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.


Court upholds airline’s right to deplane feisty, drunk-acting passenger

October 12, 2014

Lozada v. Delta Airlines, Inc. (S.D.N.Y. June 17, 2014).  The 69-year-old plaintiff eased the pain of a JFK-MIA flight delay by enjoying alcoholic drinks at two airport bars.  The plaintiff alleged that she boarded the aircraft without incident, but Delta disagreed.  According to airline personnel, the plaintiff appeared intoxicated and loudly demanded, in the gate area and on board, free drinks for the passengers as compensation for the delay.  In her seat, the plaintiff repeatedly pushed the call bell and was slurring her speech.  Delta personnel repeatedly instructed the plaintiff to calm down, to no avail.  The cabin crew notified the captain, who instructed that they request that the airport police deplane the plaintiff. The airport police removed her from the aircraft but did not charge her with any crime.

The plaintiff sued Delta in state court, alleging negligence.  After removing the case to federal court and conducting discovery, Delta moved for summary judgment.  Delta contended that the plaintiff’s claim was preempted by the Airline Deregulation Act and the Federal Aviation Act and that, even if her claim were not preempted, she had failed to state a claim for negligence under New York law.

The ADA preempts state common law negligence and most other state law claims that relate to an airline’s “service.”  The FAA grants an airline the right to “refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”  The plaintiff’s primary argument in opposition to Delta’s motion was that the airline was required “to demonstrate as a matter of law that the Plaintiff was intoxicated” but that it had not presented any “real proof at all of Plaintiff’s purported intoxication,” such as the result of a Breathalyzer test.

The court granted Delta’s motion.  First, the court held that the ADA preempted the plaintiff’s negligence claim because the airline’s deplaning of the plaintiff related to its fundamental “service” of deciding whether to transport a passenger and that such removal was not outrageous or unreasonable, particularly given that the plaintiff herself admitted during her deposition that she may have been acting like “a brute or something.”  Next, the court held that the FAA also preempted the plaintiff’s negligence claim because the plaintiff’s drunk-appearing conduct gave Delta’s personnel “reason to believe” that she was intoxicated and thus posed a safety risk.  The court ruled that it was “ultimately irrelevant” whether the plaintiff “was actually intoxicated.”


Ninth Circuit upholds sentencing enhancement for unruly passenger

July 13, 2007

U.S. v. Gonzalez (9th Cir. (Nev.) July 3, 2007).  Just after takeoff, a passenger stood up, complained of heart problems and requested oxygen.  He then became increasingly agitated and started demanding to the flight attendants that the pilots land the aircraft.  The passenger then stated that he had a bomb and started opening overhead bins.  The flight attendants and other passengers to tried to restrain the unruly passenger, who fought back.  At that point, in the words of one witness, “all hell broke loose.”  Eventually, the passenger was restrained with plastic handcuffs and the aircraft was diverted back to the airport from which it had taken off, where the FBI arrested the passenger.

The unruly passenger pled guilty to interference with a flight crew member in violation of 49 U.S.C. § 46504.  He appealed the federal district court’s decision to impose a nine-level sentencing enhancement for “recklessly endangering the safety of the aircraft and passengers” under U.S. Sentencing Guideline § 2A5.2, which is entitled “Interference with Flight Crew Member or Flight Attendant.”  The enhancement resulted in a 27-month sentence.

On appeal, the passenger argued that the enhancement did not apply because he had interfered with the flight crew and endangered the other passengers but had not endangered the aircraft itself.  The passenger contended that he had not endangered the aircraft because he neither caused it actual harm nor did he actually have a bomb with him on the aircraft.

The passenger’s arguments were too far-fetched for even the liberal Ninth Circuit.  The court sensibly reasoned that because “an aircraft is a captive, closed environment in which the safety of the passengers and the integrity of the aircraft are closely intertwined,” the passenger’s chaos-causing statements and other conduct not only interfered with the flight crew and endangered the other passengers but also endangered the aircraft itself.


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