Bower v. Federal Exp. Corp.

• Citation: 96 F.3d 200
• Decision Date: 18 September 1996
• Docket Number: No. 95-5511,95-5511
• Parties: 5 A.D. Cases 1705, 17 A.D.D. 735, 10 NDLR P 275 Richard A. BOWER, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 200

96 F.3d 200

5 A.D. Cases 1705, 17 A.D.D. 735, 10

NDLR P 275

Richard A. BOWER, Plaintiff-Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant-Appellee.

No. 95-5511.

United States Court of Appeals Sixth Circuit.

Sept. 18, 1996.

Connie K. Westbrook (argued and briefed), Memphis, TN, for plaintiff-appellant.

Steven H. Taylor (argued and briefed), Virginia E. Gandy (briefed), Federal Express Corp., Memphis, TN, for defendant-appellee.

Before: MILBURN and BOGGS, Circuit Judges; and QUIST, District Judge. ^*

BOGGS, Circuit Judge.

This case presents a statutory interpretation issue of first impression arising under the Air Carriers Access Act of 1986 ("ACAA"). Richard A. Bower, a handicapped individual, appeals from the district court's dismissal of his employment benefits discrimination complaint under Fed.R. 12(b)(6) for failure to state a claim upon which relief can be granted and we now reverse.

I

Most of the facts in this case are uncontroverted, having been stipulated to by the parties. Federal Express Corporation ("FedEx") provides to its employees the fringe benefit of riding "jumpseat," which means that FedEx, a Federal Aviation Administration ("FAA") certificated all-cargo carrier, allows its employees to use the limited passenger seating available on its cargo flights. FedEx uses aircraft with various numbers of available jumpseats, ranging from two to nineteen, although most aircraft have only two to eight such seats. FedEx does not have any ramps or terminals open to the general public. Nor does FedEx issue what are commonly thought of as tickets to its employees riding jumpseat, although FedEx does maintain a "flight release" roster, which lists those employees who are authorized to ride jumpseat on particular flights.

Richard A. Bower was born with spina bifida, which requires him to use crutches and wear leg braces. He is disabled within the meaning of the Rehabilitation Act of 1973 (29 U.S.C. § 601 et seq.) and within the meaning of the Americans with Disabilities Act (42 U.S.C. § 12101 et seq.) ("ADA"). Bower has been employed by FedEx for nearly seven years. He now holds the position of Senior Global Operations Control Specialist. Bower dispatches aircraft over assigned routes and helps to insure the orderly movement of freight on FedEx aircraft. He also arranges for the ground transportation of freight. FedEx has never allowed Bower to ride jumpseat, ostensibly for safety reasons. ¹ Bower has requested reasonable accommodation of his disability, but this has been denied by FedEx. Despite his disability, Bower has been permitted to ride jumpseat by cargo carriers he has worked for in the past, including United Parcel Service and Airborne Express. Bower is an FAA-certified aircraft dispatcher. For this reason, he is required by FAA regulations to ride jumpseat a specified number of hours each year to maintain his license. ² On January 4, 1995, Bower's attorney swore to an affidavit stating that the Department of Transportation ("DOT") holds that FedEx is covered by the ACAA. Bower's counsel avers in the affidavit, attached to a motion to extend the time for responding to FedEx's motion to dismiss, that she confirmed this information with Ira Laster and Alexander Mallard (in the Office of General Counsel for Litigation) at DOT. ³

On October 24, 1994, Bower filed a complaint against FedEx, alleging violations of the Rehabilitation Act of 1973, the ACAA, and the Tennessee Discrimination Act. ⁴ On December 2, 1994, FedEx filed a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss the complaint for failure to state a claim upon which relief can be granted. The district court granted the motion to dismiss on March 6, 1995, holding that FedEx was not covered by the ACAA and that there was no private cause of action under Section 503 of the Rehabilitation Act of 1973. The court then declined to exercise supplemental jurisdiction over Bower's Tennessee Discrimination Act claim. Bower appealed only the district court's dismissal of his ACAA-based claim.

II

We review de novo a district court's dismissal of a complaint for failure to state a claim under Rule 12(b)(6). In re DeLorean Motor, 991 F.2d 1236, 1239-40 (6th Cir.1993). We must treat as true all of the well-pleaded allegations of the complaint. Miree v. DeKalb County, 433 U.S. 25, 27 n. 1, 97 S.Ct. 2490, 2492 n. 1, 53 L.Ed.2d 557 (1977); Saylor v. Parker Seal, 975 F.2d 252, 254 (6th Cir.1992). All allegations must be construed in the light most favorable to the plaintiff. Sinay v. Lamson & Sessions, 948 F.2d 1037, 1039 (6th Cir.1991). In order for a dismissal to be proper, it must appear beyond doubt that the plaintiff would not be able to recover under any set of facts that could be presented consistent with the allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984); Lamb v. Phillip Morris, Inc., 915 F.2d 1024, 1025 (6th Cir.1990).

