Eenie, meenie, minie, moe racial slur lawsuit update

morelaw.com ^ | 1/22/04 | United States District Court for the District of Kansas

[Combat Override Button]

Date: 1/22/04

Case Style: Louise Sawyer and Grace Fuller v. Southwest Airlines and Jennifer Cundiff

Case Number: 2001cv2386

Judge: Kathryn H. Vratil

Court: United States District Court for the District of Kansas

Plaintiff's Attorney: Scott A. Wissel and Elizabeth Drill Nay of Lewis, Rice & Fingersh, Kansas City, Missouir

Defendant's Attorney: Todd W. Amrein, Phoenix, Arizona; John W. Crowden and Aaron C. McKee of Baker, Sterchi, Cowden & Rice, L.L.C., Kansas City, Missouri; Mary C. O'Connell Douthit, Frets, Rouse & Gentile, L.L.C., Kansas City, Missouri

Description: Plaintiffs claimed that in February 2001 they suffered emotional distress and physical injury as a result of Southwest Airline Flight Attendant Jennifer Cundiff say over the intercom in the Las Vegas to Kansas City flight which was preparing to take off "Eeenie, meenie, minie, mo, pick a seat, we gotta go." The plaintiffs, who are African American sisters, took the statement by Cundiff to be racist because they were still attempting to find seats on the crowded aircraft having just boarded as standby passengers.

Southwest Airlines asserted that the use of the rhyme by its employee was not used in a racist manner and was a completely innocent and amusing way for the attendant to urge passengers to take their seats.

Outcome: Defendants' verdict.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: Editor's Note: Judge Vratil sustained Southwest Airlines' motion for summary judgment in part before trial on the Plaintiffs' negligent infliction of emotional distress claims.

[Combat Override Button]

Southwest Airlines won the good fight.

[cyborg]

GOOD!!!!!!!!!

[Prince Caspian]

What does this mean in layman's terms?

[mhking]

Southwest has some good folk. I'm glad they won...

Black conservative ping

If you want on (or off) of my black conservative ping list, please let me know via FREEPmail. (And no, you don't have to be black to be on the list!)

Extra warning: this is a high-volume ping list.

[Combat Override Button]

Original story(ies) posted last year (link at bottom)

Rhyme at center of lawsuit against Southwest Airlines
The Kansas City Star ^ | Monday, February 10, 2003 | ROBERT A. CRONKLETON


Posted on 02/10/2003 8:40:49 AM PST by TroutStalker



A widely recognized rhyme -- and how it was used on a flight -- are the focus of a case headed for trial in federal court in Kansas City, Kan.

Louise Sawyer, 46, of Merriam, and Grace Fuller, 48, of Lenexa, have sued Southwest Airlines alleging that they were discriminated against and suffered physical and emotional distress on a crowded February 2001 flight after an attendant uttered the rhyme.

Trying to get passengers to take their seats, Southwest Airlines flight attendant Jennifer Cundiff said over the intercom, "Eenie, meenie, minie, moe; pick a seat, we gotta go."

The two African-American women, who are siblings, contend they were the only passengers standing in the aisle at the time. Cundiff has contended that several others were in the aisle.

Sawyer and Fuller said the rhyme immediately struck them as a reference to the original, racist version, which begins with the words: "Eenie, meenie, minie, moe; catch a n----- by his toe...."

Cundiff, who is white and was 22 at the time, said in court papers that she had never heard the offensive version of the rhyme and that she had used the phrase on several flights as a humorous way of getting passengers to sit down.

The second line of a modern version usually goes, "Catch a tiger by the toe."

The rhyme is part of a counting-out expression used in children's games to determine who will be "it" among a group of players.

On Wednesday, U.S. District Judge Kathryn H. Vratil ruled in Kansas City, Kan., that the case could proceed on the plaintiffs' claim that Southwest discriminated against them. Vratil ruled in favor of Southwest on another point, however, by dismissing the plaintiffs' claims for intentional and emotional distress.

"The court agrees with plaintiffs that because of its history, the phrase `eenie, meenie, minie, moe' could reasonably be viewed as objectively racist and offensive," Vratil wrote in her ruling. "The jury, however, must decide whether Cundiff's remark was racist, or simply a benign and innocent attempt at humor."

Also, the jury will have to decide whether Southwest denied Sawyer and Fuller the same enjoyment that others experienced on that flight.

The trial is scheduled for March 4.

John W. Cowden, a lawyer with the Kansas City law firm of Baker Sterchi Cowden & Rice, which represents Southwest, said the flight attendant was not discriminating against Sawyer and Fuller.

"Southwest denies anyone intended to discriminate against any passengers, let alone these two ladies," Cowden said Friday.

This is not the only time a variation of the rhyme has raised complaints.

Last November, University City, Mo., reprinted 18,000 copies of a city calendar for residents after a city employee found it racially offensive.

The complaint centered on the calendar's cover photo of five children's feet -- one bare, the others with shoes. A finger is touching one of the shoes. A majority of the children taking part were black.

A statement under the picture read, "Eeny...meeny...miny...moe."

The woman who took the picture, Tamara S. Walker of St. Louis, said at the time that she was surprised by the controversy. Walker, who is black, said that while growing up, she used the word "tiger" in the rhyme. It was not until she was an adult that she heard the racist version.

A city official for University City, a suburb of St. Louis, apologized and ordered the calendar reprinted. The new version had no photo on its cover and did not include Walker's photo inside.

