The Melissa Chinery and Laura Medlin cases against American Airlines, cases currently being litigated by my firm, the Law Office of Faye Riva Cohen, P.C., have been featured in an article entitled “American Airlines Flight Attendants To Appeal Facebook Harassment Ruling,” in Savvy Stews b published on September 2, 2018, which can be found here.
We’ve all read company policy regarding employee conduct on social media sites. Although one would assume that these policies are there to put a stop to and even prevent workplace bullying, they are only useful if companies enforce them.
In a blow to two American Airlines flight attendants this week, Judge Eduardo C. Robreno ruled that the evidence of workplace bullying and harassment brought forth by flight attendants Melissa Chinery and Laura Medlin was insufficient and untimely. The harassment was also experienced by several additional women who issued affidavits but were not part of the lawsuit itself.
The worst part, American Airlines didn’t do a thing to stop it in the first place.
“The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem” – Chinery
Faye Riva Cohen, the law firm that represents the plaintiffs, issued the following statement:
“We are disappointed by the Judge’s decision. Our clients were victims of gender-based discrimination. Given the unique nature of social media, the harassment our clients experienced was all-pervasive and impossible to escape. We believe that the Judge failed to adequately consider the power of social media and its impact on the workplace.
Additionally, we believe that American Airlines acted improperly. American Airlines maintains a social media policy that is used to police the online conduct of its employees. Nevertheless, American Airlines failed to take our clients’ complaints seriously. Until employers treat online bullying with the severity that it deserves, women will continue to be at a disadvantage in the workplace. Our clients are weighing their options to appeal the decision.”
Ms. Chinery shares, “The company called me when this all started. My flight service manager said that he was getting calls that I was being harassed publicly on Facebook. My manager called me, then failed to take any action to stop the problem. No apologies from anyone, just an escalated attack.”
RINGLEADER EMBOLDENED BY RULING
Jim Brown, one of the flight attendants accused of the harassment, began gloating on Facebook immediately following the judge’s ruling. He may have spoken too soon since the plaintiffs are planning to appeal the judge’s decision which could legally expose him and American Airlines.
In his deposition, Jim Brown admitted to sending a complaint to the company about Chinery that he thought would be anonymous. He also admitted fabricating a story regarding referring to Chinery as “flipper” (slang for “whore”) “to cover my tracks by creating another post and a fake person” (from Brown’s deposition). Despite lying about his words, Brown remains a member of several committees and in the training department and to date has not been investigated. He continues to publicly post on social media, on the day of Judge Robreno’s ruling, saying he was, “Feeling delighted… My message is about Karma working it’s [sic] judicious magic!”
BROWN-NOSING HAS ITS PRIVILEGES?
American Airlines has yet to investigate the harassment claims internally and the men named in the lawsuit remain on special projects, in training positions, and continue to be rewarded with promotions as they are paid and deployed to publicize company messaging to their coworkers. Rewards even included invitations to the wedding of American’s Chief Financial Officer, creating the appearance of special treatment and selective enforcement of company policy.
One may wonder who is responsible for the selection of these individuals to serve in special assignment and training positions. What consequences may they eventually face?
ONLINE WORKPLACE HARASSMENT GROWING PROBLEM
There is a lawsuit against United Airlines for failing to intervene in a pilot’s harassment of a flight attendant. American’s failure to put a stop to the bullying that took place against Ms. Chinery may eventually end up opening a Pandora’s box of liability for the carrier as others step forward to share their experiences and American’s lack of support.
In his memorandum, Judge Robreno writes, “Medlin details only a handful of instances of alleged sexual harassment between 2012 and 2015…including…the general use of sexually-oriented profanity.” Judge Robreno further stated that “insults in the workplace do not constitute discrimination ‘merely because the words used have sexual content or connotations.’” Judge Robreno also contends the alleged harassment was not physically threatening despite the litigants having complained to American Airlines about threats of physical harm.
THEY GANGED UP
Jim Brown wasn’t the only one allowed to get away with behavior that conflicted with the American Airlines social media policy:
[From evidence submitted to the court]
Rick Haskins, a male flight attendant, writing regarding coworkers who voted against a union contract proposal, “Those sixteen people should be shot.”
