Southwest Airlines Cleared in Race Discrimination Lawsuit

By David Thibault | July 7, 2008 | 8:04 PM EDT

( - A federal jury has decided that a Southwest Airlines flight attendant did not discriminate against two black passengers when she used a nursery rhyme to get passengers to pick their seats.

The plaintiffs, Grace Fuller and her sister Louise Sawyer, both of Kansas City had filed suit, objecting to the flight attendant's use of the ryhyme that begins with the words, "Eenie, meenie, minie, moe."

"Eenie, meenie, minie, moe; pick a seat, we gotta go," flight attendant Jennifer Cundiff said over the plane's public address system in February 2001 as the Southwest flight was about to leave Las Vegas.

As reported on April 16, 2003, Fuller alleged in the lawsuit that Cundiff's recitation reminded her of a racist version of the rhyme that includes a derogatory term for African Americans.

"Eenie, meenie, minie, moe; catch a n***** by his toe ..." was used as far back as the mid-19th century, according to the earlier report on . The more modern version of the nursery rhyme substitutes the offensive phrase with the words, "Catch a tiger by the toe."

Fuller had alleged that Cundiff caused her to suffer a small seizure on her flight home and that later at home, she suffered a grand mal seizure that required her to be bedridden for three days.

Cundiff testified in the trial that she had never heard the racist version of the nursery rhyme and that she was only trying to add a dose of humor to get her passengers into their seats so the plane could take off.

Fuller criticized the verdict, insisting that the all-white jury had conspired against her and her sister.

"If we had jurors of our peers then we would have won the case today, and we should have won the case today, with all the evidence shown," Fuller said. "It's a shame that the jury pool we had to draw from did not have one black and not one minority," she said. "Something has to be done to make sure there is justice in America for blacks."

Fuller and Sawyer accused Southwest of violating a 1981 civil rights law that bars businesses from discriminating against minority customers. They said they decided to sue after the airline failed to take their complaints seriously.

Scott Wissel, the attorney for the women, had argued in his closing argument that Cundiff's use of the rhyme was the equivalent of a racial slur.

John Cowden, the lawyer for Southwest Airlines, said he was pleased with the verdict because, "All along, Southwest Airlines has contended that it did not intentionally discriminate against the two ladies."

Cowden had argued to jurors that the case, at best, was "an argument that something [that] is not politically correct" and at worst, represented nothing.