Passenger’s racial discrimination claims based on airline deplaning come up short

October 29, 2014

Mercer v. Southwest Airlines Co. (N.D. Cal. Sept. 19, 2014).  In his amended complaint, the plaintiff, an African American, alleged that he and fiancée boarded the Southwest LAX-IAH flight with two carry-on bags apiece.  The plaintiff stowed his bags in an overhead compartment and then, “as a gentleman,” proceeded to do the same with one of his fiancée’s bags.  A white Southwest flight attendant told him three times that “he was over the 2 limit per person for carry-on luggage,” and he “politely explained” each time that he was assisting with his fiancée’s bag and thus was not over the limit.

According to the plaintiff, a Southwest supervisor deplaned him several minutes later, and his fiancée followed him off the aircraft.  In the gate area, the Southwest supervisor told the plaintiff that he had been deplaned because the captain “did not want plaintiff on the aircraft as he considered plaintiff to be a security threat.”  The plaintiff and his fiancée were rebooked, and traveled, on a Southwest flight to IAH later that day.

The plaintiff’s amended complaint asserted claims for negligence, intentional infliction of emotional distress and violations of 49 U.S.C. § 40127, 42 U.S.C. § 2000a and 42 U.S.C. § 1981.  Southwest moved to dismiss on the grounds that the amended complaint failed to state an actionable claim.

The court granted Southwest’s motion.  The court’s key ruling was that the Federal Aviation Act preempted the plaintiff’s negligence claim.  Noting that the FAA impliedly preempts the field of aviation safety and that 49 U.S.C. § 44902(b), an FAA provision, sets the standard for an airline’s refusal to transport a passenger on safety grounds, the court reasoned that the plaintiff’s negligence claim, which was based on a California statutory standard of care, directly implicated the aviation safety field because, according to the plaintiff himself, safety was the apparent basis for Southwest’s decision to deplane him.  Thus, the court held that the FAA preempted the plaintiff’s negligence claim because its consideration of that claim would have required that it determine whether he did indeed pose a safety threat in order to determine whether the airline’s conduct was justified.  The court held that the FAA preempted the plaintiff’s emotional distress claim for the same reasons.

The plaintiff had argued that the Southwest supervisor’s explanation regarding his removal from the aircraft on security grounds was merely a pretext for racial discrimination and that he never posed a safety threat.  In response, the court pointed out that, for purposes of FAA preemption, the critical issue was not whether the captain was correct in his belief that the plaintiff was a safety threat but that the plaintiff’s tort claims would have impermissibly required that the court evaluate the safety issue under a state law standard of care.

The court then disposed of the plaintiff’s statutory claims.  It noted that the plaintiff had withdrawn his 42 U.S.C. § 2000a claim, and it held that the plaintiff had no private right of action under 49 U.S.C. § 40127 and that he had failed to adequately state a racial discrimination claim under 42 U.S.C. § 1981 because he had not alleged that he was treated differently than similarly-situated white passengers on the flight.  The court granted the plaintiff leave to amend his Section 1981 claim.


Race discrimination claim preempted by Warsaw Convention

March 8, 2011

Sewer v. LIAT (1974) Ltd. (D. Virgin Islands Feb. 16, 2011).  The plaintiff had purchased a ticket for a LIAT flight from the British Virgin Islands to Antigua.  The flight was overbooked, so airline personnel informed the plaintiff that he would have to take a later flight.  Undeterred, the plaintiff (and the other waiting would-be passengers) pushed past the airline’s gate personnel and boarded the aircraft.  Airline personnel asked the plaintiff to leave the aircraft because he did not have a seat, and he did so.  An off-duty police officer arrested and handcuffed the plaintiff, who was briefly detained in an airport holding cell and released without being charged with any crime.

The plaintiff filed suit against the airline, asserting claims of race discrimination, defamation and intentional or negligent infliction of emotional distress, although the plaintiff only pursued the discrimination claim.  The court described the plaintiff as “a black West Indian with dreadlocks in his hair who believes in the underlying tenets of Rastafarianism.”

LIAT moved for summary judgment, and the court granted the motion.  The court agreed with the airline that the plaintiff’s discrimination claim was preempted by the Warsaw Convention, citing King v. American Airlines (written by now-Justice Sotomayor) and several other cases.  The court also held that the plaintiff had no claim under the Warsaw Convention because bumping is a well-established airline industry practice and, thus, is not an “unexpected or unusual event” constituting an “accident” under Article 17.  Finally, the court held that, even if the bumping had constituted an “accident,” the plaintiff’s claim still failed because his injuries, bruised and swollen wrists, were caused by the off-duty police officer in the airport, not by airline personnel on the aircraft.

Note:  Plaintiff filed the case in 2002, and LIAT filed its summary judgment motion in 2009.  Cases seem to move at a leisurely pace in the Virgin Islands, in both federal and state courts.


Court holds that no implied ACAA private right of action exists

May 9, 2008

Wright v. American Airlines, Inc. (E.D. Mo. Mar. 3, 2008).  The plaintiff filed suit for herself and her minor son against American, alleging that her son was injured because he was denied accommodations for his disability, osteogenesis imperfecta, also known as “Brittle Bone Disease,” while traveling on American’s flights.  She alleged a cause of action under the federal Air Carrier Access Act, 49 U.S.C. § 41705, which prohibits airlines from discriminating against disabled persons, as well as various state law causes of action.  According to the plaintiff, DOT had determined that American had violated the ACAA with respect to its treatment of her son by failing to provide timely lift assistance and accurate information as to the aircraft’s accessibility.

