Cerqueira v. American Airlines, 07-1824. The plaintiff alleged that he was removed from an airplane because of his race (or, from the captain’s perspective, an “odd exchange.”) He sued and won a jury verdict (including punitive damages) under 42 U.S.C. § 1981. The airline claimed that it could kick people off under 49 U.S.C. § 44902(b) when it decides that some suspicious looking non-white person ("... is, or might be, inimical to safety."). No jury instruction was given on 49 U.S.C. § 44902(b) (or of the pilot’s discretion under 14 C.F.R. § 91.3(a)), and the First decides that AA would have won if it was given. The First notes that this really is not constitutional in nature.
Odds are you are not a member of the mile high club, so read on.
The First concludes that “[49 U.S.C. ] 44902(b) does not merely create a defense Footnote : the statute is an affirmative grant of permission to the air carrier. Congress specifically authorized permissive refusals by air carriers; Congress did not say § 44902 was merely creating a defense. It is the plaintiff who carries the burden to show that § 44902(b) is inapplicable.” So, an air carrier is only liable if their decision to boot someone is arbitrary or capricious based on the information known at the time without attributing any biases by the non-decision-maker to the decision-maker (as the jury instructions seem to have done). The First notes that it is dealing with respondeat superior liability under § 1981.
The pilot had testified that it wasn’t his decision to remove “for questioning” this guy with a pony-tail that was creepy. There was some indication that someone (who may or may not have been on that flight) had box-cutters confiscated earlier. Eventually the entire aircraft was off-loaded. When the police became involved, they became “concerned” about the passport of someone that might have been traveling with them.
The airline decided to “deny” rebooking to the plaintiff. The airline eventually told him that "our personnel perceived certain aspects of your behavior which could have made other customers uncomfortable on board the aircraft."
The Massachusetts Commission Against Discrimination ("MCAD") concluded that he had stated a prima facie case of discrimination and brought suit.
Does this mean that airlines can kick off partners in large law firms that try and make smalltalk with pilots, but end up being creepy and scaring people? Not sure.
DotD comments here and Decisionism comments here. ImmigrationProf comments here. Public Citizen comments here and writes:
During the trial, a jury was asked to determine the motivation for the airline’s decision. The airline argued that had it acted out of a legitimate concern for safety; Cerqueira, a South Florida resident of Portuguese descent, argued that none of this would have happened had he not looked Middle Eastern. The jury sided with Cerqueira. We believe the court of appeals, in setting aside the jury verdict, essentially legalizes racial profiling in commercial air travel.
Oh, speaking of airports:
My name is John Cerqueira and I am the plaintiff for Cerqueira v. American Airlines
I appreciate the opportunity to share my comments. Please allow me to (1) share the text of 44902 with this blog, (2) tell my story about the incident and (3) comment on the results of the appeal.
First, here is the text for 44902, the ruling the appeal judges used to overthrown the jury decision in my case.
§ 44902. Refusal to transport passengers and property
(a) Mandatory refusal.--The Under Secretary of Transportation for
Security shall prescribe regulations requiring an air carrier,
intrastate air carrier, or foreign air carrier to refuse to transport--
(1) a passenger who does not consent to a search under section 44901(a)
of this title establishing whether the passenger is carrying unlawfully
a dangerous weapon, explosive, or other destructive substance; or
(2) property of a passenger who does not consent to a search of the
property establishing whether the property unlawfully contains a
dangerous weapon, explosive, or other destructive substance.
(b) 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.
(c) Agreeing to consent to search.--An agreement to carry passengers or
property in air transportation or intrastate air transportation by an
air carrier, intrastate air carrier, or foreign air carrier is deemed to
include an agreement that the passenger or property will not be carried
if consent to search the passenger or property for a purpose referred to
in this section is not given.
My lawyers and I believe, and so did the trial judge, that 44902(b) does not protect decisions that are arbitrary or capricious and discrimination is per se arbitrary or capricious.
Next, I appreciate the opportunity to tell my story. On the day of the incident, I went to the airport and went through TSA security. I waited for my flight at the gate. I asked a woman who I thought was a gate agent (but many months later I found out was a flight attendant) for an exit row or bulkhead seat as I would appreciate the extra leg room. She refused to attend to me and when I asked why not she seemed upset with me and she told me to sit down, which I did. Later someone else at the gate listened to my request and assigned me a different seat.
I boarded the flight when it was my turn to board. I stored my carry-on items, used the bathroom, and then returned to my seat. I used my laptop computer but not did talk to anyone including the two guys who ended up sitting next to me. They were foreigners. I noticed at the time they were louder than your typical passengers but did not speak with them. At one point I put away my laptop and fell asleep, only to be awakened by an American Airlines employee asking me and the two guys seated next to me for boarding documents. Almost immediately thereafter the three of us were taken off the plane and detained for two hours.
I was asked repeatedly over the course of the two hours how I knew the two guys who had been sitting next to me on the plane, to which I responded the truth that I had nothing to do with them. The police released us for travel after two hours and took us to the American Airlines ticket counter and told AA we were free to go. At this point the original plane had already left, so obviously there was no security issue (not that there ever was one!). But even after the original plane had left for its flight, after the police had detained us for two hours to investigate, after the police had cleared us for travel and released us to American Airlines so that AA could take care of us from there, AA refused us service. There was is no rational reason for AA to deny me service on the original flight and undeniably no rational reason for AA to deny me service for the rest of the day. Yet, there was written and verbal evidence of discrimination and racial profiling revealed at the trial - comments about three gentleman with "accents" and "dark complexion" being "together" and making comments to the passengers on the plane and making comments to the AA staff on the plane. No one at all from AA gave any reason for the subsequent denial of service. The jury understood clearly that this case was about discrimination and not about safety concerns. The jury felt that American Airlines was reckless in its disregards for my rights.
In closing, I feel it is a travesty of justice that the appeal judges gave this case to AA on a "golden platter" and thereby authorizing discrimination and racial profiling in the airline industry. 44902 does not legalize discrimination and racial profiling in my opinion and that of my lawyers. I can only hope that the US Congress will make clear in the near future that 44902 is not a blank check for airlines to discriminate. Ask yourself, would you want to be treated the way I was, or a loved one treated the way I was, because an American Airlines employee didn't like the color of your hair or of his/her hair? It's a shame that AA claims to this day that they would do everything exactly the same way, if it were to happen again. So much for responsibility of American Airlines to transport their passengers who buy tickets from them.
Posted by: John Cerqueira | February 28, 2008 at 06:53 PM