Petition for Writ of Certiorari — Cerqueira v. American Airlines, Inc. (No. 07-1495)
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Supreme Court, U.S.
FILED
(iM
() 071495 MAY 29 2008
OFFICE OF THE CLERK
No.
In THE
Supreme Court of the United States
JOHN D. CERQUEIRA,
Petitioner,
Vv.
AMERICAN AIRLINES, INC.,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the First Circuit
PETITION FOR A WRIT OF CERTIORARI
Michael T. Kirkpatrick
Counsel of Record
Public Citizen Litigation Group
1600 20th Street, NW |
Washington, DC 20009
(202) 588-1000
David S. Godkin
Birnbaum & Godkin, LLP
280 Summer Street
Boston, MA 02210
(617) 307-6100
May 2008
i
QUESTIONS PRESENTED
Petitioner John D. Cerqueira sued respondent
American Airlines under 42 U.S.C. § 1981 after
American removed Cerqueira from a flight and
refused to rebook him after the police cleared him
for travel. American claimed that both decisions
were based on safety concerns; Cerqueira claimed
that the decisions were motivated by discrimination.
Cerqueira presented direct evidence of discrimina-
tory animus by lower-level employees who influ-
enced the decisions, and circumstantial evidence of
discrimination by the formal decisionmakers. Ajury
found for Cerqueira but the First Circuit reversed,
holding that the discretion granted airlines in 49
U.S.C. § 44902(b), to refuse to transport a passenger
for safety reasons, precludes airline liability for
decisions motivated by a passenger’s race unless
there is direct evidence of discriminatory animus by
the formal decisionmaker. The questions presented
are:
1) Whether, and in what circumstances, a defendant
is liable for discrimination if its decisionmaker
relied on information tainted by a subordinate’s
discriminatory animus;
2) Whether, and in what circumstances, a plaintiff
may use indirect evidence to prove discrimination
in activities other than employment; and
ii
3) Whether the statutory discretion granted to
airlines in 49 U.S.C. § 44902(b), to refuse to trans-
port a passenger for safety reasons, immiunizes
airlines from liability for denial-of-service deci-
sions motivated by race.
iil
TABLE OF CONTENTS
QUESTIONS PRESENTED ..................
TABLE OF AUTHORITIES .....cceisccseucs
PETITION FOR A WRIT OF CERTIORARI ....
Pe EROR ART EAE 6c ce ctecevacveedeuvevanes
PAP EY 4c Cech caeeescecbdcvccuneeens
ew yi ho $ ke A 4 | rr
Te & bk es che ew aah one cea eee
Fi. PRCA DCMT OUINE gnc ccc cee ennesés
l. Removal Hom Friant ...... 0.00605.
2. Danial of Repoomine ..... ccc ecccees
B. Procedural Background ................
REASONS FOR GRANTING THE PETITION
I. The First Circuit’s Rejection § of
Respondeat Superior Deepens an Al-
ready Intractable Conflict Among the
Courts of Appeals on the Application of
Agency Principles in Discrimination
COGS. iva ioc 6aaiew set Vieeee
13
13
iv
IT. The First Circuit’s Bar On Use of Indi-
rect Evidence to Prove Discrimination
in Activities Other than Employment
Conflicts with the Decisions of Other
ee eee eer er er rere ey 22
III. This Case Presents Important Issues at
the Intersection of Aviation Security
and Civil Rights that Should be Settled
at ee IN i ic evn nw web ueen ae be ows 30
A. The First Circuit’s conclusion
that safety must be prioritized
over nondiscrimination conflicts
with the decisions of other fed-
I as bk orc eee A ws oes 30
B. The decision below effectively endorses
CRCINT DPOTIINE 55 ccc cc vee vavcctes 34
eS ORR. ere Er eer rer 38
APPENDIX
January 10, 2008 Opinion of the Court of
Appeals for the First Circuit ..... Pet. App. la
April 9, 2007 Memorandum Opinion and Order
oF the District Court ........... Pet. App. 43a
Vv
February 29, 2008 First Circuit Order
denying rehearing and rehearing
URE ciwavas su kk de oeweneee Pet. App. 63a
February 29, 2008 First Circuit Errata
Pree eres Pe ee ee Pet. App. 74a
vi
TABLE OF AUTHORITIES
CASES
Abrams v. Lightolier Inc.,
50 F.3d 1204 (S4 Cir. 1995) ...... cece eees 15
Al-Qudhai’een v. America W. Airlines, Inc.,
267 F. Supp. 2d 841 (S.D. Ohio 2003) ......, 18
Alshrafi v. American Airlines, Inc.,
321 F. Supp. 2d 150 (D. Mass. 2004) ........ 31
Arguello v. Conoco, Inc.,
BOT Foe BGs (St Civ. 2000) ow nce csc cece: 17
BCI Coca-Cola Bottling Co. v. EEOC,
oa 8 ge 16
BCI Coca-Cola Bottling Co. v. EEOC,
oe ee Rs | a rr 16
Batson v. Kentucky,
28 Me hs: rr 36
Bayaa v. United Airlines, Inc.,
249 F. Supp. 2d 1198 (C.D. Cal. 2002) ....... 32
Bellows v. Amoco Oii Co..
