United States District Court, D. Massachusetts
August 18, 2014
JETBLUE AIRWAYS CORP.
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RICHARD G. STEARNS, District Judge.
Roberto Rodriguez,  a Boston-based flight attendant terminated by JetBlue Airways Corp. (JetBlue) in October of 2011, brought this suit against JetBlue alleging (1) disability discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and Mass. Gen. Laws ch. 151B, (2) discrimination and retaliation in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., and (3) common-law breach of implied contract. JetBlue now moves for summary judgment on all claims, alleging that it terminated Rodriguez "in connection with JetBlue's legitimate, non-discriminatory understanding that [Rodriguez] failed a reasonable suspicion' Breathalyzer test for alcohol use on October 13, 2011, in violation of JetBlue policies, as well as Federal Aviation Administration (FAA) and Department of Transportation (DOT) regulations." Def.'s Mem. (Dkt. # 54) at 9.
The plausible facts, viewed in the light most favorable to Rodriguez as the non-moving party, are as follows. Roberto Rodriguez is a thirty-two year old male who was diagnosed with epilepsy at age fourteen. Rodriguez was employed by JetBlue as a "full-time Inflight Crewmember" (flight attendant) from January 7, 2009 to October 31, 2011. On the morning of October 13, 2011, Rodriguez was scheduled to crew a flight from New York to Boston, departing from John F. Kennedy Airport at 7:23 a.m. Rodriguez and the other assigned crewmembers (S.M. and M.M.) were expected to report to work at around 6:45 a.m. The three crewmembers overnighted at a hotel in the borough of Queens. At 7:00 a.m. on October 13, 2011, Rodriguez telephoned JetBlue crew services to report that he and S.M. had been delayed, having not received a requested 5:30 a.m. wake-up call from the hotel concierge. Rodriguez and S.M. took a taxi to the airport, arriving at their assigned aircraft at 7:15 a.m. M.M., the other assigned crewmember, was already on board along with Awilda Ayala, an "inflight team leader, " and David Rodriguez,  another crewmember and "inflight supervisor." Ayala and David R. had boarded the plane to prepare for preboarding in Rodriguez and S.M.'s absence.
Rodriguez boarded the plane, stowed his personal luggage, apologized for being late, and thanked David R. for starting the boarding process. Rodriguez then began to perform crew duties at the back of the aircraft. Meanwhile, Ayala interacted with S.M., whose demeanor she found odd and evasive. Ayala smelled alcohol on S.M.'s breath and texted David R. (who was in the back of the plane with Rodriguez), "David, her breath, come to the front." Ayala Dep. (Dkt. # 65 David R. responded, and after speaking with S.M., decided with Ayala to order Rodriguez and S.M. off the plane and have them tested for alcohol. Ayala, David R., Rodriguez, and S.M. exited the plane around 7:30 a.m. and waited in the employee lounge for Ahmed Malik, a JetBlue Breathalyzer technician, to arrive. David R. called Michael Roldan, an "Inflight Duty Lead" at JetBlue, to report the situation.
DISPUTED FACTS REGARDING THE BREATHALYZER TEST
According to Rodriguez, as he and S.M. exited the plane, Ayala and David R. attempted to take their bags. Rodriguez objected, explaining that he needed his medication. Rodriguez was permitted to keep his bag, see Rodriguez Dep. (Dkt. # 62-3) 62:21-24, but some point "was informed by [David R. and Ayala] that they would not allow [him] to eat or drink anything until [Malik] arrived." Rodriguez Aff. (Dkt. # 62-2) ¶ 30. Rodriguez said that he had to "take his medication soon and required water to do so, " but David R. and Ayala "continued to refuse [him] water and permit [him] to take [his] medicine." Id. ¶ 31-33. Rodriguez "repeatedly pled with [David R. and Ayala] to permit [him] to take [his] medicine because he was epileptic and could not miss a dosage." Id. ¶ 34. Rodriguez began experiencing ringing in his ears and dizziness and told Ayala that he was not feeling well. Malik (the Breathalyzer technician) eventually arrived, and S.M. was the first to be tested. Her initial test was positive. Ayala left the lounge to call airport security out of concern for S.M.'s negative reaction to the test results (she was allegedly berating Ayala). Fifteen minutes later, S.M. failed a confirmation test. Rodriguez was then instructed to report to Malik to be tested. Rodriguez states that he recalls walking into the testing room, where he lost control of his body and collapsed. Rodriguez states that he has "no recollection of ever taking a breathalyzer test or signing any document to agree to a breathalyzer test." Rodriguez Aff. ¶ 43. He revived and was eventually taken to Jamaica Hospital by emergency paramedics.