Daniel Datzer another flight attendant wrote, “I do not respect the 51 percent…… And I NEVER will…. Clowns, fools, morons… This will drastically come back to bite them in their uneducated, bilious, petty, small-minded, redneck lazy tired asses…. I will NEVER stop asking how people voted each time I fly and they will be treated accordingly… This is not a joke…. My anger and deep seated frustration WILL have a place to go… Directly at the enemy. I will maintain the level of professionalism that I have for myself…. But make no mistake…. They will know my discontent and pure disgust at their selfish inhumane actions… And it will NOT be cozy for them….I have this fantasy where the 49 percent goes off and forms its own base…… Because frankly, that is the only way the 51% are going to be able to escape what is coming.”
Victor Dunson wrote, “this is war… If you f**k with my friends you f**k with me and I don’t like being f**ked with: (.”
Judge Robreno also contended in his ruling that “Datzer used coarse sexual language” but that it “does not amount to severe or pervasive sexual harassment.” a picture of a “bedazzled vagina,” repeatedly used the word “c**t,” called a coworker a “sow,” referred to coworkers as “harpies and shrews,” and wrote “have any of them LOOKED in a mirror? Tuck your shirt in fat ass… Fix your hair… How bout a tie? A little lipstick?”
AMERICAN DID NOT LIFT A FINGER
Despite the legal ruling, according to its policies, US Airways / American Airlines failed to follow its own rules and did not investigate multiple complaints brought to Human Resources by many women. Ana Burke-Leon, AA Human Resource Specialist, tasked with examining Chinery and Medlin’s claims states in her deposition, “Discrimination, unlawful harassment and retaliation in the workplace will not be tolerated.” She stated the policy included derogatory posts, jokes, letters, e-mail or graffiti that denigrate or show hostility toward an individual or group based on but not limited to race, color, religion, gender, or gender identity.
FROM THE DEPOSITION OF AMERICAN’S HUMAN RESOURCE SPECIALIST, ANA BURKE-LEON
If ever there was an instance to back up employee mistrust in human resource departments, the responses given by American’s HR representative to questions from the plaintiff’s attorney would justify their suspicions.
In her deposition, Burke-Leon repeatedly evades the questions brought forth by Chinery and Medlin’s counsel about whether or not the “c-word,” when used by a male employee to refer to a female employee, would be tolerated:
Q. Do you consider the word, the use of the C-U-N-T to be an epithet, derogatory comment or slur?
Q. What’s your understanding as to what that word means?
A. It’s a derogatory word used to describe a female.
Q. So if a male employee refers to a female employee as —
A. You can say it. I understand.
Q. I will say the “C” word. If a male employee refers to a female employee as the “C” word, does that fall within these bullet points list of the type of conduct that will not be tolerated?
A. It will depend on the context. It would depend on if it’s directly related or specific name, a person is involved. It will depend on the context.
Q. If a male employee refers to a female employee as the “C” word, do you consider that to be a derogatory comment?
A. It depends on the way it’s stated. It depends on the content. It depends on the content.
Q. Do you consider a male employee referring to a female employee as the “C” word to be a slur?
A. A slur? I don’t know.
Ana Burke-Leon was tasked with interviewing one of the men named in the lawsuit but in her deposition says she did not because on the scheduled day of her flight to meet him, she “went to the wrong gate” and missed the flight. The matter was later looked into by another member of HR. Burke-Leon went on to say, “Daniel stated that his Facebook page was compromised and that he does not believe he made those comments.”
Another senior Human Resource investigator, Dan Cleverly, admitted under oath that he did not-at-all investigate Medlin’s harassment complaints and concerns. She repeatedly emailed him requesting assistance but was ignored. When questioned, Cleverly’s response in his deposition was “Because it got lost in my shuffle.” That was towards the end of October. I went on vacation, Thanksgiving, Christmas crazy.” The evidence provided by American Airlines revealed Cleverly’s apparent bias from personal notes to Burke-Leon where he referred to Chinery as “exhibiting a whole new side of crazy” when she attempted to follow up with him about her concerns. His response, when asked why he said that was “Because this was an overwhelming time.”
The harassment claims brought forth against Jim Brown, to this day, have not been investigated by American Airlines. In his testimony, Brown states he has not had any interviews regarding the complaints made against him. At least four women complained to HR about Brown’s harassment. The outcomes of such investigations would determine whether or not there would be disciplinary action, and, according to AA’s policies, if an employee were in violation, it “would not be tolerated.” How is it possible that American Airlines, for years, has ignored women who came forward to complain along with those who provided affidavits testifying that they witnessed harassment by Brown?