         10-784-cv
         Amarsingh v. Jet Blue Airways Corp.

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 10th day of February, two thousand eleven.
 5
 6       PRESENT: GUIDO CALABRESI,
 7                GERARD E. LYNCH,
 8                              Circuit Judges,
 9                DENISE COTE,
10                              District Judge.*
11       _______________________________________
12
13       MALA AMARSINGH,
14                Plaintiff-Appellant,
15
16                           v.                                   No. 10-784-cv
17
18       JETBLUE AIRWAYS CORPORATION,
19                Defendant-Appellee.
20       ______________________________________
21
22       FOR APPELLANT:                         Deirdre E. Hamilton, Association of
23                                              Flight Attendants, Washington, DC.
24




                      *
                   Honorable Denise Cote of the United States District
             Court for the Southern District of New York, sitting by
             designation.
 1
 2   FOR APPELLEE:          Patricia G. Griffith, Ford &
 3                          Harrison LLP, Atlanta, GA.
 4
 5       Appeal from the United States District Court for the

 6   Eastern District of New York (Sandra L. Townes, Judge).

 7       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 8   AND DECREED that the judgment of the district court is

 9   AFFIRMED.

10       Mala Amarsingh was employed as a flight attendant for

11   JetBlue Airways Corporation (“JetBlue”) and, while working

12   for JetBlue, participated in a campaign to unionize

13   JetBlue’s flight attendants. Amarsingh’s employment was

14   terminated shortly after an incident at the Las Vegas

15   Airport (the “Las Vegas incident”), in which Amarsingh told

16   an unruly JetBlue customer to “[g]et the fuck out of my

17   face.”

18       Following the termination of her employment, Amarsingh

19   brought a wrongful discharge suit against JetBlue, alleging

20   that the company unlawfully interfered with her right to

21   participate in union-related activities, in violation of the

22   Railway Labor Act (“RLA”), 45 U.S.C. § 152, Third & Fourth.

23   The district court granted summary judgment in JetBlue’s

24   favor, and Amarsingh now appeals. We assume the parties’


                                  2
 1   familiarity with the other facts and procedural history of

 2   this case.

 3       We review a district court’s grant of summary judgment

 4   de novo. Fagan v. N.Y. State Elec. & Gas Corp., 186 F.3d

 5   127, 132 (2d Cir. 1999). Summary judgment is warranted when

 6   there is no genuine issue of material fact and the moving

 7   party is entitled to judgment as a matter of law. Fed. R.

 8   Civ. P. 56(a).

 9       JetBlue does not question the district court’s

10   determination that the relevant provisions of the RLA

11   afforded Amarsingh an implied right of action against

12   JetBlue. And neither party challenges the district court’s

13   decision to analyze Amarsingh’s RLA claims under the Wright

14   Line burden-shifting framework, which we have used to

15   evaluate similar wrongful termination claims under the

16   National Labor Relations Act. See, e.g.,   NLRB v. G & T

17   Terminal Packaging Co., 246 F.3d 103, 116 (2d Cir. 2001)

18   (citing Wright Line, A Division of Wright Line, Inc., 251

19   N.L.R.B. 1083, 1083-88 (1980)). We therefore address only

20   whether the district court properly applied the Wright Line

21   framework to the facts of this case.

22       Under this framework, the employee first bears the


                                  3
 1   burden of making out a prima facie case for wrongful

 2   termination. To do so, she must show by a preponderance of

 3   evidence that her “protected conduct was a ‘substantial’ or

 4   ‘motivating’ factor prompting the discharge.” G & T Terminal

 5   Packaging Co., 246 F.3d at 115. If the employee successfully

 6   meets this burden, the employer may avoid liability only if

 7   it demonstrates by a preponderance of the evidence “that it

 8   would have reached the same decision absent the protected

 9   conduct.” Id. at 116.