JetBlue's Account Ayala and David R. state that they accommodated Rodriguez's
request to keep his bag and did not prevent him from taking his medication. According to JetBlue, Rodriguez took a Breathalyzer test at 8:48 a.m. as reflected in a Breathalyzer "test result printout" attached to an Alcohol Testing Form (ATF). The ATF records a test on October 13, 2011, at 08:49 a.m., with a blood alcohol result of.048. See Dkt. # 58-19. The form contains the signature of a "Roberto Rodriguez" under the statement "I certify that I am about to submit to alcohol testing...." Id.  A second signature line at the bottom of the ATF (to be completed by the employee if the blood alcohol result is.02 or higher) is blank. The "remarks" section of the form, filled out and signed by Malik, states: "Employee refuses to sign screen test results. Employee also refused to complete confirmation test." Id. 
The following facts are not in dispute. David R. accompanied Rodriguez and the paramedics to the emergency room at Jamaica Hospital. After Rodriguez was discharged, he and David R. returned to the JFK crew lounge, where an unnamed supervisor presented Rodriguez with a "guidance report form" confirming that he had failed the first Breathalyzer test and had refused to take a confirmation test. Rodriguez states that he did not believe the information in the guidance report was accurate, and therefore refused to sign it.
JetBlue's Termination of Rodriguez
On October 13, 2011, the following note was entered in Rodriguez's JetBlue personnel file (PF): "Roberto was late to his aircraft today and was tested for alcohol use under reasonable suspension (sic to his first test and refused a confirmatory test. He been (sic) removed RPI pending a termination recommendation. See attached message files for details." PF (Dkt. # 62-1) at 32. On October 14, 2011, Anthony Rios, Rodriguez's supervisor at Logan Airport, requested confirmation of Rodriguez's (and S.M.'s) positive test results from Stacy Greenfield. Rios explained that he required confirmation of the positive test "for the termination recommendations." Id. On October 17, 2011, Greenfield responded, confirming that "[S.M.] and [Rodriguez] had positive alcohol tests (reasonable suspicion) on October 13, 2011." Id. at 38. On October 25, 2014, in an email captioned "Robert Rodriguez #83114 - Termination, " Greenfield wrote, "I have reviewed all of the required paperwork regarding Inflight Crewmember Roberto Rodriguez DOT Reasonable Suspicion Refusal.' Roberto's initial DOT test was positive; he refused to take the confirmation test. In accordance with JetBlue Airways' zero tolerance policy, please proceed with termination." Id. at 39. The next entry in the PF is a "Termination Review Package Checklist." See id. at 40. It notes the reason for termination as a "violation of company policy." Id. A "Termination Recommendation" (undated) describes the "trigger incident" for termination as follows: "On October 13, 2011, a reasonable suspicion breathalyzer test was performed on [Rodriguez] by JetBlue's Anti-Drug and Alcohol Department. Anti-Drug and Alcohol informed inflight leadership that Roberto's test results were positive and to suspend Robert pending investigation." Id. at 41. The last entry in the PF is an October 31, 2011 letter from Greenfield to Rodriguez. In it, Greenfield wrote:
Recently you declined to participate in a federally-mandated drug and/or alcohol test as outlined in either 49 C.F.R. Part 40 or 14 C.F.R. Part 120. As you are aware, your declining to take the required test is considered a refusal to submit and therefore is considered prohibited conduct under the [FAA] and JetBlue Corporate Policy.
Id. at 46. She provided information in the letter about conditions Rodriguez would be expected to meet if he pursued employment in a "safety-sensitive" position in the future. She also gave Rodriguez contact information for a substance abuse professional. Id. On November 8, 2011, Rodriguez filed an administrative charge with the EEOC, describing the events of October 13, 2011, as follows: "[JetBlue] subjected [Rodriguez] to a test, upon suspicion of the use of alcohol. However, after the initial test, RODRIGUEZ suffered an epileptic seizure. Contrary to the disciplinary October 13, 2011 memorandum, RODRIGUEZ did not refuse a confirmation test; he was unable to take a confirmation test based upon his disability." Dkt. # 11 at 17.