American moved to dismiss the ACAA count on the grounds that an individual has no private right of action to enforce the ACAA.  The ACAA does not expressly provide a private right of action.  American contended that the ACAA’s comprehensive administrative enforcement scheme, which gives DOT the power to force compliance with the ACAA, to revoke an airline’s carrier certificate and to impose fines, indicates that Congress did not implicitly intend to provide individuals with a private right of action to enforce the ACAA.

The court agreed with American.  Although the Eighth Circuit had concluded in a 1989 case that an implied private right of action to enforce the ACAA did exist, the Supreme Court had adopted a new test in Alexander v. Sandoval, a 2001 case, that restricted the circumstances under which a court may determine that a implied private right of action exists under a federal statute.  Siding with other post-Sandoval cases, the court held that the ACAA does not provide a private right of action, reasoning that the statute’s extensive administrative enforcement scheme suggested that Congress “intended to preclude alternative means of enforcing the statute.”  Accordingly, the court dismissed the ACAA count.


Airline obtains reversal of passenger jury verdict in refusal to transport case

February 11, 2008

Cerqueira v. American Airlines, Inc. (1st Cir. (Mass.) Jan. 10, 2008).  As previously reported, in December 2003, American Airlines removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  After the trial court denied American’s motions for a JNOV and a new trial, American appealed.

Only two months after the appeal was argued, the First Circuit issued an opinion reversing the trial court’s judgment and remanding the case to the district court with instructions to enter judgment for American.  The First Circuit’s opinion centered on 49 U.S.C. § 44902, entitled “Refusal to transport passengers and property,” which provides in section (b) as follows:  “Permissive Refusal. – Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”

American had requested that the trial judge give a series of jury instructions regarding section 44902(b), including the well-established standard for liability that the jury must return a verdict for the airline unless its actions with respect to the passenger were “arbitrary or capricious.”  The judge refused to give the requested instructions.  The First Circuit held that the omitted instructions “were essential to the case” and the trial court had erred by refusing to give them.

The First Circuit also held that the instructions that were given were erroneous.  The most serious error was that the trial judge had instructed the jury that American had the burden of proving that its reasons for removing the passenger were legitimate.  The appeals court held that, in a section 44902(b) case, it is the passenger who has the burden of proof, and the passenger must prove that the airline’s conduct was arbitrary or capricious.

Update:  On February 29, 2008, the First Circuit denied the passenger’s petition for rehearing en banc.  Two judges dissented from the denial of the petition.  On October 6, 2008, the U.S. Supreme Court denied the passenger’s petition for a writ of certiorari.


Airline obtains summary judgment in offended passenger case

April 15, 2007

Maduro v. American Airlines, Inc. (Virgin Islands Super. Feb. 26, 2007).  During a layover in Puerto Rico, the passenger approached American’s ticket counter to verify her connecting flight to the Virgin Islands.  The ticket agent supposedly refused to return the passenger’s ticket and told her “to shut up and take a seat” and that she might not be scheduled to travel on any flight that day.

The passenger sued American, alleging claims under Virgin Island territorial law for negligence, breach of an implied contractual duty to ensure that employees “conduct themselves in a professional manner” and discrimination.  The passenger’s claims seemed to focus solely on her alleged emotional distress from being treated rudely; the opinion does not indicate that the agent’s conduct caused the passenger to miss her flight or suffer any other more tangible injury.  American moved for summary judgment on the grounds that the Warsaw Convention preempted the passenger’s territorial law claims, that the Convention bars recovery for claims for purely emotional injuries (which is true) and that the passenger’s territorial law claims failed because she did not allege any physical injury or sufficient abusive conduct.

Article 17 of the Convention provides the remedy for a passenger’s personal injury, but it only applies when an “accident” took place on the aircraft “or in the course of any of the operations of embarking or disembarking.”  The court ruled that the Convention did not apply because the incident at issue took place at the ticket counter, which was within the terminal and far from her arrival and departure gates, which meant that the passenger was not even close to embarking or disembarking.  But territorial law ended up saving the airline anyway; the court held that the passenger had failed to state sufficient facts to make out claims for negligence, breach of implied contractual duties or discrimination under territorial law.

The Warsaw Convention, not the Montreal Convention, was analyzed in this case because the incident in question took place way back in 1996.  However, the result would have been the same had the Montreal Convention been at issue, as the Article 17 “embarking or disembarking” language is the same in both Conventions.

Note:  Justice appears to move slowly in the territories; eight years elapsed between the time this case was filed and American moved for summary judgment.


Jury returns verdict for passenger in refusal to transport case

January 21, 2007

Cerqueira v. American Airlines, Inc. (D. Mass. Jan. 12, 2007).  In December 2003, the airline removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  The passenger had also requested that the court enter an injunction ordering the airline to take steps “to prevent similar occurrences in the future,” but the court did not take such action.

Update:  As reported here, in January 2008 the First Circuit reversed the trial court’s judgment in this case.


Airline summary judgment motion granted in boarding discrimination case

January 7, 2007

Dasrath v. Continental Airlines, Inc. (D. N.J. Dec. 22, 2006).  Three months after September 11, an airline captain had three passengers removed from the aircraft during boarding due to his security concerns.  One of the passengers, a U.S. citizen of West Indian national origin, filed a lawsuit against the airline alleging discrimination in violation of federal and state statutes.

The airline moved for summary judgment on the grounds that it was immune from liability under 49 U.S.C. 44902, which “gives airline personnel broad, but not absolute, discretion to remove passengers purportedly for safety reasons” as long as their decisions “have a rational basis in safety.”

The court granted the airline’s motion.  It held that the captain had acted rationally in removing the passenger because there was undisputed evidence linking him to two passengers (who were also removed) who had been repeatedly moving luggage from one overhead bin to another and changing seats, and that the captain had acted solely for security reasons and not due to the passenger’s race.


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