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Freeman v. Delta Airlines, Inc.

United States District Court, E.D. Kentucky, Northern Division

June 14, 2019

BRANDON FREEMAN ET AL. PLAINTIFFS
v.
DELTA AIRLINES, INC ET AL. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          WILLIAM O. BERTELSMAN UNITED STATES DISTRICT JUDGE

         This proposed class action was brought by six plaintiffs, all of whom are African-American and are or at one time were part-time employees of Delta Airlines in the “underwing” baggage handling department at the Cincinnati-Northern Kentucky International Airport (“CVG”). They allege that the manager and several supervisors over this particular department engaged in systemic racial discrimination in (a) disciplinary matters and (b) work assignments, resulting in a disproportionately lower number of African-Americans occupying higher paying positions. Plaintiffs seek to vindicate the rights of roughly thirty-six (36) part-time African-American baggage handlers at CVG.

         Under 42 U.S.C. § 1981, Title VII, 42 U.S.C. § 2000e et seq., and KRS § 344.010 et seq., Plaintiffs assert the following five counts:

Count I: Hostile work environment and racial harassment;
Count II: Discrimination based on disparate impact and disparate treatment;
Count III: Retaliation;
Count IV: Race discrimination; and
Count V: Punitive damages.

         Plaintiffs demand front and back pay in connection with punitive damages, a declaratory judgment, and a permanent injunction against Defendants' alleged practices. (Doc. 5, ¶ 38).

         This matter is before the Court on Plaintiffs' motion to certify the case as a class action (Doc. 52). The Court previously heard oral argument on the parties' motions and took the matter under submission. (Doc. 92). For the reasons that follow, Plaintiffs' motion for class certification is DENIED.

         FACTUAL AND PROCEDURAL BACKGROUND

         In this case, the Court is presented with an expansive record that encompasses thousands of pages of deposition testimony and exhibits. Unlike a 12(b)(6) motion, when deciding a motion for class certification a “district court should not merely presume that the plaintiffs' allegations in the complaint are true.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012). “[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 350 (2011) (citation omitted).[1] Here, the specifics of the named Plaintiffs' various anecdotal accounts of discrimination are largely irrelevant to the issue of certification now before the Court.

         Therefore, in order to focus on those facts that are critical to the requirements for certification without sacrificing the context and underlying basis for Plaintiffs' lawsuit, the factual background below is primarily drawn from the Amended Complaint.

         A. General Background

         i. Overview of Ready-Reserve Employees

         This class action lawsuit involves Delta Airlines, Inc.'s (“Delta”) “Ready-Reserve” employees located at CVG in Hebron, Kentucky. (Doc. 52 at 1; Doc. 5, ¶¶ 16-21, 26). At CVG, Ready-Reserve employees are part-time members of Delta's Department 120, the “underwing” operations, which includes baggage handlers, ground equipment maintenance workers, and ramp employees. (Doc. 60 at 2; Doc. 63, Perdue Dep. at 49). Ready-Reserve employees primarily assist during peak flight schedules. (Doc. 73-1, Jones Dep. at 63-64).

         All of the named Plaintiffs were hired and worked in Department 120 on a part-time basis. (Doc. 5, ¶¶ 16-21). Due to the limited hours afforded Ready-Reserve employees and the attendant benefits, [2] Plaintiffs' employment with Delta served as a second part-time job. (Doc. 69, Freeman Dep. at 44; Doc. 66, Vincent Dep. at 42, 44; Doc. 74, Lackey Dep. at 62-63).[3]

         ii. Department 120 Management & Reporting Structure

         A single Department Manager oversees Department 120. (Doc. 69, Freeman Dep. at 88-89); (Doc. 5, ¶ 7). Subordinate to the Department Manager are the Performance Leaders (Defendants Dale Unkraut, Marvin “Doug” Howe, David Gosney, Jimmy Davis, and others not named in this lawsuit) that directly supervise line employees and comprise the first line of recognizing and addressing disciplinary and work assignment issues. (Doc. 73, Jones Dep. at 67-68); (Doc. 5, ¶ 8).

