By Matthew Santoni

Law360 (June 17, 2021, 1:43 PM EDT ) Eastern Airlines may have violated the Families First Coronavirus Relief Act by firing an executive shortly after she requested time off to care for her child and mother near the start of the pandemic, but she didn't make a case that the company discriminated against her because she was Black, a Pennsylvania federal judge ruled.

U.S. District Judge R. Barclay Surrick said the emergency federal legislation to address the pandemic had taken effect by late March 2020, when Stephanie Jones asked for flex time or leave to care for her family while schools were closed, so the company should have at least considered her request for unpaid leave rather than fire her.

"All the events alleged in plaintiff's amended complaint occurred after the enactment of the FFCRA," Judge Surrick wrote in Wednesday's opinion. "At this juncture, we are satisfied that plaintiff has plausibly alleged entitlement to at least the provisions of the FFCRA that do not involve financial reimbursement."

The judge denied Eastern Airlines' motion to dismiss the FFCRA complaint, though he granted dismissal of Jones' claim that the airline discriminated against her because she was Black.

Congress passed the FFCRA in March 2020, requiring employers with 500 or fewer employees to provide workers up to two weeks off at full pay — subject to certain caps — if they're directly affected by the virus, and at partial pay to care for affected family members. The statute also gives workers up to 10 weeks off at partial pay to care for children whose schools or child care centers have closed because of the virus, after two unpaid weeks.

Jones, Eastern Airlines' former director of revenue management and a single mother to an 11-year-old, said in her complaint that she was the only Black director and one of a few Black women in management. When the pandemic hit, businesses and schools shut down and Jones transitioned to working from home while she cared for her son out of school and her sick mother, but Eastern Airlines allegedly requested that she return to working at their Chester County office.

Jones said she asked multiple people at the company for two hours a day of "flex time" to handle child care, but got no response. Then in a March 23 virtual meeting, she asked about her options under the then-new FFCRA, and was told she could either take leave or resign, the judge's opinion noted.

Jones asked the company to fill out paperwork necessary for her to take leave, but it terminated her instead on March 27. She filed her lawsuit in April 2020.

In its motion to dismiss, the company claimed the FFCRA had not taken effect until April 2020, so the firing was not a violation of the law. But Judge Surrick said the law's start date was not that well-defined, while a final rule put out by the Secretary of Labor on April 6 said the rule "to carry out the purposes of the FFCRA" took effect April 1.

"Although the FFCRA clearly provides a sunset date ... the effective date is not clear," the judge wrote. "Although the Final Rule clearly excludes an employee's entitlement to retroactive reimbursement for leave taken prior to April 1, 2020, due to COVID-19-related reasons, it does not comment on whether such an employee would be protected by any other provision of the FFCRA."

The emergency nature of the pandemic and the relief bill set it apart from other laws the airline cited for not being retroactive, Judge Surrick said.

Although Jones claimed previous examples where she believed she'd been treated differently than non-Black coworkers — such as not getting invited on an inaugural flight to Ecuador, or being assigned menial or unpleasant tasks — she didn't sufficiently show that the coworkers who were treated better were "similarly situated" to her such that her race was the only difference, the judge ruled.

Nor did she sufficiently plead that other managers at the company had showed racial animus, he said.

"Despite the gravity of this allegation, plaintiff provides only one example: on Martin Luther King, Jr. Day, [CEO Steve] Harfst commented about a customer, 'These people will take off for anything.' We cannot infer racial animus from this comment since the race and/or color of the customer is not alleged," Judge Surrick wrote. "In addition, this comment was not directed at plaintiff or about plaintiff and allegedly was uttered over two months before the COVID-19 pandemic and plaintiff's termination."

The judge granted Eastern Airlines' motion to dismiss Jones' claim for racial discrimination under Section 1981 of the Civil Rights Act, but said she could file another amended complaint if she wanted to try and revive that claim. Jones' attorney said they intended to work with her to beef up another version of the complaint with more details comparing her to her co-workers.

"We're very gratified the court recognized that Congress intended for our client to be protected by this law from the date of its passage," said M. Frances Ryan of Wusinich & Sweeney, representing Jones.

Counsel for Eastern Airlines did not immediately respond to requests for comment Thursday.

Jones is represented by Edward C. Sweeney and M. Frances Ryan of Wusinich & Sweeney LLC.

Eastern Airlines is represented by Mark A. Saloman of FordHarrison LLP.

The case is Jones v. Eastern Airlines LLC et al., case number 2:20-cv-01927, in the U.S. District Court for the Eastern District of Pennsylvania.

--Additional reporting by Sarah Jarvis. Editing by Amy Rowe. 

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