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HICKEY-MCALLISTER v. BRITISH AIRWAYS

September 26, 1997

EILEEN HICKEY-McALLISTER, Plaintiff, against BRITISH AIRWAYS, et al., Defendants


The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 FACTS

 On this motion to dismiss, *fn1" the facts alleged in plaintiff's complaint, set forth below, are taken as true.

 Plaintiff is now, and was at all relevant times, an employee of British Airways. In 1993, plaintiff was assigned to the airline's Special Services Division, which provides assistance to priority passengers. On December 13, 1993, plaintiff boarded a British Airways flight to greet a Bahrainian prince and his assistant. Plaintiff led those two passengers to the British Airways terminal, where she was approached by defendant Anton who, using "physical intimidation, verbal threats to pull plaintiff's hologram, and harassment," demanded the passports of the prince and his assistant. In response to Anton's conduct, plaintiff reported his "harassing behavior" to three of his supervisors.

 As a result of plaintiff's purported refusal to surrender the passports of the prince and his assistant, her hologram, which served as an identification card, was taken from her, and her access to Customs security areas was revoked by the Customs Service for an eight-day period, from January 12 to January 20, 1994. In so penalizing plaintiff, the Customs Service asserted that she had received a verbal warning as early as October 2, 1992, when she impeded the processing of another passenger. After plaintiff's access to the Customs security areas was revoked, British Airways suspended her without pay. *fn2"

 In mid-January 1994, a penalty action for liquidated damages in the amount of $ 1,000 was filed by the Customs Service against British Airways on the ground that plaintiff had violated federal regulations. Agreeing that plaintiff had violated regulations, British Airways subsequently paid the $ 1,000 penalty. However, in an attempt to mitigate the penalty, defendant Smith, who is the manager of passenger services at British Airways, advised the Customs Service that he had spoken with plaintiff and that plaintiff had expressed remorse and assured him that there would be no further conflicts. Plaintiff alleges that she expressed to Smith neither remorse nor a willingness to forego future incidents and that she instead maintained to Smith her innocence of the charges raised by the Customs Service.

 In March 1994, British Airways held a hearing on the issue of plaintiff's conduct. As a result of what plaintiff describes as the "false testimony given by defendant Anton and defendant Smith" at that hearing, British Airways determined that plaintiff should reimburse the company for the $ 1,000 penalty it had paid to the Customs Service. British Airways also suspended plaintiff without pay for two days and removed her from the Special Services Division. Plaintiff has not worked in Special Services since her removal at that time.

 In April 1994, plaintiff wrote a letter to the area director of the Customs Service, complaining that her hologram had been withdrawn and her access to security areas revoked without written notice. She also stated in the letter that she sought a hearing "before an officer designated by the Commissioner [of the Customs Service]" to appeal the revocation of her access to security areas and the withdrawal of her hologram. The Customs Service director responded that notice had been given to British Airways, rather than to plaintiff, as British Airways was the violator of record. He also denied her request for a hearing, explaining that no hearing was necessary because plaintiff's hologram had been returned to her and the liquidated damages claim had been paid in full. Plaintiff's later requests for a hearing were also denied.

 Plaintiff asserts that British Airways punished her more severely than it punishes male employees whose holograms have been suspended or revoked by the Customs Service. She also alleges that British Airways has engaged in a pattern and practice of discrimination against women, which "included but was not limited to the sexual harassment or sexual discrimination against the following women: [naming seven women]. Said pattern and practice of discrimination also includes the dissemination within the workforce of material sexually derogatory to women . . . ." No details are provided in support of plaintiff's general allegations of sexual harassment and discrimination, except that plaintiff attached to the complaint one joke with sexual content which was distributed via E-mail; although the printout of the joke includes an address list, neither plaintiff nor any of the individual defendants are listed as a sender or recipient of the joke.

 ANALYSIS

 The Bivens Claim Against Anton

 Against defendant Anton, plaintiff raises, first, a claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619, 91 S. Ct. 1999 (1971) ("Bivens claim"). That claim asserts that Anton "falsely accused plaintiff of taking actions in violation of . . . Customs regulations in retaliation for plaintiff complaining to [Customs officials] about defendant Anton's intimidating, threatening and harassing behavior in violation of her First Amendment rights . . . ." Anton contends that this Bivens claim should be dismissed because plaintiff has failed to allege the violation of a constitutional right. He argues that plaintiff's complaints about his behavior do not constitute protected speech under the First Amendment; ...


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