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P. v. DELTA AIR LINES

June 29, 2000

P., PLAINTIFF,
V.
DELTA AIR LINES, INC., AND M., DEFENDANTS.



The opinion of the court was delivered by: Weinstein, Senior District Judge.

  AMENDED PARTIAL JUDGMENT, MEMORANDUM and ORDER

TABLE OF CONTENTS

I INTRODUCTION ................................................ 135 II FACTS ....................................................... 135 III STATUTORY SEXUAL HARASSMENT ................................. 136 A. Law ...................................................... 136 1. Hostile Work Environment .............................. 137 a. Hostile or Abusive Conduct ......................... 137 b. Work Environment ................................... 138 2. Employer Imputed Liability ............................ 139 a. Reasonable Avenue of Complaint ..................... 140 b. Notice and Response ................................ 140 B. Application of Law to Facts .............................. 141 1. Sexual Assault in Rome ................................ 141 2. Flight from Rome ...................................... 142 3. Fear of Additional Encounters ......................... 142 IV TORTS ....................................................... 143 A. Intentional .............................................. 143 B. Negligent ................................................ 143 V CONCLUSION .................................................. 144

I INTRODUCTION

P. (Plaintiff) sues Delta Airlines, Inc., which employs her as a cabin flight attendant, and M. (Defendant), who was formerly so employed, for rapes Defendant allegedly committed on her while the two were off-duty following a Delta flight to Rome, Italy. She contends that he administered a "date rape" drug and then committed the sexual assaults.

After a mistrial in which a ten member jury split nine to one in favor of defendants on the underlying question of whether a rape had in fact occurred, Delta moves for summary judgment. See Fed. R.Civ.P. 56. The motion is granted. To hold an employer liable in these circumstances would be to encourage unacceptable inquisitorial snooping and intrusiveness by employers into the private lives of their employees, contrary to fundamental American notions of privacy.

Both Defendant and Plaintiff are mature; one is approaching forty, the other is almost fifty, and both were previously married. Delta can not be faulted for failure to warn this plaintiff that years before, in private residences far removed in time and place from any Delta related work activities, Defendant may have engaged in non-consensual intercourse with fellow employees, or that he had sexual relations with a number of female employees between Delta trips to and from Rome (a matter it could not have known about before plaintiff's complaint).

Arguably, if Defendant were a sexual predator who should have been known by his employer to be a danger to females, Delta would have had an obligation to warn her or to decrease the hazards of his sexual rapacity by not providing the pair with adjacent hotel rooms. Arguably, were Plaintiff an immature person requiring special protection and advice, Delta would have had an obligation to not expose her to this danger or to provide an appropriate chaperon. Arguably, were it mooted about by employees that Defendant was a sexual hazard to be avoided and guarded against, Delta would have had an obligation to prevent the degeneration of work related surroundings by his presence. The evidence supports none of these hypotheses.

II FACTS

Analyzing the evidence to favor Plaintiff's version, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), this story may be briefly summarized from her point of view.

She was a long time Delta cabin flight attendant assigned to her first flight from J.F.K. International Airport to Rome. He was a cabin flight attendant regularly assigned to Delta's New York-Rome flights. They had neither met nor heard of one another prior to the March 16, 1998 trip to Rome. Neither had supervisory authority over the other.

Upon arriving in Rome on the morning of March 17, Plaintiff and Defendant, together with the rest of the flight crew, were driven in a Delta bus to a hotel where the airline had arranged for the crew to stay until the return flight to New York on March 18. Responding to his offer of some wine, Plaintiff went to his hotel room at about 11 a.m. There he served her wine spiked with a "date rape" drug.

Within a short period Plaintiff fell comatose on his bed, awakening only intermittently, but realizing during these periods of partial consciousness that Defendant was raping her. She was unable to defend herself. After five hours, Plaintiff came-to. She returned to her hotel room where she slept until awakened at 7 p.m. by a telephone call to join crew members for dinner. While dressing for dinner, she found no seminal fluid on her clothes or body, but threw away her undergarments.

During dinner Plaintiff did not discuss the sexual assault. He was not present.

