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Malik Hodge v. United Airlines

October 21, 2011


The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge


This action was filed by Plaintiff Malik Hodge ("Hodge") against his former employer, United Airlines ("United") alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and alleging denial of medical leave in violation of the Family Medical Leave Act of 1990, 29 U.S.C. §§ 2611 et seq. ("FMLA"). The Court previously dismissed Hodge's Title VII claim insofar as it was based on an alleged hostile work environment. See Hodge v. United Airlines, 666 F. Supp. 2d 14, 22-23 (D.D.C. 2009). Presently pending before the Court is United's [35] Motion for Summary Judgment filed by Defendant United Airlines ("United"). After considering the parties' briefs, the accompanying exhibits, and the applicable authorities, the Court shall grant United's motion for summary judgment for the reasons explained below.


A. Hodge's Employment History with United Airlines Plaintiff Malik Hodge, an African American male, began working for Defendant United Airlines as a flight attendant in 1995. Def.'s Stmt.*fn1 ¶ 1. United assigns its flight attendants to geographic areas called "domiciles," and Hodge was initially assigned to work in United domicile at John F. Kennedy airport ("JFK"). Id. In 1999, Hodge was transferred to United's domicile at the Hong Kong International Airport ("HKG"), where he remained until his termination in 2005. Id. ¶ 2. Hodge's first-line supervisor at United's HKG domicile was Ann Hsu ("Hsu"), an Asian female who held the title of Onboard Supervisor. Id. ¶ 3. Hsu provided day-to-day supervision of the flight attendants at the HKG domicile, including Hodge. Id. ¶ 4. From 2003 to 2005, Hodge's second-level supervisor was Steve Pais ("Pais"), a Caucasian male who held the title of Manager of Onboard Services. Id. ¶ 5. Hodge also refers to Pais as a "Base Manager."

Hodge received a series of infractions during his employment with United. On September 1, 1995, Hodge received an appearance infraction for wearing a non-regulation pin on his uniform. Def.'s Stmt. ¶ 24. On November 22, 1995, Hodge received an appearance infraction while at the JFK domicile for wearing an earring and for his non-regulation beard. Id. ¶ 25. On February 24, 1997, Hodge received another appearance infraction while at the JFK domicile for his non-regulation uniform and for reporting for duty twenty minutes late. Id. ¶ 26.

On April 11, 2001, Hodge was counseled while at the JFK domicile for having an outdated manual, although Hodge disputes that his manual was outdated. Id. ¶ 27; Pl.'s Resp. Stmt. ¶ 27. On May 9, 2003, Hodge received an "initial discussion" from his supervisor, Ann Hsu, regarding his dependability related to nine days of absence. Def.'s Stmt. ¶ 28.

Both Hsu and Pais addressed Hodge several times regarding his hairstyle. See Def.'s Ex. A (Arb. Hr'g Tr.) at 106-08, 303. On or around May 21, 2002, Pais complained to Hodge about his dreadlocks, which Pais believed did not comply with United's regulations regarding appearance. See Pl.'s Ex. A ("Hodge Decl.") ¶ 4. Hodge believed that his dreadlocks did comply because the "locks" were "tamed" and in a "uniform series of twists" and did not extend past the top of his collar. Id. Hodge began to wear cornrows to accommodate Pais's concerns. Id. In March 2002, In-Flight Supervisor Wendy Cheung expressed concern over Hodge's hair because she claimed it was falling in his face. Id. ¶ 5. Hodge responded that he would control his hair with a hair pin, and that appeared to alleviate her concerns. Id. Pais subsequently told Hodge that his hairstyle was intended for females. Id. On June 3, 2004, Pais gave Hodge an appearance infraction for failing to comply with United's hair regulations. Def.'s Stmt. ¶ 30. On July 17, 2004, Hodge arrived for work thirty-five minutes before check-in time and reported to Pais. Hodge Decl. ¶ 6. According to Hodge, his hairstyle was in compliance with United's regulations when he checked in. Id. However, Pais determined that Hodge was not in compliance and removed him from the work schedule. Id. Hodge put on a short Afro wig and was in uniform prior to check-in time, but Pais did not return him to the work schedule, although Pais decided to pay him for the flight. Id. After this incident, Hodge did not have any further problems with Pais. Def.'s Stmt. ¶ 34.