118 F.3d 268 (5th Cir. 1997) ............... 26
Vil
Bergene v. Salt River Project Agriculture Improve-
ment & Power District,
SVS © ds BLOO CHU AT. BOO) Se cccccccvcoes 15
Brewer v. Board of Trustees,
O70 Fe Be CPU SATs BOOT) ccccccceuseueers 15
Brown v. City of Oneonta,
Bek Pete Oe CO GEE, BOO) occ ccc cen nccce 35
Buffkins v. City of Omaha,
922 F.2d 465 (8th Cir. 1990) ............. 35-36
Cariglia v. Hertz Equipment Rental Corp.,
$63 F.Sa 77 (ist Cir. 2006)... cc ecccees 14,17
Chauhan v. M. Alfieri Co., Inc.,
OUT we ate Gaee Ce Gs BOO) cc ccc cevcesces 23
Chowdhury v. Northwest Airlines Corp.,
238 F. Supp. 2d 1153 (N.D. Cal. 2002)....... 32
Christel v. AMR Corp.,
222 F. Supp. 2d 335 (E.D.N.Y. 2002) ........ i8
Christian v. Wal-Mart Stores, Inc.,
252 F.3a 862 (Gth Cir. 2001) ......... 17, 24, 26
Cordero v. Cia Mexicana De Aviacion, S.A..,
681 F.2d 669 (9th Cir. 1982) ... 18, 19, 31, 33, 34
viii
Crawford v. Signet Bank,
170 F3A-SS6 (DC. Cir. 1008)... os cccciccss 26
Daniels v. Advantage Rent-A-Car Inc.,
80 Fed. Appx. 936 (5th Cir. 2003) .......... 26
Dasrath v. Continental Airlines, Inc.,
467 F. Supp. 2d 431 (D.N.J. 2006) ....... 25, 31
Desert Palace, Inc. v. Costa,
Se a: ee ED ao kb 6s 5K ne owe 23
EEOC v. BCI Coca-Cola Bottling Co.,
450 F.3d 476 (10th Cir. 2006) ........ 15, 16, 18
Edmonson v. Leesville Concrete Co.,
ee Be I ys oss one koe 36
Edwards v. Marin Park, Inc.,
356 F.3d 1058 (Sth Cir. 2004) .....ccccccecs 23
Elkhatib v. Dunkin Donuts, Inc.,
GOS F ieee BSe CHANG, BE) ook oc ced vccees 24
Ercegovich v. Goodyear Tire & Rubber Co.,
154 F.3d 34446th Cir. 1908) ........ccccess 15
Furnco Construction Corp. v. Waters,
Oe is ee oho ease kp eceee eee 25
Gant ex. rel. Gant v. Wallingford Board of Education,
195 F.3d 134 (2c Cir. BGR) on cece sesccceuss 24
ix
Green v. Dillard’s, Inc.,
483 F.3a 533 (Sth Cir. 2007) .....cccccveces 17
Green v. State Bar of Texas,
BP eee 2eOe (oes Cir. LODE) 2... ccc cccceees 26
Griffin v. Wash. Convention Ctr.,
Ree ee Se Cae, Gir. LOB) 2.0.0... cece 16
Hampton v. Dillard Department Stores, Inc.,
247 F.3d 1091 (10th Cir. 2001) ............. 26
Harris v. Hays,
452 F.3d 714 (8th Cir. 2006) ............... 24
Hill v. Lockheed Martin Logistics Management, Inc.,
354 F.3d 277 (4th Cir. 2004) ............ 15, 16
Huggar v. Northwest Airlines, Inc.,
No. 98-594, 1999 WL 59841
fo BES sD ) 25
Kinnon v. Arcoub, Gonman & Associates, Inc.,
490 F.3d 886 (11th Cir. 2007) .............. 24
Latimore v. Citibank Federal Sav. Bank,
151 F.3d 712 (7th Cir. 1998) ............... 26
Laxton v. Gap, Inc.,
333 F.3d 572 (5th Cir. 2003) .............5. °15
Lindsay v. Yates,
498 F.3d 434 (6th Cir. 2007) ............... 23
Lindsey v. SLT Los Angeles, LLC,
447 F.3d 1138 (9th Cir. 2006) .............. 23
Llampallas v. Mini-Circuits, Laboratories, Inc.,
163 F.3d 1236 (11th Cir. 1998) ............. 16
Lockhart v. Westinghouse Credit Corp.,
879 F.2d 43 (Sd Cir. 1969) ......ccescccoees 15
Loeb v. Textron, Inc.,
600 F.2a 1003 (ist Cir. 1979)... cc cccccnes 29
Lust v. Sealy, Inc.,
$83 F.3d 560 (7th Cir. 2004) 2... cccenscces 16
McDonnell Douglas Corp. v. Green,