Plaintiff and Defendant both worked aboard the March 18th return flight to New York. Neither then nor upon landing in New York did she report the incident.

Two weeks later, on March 30, 1998, Plaintiff complained about the rape to a fellow flight attendant who had worked as lead attendant on the March 16 and 18 trips to and from Rome, but she asked that the information not be relayed to Delta management; it was not. More than three weeks after the assault, on April 11, 1998, Plaintiff informed a Delta flight attendant supervisor of the assault, but declined to give her attacker's name. A month after the assault she informed a Delta J.F.K. base supervisor that she had been raped, but again declined to identify the attacker; in contravention of Delta's printed policy statement requiring immediate reports of sexual harassment, Plaintiff refused a specific request to provide a written statement detailing the event.

Finally, some month and a half after the rape Plaintiff told Delta her attacker's name. Defendant was immediately interviewed by Delta officials. He denied that the incident had taken place and submitted a written statement detailing his actions on March 17.

More than two months after the attack, on June 25, 1998, Plaintiff gave Delta a first written report. Upon receiving it, Delta suspended Defendant without pay. He resigned or was fired a few months later without ever having been permitted to return to work.

Though no evidence appears in Delta's records, it is alleged (and assumed to be true) that the airline knew that some years before: (1) another female flight attendant visited Defendant for the night at his home in Texas where he seduced her; and, (2) yet another female flight attendant slept with him in his family's home in Florence, Italy, where sexual congress ensued without her full consent.

During the trial two other sexual encounters Defendant had engaged in with female flight attendants were revealed — one a fully consensual liaison and the other a repeated voluntary sexual partnership that may have begun by his spiking wine with a "date rape" drug. It is not contended that Delta had any knowledge of either of these affairs prior to the sexual assault on Plaintiff.

III STATUTORY SEXUAL HARASSMENT

Plaintiff asserts claims for unlawful workplace sexual harassment under federal law as well as under New York State and City laws. See, e.g., 42 U.S.C. § 2000e, et seq.; N.Y. Exec. L. §§ 296.1, 296.6, & 296.7; N.Y.C. Admin. Code § 8-107. For purposes of this motion, New York State and City discrimination laws are assumed to mirror federal law. See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000). ("consideration of claims brought under the state and city human rights laws parallels the analysis used in Title VII claims"); Smith v. Xerox Corp., 196 F.3d 358, 363 n. 1 (2d Cir. 1999) ("claims under the [New York State Human Rights Law] are analyzed identically to claims under . . . Title VII").

A. Law

Title VII of the Civil Rights Act of 1964 provides in pertinent part:

[i]t shall be an unlawful employment practice of an employer . . . to . . . discriminate against any individual with respect to . . . conditions, or privileges of employment, because of such individuals . . . sex[.]

42 U.S.C. § 2000e-2(a)(1). "[S]exual harassment in the workplace violates Title VII's broad rule of workplace equality." Karibian v. Columbia University, 14 F.3d 773, 777 (2d Cir. 1994) (internal quotation marks omitted); see Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). Claims of workplace sexual harassment can be advanced under two theories: (1) quid pro quo, and (2) hostile environment. See, e.g., Torres v. Pisano, 116 F.3d 625, 630 (2d Cir. 1997); Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989).

Quid pro quo harassment occurs "when `submission to or rejection of [unwelcome sexual] conduct by an individual is used as the basis for employment decisions affecting such individual.'" Karibian, 14 F.3d at 777 (quoting 29 C.F.R. § 1604.11(a)(2)) (changes in original); see also id. (prima facie case consists of "evidence that [the plaintiff] was (1) subject to unwelcome sexual conduct, and (2) that her reaction to that conduct was then used as the basis for decisions affecting the compensation, terms, conditions or privileges of employment" (internal quotation marks omitted)). No such harassment is alleged here.

A hostile work environment exists when gender-based "intimidation, ridicule, and insult . . . is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 78, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998); (emphases added). To state an actionable claim, a plaintiff must establish that (1) "the harassment was `sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[,]"' and (2) "that a specific basis exists for imputing the conduct that created the hostile environment to ...


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