B. Hodge Claims Sick Leave and Avoids Work on Christmas Day 2004

Hodge was scheduled to work on December 25, 2004 departing from Hong Kong. Def.'s Stmt. ¶ 45. On December 23, 2004, Hodge was working on a flight from San Francisco to Hong Kong and allegedly injured his back while trying to pull out a stuck cart. Id. ¶ 46. According to Hodge, his injury was a recurrence of injuries he sustained in an automobile accident in the District of Columbia on October 20, 2004. Hodge Decl. ¶ 8. Hodge claims that this injury sent him into "shock," causing him to experience a "shooting" pain in his leg and upper and lower back. Def.'s Stmt. ¶ 47. Hodge claims that he had difficulty moving and performing his duties as a flight attendant for the remainder of the flight. Id. ¶ 48. Hodge did not state to any of his colleagues that he was injured, and he did not immediately report the injury to his supervisor because she was not on the flight. Hodge Decl. ¶ 8.

Flight attendants who are injured while flying or while on layover are required to immediately notify their supervisor within twenty-four hours, place themselves on sick leave, seek timely and appropriate medical care, and prepare and submit an injury report to their domicile supervisor. Def.'s Stmt. ¶ 38. Hodge did not fill out an injury report because he believed that United's policy on in-flight injuries did not apply to pre-existing injuries. Hodge Decl. ¶ 8. Hodge decided to travel to the District of Columbia to seek medical treatment for his injury. Id. ¶ 10. Although United generally prohibits flight attendants from flying while on sick leave, flying is permitted to seek medical treatment. Id. After arriving in Hong Kong on the evening of December 23, 2004, Hodge telephoned his doctor's office and left a message on its answering service indicating that he was in a lot of pain and needed to see a doctor immediately. Id. ¶ 11. The answering service informed Hodge that the office was closed through the holidays and the first appointment available was on January 3, 2005. Id. On December 24, 2004, at approximately 1:46 a.m. local Hong Kong time, Hodge's wife made a reservation for Hodge to travel "space available" from Hong Kong to Washington, D.C. Def.'s Stmt. ¶ 60. On December 24, 2004, Hodge and his wife flew "space available" on United from Hong Kong to Washington, D.C., with a connection in San Francisco. Id. ¶ 63.

Under United's sick leave policy, flight attendants who are incapacitated due to illness or injury and are unable to work their scheduled flights are required to call their supervisor or United's Flight Attendant Service Center. Def.'s Stmt. ¶ 36. Because of the high rate of unscheduled absences during the Christmas holidays, supervisors at United pay careful attention to flight attendants who call in sick during the holiday season to ensure there is a legitimate basis for their absence. Id. ¶ 44. Hodge did not call United's Flight Attendant Service Center on the evening of December 23, 2004 or during the morning of December 24, 2004 or at any point prior to leaving Hong Kong to report that he would be unable to work his scheduled flight on December 25, 2004. Id. ¶¶ 61-62. Hodge did call the Flight Attendant Service Center during his layover in San Francisco and reported that he would be unable to fly on Christmas Day. Id. ¶ 65. Hodge knew that it was it was the operator's job to ask flight attendants for contact information, but the operator did not ask, and so Hodge offered to provide it. Hodge Decl. ¶ 13. Hodge claims that the operator stated that it was not necessary for him to provide contact information. Id. United disputes Hodge's account of his call to the Flight Attendant Service Center.

Hodge and his wife spent Christmas Day at their apartment in Washington, D.C. Def.'s Stmt. ¶ 70. On December 28, 2004, Hodge flew to New York City for a dentist appointment that Hodge had scheduled months earlier. Id. ¶ 70; Hodge Decl. ¶ 14. Hodge chose to fly to New York on U.S. Airways rather than use his free flying privileges on United because U.S. Airways operated out of Reagan National Airport, which was closer to his home; Hodge paid only $20 for his ticket to New York. Hodge Decl. ¶ 14.