fete Sy fe. rs 22
Mercado-Garcia v. Ponce Federal Bank,
979 F.2d 890 (Ist Cir. 1992)............. 24, 26
Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,
7 F.3d 1085 (2d Cir. 1993) .......cccccecees 26
Morris v. Office Max, Inc.,
SD F.Sck G1) (7th Cir. TOS) onc ccc ccccccvess 26
Murrell v. Ocean Mecca Motel, Inc.,
262 FF .3a Zoo (4th Cir. ZOB1) onc cccccccvcess 24
xi
Patterson v. McLean Credit Union,
ee ie bos oe 5b bees eeeds 27
Reeves v. Sanderson Plumbing Products, Inc.,
ee a, ED din ob dos cdaeeteaccecces 27
Rose v. New York City Board of Education,
Bee ae BE Gs BOGE) 0 vecccricccssces 15
Russell v. McKinney Hospital Venture,
235 F.3d 219 (Sth Cir. 2000) ......ccccccces 16
Ruta v. Delta Airlines, Inc.,
322 F. Supp. 2d 391 (S.D.N.Y. 2004) ........ 18
Sanghvi v. St. Catherine’s Hospital, Inc.,
256 FSG STO (76D Clr. ZOG]) onc cccccccccces 24
Shaw v. Reno,
BO this GP CRO) sc cccccccccescsceuseuvts 36
Shgeirat v. U.S. Airways, Inc.,
515 F. Supp. 2d 984 (D. Minn. 2007) ........ 31
Simmons v. American Airlines,
34 Fed. Appx. 573 (9th Cir. 2002) .......... 25
St. Mary’s Honor Ctr. v. Hicks,
De Bis LET ob bccn cersctcesteee’s 27, 30
Stacks v. S.W. Bell Yellow Pages, Inc.,
27 F.3G 1536 (Sih Cit. 1904): 0. ccc cecccees
xii
T & S Serv. Associates, Inc. v. Crenson,
GS ee Fae Ce Gey TEE) coc croeescccccces 24
Texas Department of Community Affairs v. Burdine,
RENE 666-06 Ce wcevesecsshes 22, 30
Thompson v. Southwest Airlines Co.,
No. 04-313, 2006 WL 287850
i EE tcc cece cepeseveeeees 25
United States v. Avery,
B57 FOG Sed Ceti Git. TOOT) nn cc ccccocccces 35
Williams v, Lindenwood University,
268 F 3G S40 CG Cir. ZOGZ) occ ccccvcccerns 24
Williams v. Staples, Inc.,
372 F.3d 662 (4th Cir. 2004) ............... 24
Williams v. Trans World Airlines,
S00 F.2d O63 (2a Civ. TBTB) occ cccccs 30, 32, 33
STATUTES
OE sk as ack 6 40a we Rea ae 2
Pe se oles what i me
ee se oy sei dee ceed eee eeat 30
ge Sek S| Perr er rer re passim
xiii
MISCELLANEOUS
American Airlines, Inc.,
No. OST-2003-15046, Consent Order
Cre WO ee RD ccd cc bcdaebututusceus 37
Continental Airlines, Inc.,
No. OST-2004-16943, Consent Order
psa Ne S| re ne 37
Delta Airlines, Inc.,
No. OST-2004-16943, Consent Order
Fre ee ee ED 5 vo 4 6 ve ee Reo 56 es eee aT
R. Richard Banks, Racial Profiling and
Antiterrorism Efforts,
89 Cornell L. Rev. 1201 (2004) ............. 36
Stephen J. Ellman, Racial Profiling and Terrorism,
19 N.Y.L. Sch. J. Hum. Rts. 305 (2003) ...... 36
United Air Lines, Inc.,
No. OST-2003-14194, Consent Order
epee Se SED: 4 ow G ee ds cheered eawes 37
PETITION FOR A WRIT OF CERTIORARI
A jury found that respondent American Airlines
intentionally discriminated against petitioner John
D. Cerqueira in violation of 42 U.S.C. § 198] when it
removed him from a flight and denied him further
service. The district court upheld the verdict. The
U.S. Court of Appeals for the First Circuit vacated
the verdict and ordered that judgment be entered for
American. The First Circuit rejected the application
of respondeat superior and the use of indirect evi-
dence outside the employment discrimination
