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Mohawk-Sporting Flight Attendant Loses Discrimination Suit Upon Court’s Reconsideration

Posted on: February 20th, 2014 by Art Leonard No Comments

We previously commented about a December 3, 2013, decision by U.S. District Judge Jose L. Linares, refusing to dismiss an employment discrimination claim by gay Continental flight attendant Ray Falcon, who showed up for work one day sporting what his supervisors called a “Mohawk” haircut that they found unacceptable. In order to meet his flight, Falcon got a co-worker to give him a quick clipping, and he claims to have suffered severe emotional distress as a result of the incident. Claiming that he had suffered discrimination because of his sexual orientation, he sued Continental under the New Jersey Law Against Discrimination, which bans sexual orientation discrimination. In the December 4 ruling, Judge Linares partially denied Continental’s motion for summary judgment, allowing Falcon to continue with the lawsuit.

Continental filed a motion for reconsideration, leading Judge Linares to issue a new opinion on February 19, 2014. Continental continued to argue that at the time of this incident, the supervisors in question were not aware that Falcon was gay, so they couldn’t have discriminated against him due to his sexual orientation. Continental also argued that Falcon had failed to show that he was treated any differently from non-gay flight attendants in this matter of personal grooming. In the new decision in Falcon v. Continental Airlines, 2014 U.S. Dist. LEXIS 20146 (D.N.J., Feb. 19, 2014) (unpublished decision), Linares continued to side with Falcon on the first issue, but concluded that Continental had the better argument on the second and granted summary judgment in favor of the airline.

Addressing the first issue, Linares said it was inappropriate for Continental to re-litigate the issue, since the court had “thoroughly considered” Continental’s arguments the first time around and rejected them. Linares pointed out that Falcon had specifically alleged in his complaint that he was openly gay at Continental and his supervisors knew that, and Continental had not explicitly denied this in its response to Falcon’s opposition to the summary judgment motion. According to the court, any assertion by the plaintiff that the defendant does not expressly deny in such motion documents is deemed to be admitted.

However, the court found that Falcon failed to allege facts necessary to state a discrimination claim — in this case, a claim of hostile environment harassment because of Falcon’s sexual orientation. The first element of such a claim is that “the defendant’s conduct would not have occurred but for the employee’s” sexual orientation. “In other words,” wrote Linares, “Plaintiff must establish a causal connection between his sexual orientation and his supervisors’ conduct on September 23, 2010. Although this Court held that there is a question of fact as to whether Plaintiff’s supervisors knew about his sexual orientation, it never specifically addressed whether there is sufficient evidence in the record to support a finding that the supervisors discriminated against him on account of his sexual orientation, as neither party thoroughly briefed the issue in connection with Continental’s [earlier] motion for summary judgment.”

Now that the motion for reconsideration had pushed the judge to focus on this issue, he decided that Falcon’s factual allegations fell short. “The Court fails to see how a reasonable jury may find by a preponderance of the evidence that Plaintiff suffered discrimination because of his sexual orientation,” he wrote. “The record is devoid of any evidence suggesting that anyone at Continental made any comments to Plaintiff about his sexual orientation. In fact, Plaintiff makes no other allegation of discrimination aside from the incident which is the subject of this litigation.”

In response to Continental’s motion for reconsideration, Falcon had submitted “five photographs of unidentified Continental employees whose hairstyles ‘have not been questioned by supervisors at Continental,’ yet are allegedly more extreme than Plaintiff’s hairstyle on September 23, 2010. These photographs are insufficient to raise a triable issue of fact as to whether Plaintiff was singled out because of his sexual orientation,” wrote Linares, “because nothing in the record suggests that the individuals in these photographs are similarly situated. Indeed, nothing in the record suggests that these employees whose extreme hairstyles Continental allegedly has never questioned are heterosexual. Additionally, the Court has no way of knowing whether these individuals even wore their allegedly extreme hairstyles during work hours, what positions these individuals occupied at Continental, or where the photographs were taken. Based on the record before it, this Court cannot conclude that these photographs are probative of any discriminatory animus on the part of Plaintiff’s supervisors, as they fail to suggest that Continental applied its grooming policy to Plaintiff in a discriminatory fashion because of his sexual orientation.”

Under the pleading standards established by the Supreme Court for civil litigation, the plaintiff’s complaint must allege facts that would support the elements of his case. The court found that Falcon’s complaint falls short by failing to allege facts from which a jury could conclude that what happened to him on September 23, 2010, happened because of his sexual orientation. Consequently, the court granted summary judgment to Continental.

Gay Flight Attendant Survives Motion to Get Rid of His Discrimination Claim about a Haircut

Posted on: January 2nd, 2014 by Art Leonard No Comments

Is a Mohawk-style haircut so “extreme” that an airline would be justified in not allowing a male flight attendant to work a flight when he reported for duty thus groomed?

In Falcon v. Continental Airlines, 2013 U.S. Dist. LEXIS 171349 (D. N.J., Dec. 4, 2013), U.S. District Judge Jose L. Linares ruled that if gay flight attendant Ray Falcon can prove that Continental’s supervisors on duty at Newark Airport on September 23, 2010, knew he was gay and applied its grooming standards to him discriminatorily, he may have a sexual orientation discrimination claim under New Jersey’s Law Against Discrimination, denying summary judgment to the defendant on this count.  Falcon filed his claim in state court, but Continental removed it to federal court and moved for summary judgment.

A material fact in dispute is whether the supervisors involved in the incident knew that Falcon was gay.  He claims he was “out” and known to his supervisors as such, while they deny it, so there is a credibility issue.  He also claims, evidently, that he was subjected to this indignity because he is gay.   Supervisors claim they were just enforcing the airline’s “General Code of Conduct and Working Together Guidelines” which obligates employees in public contact positions to maintain a “professional appearance.”

When the supervisors were adamant about not letting Falcon work with the alleged Mohawk (Falcon maintains it was just a standard military cut, short at the sides and a bit longer on top), Falcon asked another attendant who had hair clippers to trim his top sufficiently to satisfy the supervisors, and he was allowed to work his scheduled flight to Paris.

Falcon asserts that the incident caused him significant emotional distress, requiring psychological treatment and causing him to miss some subsequent flights.  Falcon supplemented his discrimination claim with a battery claim (the haircut) and a claim of intentional infliction of emotional distress.

Judge Linares granted summary judgment to Continental on these two state tort claims, finding that Falcon could not assert battery when he had requested the other attendant to give him the haircut, and that this incident failed to come anywhere close to the high standard of outrageous conduct set by New Jersey courts in emotional distress claims arising from workplace incidents.

According to the opinion, Falcon continues to work as a flight attendant for Continental, and suffered no discipline or tangible losses as a result of the incident, but has been treated for distress stemming from this incident by a licensed psychologist, who prescribed medication for him, and has applied for benefits under the Family and Medical Leave Act to cover days when he missed flights as a result.

Ray Falcon is represented by Michael R. Lombardi and the firm Lombardi & Lombardi, Edison, NJ.  Continental is represented by attorneys from Buchanan Ingersoll & Rooney PC of Newark and Philadelphia.