C. United's Attempts to Reach Hodge

United's Hong Kong domicile received an electronic notification of Hodge's request for sick leave on December 24, 2004. Def.'s Stmt. ¶ 74. Because Ann Hsu was on vacation, Onboard Services Coordinator Josephine Lau received the sick leave notification and, on December 26, 2004, made a routine sick leave follow-up call to Hodge's contact number listed in the automated notice sent by the Flight Attendant Service Center. Id. ¶ 75. Ms. Lau was unable to reach Hodge on December 26, 2004 using the telephone numbers listed in his official contact records. Id. ¶ 76. United requires flight attendants to keep their contact information up-to-date in their official records, and Hodge was aware of this policy. Id. ¶¶ 39, 43. Hodge also knew that the contact numbers listed for him in United's official records were local numbers in Hong Kong. Id. ¶ 67. Ann Hsu returned to the office on December 27, 2004 and unsuccessfully tried to reach Hodge at his local Hong Kong mobile and land lines listed in his official contact records. Id. ¶ 77. When Ann Hsu returned to the office again on January 1, 2005, there were no telephone messages or any other information regarding Hodge's whereabouts. Id. ¶ 78. She again tried to reach Hodge using his contact numbers but was unsuccessful. Id. ¶ 79. On January 2, 2005, Ann Hsu left a message for Hodge on his local number in Hong Kong and indicated that Hodge needed to provide medical documentation to substantiate his absence since December 25, 2004. Def.'s Stmt. ¶ 80. That same day, Hsu also called Hodge's emergency contact in his official contact list, which was a phone number for Hodge's mother in New York.

Id. ¶ 81. Hsu received a message indicating that the number was no longer in service. Id.

Having heard nothing from Hodge in over nine days, and given United's heightened awareness of unscheduled absences during the holiday season, Hsu sent Hodge a written medical directive to his home address in Hong Kong on January 2, 2005 ordering him to provide medical documentation to substantiate his absence to United's Seattle Medical Department by no later than January 7, 2005. Def.'s Stmt. ¶ 82. Pursuant to this medical directive, Hodge was required to provide documentation from his treating physician, which included his diagnosis, days of treatment and prognosis and expected return. Id. ¶ 83. The directive also warned Hodge that if he failed to comply, he could be discharged. Id. ¶ 84. On January 6, 2005, Hsu sent Hodge an "e-note" summarizing her unsuccessful attempts to reach him and reiterating the details of the medical directive. Id. ¶ 85. Hodge had access to United's "e-note" system from the United States. Id. ¶ 86. Hodge did not respond to Hsu's telephone messages, her "e-note," or the medical directive on or before January 7, 2005. Id. ¶ 87.

Because she had not heard from Hodge, Ann Hsu contacted Lina Slack, a labor relations specialist with United. Def.'s Stmt. ¶ 88. Ms. Slack suggested that Hsu look up Hodge's travel records. Id. ¶ 89. When she did, she learned that Hodge had traveled to Washington, D.C. on December 24, 2004. Id.

D. Hodge's Supervisor Issues Him a Letter of Charge

Because Hodge had no contact with United since calling out sick on December 24, 2004 and had failed to respond to the messages and the medical directive that Hsu had sent him, Hsu issued Hodge a Letter of Charge on January 10, 2005. Def.'s Stmt. ¶ 90. Pursuant to the collective bargaining agreement between the Association of Flight Attendants (the "Union") and United, if a flight attendant engages in misconduct which in the opinion of management may result in suspension or discharge, they receive a written Letter of Charge ("LOC") setting forth the precise charge(s) as well as a hearing on those charges where they can present witnesses and be represented by the Union.*fn2 Id. ¶ 17. A hearing on a Letter of Charge is conducted by the Manager of Onboard Services or his designee ("hearing officer"), but the hearing officer cannot be the same management representative who issued the Letter of Charge. Id. ¶¶ 18-19. At the conclusion of the hearing, the hearing officer is required to issue a Letter of Decision ("LOD") and determine the appropriate penalty if the flight attendant is found to have violated any of United's Articles of Conduct as set forth in the LOC. Id. ¶ 20. United's Articles of Conduct contain various standards of conduct to which flight attendants are required to abide, as well as the consequences for failing to do so. Id. ¶ 8.