context, and held that the discretion granted to
airlines in 49 U.S.C. § 44902(b), to refuse to transport
a passenger for safety reasons, creates a conflict
between safety and civil rights, and permits the use
of racial profiling in airline denial-of-service deci-
sions. The First Circuit’s decision conflicts with the
decisions of other courts of appeals on each of the
three questions presented, each of which is of na-
tional importance. For the reasons that follow, this
Court should grant review.
OPINIONS BELOW
The amended opinion of the U.S. Court of Ap-
peals for the First Circuit (Pet. App. la) is reported
at 520 F.3d 1. The Memorandum Opinion and Order
of the U.S. District Court for the District of Massa-
chusetts (Pet. App. 43a), upholding the jury verdict,
is reported at 484 F. Supp. 2d 232. The First Cir-
cuit’s order denying rehearing and rehearing en
banc with two dissenting opinions (Pet. App. 63a) is
reported at 520 F.3d 20. The Errata Sheet amending
2
the First Circuit’s original opinion (Pet. App. 74a) is
unpublished.
JURISDICTION
The judgment of the U.S. Court of Appeals for the
First Circuit was entered on January 10, 2008.
Petitioner timely sought rehearing, which was
denied on February 29, 2008. This Court has juris-
diction under 28 U.S.C. § 1254/4).
STATUTES INVOLVED
42 U.S.C. § 1981 provides:
(a) All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and enforce
contracts ...as is enjoyed by white citizens
(b) For purposes of this section, the term
“make and enforce contracts” includes the
making, performance, modification, and termi-
nation of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of
the contractual relationship.
49 U.S.C. § 44902(b) provides:
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.
3
STATEMENT
A. Factual Background
Petitioner Cerqueira is an American citizen of
Portuguese descent. Cerqueira has dark hair and an
olive complexion, and he is often mistakenly per-
ceived to be Middle Eastern. App. 257, 281.) On
December 28, 2003, Cerqueira was a ticketed passen-
ger scheduled to fly from Boston to Ft. Lauderdale
on American flight 2237. The flight was the return
portion of a round-trip ticket.
1. Removal from Flight
On the morning of his flight, Cerqueira went to
the airport, checked a bag curbside, received his
boarding pass, and proceeded to the gate, passing
through thesecurity checkpoint without incident. At
the gate, Cerqueira requested a seat change to an
exit row or bulkhead for more leg room. The Ameri-
can employee at the gate counter was flight atten-
dant Sally Walling. Walling told Cerqueira that she
could not help him and asked him to sit down and
wait. Cerqueira followed Walling’s instructions, and,
once a gate agent arrived, Cerqueira was assigned
seat number 20F, which was a window seat in an exit
row. Cerqueira boarded when his group was called,
found his seat, stowed his carry-on items, used the
“App.” refers to the appendix filed with American’s
appellate brief.
4
lavatory, and then returned to his seat and began
working on his laptop computer. App. 257-58.