A. Which Version of the ACAA Applies to this Case?

Neither the parties nor the district court focused very much on which version of the ACAA should govern this case. On July 5, 1994, more than three months before Bower filed his complaint, Congress enacted Pub.L. 103-272, 108 Stat. 1141, now codified at 49 U.S.C. § 40101-49105. 103 272 represented a revision without substantive change of certain general and permanent laws related to transportation, including the ACAA. H.R.Rep. No. 180, 103d Cong., 1st Sess. (1994), reprinted in 1994 U.S.C.C.A.N. 818. Bower's complaint did not specify whether he was suing under the previous or current codification of the ACAA. FedEx's motion to dismiss cited the previous version of the statute. The district court seems to have uncritically accepted FedEx's assertion that the previous version of the statute applies to this case. ⁵ Only in his reply brief before our court does Bower seem to realize that the current version of the statute may apply. ⁶ Bower's reply brief, however, does not clearly request that we apply the current version of the statute--his reply brief seems to be only an attempt to refute the argument that application of the current version of the statute would change the outcome of this appeal. Nor does Bower indicate in his complaint the dates of the occasion(s) when he was denied the ability to ride jumpseat on FedEx's aircraft. He does note in his complaint that he is challenging FedEx's "policy" of not allowing handicapped individuals like him to ride jumpseat. ⁷ Thus, it seems reasonable to assume, especially given the applicable standard of review, that Bower was challenging a FedEx practice that was still in effect at the time he filed his complaint. As a result, the parties and district court erred in assuming that the old version of the statute should be applied instead of the new codification. Nevertheless, the older version of the statute remains relevant to the proper disposition of this case for reasons that will become apparent below.

B. The ACAA's Ban on Discriminating Against Passengers

The central statutory provision in this case is 49 U.S.C. § 41705, which states:

In providing air transportation, an air carrier may not discriminate against an otherwise qualified individual on [any one of] the following grounds: (1) the individual has a physical or mental impairment that substantially limits one or more major life activities[;] (2) the individual has a record of such an impairment[;] (3) the individual is regarded as having such an impairment.

The parties have essentially stipulated that Bower meets at least one of the requirements in subsections (1)-(3), as these prohibitions track those in the ADA. Compare § 41705(1)-(3) with 42 U.S.C. § 12102(2)(A)-(C). The tricky questions presented in this is appeal are whether FedEx is "an air carrier" "providing air transportation" and whether Bower is "an otherwise qualified individual."

1. FedEx Is an "Air Carrier"

Resolving this appeal requires us only to follow the definitions in the United States Code from term to term. The term "air carrier" in the ACAA is defined as "a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation." 49 U.S.C. § 40102(a)(2). "Air transportation" is in turn defined as "foreign air transportation, interstate air transportation, or the transportation of mail by aircraft." ⁸ "Foreign air transportation" and "interstate air transportation" are in turn both defined as "the transportation of passengers or property by aircraft as a common carrier for compensation, or the transportation of mail by aircraft." 49 U.S.C. § 40102(a)(23), (25) (emphasis added). FedEx obviously transports "property" across state lines. Thus, we hold that FedEx is an "air carrier" for purposes of § 41705. ⁹ Cargo carriers may not discriminate in the provision of air transportation against "otherwise qualified individuals." This conclusion is reinforced by noting that FedEx concedes that it is an all-cargo air carrier. The ACAA defines "all-cargo air transportation" as "the transportation by aircraft in interstate air transportation of only property or only mail, or both." 49 U.S.C. 40102(a)(10). And "cargo" is defined as "property, mail, or both." 49 U.S.C. § 40102(a)(12). FedEx is without doubt subject to the ACAA, specifically § 41705, and the district court's decision to the contrary must be reversed. As we discuss below, the district court relied exclusively on its interpretation of a regulation that may be in contravention of the underlying statute.

A number of other factors support our conclusion, First, the same result would be reached under the previous version of the statute. The most important definition in the previous version of the statute, 49 U.S.C.App. § 1301(24), for the terms "interstate air transportation" and "foreign air transportation," refers to the transportation of "property," just as the current version of the statute does. 49 U.S.C. §...