ATIA v. Delta Airlines, Inc.

• Decision Date: 03 March 2010
• Docket Number: Civil Action No. 08-150-DLB.
• Citation: 692 F. Supp.2d 693
• Parties: Judy ATIA, Plaintiff, v. DELTA AIRLINES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

692 F. Supp.2d 693

Judy ATIA, Plaintiff, v. DELTA AIRLINES, INC., et al., Defendants.

Civil Action No. 08-150-DLB.

United States District Court, E.D. Kentucky, at Covington.

March 3, 2010.

Geoffrey P. Damon, Butkovich & Crosthwaite LPA, Cincinnati, OH, for Plaintiff.

Douglas W. Rennie, Matthew Elton Stubbs, Montgomery, Rennie & Johnson, Cincinnati, OH, Lawrence E. Barbiere, Schroeder, Maundrell, Barbiere & Powers, Mason, OH, for Defendants.

MEMORANDUM OPINION AND ORDER

DAVID L. BUNNING, District Judge.

Plaintiff, Judy Atia, commenced this breach of contract and public accommodation discrimination action after she was removed from a Delta Airlines flight from Cincinnati to Paris, and subsequently arrested by airport police for disorderly conduct. Plaintiff contends that Defendant Delta Airlines, through its employee Defendant Gary Richter, refused to let her fly because she is Israeli, and that Defendants Rob Minter and John Arthur Murray, acting with racial animus, arrested her in violation of the Kentucky Civil Rights Act, Ky.Rev.Stat. §§ 344.010 et seq.

This matter is currently before the Court on Defendants Delta Airlines, Inc. and Gary Richter's Motion for Summary Judgment, (Doc. # 24), and Defendants Rob Minter and John Arthur Murray's Motion for Summary Judgment, (Doc. # 27). Both motions have been fully briefed (Docs. # 33, 35, 36, 37), and the matter is now ripe for review. For the reasons set forth below, because Plaintiff's breach of contract claim against Defendant Delta Airlines, Inc. falls outside the scope of the Montreal Convention, Defendants Delta Airlines, Inc. and Gary Richter's Motion for Summary Judgment (Doc. # 24) is granted in part and denied in part; however, because Plaintiff has failed to state a claim under the Kentucky Civil Rights Act, Defendants Rob Minter and John Arthur Murray's Motion for Summary Judgment (Doc. # 27) is granted.

I. FACTUAL AND PROCEDURAL BACKGROUND

On Friday, October 20, 2006, Plaintiff Judy Atia was ticketed to fly on Delta Airlines from Los Angeles, California to Tel Aviv, Israel, with stopovers in Cincinnati, Ohio and Paris, France. (Doc. # 25, Ex. A). Plaintiff's flight from Los Angeles to the Cincinnati/Northern Kentucky International Airport was uneventful. (Doc. # 41, 21:12-16).

Prior to boarding her flight to Paris, Plaintiff was required to show her passport to the Delta gate agent on duty. (Doc. # 38, 21:16-22). Plaintiff-a dual citizen of the United States and Israel-gave both of her passports to the gate agent. (Doc. # 41, 22:1-9). After reviewing Plaintiff's documentation, the gate agent informed her that her seat had been changed from a window seat at the rear of the aircraft to a window seat toward the front of the aircraft. (Doc. # 38, 11:13-17; Doc. # 41, 22:7-11). Plaintiff believes that, because she was informed of the seat change after the gate agent saw her Israeli passport, her seat was changed because of her nationality. (Doc. # 41, 22:7-11). Defendant Gary Richter, the Delta gate supervisor on duty at Plaintiff's gate, contends that her seat was changed automatically due to a new seat configuration on the aircraft. (Doc. # 38, 11:20-12:8).

The parties' accounts of what transpired after Plaintiff was informed of her seat change differ considerably. Plaintiff contends that, when she questioned why her seat had been changed, Richter became abusive. In her deposition testimony, Plaintiff described her interaction with Richter as follows:

I said, "Why did you change the seat?"

And he poked his finger in my eyes and he was screaming, "This is what I do."

So I took the pass and I went to the plane. I was just sitting. And he was after me, "Get out, get out."

And I said, "Why?"

And he was just screaming, "Get out."

I said, "Listen, I don't want to miss the flight. I really want to see my mother." And he just went crazy. I said, "I'm not leaving the plane." So he called the security people. I didn't want to refuse the security people, so I asked the security people not to let me miss the plane. And they didn't really care.

From this point, everything just went down. They kicked me out of the plane, they didn't give me the ticket. All Delta group against me. All of them got out of the counter, standing like a group, "We heard about you."

"What did you heard about me? What did I do?" Nobody wanted to help me. They send the police after me, followed me everywhere I go. The police suddenly say something I never really used, and I was ending being in jail for nothing.

(Doc. # 41; 22:7-23:2).