About ten minutes after Cerqueira took his seat,
two men, Mr. Ashmil and Mr. Rokah, boarded and
sat next to Cerqueira in seats 20D and 20E.
Cerqueira did not speak to them or interact with
them in any way. Ashmil and Rokah, like Cerqueira,
had dark hair and olive complexions. Ashmil and
Rokah were speaking loudly to each other, partly in
English and partly in a foreign language. Cerqueira
later learned that Ashmil and Rokah are Israeli.
When the announcement was made to turn off
electronic devices, Cerqueira stowed his laptop and
fell asleep. App. 259.
Cerqueira was awakened by Mr. Ynes Flores, a
customer service manager for American. Flores
asked all three men in the row for their boarding
passes. Cerqueira was unable immediately to locate
his boarding pass, but he handed Flores his itiner-
ary, and Flores indicated that it was sufficient.
Flores left with Cerqueira’s itinerary and the board-
ing passes of Ashmil and Rokah. Soon after Flores
left, four uniformed troopers from the Massachusetts
State Police boarded the airplane and, without
explanation, demanded that Cerqueira, Ashmil, and
Rokah immediately deplane with their carry-on bags.
It was a full flight, but only Cerqueira, Ashmil, and
Rokah were removed. App. 259-60; App. 310. The
three men were questioned by the police on the jet
bridge, then escorted to a small room where they
were held and interrogated for about two hours.
Hy)
Cerqueira repeatedly told the police that he was
traveling home, by himself, after a family visit for the
holidays, and that he did not know Ashmil or Rokah.
App. 260. The troopers determined that there was
no security threat and cleared the three men for
travel. App. 262, 382, 443; Stipulation S, Joint Pre-
trial Mem. [Doc. 57] at 15.
Capt. John Ehlers was the pilot of American
Flight 2237, and he made the decision to have
Cerqueira, Ashmil, and Rokah removed from the
flight. App. 295. Ehlers claimed that he removed
Cerqueira based. on Walling’s assertions that
Cerqueira 1) requested a seat change in an insistent
manner; 2) might have boarded early; and 3) used
the lavatory. App. 300, 363. But Walling admitted
that 1) she did not think her conversation with
Cerqueira about the seat change was a security
issue; 2) she did not hear the _ boarding
announcements and thus did not know if Cerqueira
had boarded out-of-turn; and 3) passengers often use
the lavatory upon boarding. Walling further admit-
ted that nothing she reported to Ehlers about
Cerqueira ordinarily results in removal and denial of
service. App. 366-70. Ehlers testified that he knew
Walling was not in a position to know whether
Cerqueira boarded early, and American made a
judicial admission that “Mr. Cerqueira boarded the
aircraft when his assigned group was called.” App.
295. Ehlers also admitted that passengers commonly
use the lavatory upon boarding and that the co-pilot
6
had checked the lavatory after Walling’s report and
found nothing wrong. App. 299-300.
Ehlers claimed that he removed Ashmil and
Rokah from the flight because: 1) one of them had a
conversation with Ehlers that Ehlers considered
odd;’ 2) Walling reported that they had wished other
passengers a “happy new year” and were heard
“speaking in a different language;” and 3) flight
attendant Lois Sargent reported that they joked with
her during the exit row briefing. It is undisputed
that Cerqueira did not engage in any of these behav-
iors, and there was nothing that linked Cerqueira to
Ashmil and Rokah other than his Middle Eastern
appearance. Indeed, the flight attendants’ trial
testimony and written reports from the day of the
incident showed that the flight attendants became
concerned about the exit row passengers because of
the flight attendants’ perception that the three
passengers were from the Middle East. Walling
thought the three men looked similar because they
were “dark,” and, in her written report of the inci-
dent, she referred to the three passengers collec-
tively as “them” and “they.” App. 372, 428-30.
Similarly, Sargent grouped the three men together
"Ehlers testified that, in the termina! before the flight, a
passenger with a ponytail—either Ashmil or Rokah—asked
Ehlers if he was the pilot to Fort Lauderdale. When Ehlers
confirmed that he was, Ashmil or Rokah said: “That's good.
I’m going with you. We're going to have a good trip today.”
App. 296.
7
in her reports and wrote that they “seemed to be
foreign nationals (later confirmed/Middle East
passports)” and noted (incorrectly) that “these 3
passengers had Israeli passports but Arabic names.”