Summary Judgment Standard
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a context, genuine' means that the evidence is such that a reasonable jury could resolve the point in favor of the nonmoving party." Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 38 (1st Cir. 1993 which has the "potential to affect the outcome of the suit under applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphases in original). Finally, Fed.R.Civ.P. 56(c) ", amdates the entry of summary judgment... upon motion against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
The Americans with Disabilities Act
To obtain relief under the ADA,  a plaintiff must first establish that he or she: (1) suffered from a disability within the meaning of the ADA, (2) was "otherwise qualified to perform the essential functions" of the job "with or without reasonable accommodation, " and (3) was subject to an adverse employment action. Benoit v. Tech. Mfg. Corp., 331 F.3d 166, 176 (1st Cir. 2003). The parties do nto dispute that epilepsy qualifies as a disability under the ADA. Additionally, Rodriguez is able to perform the essential functions required of a flight attendant, as, prior to his termination, he had performed the job successfully despite any disability.
A plaintiff also bears the initial burden of showing that the adverse employment action was the result of unlawful discrimination. In other words, Rodriguez must prove that JetBlue took the adverse employment action "in whole or in part because of his disability." Katz v. City Metal Co., Inc., 87 F.3d 26, 30 (1st Cir. 1996). A plaintiff may meet this burden either by presenting direct evidence of discriminatory animus, or, because "direct evidence of intentional discrimination is hard to come by, " Price Waterhouse v. Hopkins, 490 U.S. 228, 271 (1989) (plurality opinion) (O'Connor J., concurring), by invoking the burden-shifting framework set out in McDonnell-Douglas Corp. v. Green , 411 U.S. 792 (1973) See Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 104 (1st Cir. 2005) (noting approval of the use of the McDonnell-Douglas framework "in connection with ADA claims of disability discrimination"). As Rodriguez has not come forward with direct evidence of discrimination, the court will proceed in accordance with McDonnell-Douglas. 
Under the McDonnell-Douglas framework, once a plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to "articulate a legitimate, non-discriminatory reason for its employment decision and to produce credible evidence to show that the reason advanced was the real reason." Tobin, 433 F.3d at 105. If the employer meets its burden of production and offers such a reason, "the initial inference of discrimination evaporates, and the burden then shifts back to the plaintiff to proffer evidence to establish that [the] non-discriminatory justification is mere pretext, cloaking discriminatory animus.'" Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 99 (1st Cir. 2007), quoting Tobin, 433 F.3d at 105 (internal citations omitted).
JetBlue's Non-discriminatory Reason
Anticipating that Rodriguez might succeed in making a prima facie case of disability discrimination,  JetBlue has come forward with a nondiscriminatory reason for taking the adverse employment action that it did. JetBlue alleges that Rodriguez was terminated because of management's reasonable belief that he had "failed an initial Breathalyzer test, and [had] refused to take a confirmation test... in violation of JetBlue's zero tolerance policy on alcohol use." Def.'s Mem. at 19.
JetBlue maintains that the fact that Rodriguez has epilepsy did not factor into Greenfield's decision to fire him, and that Greenfield and other JetBlue management made the decision to terminate Rodriguez after considering a number of sources of credible information, including: (1) contemporaneous emails from Ayala, a phone call from David R., and the signs and symptoms report form, all of which confirmed that Ayala and David R. suspected that Rodriguez and S.M. were intoxicated when they reported late for duty on the morning of October 13, 2011; (2) the results of Breathalyzer tests confirming that S.M. and Rodriguez had elevated blood alcohol levels exceeding JetBlue's authorized limit (as evidenced, in the case of Rodriguez, by the ATF showing a Breathalyzer test result of 0.048, and containing the statement that Rodriguez had refused a second test); (3) emails from the Breathalyzer technician confirming the results listed on the ATF and corroborating Rodriguez's refusal to take a second test. This evidence is more than sufficient to satisfy JetBlue's burden of production in articulating a nondiscriminatory reason for the adverse employment action.
Evidence of Pretext
At this step of the burden-shifting analysis, Rodriguez must "demonstrate that the proffered reason was not the true reason for the employment decision." Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981); see also Blare, 419 Mass. at 447 (noting that at this stage a plaintiff must "produce evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination."). This final burden shift "merges with the unlimate burden of [persuasion], " and a plaintiff may offer evidence to directly prove that "a discriminatory reason more likely motivated the employer, " or may attempt to expose pretext "by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256. Rodriguez has chosen the second tack, focusing his argument on disputed facts about the events of October 13, 2011, and on alleged discrepancies in the various JetBlue documents offered in support of his termination.