In contrast, Richter alleges that Plaintiff became visibly angry after being informed of the seat change, but nevertheless accepted her boarding pass. (Doc. # 38, 18-24). Approximately twenty minutes after his interaction with Plaintiff, Richter was called to the aircraft. (Doc. # 38, 15:21-24). Before reaching the aircraft, Richter observed Plaintiff sitting in a wheelchair parked in the jetway, (Doc. # 38, 15:24-25). He asked Plaintiff why she had not boarded the aircraft; Plaintiff replied that she now wanted an aisle seat. (Doc. # 38, 16:6). Before Richter could place a call to see if Plaintiff's request could be accommodated, the head flight attendant onboard the aircraft gestured to Richter to come near, and told him that the Captain of the flight wished to speak with him. (Doc. # 38, 16:7-20).

Richter met with the Captain, who informed him that Plaintiff was sitting in the jetway because she had become irate and irrational while attempting to board the aircraft, and had verbally abused the flight attendants. (Doc. # 38, 13:8-13, 16:20-24). The Captain stated that due to Plaintiff's behavior, she would not be permitted to fly and needed to be removed from the aircraft. (Doc. # 38, 16:23-24). Richter returned to the jetway to speak to Plaintiff, but she was gone. (Doc. # 38, 16:25-17:2). The head flight attendant told Richter that Plaintiff had returned to her ticketed seat during the time he spoke with the Captain. (Doc. # 38, 17:2-3).

Richter located Plaintiff onboard the aircraft, and asked her to follow him onto the jetway; Plaintiff refused. (Doc # 38, 17:3-10). Richter reiterated his request, and Plaintiff again refused to leave the aircraft; soon thereafter, someone onboard the aircraft requested the presence of airport police. (Doc. # 38, 17:12-20). Once the police arrived, Richter left the aircraft and—due to his impression that his presence was increasing Plaintiff's agitation— called another supervisor on duty to take over and attempt to resolve the situation with Plaintiff. (Doc. # 38, 19:5-12).

Upon being removed from the aircraft by airport police, Plaintiff collapsed on the jetway and continued to sit on the floor, crying, for ten minutes. (Doc. # 41, 30:16-31:1, 64:19-20). When Plaintiff was finally able to compose herself, she was told that she would be unable to fly with Delta that day, and to collect her luggage. (Doc. # 41, 31:2-4). Plaintiff retrieved her luggage, and proceeded to the Delta ticketing counter to request she be rebooked on another flight to Paris. (Doc. # 41, 32:18-21). Her request was refused. (Doc. # 41, 33:14-21).

Defendant Rob Minter, an Officer with the Airport Police Department, came on duty at approximately 9:00 p.m. that evening. (Doc. # 28, Ex. 1). During roll call, he was advised that earlier that evening airport police had removed a female from a Delta Airlines Flight. Id. After roll call, Minter was approached by a Delta employee who reported being verbally abused by a woman yelling profanities. Id. The Delta employee directed Minter to Plaintiff, who was standing on the curb outside the baggage claim. (Doc. # 40, 16:6-12). Minter observed Plaintiff displaying belligerent behavior, and yelling at anyone in her general vicinity. (Doc. # 40, 16:14-24). Minter approached Plaintiff and warned her that if she continued to yell, she would be arrested for disorderly conduct. (Doc. # 40, 21:7-11). Thereafter, the Delta employee approached Minter and stated that due to her behavior Plaintiff would be prevented from ever flying again on Delta Airlines, and requested Minter inform Plaintiff that she would have to find another carrier to transport her to her destination. (Doc. # 28, Ex. 1). Minter obliged, and advised Plaintiff that as she was no longer allowed to fly on Delta Airlines, she needed to leave the airport for the night and attempt to secure transport with another carrier the next day. Id. In addition, Minter told Plaintiff that because she no longer had any official business at the airport, she had ten minutes to leave. (Doc. # 40, 21:22-22-7). Plaintiff responded by loudly telling Minter that he could take those ten minutes and "shove it up his ass." (Doc. # 40, 22:5-7).

Minter called for backup, and placed Plaintiff under arrest for disorderly conduct. (Doc. # 40, 22:11-22). Plaintiff was handcuffed, and taken to the Airport Police Department for processing. (Doc. # 40, 28:15-21). After processing, Plaintiff was transported to the Boone County Detention Center where she remained for approximately twenty minutes before taking a taxi back to the airport. (Doc. # 40, 29:23-30:1; Doc. # 41, 41:11-23). Upon her return to the airport, Plaintiff retrieved her luggage from Defendant Murray at the Airport Police Department, and purchased a ticket back to Los Angeles on American Airlines; Plaintiff states the ticket cost between $700 and $900. (Doc. # 41, 42:3-5). Plaintiff was later charged with disorderly conduct; however, the charges were dropped when Plaintiff, through her attorney, agreed to attend anger management classes. (Doc. # 28, Ex. 1).

Plaintiff filed the instant action on August 5, 2008. (Doc. # 1). In her two-count Complaint, Plaintiff alleges that 1) Delta Airlines breached its contractual obligation to transport her to her destination; and 2) Defendants Richter, Minter, and Murray discriminated against her due to her national origin in violation of the Kentucky Civil Rights...