App. 431-33, 452-54. Flight attendant Amy
Milenkovic testified that all three men had dark hair,
and she thought that Ashmil or Rokah might be
Middle Easter. Her report noted that Ahmil or
Rokah spoke with a “heavy accent,” and she testified
that since the terrorist attacks of September 11th,
she has paid close attention to whether a passenger
has an accent. App. 376-79, 434-36.
2. Denial of Rebooking
After the police completed their investigation and
cleared Cerqueira, Ashmil, and Rokah, the police
escorted the three men to the American ticket
counter and expected that the three would be
rebooked. App. 443. The police told the ticket agent
that Cerqueira and the other two men were “all set
to go” (App. 286; see also App. 382), and the ticket
agent told Cerqueira that he could be accommodated
on a flight from Boston to Ft. Lauderdale departing
that afternoon, but she had to check with a supervi-
sor. App. 262. The supervisor, customer service
manager Nicole Traer, told Cerqueira that American
was refunding the cost of the Boston to Ft. Lauder-
dale portion of his ticket, that American had made a
corporate decision to deny him service, and that she
had no further information. Traer told Cerqueira
that if he wanted further information he should
contact American directly. Traer was unable to tell
8
Cerqueira how long the denial of service would last.
The next day, Cerqueira flew home on another
airline. App. 263-64, 285-86.
The decision not to rebook Cerqueira on any
American flight was made by Mr. Craig Marquis, the
manager on duty at American’s System Operations
Control (SOC) in Dallas. Ehlers testified that, after
the police removed Cerqueira, Ashmil, and Rokah
from the flight, Ehlers called Marquis and reported
the crew’s concerns. App. 302. Marquis testified
that, although he made the decision to deny
rebooking, he has no recollection of the reasons for
his decision or when the decision was made. An
entry in Cerqueira’s computerized Passenger Name
Record notes that Cerqueira was denied boarding on
Flight 2237 due to unspecified “security issues” and
that Cerqueira should not be rebooked on American.
App. 321-23, 423. The police were called to remove
Cerqueira at about 7:00 am, but the first computer
entry reflecting the decision to deny rebooking was
not made until 9:01 am, by which time Cerqueira had
been cleared by the police. App. 443.
B. Procedural Background
Cerqucira filed a complaint in the federal district
court of Massachusetts alleging that, by removing
him from his flight and refusing to rebook him after
he was cleared by the police, American twice dis-
criminated against him because of his perceived race
or ethnicity in violation of 42 U.S.C. § 1981. Ameri-
can claimed that its treatment of Cerqueira was
9
justified by security concerns; Cerqueira maintained
that but for his Middle Eastern appearance, he
would not have been removed from his flight or
refused further service.
The case was tried to a jury. After the close of
evidence, the district court instructed the jury that
“Mr. Cerqueira bears the burden of proving by a fair
preponderance of the evidence that he was intention-
ally discriminated against because of the perception
of his race or ethnicity” and that if American’s
treatment of Cerqueira was motivated by rational
security concerns, the jury should find for American.
App. 394. The court explained that in determining
why American treated Cerqueira differently from
other passengers, the jury should “consider that
American Airlines is expected to operate its airlines
with the primary goal of the safety and well-being of
the traveling public.” Id. The court further ex-
plained that
[W]e expect of American Airlines that they’re
going to behave themselves in a way that puts
the safety of the traveling public and their
employees first. But they cannot, they’re
forbidden by the law from acting to
discriminate—let’s use that word—to discrimi-
nate against someone based upon their per-
ception that that person is a certain race ora
certain ethnic heritage. If that’s why they did
what they did, that’s forbidden by the law.
Id.
10
The court reiterated this instruction in response
to a jury question:
In this case, if you believe that Mr. Cerqueira
was treated differently, taken off the plane,
denied rebooking, that may be perfectly all
right because the airline, as I’ve already told
you, has every right; has the duty to ensure
the safety of the flying public and its own
ground and air crews.... [The issue is] why?
Why did they do it? There may be an appro-
priate motivation: safety, security of the flight;
there may be an inappropriate, indeed illegal
motivation because there’s the perception
that—of the person’s race or ethnic back-
ground.
App. 412.
