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July 29, 1999


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 part:

  I missed my America West flight and asked [plaintiff]
  at the [LaGuardia] ticket counter to purchase a
  ticket on # 419. She rudely asked "Doesn't America
  West have a flight you can take?" Then when I handed
  her the $125 [in] cash to

  pay for my ticket, she rudely made a scene at the
  counter. . . .

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

Answer: Humiliation.

  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 ...

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