         During the time-period in quesiton, the Department Manager position was filled by at least two individuals. An individual identified as “Denny” acted as the Department Manager for part of the time, (Doc. 69, Freeman Dep. at 88-89), until Defendant Charles Jones took over in 2013 or 2014. Id.; (Doc. 73, Jones Dep. at 27- 28). Likewise, the number of performance leaders has fluctuated over time. Beginning in 2013, approximately fourteen (14) or fifteen (15) Performance Leaders were employed in Department 120. Id. at 68. Over time, the number of Performance Leaders dwindled to six (6) or seven (7). Id. at 84.

         B. Alleged Racial Discrimination Across the Class

         There are six named African-American plaintiffs in this action, each of whom has raised allegations of systemic racial bias within Department 120. Plaintiffs allege they were discriminated against in at least four discrete ways: (1) disparate disciplinary measures, (2) less favorable work assignments, (3) a hostile work environment, and (4) retaliation for complaining of discrimination and filing EEOC charges. E.g., (Doc. 5, ¶¶ 1-2, 24, 36, 48, 124); (Doc. 52-1 at 1).

         The allegations related to two of these categories are particularly relevant for purposes of Plaintiffs' motion to certify two subclasses, one covering disciplinary matters and the other covering disparity in work assignments. (Doc. 52-1 at 1).

         1. Disciplinary Matters

         Plaintiffs allege in broad terms that management personnel “disproportionately disciplined” African-American Ready-Reserve employees-that is “more frequently and more severely”-as compared to Caucasian employees. See, e.g., (Doc. 5, ¶¶ 34, 48, 56). Plaintiffs also state that they were “written up on several occasions for alleged minor offenses, while [they] observed white employees committing the same alleged offenses go free . . . or be punished less severely.” (Doc. 5, ¶¶ 56, 102, 114, 116, 140, 152). Plaintiffs make clear that this “is not to say that white employees were not also disciplined”; but rather “black employees, would be disciplined for more minor transgressions (or sometimes without any support), and with more frequency . . . than their white counterparts.” Id.

         Because an employee that is subject to discipline may be disqualified from advancing or being promoted to a vacancy at Delta, see Id. at ¶¶ 46, 48, Plaintiffs allege that “[t]he white managers and supervisors manipulate the [disciplinary] system . . . so that white employees receive better job assignments and better opportunities for advancement and compensation increases.” Id. at ¶ 30. Plaintiffs further assert that “white employees have advanced and continue to advance or transfer more rapidly to better and/or higher paying non-exempt jobs than do African-American employees.” Id. at ¶¶ 30-31. As a result, Plaintiffs claim they were denied the opportunity for a promotion or transfer because they were ineligible by virtue of being under some form of discipline, id. at ¶¶ 107, 109, 143, 158, 160, or were otherwise “denied several raises given to other employees not on discipline.” Id. at ¶¶ 57, 103, 118, 141, 153.

         2. Work Assignments

         Plaintiffs also allege that job tasks were assigned with racial animus toward African-American employees. (Doc. 5, ¶ 48). In general terms, Plaintiffs allege that African-Americans employed on a part-time basis in Department 120 are routinely “assigned disproportionately to service larger jets, ” which is a “more difficult” task because these flights involve a greater number of bags, each of which is larger and heavier. Id. at ¶ 55. As further examples, Plaintiffs allege they were “assigned with other minority employees to work the ramp in inclement weather, while white employees [were] permitted to remain in the break room” and “black and minority employees” were required to “work an entire shift, while white employees [were] permitted to leave early.” Id. at ¶¶ 55, 101, 113, 130, 139, 151.

         C. Specific Allegations by the Individual Class Representatives

         In support of their own claims and class certification, each of the named Plaintiffs describes instances of alleged discrimination.

         i. Plaintiff Brandon Freeman

         Freeman's allegations are by far the most detailed and unique. Freeman began working in Delta's ground operations at CVG on April 26, 2010. (Doc. 5, ¶¶ 16, 54). In 2012, Freeman began a romantic relationship with a Caucasian employee at Delta, Michelle Race. Id. at 58. Freeman alleges that disapproval of interracial relationships was expressed by Manager Jones, Greg Kuhn (a member of Delta's corporate security), and supervisors Howe, Gosney, Unkraut, Lavalie, [4] and Martinez.[5] This included probing questions as to whether Race's relationship with Freeman was sexual in nature, racist remarks about African-American men, and threats of termination toward Race in order to obtain her cooperation in falsifying: (i) employment disciplinary charges and (ii) a police report against Freeman. Id. at ¶¶ 9, 59-75, 77.[6]

