Cerqueira v. American Airlines, Inc.

• Decision Date: 10 January 2008
• Docket Number: No. 07-1824.,07-1824.
• Citation: 520 F.3d 1
• Parties: John D. CERQUEIRA, Plaintiff, Appellee, v. AMERICAN AIRLINES, INC., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

520 F.3d 1

John D. CERQUEIRA, Plaintiff, Appellee, v. AMERICAN AIRLINES, INC., Defendant, Appellant.

No. 07-1824.

United States Court of Appeals, First Circuit.

Heard November 5, 2007.

Decided January 10, 2008.

Michael V. Powell with whom Michael A. Fitzhugh, Fitzhugh, Parker & Alvaro LLP and Locke Liddell & Sapp LLP were on brief, for appellant.

Wayne A. Schrader, David A. Berg, Katherine Andrus, Air Transport Association of America, Inc., Jason B. Stavers and Gibson Dunn & Crutcher L.L.P. were on brief, for Air Transport Association of America, Inc., amicus curiae.

Michael T. Kirkpatrick with whom Public Citizen Litigation Group, David S. Godkin, Darleen F. Cantelo and Birnbaum & Godkin, LLP were on brief, for appellee.

Michael L. Foreman, Monica R. Saxena, Nicole Birch, Lawyers' Committee for Civil Rights Under Law, Vincent A. Eng, Aimee J. Baldillo, Asian American Justice Center, Cynthia Valenzuela, The Mexican American Legal Defense & Educational

Fund, Angela Ciccolo, Anson Asaka, NAACP, Foster Maer and Puerto Rican Legal Defense Fund were on brief for Lawyers' Committee for Civil Rights Under Law, Asian American Justice Center, Mexican American Legal Defense & Educational Fund, National Association for the Advancement of Colored People, and Puerto Rican Legal Defense Fund, amici curiae.

Before LYNCH, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

LYNCH, Circuit Judge.

An airline passenger, John Cerqueira, filed suit asserting that his removal from a flight violated his rights under 42 U.S.C. § 1981 to be free of race discrimination in contracting. He recovered compensatory damages of $130,000 and punitive damages of $270,000 against American Airlines ("American" or "AA"), which on December 28, 2003, refused to transport Cerqueira on a flight and to rebook him on another flight. His discrimination claim was made against the statutory permission granted to airlines, in 49 U.S.C. § 44902(b), to refuse to transport a passenger "the carrier decides is, or might be, inimical to safety." The issues raised are of first impression in this circuit.

The district court failed to instruct the jury on the statutory permission to air carriers to remove passengers under § 44902(b); it also gave instructions inconsistent with that statute and which were otherwise in error. We thus vacate the jury verdict in favor of the plaintiff.

We also conclude that no properly instructed jury could return a verdict against the air carrier and therefore the district court should have granted American Airlines's motion for judgment notwithstanding the verdict. We remand with instructions to enter judgment for American Airlines.

I.

The facts of this case center on AA Flight 2237, scheduled to fly from Boston's Logan Airport to Fort Lauderdale, Florida on December 28, 2003.

We recite the facts from particular perspectives: that of the Captain of the aircraft and of the person who within minutes that same morning decided not to rebook the plaintiff, based on the information known to them. We explain below why the law compels this perspective. The exact sequence of events is not entirely clear from the record; however, the information described was known in full detail to the Captain when he made the decision not to transport the plaintiff and in summary to the other decisionmaker. There is no material dispute of facts about the information before the decisionmakers.

A. Removal from Flight

The Captain of AA Flight 2237 has worked for AA since 1986, starting as a flight engineer; in 1988, he became an FAA-designated instructor; around 1989, he was promoted to co-pilot; and in 1996, he was promoted to the position of Captain. He testified that he has flown hundreds of flights, and that he had had security problems at Logan Airport before and dealt with them in the same way as he dealt with the situation at issue here.

Around 6:00am on December 28, 2003, approximately 35 minutes prior to the scheduled departure, the Captain of Flight 2237 was walking to the departure gate. A man with a ponytail approached the Captain and asked him if he was the Captain for the Fort Lauderdale flight. The Captain initially thought that the passenger was reporting a problem and so he responded that he was the Captain for the flight. The passenger said, "Good. I'm going with you. We're going to have a good day today." The passenger then immediately left the area; the Captain continued to the gate. The Captain was greatly concerned about this exchange: he testified at trial that "it [was] probably one of the most odd exchanges that I've ever had with anyone in my entire career, and it concerned me greatly."