Although many books that trace the history of words and phrases do not contain an entry for "eenie, meenie, minie, mo," at least one does.

The Facts on File Encyclopedia of Word and Phrase Origins by Robert Hendrickson dates the rhyme to the mid-19th century and says that the original version was "insensitive at best." Hendrickson adds that "happily, the second line is much more frequently today `Catch a tiger by the toe.' "

Sawyer and Fuller said Friday that their case against Southwest evolved from a vacation to Las Vegas. On the return trip, they failed to arrive at the gate at least 10 minutes before departure and were not allowed to board.

They were placed on "priority standby" for the next flight. After boarding, they had trouble finding seats. As they stood in the aisle, Cundiff said the rhyme over the intercom.

"I was infuriated by the comment," Sawyer said Friday. She said fellow passengers snickered at the rhyme, which further made her feel alienated.

Fuller said that she, too, felt that the rhyme was directed at her. "It was like I was too dumb to find a seat," she said.

Fuller, who has epilepsy, said the comment upset her so much that her hands shook during the flight and that she has "unexplained memory gaps" about the flight. Later that night, she said, she had a "grand mal seizure" and was bedridden for three days. Because she did not have health insurance, she did not seek medical attention, she said.

After Sawyer and Fuller complained to Southwest, the airline investigated the incident and asked Cundiff to write a report.

In her report, Cundiff wrote, "The statement I made on Flight 524 was not racist or discriminating, and I am offended that because I have white skin suddenly I am a racist. Maybe those that run around pointing fingers yelling racist should stop and turn that finger around."

Cundiff, according to court documents, had used the rhyme on other flights after learning it from co-workers who, like other Southwest attendants, frequently employ humor on flights. Cundiff, who grew up in Texas, said she only used the rhyme when flights were full and passengers were in the aisle.

According to court documents, Southwest did not believe the phrase was racist and did not reprimand Cundiff or ask her to stop using it. However, Cundiff no longer uses it because of the incident.

Sawyer and Fuller filed the lawsuit, without an attorney, in August 2001 after they didn't get a satisfactory response from Southwest.

Scott A. Wissel, a lawyer with the Kansas City law firm of Lewis, Rice & Fingersh, which is representing Sawyer and Fuller at no charge to them, said they are seeking injunctive relief to have Southwest stop using the rhyme and to provide employee training to prevent such things from happening again.

They are also seeking an unspecified amount in compensatory and punitive damages.

The Star's Mark Wiebe contributed to this report.

---

To reach Robert A. Cronkleton, Wyandotte County police and courts reporter, call (816) 234-5994 or send e-mail to bcronkleton@kcstar.com.




http://209.157.64.200/focus/f-news/839880/posts
http://www.freerepublic.com/focus/f-news/895043/posts

[John Jorsett]

"Summary judgement before trial." Translation: "I'm deciding this now because I'm afraid jurors would injure themselves laughing"

[Combat Override Button]

FYI- this is a follow-up to a story you folks were talking about last year.

[Combat Override Button]

What it means is that it went to trial and the jury found in favor of Southwest.

The “comments: Editor’s note” section meant that the Judge did not allow the plaintiffs to use “negligent infliction of emotions distress” as part of their case when it went to trial. That is, the judge found that even if all of the facts of the case were true, there wasn’t enough evidence to bring to trial that the plaintiffs suffered from the negligent infliction of emotional distress.


The bottom line is that it went to court and the plaintiffs lost.

[thegreatbeast]

Or before a jury could award $7b to the plaintiffs!

[freebilly]

Eeenie, meenie, minie, mo,

I used the race card but lost the dough....

[Frank_2001]

The case can proceed on the discrimination issue though, but the airline will probably win that as well. Did the flight attendant make them stand in the aisle or sit in the lavatory for the duration of the flight? Of course not!

[paulklenk]

Even a stand-by passenger must have been issued a boarding pass with a seat number. Give me a break. If they couldn't find their seat, they had a real problem.

[DLfromthedesert]

Thanks for the update ping. Some people are just oversensitized and need to learn to use the brain cells God gave them, instead of looking for a fight.

[ccmay]

Even a stand-by passenger must have been issued a boarding pass with a seat number.

You have obviously never flown on Southwest.

It's festival seating. Eeenie, meenie, minie, moe every time, standby or no.

-ccm

[paulklenk]

In that case, Southwest is just asking for trouble. Assign people a seat, or shut up if they don't sit down.

[whereasandsoforth]

Keep your ears open folks! You too may hear a damaging comment in some innoculous everyday setting. You might be a millionaire!

Can you imagine anyone buying that a grown woman had to take to her bed because she was subjected to a lyric? The court should not have stopped at the jury's decision - the judge should have ordered a complete psyche evaluation of this tender soul and maybe have her removed from society until she is better able to cope.

[Benjo]

Fuller, who has epilepsy, said the comment upset her so much that her hands shook during the flight and that she has "unexplained memory gaps" about the flight. Later that night, she said, she had a "grand mal seizure" and was bedridden for three days.

A woman this emotionally fragile shouldn't be allowed on airplanes in the first place. Someone says "eeny meeny miney moe" to her and her hands shake for hours. She needs a psychiatrist, not an attorney.

Actually, I'm assuming she's sincere, which may not be the case. A lot of people these days are looking for any excuse to play the race card, thinking that thousands or millions of dollars are there to be had for nothing more than a mere accusation.

[BenLurkin]

I thought it was eenie, meenie, miney and Fraknlin.

(Sorry, Old joke)

[beaversmom]

I like your version.