The district court also instructed the jury that a
corporate defendant is vicariously liable for actions
driven by the discriminatory animus of its employ-
ees. The court explained:
Now, American Airlines is a company... .
Companies are people and they’re bureaucra-
cies and they operate hierarchically; in other
words, there are higher-ups in the company
and lower down people. But all are employees
of the company and they’re—if you think
they’re acting within the scope of their em-
ployment and they’re doing what they are
doing as employees of American Airlines, then
that conduct is attributed to American Air-
11
lines. That is American Airlines. It’s the sum
total of the people that work for it.
App. 393-94.
The court instructed the jury to determine
whether “American Airlines, through its agents,
through the people who work for it, did they inten-
tionally discriminate against Mr. Cerqueira on the
basis of perceived race or ethnicity.” App. 393. The
court further explained:
And let’s say that’s why a lower-level person
acted as she did with respect to this. If that
action is transformed into the action of the
higher corporate people, if that’s what drives
the action of the higher corporate people,
American’s stuck with it because American
should take care that they’re not acting
against a person based on the perccived race
or ethnicity. The law forbids that.
App. 394; see also App. 397.
The jury returned a verdict for Cerqueira. App.
212. American filed two post-judgment motions: a
renewed motion for judgment as a matter of law
(App. 217) and a motion for a new trial (App. 221).
The district court rejected all of American’s argu-
ments and concluded:
This was a quintessential jury trial. Cerqueira
and American were both ably represented by
vigorous advocates and our system gave, as it
ought, the final judgment ona difficult issue of
12
racial discrimination to the trusted institution
of collective wisdom—the jury. The jury spoke
in favor of Cerqueira.
Pet. App. 62a.
American appealed and the First Circuit vacated
the jury verdict and ordered that judgment be
entered for American. The First Circuit held that
the district court’s respondeat superior instruction
was reversible error because “[t]he biases of a
non-decisionmaker may not be attributed to the
decisionmakers” (Pet. App. 30a), and the removal
decision would have to have been “based only on the
Captain’s bias toward persons who appeared to be of
Middle Eastern descent” to result in liability (Pet.
App. 37a) (emphasis added). The First Circuit also
held that circumstantial evidence cannot be used to
prove discrimination in an airline refusal-to-trans-
port case because the McDonnell Douglas burden-
shifting framework was developed in cases involving
employment discrimination. Finally, the First
Circuit concluded that the statutory discretion
granted to airlines in 49 U.S.C. § 44902(b), to refuse
to transport a passenger for safety reasons, creates a
conflict between safety and civil rights and permits
the use of racial profiling in airline denial-of-service
decisions.
Cerqueira sought rehearing en banc, but his
petition was denied by a three-to-two vote of the
active judges of the First Circuit. Pet. App. 62a. The
dissenting judges voiced strong disagreement with
13
the panel’s opinion, especially as it relates to Ameri-
can’s refusal to rebook Cerqueira on a later flight.
Pet. App. 63a-73a (Torruella, J., and Lipez, J., dis-
senting from denial of reh’g en banc).
REASONS FOR GRANTING THE PETITION
I. The First Circuit’s Rejection of Respondeat
Superior Deepens an Already Intractable
Conflict Among the Courts of Appeals on the
Application of Agency Principles in Discrimina-
tion Cases.
The decision below deepens an entrenched
conflict among the courts of appeals on the question
of whether, and in what circumstances, a defendant
is liable for discrimination if its decisionmaker relied
on information tainted by a subordinate’s discrimi-
natory animus. In this case, the jury was presented
with direct evidence that the flight attendants whose
reports to Ehlers caused Cerqueira’s removal were
motivated by their perception that the exit row
passengers were from the Middle East. Specifically,
the evidence showed that the flight attendants
thought Cerqueira was traveling with the other two
men in his row solely because Cerqueira looked like
them, and the flight attendants’ written reports of
the incident expressed their concerns about passen-
gers with foreign appearances, Middle Eastern
passports, Arabic names, and heavy accents. The
district court instructed the jury that because a
corporate defendant is vicariously liable for the acts
of its employees acting within the scope of their
14
employment, American would be liable for discrimi-
nation if the decisions of Ehlers and Marquis were
driven by the discriminatory animus of the flight
attendants.