After the passengers boarded, the Captain, in the cockpit, spoke by telephone with Flight Attendant Two in the rear of the plane.¹ He asked her to check on the location of the man with the ponytail and whether she "had any other concerns that she could see with this particular passenger." The Captain agreed at trial that he must have described the man to her but did not recall the exact description. [The flight attendants described the man with the ponytail as having a heavy accent.]

Flight Attendant Two checked and returned to the Captain with information that the man with the ponytail was sitting with two other men in Row 20, an emergency exit row. The plaintiff, seated by the window, was one of those men.

The location of the man with the ponytail in an exit row concerned the Captain. The emergency exit row location is important to safety because the exit rows are critical if the aircraft needs to be evacuated. Passengers sitting in the exit rows need to meet specific regulatory criteria, 14 C.F.R. § 121.585(b), which among other things require them to follow the instructions of crew-members and assist other passengers in evacuating the aircraft.

Flight Attendant Two told the Captain that she perceived the man in the ponytail was traveling with the two other men in the row, one of whom was the plaintiff.² Regardless, the Captain said it was not important from his perspective whether or not the three men were traveling together: "[I]f people are trying to harm the aircraft or anyone on board, they might be traveling together, they might not be traveling together."

Flight Attendant Two also expressed her concerns to the Captain about the plaintiff. She described an incident she had with the plaintiff in the terminal. She told the Captain that this passenger, the plaintiff, had been hostile to her.³

Specifically, she reported to the Captain that prior to boarding she had been approached by the plaintiff in the gate area. He was "very hostile and extremely insistent that his seat be switched to an exit row seat." She explained to the plaintiff that she was a flight attendant and not a gate agent and asked him to take a seat until someone could help him. She said that the plaintiff "continued to stare at her and sat down right close to the gate.... [T]he entire time that she worked at the gate he was just sitting there staring at her, making her extremely uncomfortable."⁴

She also told the Captain that this passenger boarded the plane into his coach class seat when only the first class passengers were called to board, and that the plaintiff immediately went to the bathroom for an extended period of time. The Captain was concerned about the plaintiff's early use of the lavatory because it is a very insecure area in which a bomb may have been placed. He requested the co-pilot on the flight check the lavatory. The co-pilot did so and found nothing.

Flight Attendant Four went to the Captain⁵ with her independent concerns about the three men in Row 20. She reported to the Captain that during (and after) the safety briefing for those seated in exit rows, two of the three passengers in Row 20 were acting very bizarrely and asking questions such as "Is this how you want me to do it?"

She reported that after the briefing, one of the three passengers in Row 20 had pressed the flight attendant call light. Although Flight Attendant Four was upset by their earlier behavior, she went to answer the call light. The two men started in again, laughing, and one asked her, "Where do you want me to put the door?" She testified that no one "acts like this during an exit row briefing. This is a serious safety briefing." She observed the plaintiff, who was leaning forward and watching the other two passengers: "[H]e wasn't laughing outright but he had this smile on his face like he found it very amusing." She added, "I don't think the other passengers [on the plane] found it amusing when we're talking about a safety issue." She went up front to the cockpit to report this to the Captain because the behavior "was so unusual and ... somewhat frightening."

Flight Attendant Four was anxious and disturbed about what was happening. Her concerns went to all three men in the row. She thought they were together because the plaintiff had specifically requested the seat he occupied and because, she thought, he would more likely find their conduct to be amusing (as he appeared to do) and not take their conduct seriously if the three were friends.

Flight Attendant One also had observed that when the man with the ponytail boarded the plane, he had looked into the cockpit and asked the Captain, "Are you our Captain?" Both the Captain and Flight Attendant One thought this strange. The Captain thought it strange because he had already spoken with this man in the terminal and confirmed he was the Captain. Flight Attendant One thought it strange because it was obvious that he was the Captain given his location right next to the cockpit door.

In addition, Flight Attendant Two told the Captain of separate concerns that the plaintiff had an "obvious interest in flight attendant duties; someone might call it staring." This worried the Captain, as undue interest from a passenger in the flight attendants' conduct can trigger a safety concern.

As a result of all of...