There was sufficient evidence for a jury to find that United Airlines willfully violated federal age discrimination law by forcing two longtime flight attendants into retirement, the federal appeals court based in Denver concluded.

United had sought to overturn the verdict from the 2018 jury trial by arguing there was no direct evidence of age discrimination, the flight attendants had violated company policies, and they had lied during an investigation. A lower court judge declined to side with United, saying the plaintiffs had presented credible evidence that the airline had treated Jeanne Stroup and Ruben Lee differently and that United’s explanations were deceptive.

A three-judge panel of the 10th Circuit agreed there was enough information in the record to support the jury’s finding of liability.

“Plaintiffs were largely successful in undermining the credibility of United’s witnesses – casting doubt on the legitimacy of United’s explanations for its conduct. On appeal, United is basically asking us to make credibility determinations as to the proffered testimony that the jury already has reviewed and weighed,” wrote Judge Jerome A. Holmes in the Feb. 28 opinion.

The panel, he added, “may not go that far.”

As a result of the trial, Stroup and Lee had each received approximately $200,000 in back pay, an equal amount in damages because United’s conduct was willful, as well as front pay in the amount of $314,711 for Stroup and $206,862 for Lee. The airline warned the 10th Circuit that ratifying the jury’s decision on appeal would be a blow to worker accountability.

“If this verdict is upheld, what that means is that flight attendants on a major airline, with all these people in the air, can disregard their duties, watch videos repeatedly … and then lie about it,” attorney Marcy G. Glenn told the panel during oral arguments, “and the airline cannot take disciplinary action against them. It cannot exercise its business judgment to enforce policies. I certainly hope that is not the law in the 10th Circuit.”

At the time they left United, Stroup was 55 years old and had worked for the airline for approximately three decades, while Lee was 61 and had 41 years of service. Both were based out of Denver International Airport. In August 2013, another employee complained about them to a supervisor, alleging Stroup and Lee had watched a video on an iPad while on duty.

In response, Dean Whittaker, United’s manager of in-flight services at DIA, asked a supervisor to observe Stroup and Lee’s performance while on duty. The supervisor conducted his reconnaissance on a Denver-to-San Francisco flight a few weeks later. He noted multiple policy violations: the two flight attendants sat on steel storage containers and they watched an iPad while sharing a pair of earbuds.

Among the other violations, Lee smoked an electronic cigarette in the rear galley and did not properly position himself during the safety demonstration. Stroup did not wear her apron and nametag during beverage service, and Lee provided a free alcoholic beverage to a passenger.

Mark Dodge, the flight attendants’ supervisor, met with Stroup and Lee afterward and issued “letters of charge” outlining the employees’ misconduct. There was no mention of safety-related violations or any reported dishonesty.

Whittaker opted to terminate the two flight attendants, but ultimately allowed them to retire at the request of the union representative. At trial, United’s attorney asked Whittaker why Stroup and Lee ultimately left their jobs.

“A large part of that reason is I didn’t find them trustworthy. There was conflicting statements throughout, and, um, again, I was very concerned what took place on that aircraft and, um, for many factors,” he said. 

Ultimately, the jury was asked whether United more likely than not discriminated against Stroup and Lee because of their age, in violation of the Age Discrimination in Employment Act. To prevail, the plaintiffs had to be at least 40 years old and show that age was the factor that made the difference in their terminations. Jurors ultimately believed that version of events.

After trial, United Airlines moved for judgment as a matter of law because the plaintiffs had failed to show the company took action against them because of their age.

U.S. District Court Judge Daniel D. Domenico agreed with the company that it had presented nondiscriminatory reasons for firing Stroup and Lee, that the plaintiffs admitted they had lied to their supervisors, and that there was no direct indication of age discrimination.

“For example, there was no evidence that any United employee considered Plaintiffs’ ages in connection with the termination decision,” Domenico wrote in September 2019. “Plaintiffs testified that they never heard an age-related comment or remark by anyone at United, and admitted to having no prior interactions and no knowledge of age-related comments or bias by the United employees who were involved in the hearings and charges against them.”

However, the judge also pointed out there was considerable circumstantial evidence that United’s reasons for terminating Stroup and Lee were not credible. The union agreement prohibited the airline from firing a flight attendant for reasons not in the letter of charge. Yet Whittaker had said their trustworthiness was a “large part” of his disciplinary decision.

Furthermore, the supervisor who conducted clandestine surveillance of Stroup and Lee testified that this was the first time, out of 50 unannounced observations of employees, that he was asked to single out specific flight attendants for monitoring. Domenico denied the company’s motion.

During oral arguments, David Lane, the attorney representing Stroup and Lee, also alluded to his clients’ hefty consequence for a first-time policy violation.

“These are such minor transgressions to terminate these two very senior employees,” he said. “When you’re terminating a 30-year employee like Jeanne Stroup for not wearing an apron – come on. Somebody needs to look at that up the corporate chain when you’re terminating her.”

The 10th Circuit panel sided with Stroup and Lee, finding that United’s shifting rationale provided sufficient circumstantial evidence for the jury to determine the airline had an ulterior motive. Although United had tried to paint the plaintiffs as dishonest, Stroup and Lee turned the tactic back on the airline.

“Critically, the jury heard from Mr. Whittaker whose testimony showed a disconnect between the stated grounds for instituting disciplinary proceedings against plaintiffs, expressed in their Letters of Charge, and the bases that United later offered for disciplining plaintiffs,” Holmes wrote. “Based on this disconnect, the jury reasonably could have determined that Mr. Whittaker was not credible.

“And, more specifically, it reasonably could have inferred that United’s reasons for disciplining Plaintiffs were a pretext for age discrimination – that is, United was fabricating different and arguably more grave reasons to justify disciplining them, in order to cover up the (real) cause for its adverse action: plaintiffs’ age,” Holmes concluded.

The panel also determined that the jury was justified in finding United had willfully violated the age discrimination law, and also ruled that the plaintiffs’ testimony about their emotional distress did not have an improper effect on the verdict.

The case is Stroup et al. v. United Airlines, Inc.