The opinion of the court was delivered by: Glasser, District Judge.
Plaintiff Margaret Brower ("Brower") commenced an employment
discrimination action against defendant Continental Airlines,
Inc. ("Continental") claiming that it illegally fired and failed
to promote her because she was disabled and because of her age.
She has brought a variety of claims against Continental under
federal, state and local anti-discrimination statues. The
defendant now moves for summary judgment.
I. The Employment Conduct
Continental hired Brower, a then 48 year-old woman, in February
1987 as a part-time reservations agent at LaGuardia Airport. Def.
Rule 56.1 Statement ¶ 1. In March 1991, Continental's
reservations office at LaGuardia closed resulting in the
elimination of Brower's job and Continental offered her a
position as a part-time Airport Sales Agent ("ASA"). Id. ¶ 2.
As an ASA, Brower had substantial contact with customers and was
often the first company representative that passengers met when
they arrived at the airport. Accordingly, Continental expects its
ASA's to be polite and helpful. Id. ¶ 3.
On July 10th, 1992, a passenger wrote a "Comment Card" to
Continental which read, in part:
With one party (2 people) in front of us, the agent
at the first class counter [plaintiff] announced that
"I am finished — get back," grabbed her coffee and
left the counter with all of us in line. . . . The
agent was incredibly rude to the couple in front of
us and totally uncaring to the line of First Class
Id. ¶ 8; Bernstein Aff., Ex. H. That same day, another
passenger also wrote Continental and complained as follows:
Tried to check in at FC [First Class] counter.
Stepped up to counter & [plaintiff] said I'm finished
step back & left. We waited in line for 18 min until
[someone] came to help us. We were very upset which
is no way to begin a vacation.
Id. On July 29th, 1992, Brower's supervisor, Alba Liston
("Liston") notified the plaintiff that she was "very disappointed
to receive the enclosed Comment Cards from two of our customers
on July 10, 1992." Id. ¶ 11.
On March 31st, 1993, Brower received her performance appraisal.
While it was positive in several respects, it did caution that
she needed "to exercise tolerance especially when dealing with
adverse situations." Id.
On April 4th, 1993, Brower was again the subject of a written
complaint filed by an unhappy passenger. The customer wrote, in
Id. ¶ 13; Bernstein Aff., Ex. K. William Richardson
("Richardson"), the LaGuardia Station manager, called the
passenger after receiving a copy of this complaint. He summarized
his conversation with her as follows:
Usually, when I would call people, it was relatively
easy because time had elapsed and they're not upset
anymore. . . . This woman was — she felt that she was
totally humiliated. She began crying on the phone
when I talked to her. . . . there was an argument
about whether . . . [the plaintiff] would handle her
or not. That was minor. What she described to me is
that the way [the plaintiff] took her hundred dollar
bill and held it up with other customers around, held
it up as if it was dirty, as if something had been
spilled on it or something and totally humiliated
Id. ¶ 14; Richardson Tr. 37:21 — 38:12. Richardson further
testified at his deposition about this incident as follows:
Answer: . . . . When a grown woman is left crying over a
business transaction, the professional then,
in this case being [the plaintiff], that
conduct is inexcusable.
Question: It was your impression that the grown woman
was left crying over this transaction
because of [the plaintiff's] handling of
Question: And it's your impression that [the
plaintiff] caused this humiliation?
Answer: Yes, intentionally.
Id. ¶ 15; Richardson Tr. 56:21 — 57:7.
Later that same month, on April 30th 1993, Brower's behavior
was the subject of yet another passenger Comment Card:
[Plaintiff] at the check in ticket counter was rude
and was asking for [$]45.00 for an extra bag I had to
check in. I was travelling [sic] 1st class and it was
not an upgrade. I paid full fair. . . . If she had
been pleasant about the 4th piece, I would have
complied graciously but she was obviously having a
bad day. It doesn't matter if you are a surgeon or an
airline attendant — you can't bring your bad mood to
work!. . . . Then, as I was walking away, she
mumbled under her breath "I don't need this
aggravation." I find it convenient to fly
Continental, but you are not the only airline. I
spoke with some attendants in Houston about this
incident and they said that "the ones from N.Y. are
like M. Brower — Rude and unlikable." You may call
Id. ¶ 16; Bernstein Aff. Ex. L.
On May 13th, 1993, rather then terminate Brower's employment,
her supervisor again counseled her as a result of receiving yet
another Comment Card from a disgruntled passenger. Id. ¶ 17.
Brower was also counseled by management on May 27th, 1993, and
was warned about the "perception [given when] walking away from
customers." Id. ¶ 20.
On June 3rd, 1993, Brower's supervisors again had a counseling
session with her. At this session, they tried to help Brower
focus on customer service skills by addressing her behavior in
connection with the passenger who cried as a result of her
interaction with Brower. Management intended this session to help
Brower understand why the passenger was upset with Brower's
treatment of her, and to avoid the recurrence of similar
problems. Id. ¶ 21. However, Brower's supervisors were
dissatisfied with her participation in that counseling session.
They felt that she failed to focus on the issues of her demeanor
and interaction with the customer, and instead insisted that she
had done nothing wrong. Id. ¶ 22. They further felt that she
refused to even consider why the passenger would be upset with
her. Id. ¶ 23.
Bill Richardson [the station manager] & myself
(Nikki) spoke with [Brower] today after her poor and
unacceptable behavior in handling a customer, which
resulted in [the] customer feeling that he was being
called a "liar"
Bill Richardson informed [Brower] that her behavior
was unacceptable and will no longer be tolerated. He
offered assistance in ...