         In October 2013 after Freeman had changed shifts with Race, he was placed on suspension, without pay, for “improper computer usage in relation to the shift swaps.” Id. at ¶¶ 71-71, 78. Freeman appealed the disciplinary action through Delta. Id. at ¶ 80. Jones and Unkraut allegedly coerced a statement from Race implicating Freeman in the misconduct by threatening Race with the ultimatum of loss of her job. Id. at ¶ 82. When Race divulged that she had been coerced, Delta reinstated Freeman, but without back pay. Id. at ¶ 84.

         Later, on about April 23, 2014, Freeman placed a bag on a flight to Atlanta for a co-worker at that location, but Freeman did not make the flight because he was unable to get his shift covered. Id. at ¶¶ 87-90. Supervisor Howe believed Freeman had shipped drugs on the flight. Id. at ¶ 91. Jones recommended in a letter that Freeman be terminated. (Doc. 73-1 at 144). An HR manager reviewed the recommendation and concurred, making a recommendation to the Sr. HR Manager, id. at 97, after which the Director of Delta's HR decided to terminate Freeman's employment. Id. at 96. On May 14, 2014, Freeman's employment was terminated for “pass abuse.” (Doc. 5, ¶ 92).[7]

         Freeman, however, claims the reason for his termination was pretextual because flight pass offenses “almost never result in termination at Delta.” Id. As a result, in July 2014, Freeman filed charges with the Equal Opportunity Employment Commission (“EEOC”). Id. at ¶ 94; (Doc. 69-1 at 39). Race also later filed a separate EEOC charge alleging retaliation and intimidation. (Doc. 5, ¶ 97).

         ii. Plaintiff Fred Vincent

         On May 11, 2010, Vincent began work with Delta in its ground operations at CVG. (Doc. 5, ¶ 17). In addition to having been called racial epithets, id. at ¶¶ 108- 09, Vincent recounts being written up for a so-called “sick call” violation, whereas Caucasian employees “were not written up for missing more time off of work.” Id. at ¶ 106. Vincent was placed on probation and was thus ineligible for a promotion or a raise. Id. at ¶ 107.

         Vincent later spoke with Paul Baird, Delta's Regional Director at CVG, and Baird ultimately decided to give Vincent a clean slate by removing Vincent's probationary letter from his file. (Doc. 66, Vincent. Dep. at 110); (Doc. 5, ¶ 109). Nevertheless, Vincent filed discrimination charges with the EEOC in July 2014. (Doc. 66-1 at 18).

         iii. Plaintiff Nicole Lackey

         Lackey's employment with Delta in its ground operations at CVG began on November 15, 2010. (Doc. 5, ¶¶ 18, 112). She allegedly was directly discriminated against by Defendants Howe, Unkraut, Gosney, and Davis under the direction of Defendant Jones. Id. at ¶ 120. Specifically, starting in May 2011, Lackey alleges she was the subject of a series of disciplinary actions, in which she was “written up for one tardy and six sick call-offs” by supervisor Howe. Id. at ¶ 115. Lackey takes issue with the discipline she received because she allegedly produced a doctor's note in each instance and the same conduct by Caucasian employees “did not result in the same (or any) discipline.” Id.

         Then, Lackey was written up by a different supervisor, Defendant Gosney, for being late in June 2011 and again on September 3, 2011, the latter of which resulted in Lackey being placed on probation. Id. at ¶ 116. Lackey does not contend that she was not late on these occasions. Instead, she avers that two Caucasian employees repeatedly failed to report to work without calling, and yet there was no consequence. Id. at ¶ 117.

         Lackey also asserts that she witnessed racially discriminatory statements being made to others. For example, two lower-level supervisors (neither of whom are Defendants in this matter), allegedly stated to Plaintiff Tall “can't you black women do anything about your odor” and “all blacks have trouble with the law.” (Doc. 5, ¶ 121). Lackey also avers that African-Americans are “routinely screamed at and verbally harassed on a weekly basis by co-workers or supervisors, ” and the same is not true for Caucasian employees. Id. at ¶ 123.