The Letter of Charge issued by Ann Hsu charged Hodge with violating Article 6 of the Articles of Conduct, which prohibits flight attendants from "falsely claiming sick, occupational or other paid leave or worker's compensation benefits or furnishing false information concerning absence." Def.'s Stmt. ¶¶ 9, 91. Flight attendants who are found to have violated Article 6 will be discharged absent mitigating factors. Id. ¶ 10. Hodge was aware that a violation of Article 6 is a terminable offense. Id. ¶ 11. The LOC also charged Hodge with violating Article 21, which prohibits flight attendants from "fail[ing] to comply with oral or written instructions from a member of company management or other person in authority," based on his failure to respond to the medical directive Hsu issued on January 2, 2005. Id. ¶¶ 12, 92. The LOC also charged Hodge with violating Article 30, which prohibits flight attendants from having "unauthorized absence[s] from work." Id. ¶¶ 13, 93. Violations of Article 21 or 30 result in disciplinary action up to and including discharge; discipline normally commences with a suspension unless the situation or the employee's record warrants more severe action." Id. ¶ 14.

Steve Pais, Hodge's second-level supervisor, avers that he was not involved in drafting, preparing, or advising Hsu regarding the LOC she issued to Hodge. Def.'s Stmt. ¶ 94. However, Hodge avers that it is his understanding that company policy requires that a Letter of Charge be approved by a Base Manager. See Hodge Decl. ¶ 15.*fn3 There is some question as to whether Hodge has personal knowledge of this alleged company policy since he acknowledges in his declaration that his knowledge is based in part on "statements from [his] union representative." See id. Nevertheless, the Court shall assume for purposes of this motion either that Steve Pais played some role in the issuance of the LOC or that United departed from company policy by issuing the LOC without his approval.

Because Hsu knew that Hodge had traveled to the United States, she sent a copy of the LOC to Hodge's secondary address in Riverdale, New York via Federal Express. Def.'s Stmt. ¶ 95. Hodge first learned that United was trying to contact him on or about January 11, 2005, when his father notified him that the FedEx package had arrived containing the LOC. Hodge Decl. ¶ 15.*fn4 Hodge had not checked his email because he understood that company policy prohibited supervisors from sending mandatory reading information by email. Id. Hodge knew after receiving the LOC that he was in "hot water" and facing possible termination. Def.'s Stmt. ¶ 96. Hodge did not call Hsu immediately after receiving the LOC; instead, he waited until January 17, 2005, when he left her a voicemail message. Id. ¶¶ 97-98. Hodge informed Hsu that he had received her "e-note" and that he had an appointment for January 18, 2005 and would provide her with medical documentation. Id. ¶ 99. Hodge had additional conversations with Hsu after January 17, 2005 regarding his absence on December 25, 2004 and the LOC she had issued. Def.'s Stmt. ¶ 100. Hodge recorded all of his telephone conversations with Hsu without her consent. Id. ¶ 101.

E. Hodge Provides United With Medical Documentation

Hodge saw his physician, Dr. Richard Meyer, in Washington, D.C. on January 3, 2005. Def.'s Stmt. ¶ 102. Dr. Meyer gave Hodge a medical note that indicated Hodge was under his care for a "dorsal strain." Id. ¶ 103. Dr. Meyer did not indicate that Hodge was unable to work, but he did list various physical limitations, including: "no pushing carts," "no lifting greater than 20 lbs.," and "minimum push/pulling." Id.; Def.'s Ex. L (1/3/05 note). Hodge did not submit this note to the Seattle Medical Department. Def.'s Stmt. ¶ 104.*fn5 Instead, he asked Dr. Meyer's secretary to provide him with a second medical note that contained no medical restrictions and indicated that Hodge was able to return to work on regular duty status. Id. ¶ 105. Hodge sent this second note to United's Seattle Medical Department on January 12, 2005. Id. ¶ 106. Hodge has admitted that the medical documentation he submitted to United on January 12, 2005 did not accurately reflect his work restrictions as they existed on January 3, 2005, when the first note was written. Id. ¶ 108. Hodge has also admitted that the second note contained "inaccurate information" and was "inconsistent" with the first note. Id. ¶ 109. The second note also contradicted a statement by Hodge's attorney in a cover letter that was submitted along with the note to United that Hodge would be unable to work until at least January ...

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