56.1(a)(3); F.T.C. v. Bay Area Business Council, Inc., 423 F.3d 627, 633 (7th Cir. 2005). The party opposing summary judgment must then respond to the movant's statement of proposed material facts; that response must contain both "a response to each numbered paragraph in the moving party's statement," Local Rule 56.1(b)(3)(B), Cracco v. Vitran Exp., Inc., 559 F.3d 625, 632 (7th Cir. 2009); Bay Area Business Council, Inc., 423 F.3d at 633, and a separate statement "consisting of short numbered paragraphs, of any additional facts that require the denial of summary judgment." Local Rule 56.1(b)(3)(C); Ciomber, 527 F.3d at 643.

If the moving party fails to comply with the rule, the motion can be denied without further consideration. Local Rule 56.1(a)(3); Smith v. Lamz, 321 F.3d 680, 682 n.1 (7th Cir. 2003). If the responding parting fails to comply, its additional facts may be ignored, and the properly supported facts asserted in the moving party's submission are deemed admitted. Local Rule 56.1(b)(3)(C); Montano v. City of Chicago, 535 F.3d 558, 569 (7th Cir. 2008); Cracco, 559 F.3d at 632; Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006). District courts are "'entitled to expect strict compliance'" with Rule 56.1, and do not abuse their discretion when they opt to disregard facts presented in a manner that does follow the rule's instructions Cracco, 559 F.3d at 632; Ciomber, 527 F.3d at 643; Ammons v. Aramark Unif. Servs., Inc., 368 F.3d 809, 817 (7th Cir. 2004). The court is not required to hunt for evidence in the record that supports a party's case if a party fails to point it out; that is the job of counsel. See Bay Area Business Council., 423 F.3d at 633 (court properly disregarded affidavits not referenced in 56.1 submission).

Ms. Perrywatson has neither responded to United's Rule 56.1(a) statement of facts nor submitted any additional facts of her own under 56.1(b). As such, United's properly supported factual assertions are deemed admitted and form the basis for consideration of this summary judgment motion.



From August 1, 1993, until she was terminated, Ms. Perrywatson worked as a flight attendant for United, working out of that airline's hub at Chicago's O'Hare International Airport. (United's Statement of Material Facts ("St."), ¶ 2). During her employment, she was represented by the AFA, which was a party to a collective bargaining agreement with United. (St., ¶¶ 3-4). Among other things, the collective bargaining agreement provides flight attendants with certain protections against being discharged from employment without just cause. (St.,¶ 5). It includes a grievance procedure for purposes of settling any dispute that arises under the agreement, including disputes over the allegedly improper dismissal of an employee covered by the agreement. (St.,¶ 6). This contractual grievance procedure culminates in an arbitration hearing before the System Board of Adjustment-an arbitral body created by the collective bargaining agreement in accordance with the mandate of the Railway Labor Act ("RLA") (St.,¶ 6).

Under the collective bargaining agreement, prior to August, 2008, when an employee engaged in an alleged action or inaction that may have resulted in suspension or discharge, United would issue a letter of charge setting forth precisely what occurred. (St., ¶ 7). The employee was then entitled to a hearing over the letter of charge. (St., ¶ 7). A member of United's management presided over the hearing and issued a written decision, called a letter of decision, which either suspended, dismissed, or declined to suspend or dismiss the employee. (St., ¶ 7). An employee may appeal the letter of decision to the System Board of Adjustment by filing a grievance. (St., ¶ 8). As discussed below, that is what occurred here.

On March 2, 2007, two first class passengers sent a letter to United CEO, Glenn Tilton, complaining about Plaintiff's conduct during a flight from O'Hare to San Antonio International Airport. The passengers stated that Ms. Perrywatson aggressively berated them for talking during a safety presentation. Retired United pilot, Richard Horton, was also sitting in the first-class cabin on the flight and witnessed the events in question, and described Ms. Perrywatson as "abusive, bullying, and humiliating." (St., ¶ 11; Ex. 4, at 1). As a result of the passengers' complaint, United issued a letter of charge against Ms. Perrywatson on April 18, 2007. (St.,¶ 12).

