Children's Nursery Rhyme Triggers Racial Discrimination Lawsuit

By Marc Morano | July 7, 2008 | 8:04pm EDT

( - A Southwest Airlines flight attendant's use of a popular children's rhyme - "Eenie, meenie, minie, moe" - has resulted in a federal racial discrimination lawsuit against the airline filed by two African American women asking for unspecified financial damages.

One of the two women suing over the allegedly offensive nursery rhyme claims hearing the rhyme caused her to be bedridden for three days and suffer from "unexplained memory gaps," according to court documents.

The trial was supposed to start Tuesday in Kansas City, Kan., but U.S. District Court Judge Kathryn Vratil delayed the case until Sept. 29.

Southwest Airline passengers Louise Sawyer and Grace Fuller allege they suffered racial discrimination on the flight in February 2001 when flight attendant Jennifer Cundiff said over the plane's intercom, "Eenie, meenie, minie, moe; pick a seat, we gotta go." The two women say they were the only passengers standing in the aisle at the time.

Sawyer and Fuller said that as soon as they heard the rhyme, they were reminded of the racist version that starts with the phrase: "Eenie, meenie, minie, moe; catch a n***** by his toe ..."

A more modern version of the nursery rhyme substitutes the offensive phrase with the words, "Catch a tiger by the toe." The rhyme is traditionally used by children to pick someone who will be "it." According to at least one word and phrase historian, the original rhyme using the n-word dates back to about the mid-19th century.

Sawyer and Fuller, who are sisters, had also originally alleged physical and emotional distress as a result of the nursery rhyme but earlier this year, Judge Vratil dismissed that aspect of the lawsuit, narrowing the complaint to the issue of discrimination.

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

Cundiff, who is white, disputes that Sawyer and Fuller were the only ones standing on the crowded flight. Cundiff said she had been using the rhyme on several different flights as a humorous way to get passengers to sit. Southwest Airlines employees are known for their folksy manner and casual atmosphere.

Scott A. Wissel, the Kansas City, Mo., attorney representing Sawyer and Fuller, declined to comment for this article.

But according to court documents, Sawyer said she was "infuriated by the [nursery rhyme] comment" and said fellow passengers giggled after it was said, making her feel alienated.

'Unexplained Memory Gaps'

Fuller believes Cundiff intentionally singled out her and her sister. "It was like I was too dumb to find a seat," Fuller complained in the court papers.

Fuller, who has epilepsy, said she was so unnerved by the nursery rhyme that her hands trembled during the trip and she has experienced "unexplained memory gaps" about the flight ever since.

Fuller also maintains that the nursery rhyme incident caused her to be bedridden for three days because she suffered a "grand mal seizure." However, Fuller said she could not medically verify the incident because as a result of lacking health insurance, she did not seek medical help for the seizure.

Cundiff wrote a report about the incident as part of a Southwest Airlines' internal investigation.

"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," Cundiff wrote. "Maybe those that run around pointing fingers yelling racist should stop and turn that finger around."

Southwest agreed with Cundiff and does not believe the phrase was racist or that she acted inappropriately. Even though Southwest did not ask her to stop saying the rhyme, Cundiff said she stopped because of the controversy.

Wissel said he is trying to get the courts to prohibit Southwest Airlines employees from using the nursery rhyme and force the airline to provide employee training to prevent future racial controversies.

Wissel's clients, Sawyer and Fuller, are seeking an unspecified financial amount in compensatory and punitive damages.

'Ridiculous Lawsuit'

The lawsuit has provided critics of the American legal system more ammunition for their tort reform battle.

"Seems sort of a ridiculous lawsuit, but this is the rise of this litigious culture, where people look to sue at the most insignificant remark," said Steve Lilienthal, spokesman for the Free Congress Foundation (FCF). The group just hosted a seminar last week on Capitol Hill focusing on what it considers the explosion of frivolous lawsuits in America.

"There is no real racist connotation in the phrase. How can you view [that phrase] as being racist? It just doesn't make sense. Most people would look at this lawsuit and be dumbfounded," Lilienthal said.

He sees this lawsuit as part of a larger cultural problem, "one more sign of people who are simply looking to sue," Lilienthal explained. "There is a whole grievance industry set up based on the increasing use of litigation."

This is not the first time the "eenie, meenie, minie, moe" nursery rhyme has come under fire. In 2002, government officials in University City, Mo., a suburb of St. Louis, printed a calendar that had a cover photo of the feet of five children, one bare and the others with shoes with a caption reading, "Eeny ... meeny ... miny ... moe" (alternate spelling). Most of the kids in the photo were African American.

After a city employee complained that the calendar was racially offensive, the city reprinted all 18,000 copies of the calendar with the photo deleted, according to the Kansas City Star.

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