10       The district court concluded that Amarsingh failed to

11   carry her initial burden under the Wright Line test. In

12   making this determination, the court relied on a four-

13   pronged formulation of the “substantial or motivating

14   factor” requirement, under which an employee must show that

15   “(a) [s]he was engaged in activity protected by the RLA; (b)

16   [the employer] was aware of that activity; (c) [the

17   employer] harbored animus toward the protected activity; and

18   (d) the animus was a causal factor in plaintiff’s

19   termination.” Beckett v. Atlas Air, Inc., 968 F. Supp. 814,

20   817 (E.D.N.Y. 1997) (citing Carry Cos. Of Ill., Inc. v.

21   NLRB, 30 F.3d 922, 927 (7th Cir. 1994)). Both parties have

22   relied on this four-part test on appeal, and we therefore

23   assume its applicability to this case.

                                  4
 1       It is undisputed that Amarsingh participated in

 2   activities protected by the RLA and that JetBlue management

 3   was aware of Amarsingh’s participation in these activities.

 4   And the record clearly supports a reasonable inference that

 5   JetBlue did not look favorably upon Amarsingh’s ongoing

 6   protected activities. But we cannot conclude that the

 7   Amarsingh has raised a triable issue of fact regarding the

 8   causal connection between JetBlue’s opposition to

 9   unionization and its decision to fire her. We therefore find

10   that Amarsingh has failed to carry her burden with respect

11   to the fourth requirement of the Wright Line test.

12       Amarsingh’s behavior during the Las Vegas incident was

13   manifestly enough to justify her discharge, and she has not

14   proffered sufficient evidence to permit a jury to find, by a

15   preponderance of the evidence, that anything other than this

16   behavior was a substantial or motivating factor in her

17   discharge. What she did was in clear violation of

18   established JetBlue policy, which prohibits “all forms of

19   threats, harassment or intimidation . . . including verbal,

20   physical or psychological assaults by any Crewmember against

21   another Crewmember, Customer or Business Partner,” and which

22   provides that JetBlue employees may be fired on account of

23   “one occurrence of a severe single issue.” What’s more, she

                                  5
 1   herself admitted that shortly after the incident, she

 2   herself worried that her “us[e] of the F word” would lead to

 3   her getting fired. Significantly, Amarsingh did not imply

 4   that she feared a retaliatory firing; the clear implication

 5   of her testimony is that she understood that she had

 6   violated company policy in a manner that made discipline

 7   likely, and firing at least possible. Moreover, she has

 8   failed to identify even a single other instance in which

 9   JetBlue (or for that matter any other airline) has applied

10   less severe disciplinary measures in response to similar

11   behavior by a flight attendant.1 The burden at this stage

12   was hers, and that burden was not met.

13       Accordingly, we conclude that the district court

14   properly granted summary judgment on the ground that

15   Amarsingh failed to make out a prima facie case under the

16   Wright Line test. For this reason, we need not and do not


           1
             We do not suggest that Wright Line would require an
       employee to identify instances in which her employer (or
       a similarly-situated employer) treated identical behavior
       differently. But Amarsingh needed to give the factfinder
       some basis to conclude that her termination was something
       other than an ordinary disciplinary response to her
       behavior in Las Vegas. Given the absence of any other
       indicator to this effect, her failure to identify any
       episode in which JetBlue–-or, indeed, other airlines--
       responded more leniently to comparable behavior by an
       employee not involved with the union is a relevant
       consideration.
                                  6
 1   address the district court’s alternative holding that if

 2   Amarsingh had made out such a case, JetBlue would

 3   nonetheless have carried what would then have become its

 4   burden of showing that Amarsingh would have been fired even

 5   if she had not engaged in the protected activities.

 6       We have considered Amarsingh’s remaining arguments on

 7   appeal and find them to be without merit. The judgment of

 8   the district court is therefore AFFIRMED.

 9

10                              FOR THE COURT:

11                              Catherine O’Hagan Wolfe, Clerk
12




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