Under the terms of the collective bargaining agreement, United Supervisor of Onboard Service, Nancy Castro, conducted a hearing on the letter of charge to determine what, if any, action United should take against Ms. Perrywatson as a result of the incident. United, the AFA, and Ms. Perrywatson presented their positions to Ms. Castro at the hearing. Neither AFA nor Ms. Perrywatson contended that United's action was motivated by Ms. Perrywatson's prior contractual grievances, workers' compensation claims, age, or purported disability. (St., ¶ 13). After the hearing, Ms. Castro found that Ms. Perrywatson "stopp[ed] in the middle of [her] safety demonstration and singl[ed] out two . . . first class passengers in a loud and agitated state," received warranted prior discipline and suspensions, and was undependable in meeting her scheduled flight obligations. (St., ¶ 14). She issued a letter of decision on May 18, 2007, in which she explained that she had decided to terminate Ms. Perrywatson's employment for these serious performance issues. (St., ¶ 14). United formally terminated Ms. Perrywatson that day. Ms. Castro now avers that neither Ms. Perrywatson's 2004 and 2005 grievances, her workers' compensation claims, her age, nor her alleged disability entered into her decision. (St., ¶ 14, Ex. D, Castro Aff., ¶ 9).

The AFA filed a grievance over Ms. Perrywatson's dismissal by appealing Ms. Castro's letter of decision to the System Board of Adjustment. The grievance was processed along with two other grievances over prior suspensions from 2004 and 2005. Specifically, the issues before the System Board of Adjustment were: (1) whether United's amended letter of decision dated May 5, 2004, suspending the grievant for three days was without just cause; (2) whether United's letter of decision dated July 14, 2005, suspending the grievant for thirty days was without just cause; (3) whether United's letter of decision dated May 18, 2007, terminating the grievant was without just cause. (St.,¶ 16).

At the hearing, the AFA and Ms. Perrywatson contended that United did not have just cause to discharge Ms. Perrywatson for her conduct toward the first-class customers or to issue the previous suspensions against her. (St., ¶ 18; Ex A(2) at 23-24, 26). During the hearing, neither the union nor Ms. Perrywatson claimed that United terminated her employment because of her grievances, workers' compensation claims, age, or alleged disability. Rather, Ms. Perrywatson claimed that her dismissal was improper because: the first-class passengers' accounts of her actions on the flight to San Antonio were exaggerated; the passengers should not have been talking during the safety briefing; the System Board of Adjustment should take into account her frustration with the passengers' conversation during the safety briefing; she did not intend to yell or be loud toward the passengers; the passengers' complaint was an isolated incident, and she had received many commendations from passengers while she was employed by United. (St., ¶19). The System Board of Adjustment denied the grievance and upheld United's decision to terminate Ms. Perrywatson. (St., ¶ 20).

In its ruling, the Board concluded: that the serious onboard incident, combined with the two prior suspensions and poor record of dependability, provide the Company with just cause to discharge [Ms. Perrywatson] and this is the case notwithstanding her many years of service. It is the decision of the Board that the Company had just cause to terminate the grievant. (St., ¶ 20; Ex. A(2) at 34). Ms. Perrywatson did not move to vacate or alter or otherwise challenge the decision. (St., ¶ 21). She filed a charge of discrimination against United with the EEOC on May 7, 2009. In it, she claimed:

I believe that I have been discriminated against on the basis of my age (52), and on the basis of my disability, in violation of the Age Discrimination in Employment Act of 1967 and Title I of the Americans with Disabilities Act of 1990, as amended. (St., ΒΆ 22; Ex. A(5)). Ms. Perrywatson's claim was ...

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