In the first instance, Rodriguez denies that he took any Breathalyzer test at all, relying on a sworn affidavit that he has no recollection of taking such a test. For obvious reasons, the "mere lack of recollection does not suffice" to generate a genuine dispute of material fact. I.V. Servs. of Am., Inc. v. Inn Dev. and Mgmt., Inc., 182 F.3d 51, 55 (1st Cir. 1999 plausible inferences are to be drawn in favor of a non-moving party on summary judgment, "the opponent is not entitled to have the moving party's evidence positively disbelieved" in the absence of any specific facts to discredit it. Grubb v. KMS Patriots, L.P., 88 F.3d 1, 4 (1st Cir. 1996). Rodriguez offers no facts discrediting the printout of his Breathalyzer result or the emails and contemporaneous correspondence from multiple eyewitnesses that consistently refer to Rodriguez taking the test with a.048 result. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000) ("[A]n employer would be entitled to judgment as a matter of law" if there is "abundant and uncontroverted" (or barely controverted) evidence that a nondiscriminatory reason explains the employer's decision be remembered that Rodriguez signed a prior statement, under penalty of perjury, admitting that he did take a Breathalyzer test, and only "after the initial test" did he suffer a seizure. The court is not required - and in fact it would be unfair to the opposing party - to treat a party's repudiation of his own prior sworn statement as creating a genuine dispute of material fact. See Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994) ("When an interested witness has given clear answers to unambiguous questions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed.").
As a fallback position, Rodriguez alleges that his final termination letter from JetBlue misconstrued his inability to take the confirmation test as a "refusal" to submit to the alcohol testing. Even assuming that this is true, it is immaterial. Rodriguez does not allege that the individuals who made the ultimate decision to terminate him knew (or even suspected) that his actions had been misconstrued. And assuming that an error was in fact made, Rodriguez offers no evidence that could lead a reasonable jury to believe that the error was motivated by discriminatory animus.
Moreover, even crediting Rodriguez's unsupported accusations that Malik intentionally lied on the ATF, forged Rodriguez's signature, and lied in his recounting of the test to the paramedics, Ayala, and to Greenfield, he offers no plausible motive for Malik to have done so, much less a reason to impute Malik's allegedly malicious behavior to JetBlue. (It will be remembered that S.M., who was tested by Malik together with Rodriguez, was also terminated by JetBlue for violating the zero tolerance policy focus of the court's analysis is not on Malik and his motives, but on the state of mind of the supervisors and managers who made the decision to terminate Rodriguez, and what was known to them when they did. See, e.g., Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991) ("In assessing pretext, a court's focus must be on the perception of the decision maker, ' that is, whether the employer believed its stated reason to be credible.").
In other words, the record is bereft of any evidence to suggest that JetBlue's decision was motivated by anything other than adherence to its "zero-tolerance" policy and the reasonable belief that Rodriguez had violated that policy. That JetBlue may have been mistaken is not the issue. The anti-discrimination laws are exactly that. They are not a vehicle for litigating the soundness of an employer's personnel decisions so long as they are motivated by reasons that are nondiscriminatory. See Tardanico v. Aetna Life & Cas. Co., 41 Mass.App.Ct. 443, 448 (1996) ("The employer's reasons need not be wise, so long as they are not discriminatory and they are not pretext."); see also Mesnick, 950 F.2d at 825 (courts "may not sit as super personnel departments, assessing the merits - or even the rationality - of employers' nondiscriminatory business decisions").
Reasonable Accommodation and FMLA claims
While evidence of discriminatory animus is not an element of an ADA reasonable accommodation claim, an employee must "explicitly request an accommodation, " and must "provide sufficient information to put the employer on notice of the need for accommodation." Jones v. Nationwide Life Ins. Co., 696 F.3d 78, 89 (1st Cir. 2012). The request must be "sufficiently direct and specific" and "must explain how the accommodation requested is linked to plaintiff's disability." Id. Rodriguez fails to state a claim for failure to accommodate because he has not alleged that he made any request for an accommodation from JetBlue. Similarly, Rodriguez cannot point to any FMLA request that could possibly explain his termination - the evidence is overwhelmingly that an explicit request was never made prior to JetBlue's decision.
Finally, there is no support for Rodriguez's allegation that JetBlue's employee handbook (called the "Bluebook") formed a "contract, " and if it did, that any of its terms were breached. Rodriguez was told he was an at-will employee and he does not dispute that fact. An at-will employee may, with two limited exceptions (neither of which apply to Rodriguez), be terminated for any non-discriminatory reason or for no reason at all. Jackson v. Action for Boston Cmty. Dev. Inc., 403 Mass. 8, 9 (1988).
For the foregoing reasons, JetBlue's motion for summary judgment is ALLOWED. The Clerk will enter judgment for JetBlue on all claims and close the case.