         Lackey filed EEOC charges on July 9, 2014, after which she claims Defendants Jones, Howe, Unkraut, Gosney, Davis, and other Caucasian employees who were encouraged and emboldened by management increased their verbal harassment in retaliation. Id. at ¶¶ 122, 124. Lackey also maintains that another co-worker, who is not a party to this case, retaliated against her by turning up the rate of speed on the bag loader while Lackey was working on the ramp, causing her to injure her shoulder and undergo surgery. Id. at ¶ 125. Defendant Gosney, Lackey alleges, misreported the incident to cover up the retaliatory conduct. Id. at ¶ 126.

         v. Plaintiff Aminata Tall

         On November 13, 2012, Tall was hired by Delta to work in ground operations at CVG. (Doc. 5, ¶ 19). Beginning in November 2013 through January 2014, Tall alleges she was questioned about her “smell” by supervisor Davis. Tall complained to Davis that the comments were racially motivated, but Davis allegedly brushed off the accusations and boasted about his comments to other co-workers. Id. at ¶ 131. This was purportedly the impetus that caused a co-worker by the name of Eric to later state to Tall, “Girl, your black ass always stinks.” Id.

         Tall filed EEOC charges on July 9, 2014. Id. at ¶ 132; (Doc. 64-1 at 13). Tall subsequently suffered a work-related injury. As retaliation for filing the EEOC charges, Tall claims Delta denied her reasonable accommodations and discontinued her workers' compensation benefits in February 2015. Id. at ¶¶ 133, 135.

         vi. Plaintiff Kenny Gaines

         Gains was hired by Delta on October 11, 2010, to work in ground operations at CVG. (Doc. 5, ¶ 21). Gaines recounts being (a) placed on six months' probation for taking off his safety boot to remove a piece of metal, (b) written up and placed on two years' probation for having a cellular phone on the ramp, and (c) written up for being a few minutes late, whereas Caucasian employees with “similar issues” were not disciplined. Id. at ¶¶ 142-44.

         Gaines further alleges that in 2013, Howe and Unkraut “attempted to blame him” for improperly lowering a belt loader and damaging an aircraft because these particular supervisors had “learned that a white female employee had actually been responsible.” Id. at ¶ 145. Gaines also claims that Howe and Unkraut, have commented that “all you guys look alike, ” referring to African-American employees. Id. at ¶ 146.

         Gaines also filed his EEOC charges on July 9, 2014. (Doc. 62-1 at 20). Gaines then applied for and was granted a location transfer and now works in Atlanta. (Doc. 5, ¶ 147-48).

         vii. Plaintiff David Perdue, Jr.

         Purdue's employment with Delta in ground operations at CVG began on February 20, 2012. (Doc. 5, ¶ 20). Purdue asserts that on one occasion he had accidentally double-booked himself for two shifts and attempted to remedy the situation, as permitted by Delta, by trading shifts with another employee. When the employee arrived for Purdue's shift, supervisor Unkraut allegedly sent him home and issued Perdue a write up for “reliability” because the shift was not covered. Id. at ¶ 154. Purdue asserts that this was done because of his race, as he claims Unkraut later permitted Perdue to trade shifts with a Caucasian employee so that the individual could avoid discipline. Id.

         As another example, Purdue recalls an instance where supervisor Ukraut posted the late schedule, which indicated that Perdue could take Paid Time Off (“PTO”). Believing that Unkraut might discriminate against him because it was allegedly “Unkraut's regular practice to let white employees, but not black employees leave early, ” Perdue took a picture of the schedule and then ended his shift early and took the PTO. Id. at ¶ 155. The next morning, Perdue learned that Unkraut had submitted a disciplinary action against him for leaving without permission. The morning supervisor showed Perdue the schedule, which read, “NO PTO.” Perdue presented the supervisor with the photograph he had taken of the schedule, but he was nevertheless disciplined. Id.

         Purdue also avers that he was written up by supervisor Howe “on one or two occasions for being late.” Id. at ¶ 156. Purdue allegedly told Howe that he believed “he was being written up because he was black, ” to which Howe responded, “that he would also be writing up a white employee that same day, for being late by approximately 15 minutes.” Purdue, however, claims that the particular employee had previously been late approximately twenty times without repercussion. Id.

