Plaintiffs-appellants Louise Sawyer and Grace M. Fuller are sisters and African Americans. Plaintiffs arrived at the departure gate for a Southwest Airlines (Southwest) flight from Las Vegas, Nevada, to Kansas City, Missouri. Because plaintiffs checked in less than ten minutes prior to departure, they were placed as priority-standby passengers on Southwest's next flight to Kansas City. After all non-standby passengers boarded the airplane, plaintiffs were allowed to board. While plaintiffs looked for open seats, a flight attendant announced: "Eenie, meenie, minie, mo, pick a seat, we gotta go."
Plaintiffs claimed that the announcement referred to a nursery rhyme with a racist history, and was directed specifically at them as African Americans because they were the only passengers in the aisle and who had not found seats. Plaintiff Fuller, who is epileptic, claimed that she suffered a petit mal seizure during the flight as a result of the announcement. She also claimed that she suffered a grand mal seizure that evening at home, leaving her bedridden for several days. Plaintiff Sawyer did not allege any physical symptoms, and like plaintiff Fuller, she did not seek any psychiatric or psychological counseling.
Southwest's flight attendant characterized the comment as a general announcement to all passengers, and denied that it was directed solely at plaintiffs. She also denied any knowledge of a racist version of the nursery rhyme, and claimed that she had previously used the same rhyme as humor and to meet departure schedules.
Plaintiffs sued Southwest for violation of their civil rights under 42 U.S.C. § 1981 and for intentional infliction of emotional distress under Kansas law. Additionally, plaintiff Fuller sued for negligent infliction of emotional distress under Kansas law. The district court entered summary judgment for Southwest on the emotional distress claims. A jury returned a verdict in favor of Southwest on plaintiffs' claims under 42 U.S.C. § 1981.
Plaintiffs raise several issues on appeal relating to jury selection, their expert witness, the summary judgment orders, and alleged judicial misconduct.(1) For the reasons below, we find no error and affirm.