         Finally, Purdue alleges he was written up for taking sick leave four times during one year, but “white employees with twelve or more sick time absences were not disciplined.” Id. at ¶ 157. Moreover, Purdue claims supervisors Howe and Unkraut have made comments that “all you guys look alike, ” again referring to African-Americans. Id. at ¶ 159.

         Purdue also filed EEOC charges in July 2014. (Doc. 63-1 at 28). Each of the named Plaintiffs candidly admits that “[a]fter the EEOC charges” were filed “in the summer of 2014, Delta did take certain remedial measures, ” allegedly known as the “Brandon Freeman” rules within Delta, “which partially alleviated certain [aspects] of the systemic discrimination.” E.g., (Doc. 5 at 29 n.5, 31 n.6, 32 n.7, 35 n.8, 41 n.13).

         In 2014, Purdue applied for and was ultimately awarded a transfer to Delta's location in Atlanta. Id. at ¶ 160-61.

         D. Procedural History

         As noted, each of the named Plaintiffs filed EEOC charges in July 2014. On approximately June 22, 2015, Plaintiffs received Right to Sue letters from the EEOC. (Doc. 5, ¶ 4). Plaintiffs filed this action on September 3, 2015, (Doc. 1), and then filed an Amended Complaint on September 10, 2015. (Doc. 5).

         After over a year and five months of discovery, which included requests to extend the initial one-year period of discovery, (e.g., Docs. 23, 46, 59), on January 2, 2018, Plaintiffs moved for class certification. (Doc. 52).

         ANALYSIS

         I. Class Certification

         “A district court has broad discretion to decide whether to certify a class.” Glazer v. Whirlpool Corp. (In re Whirlpool Corp. Front-Loading Washer Prods. Liab. Litig.), 722 F.3d 838, 850 (6th Cir. 2013). To obtain certification, the class must satisfy all four prerequisites under Federal Rule of Civil Procedure 23(a)[8]-numerosity, commonality, typicality, and adequate representation-and fit within one of the three types of class actions listed in Rule 23(b). Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012). As the “party seeking class certification, ” Plaintiffs have “the burden to prove the Rule 23 certification requirements.” Id.

         “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate [their] compliance with the Rule-that is, [they] must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc.” Dukes, 564 U.S. at 350. As such, a formulaic recitation of the rule's language will not suffice; there “must be an adequate statement of the basic facts to indicate that each requirement of the rule is fulfilled.” Young, 693 F.3d at 597 (citation and internal quotation marks omitted).

         To ensure each requirement is satisfied, the Supreme Court and the Sixth Circuit have repeatedly instructed trial courts to engage in a “rigorous analysis.” Glazer, 722 F.3d at 851-52 (citing Dukes, 564 U.S. at 350-51)); Clemons v. Norton Healthcare Inc., 890 F.3d 254, 280 (6th Cir. 2018); Gooch v. Life Investors Ins. Co. of Am., 672 F.3d 402, 417 (6th Cir. 2012).

         In determining whether certification is appropriate, “it may be necessary for the court to probe behind the pleadings, ” and the analysis may “entail some overlap with the merits of the plaintiff's underlying claim” or involve “considerations that are enmeshed in the factual and legal issues comprising the plaintiff's cause of action.” Dukes, 564 U.S. at 350-51. “Merits questions may be considered to the extent-but only to the extent-that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466 (2013). The question is not “who will prevail on the merits, but rather whether the proposed class and class representative[s] meet the requirements for certification under Rule 23(a) and (b).” 5 Moore's § 23.84(1).

         Plaintiffs in this case have failed to establish several of the requirements for class certification, including class representative standing; commonality; typicality; and adequacy-of-representation, and the Court is not convinced that certification would be appropriate under either Rule 23(b)(2) or (b)(3) .

         1. Implicit Rule 23 Requirements

         Although Rule 23 is silent on the issue, before a class may be certified it is axiomatic that (1) “the class must be susceptible of precise definition” and (2) the class representative(s) must be “member[s] of that class.” 5 Moore's § 23.21(1). Plaintiffs satisfy only first requirement here.

         a. ...


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