The First Circuit found that the district court
erred by relying on the doctrine of respondeat
superior because it “permitted liability of the air
carrier to turn on the purported bias of
non-decisionmakers.” Pet App. 39a. According to
the First Circuit, an air carrier cannot be liable for
decisions that are driven by the discriminatory
animus of subordinates; rather, the removal decision
would have to be based only on the final
decisionmakers’ own bias to result in liability. As
described immediately below, the First Circuit’s
wholesale rejection of the doctrine conflicts with the
decisions of other courts that have considered the
issue of subordinate bias liability, both generally and
in the context of airline denial-of-service decisions.
This Court should grant certiorari to resolve the
conflict and provide guidance on this important
issue.
Every circuit has recognized corporate liability
based on respondeat superior, but there is an intrac-
table conflict regarding the type or amount of influ-
ence a biased subordinate must exert over a decision
to result in liability.” The Tenth Circuit examined
*See Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 83
(ist Cir. 2004) (“[CJorporate liability can attach if neutral
(continued...)
15
3(...continued)
decisionmakers ... rely on information that is inaccurate,
misleading, or incomplete because of another employee’s
discriminatory animus.’ ); Rose v. New York City Bd. of Educ.,
257 F.3d 156, 161-62 (2d Cir. 2001) (finding liability where the
biased subordinate “had enormous influence in the
decision-making process”); Abrams v. Lightolier Inc., 50 F.3d
1204, 1214 (3d Cir. 1995) (finding liability if the biased
subordinete played a role or participated in the decision at
issue) (“Indeed, we have hela that discriminatory comments
by nondecisionmakers ... may properly be used to build a
circumstantial case of discrimination.”) (citing Lockhart v.
Westinghouse Credit Corp., 879 F.2d 43, 54 (3d Cir. 1989)); Hill
v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290-91
(4th Cir. 2004) (finding liability when biased subordinate
“possessed such authority as to be viewed as the one
principally responsible for the decision”); Laxton v. Gap, Inc., ©
333 F.3d 572, 584 (5th Cir. 2003) (finding liability if the biased
subordinate had influence or leverage over the official
decisionmaker); Ercegovich v. Goodyear Tire & Rubber Co., 154
F.3d 344, 354-55 (6th Cir. 1998) (finding liability if a
subordinate’s discriminatory bias influenced or “played a
meaningful role in the decision”); Brewer v. Bd. of Trs., 479
F.3d 908, 917-18 (7th Cir. 2007) (finding liability when a
subordinate with discriminatory animus exerts significant
influence and is tantamount to being a functional
decisionmaker); Stacks v. S.W. Belli Yellow Pages, Inc., 27 F.3d
1316, 1323 (8th Cir. 1994) (finding liability when the facts on
which the decisonmakers rely have been filtered by a
subordinate exhibiting discriminatory aminus); Bergene v. Salt
River Project Agric. Improvement & Power Dist., 272 F.3d 1136,
1141 (9th Cir. 2001) (finding liability if a subordinate with a
retaliatory or discriminatory motive is involved in the
challenged decision); EEOC v. BCI Coca-Cola Bottling Co., 456
F.3d 476, 487-88 (10th Cir. 2006) (“To prevail on a subordinate
(continued...)
16
this circuit conflict in EEOC v. BCI Coca-Cola
Bottling Co., 450 F.3d at 486-87. The Tenth Circuit
rejected both the “lenient approach” of courts that
have imposed liability where a biased subordinate
had influence over the decisionmaker, id. at 486
(citing, among other cases, Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 227 (5th Cir. 2000)), and the
“strict approach” of courts that require a subordi- |
nate to have controlled the decision, id. at 487 (citing,
among other cases, Hill, 354 F.3d at 291), and held
that liability attaches if the information provided by
the biased subordinate “caused” the adverse action.
Id. (expressing agreement with Lust v. Sealy, Inc.,
383 F.3d 580, 584 (7th Cir. 2004)). To resolve the
circuit conflict regarding the standard for
subordinate bias liability, this Court granted certio-
rariin BCI Coca-Cola Bottling Co. v. EEOC, 1275S. Ct.
852 (2007), but the case was dismissed on petitioner’s
motion under Rule 46.2 of the Rules of this Court.
127 S. Ct. 1931 (2007). The Court should grant
certiorari in this case to resolve the ongoing conflict
4(...continued)
bias claim, a plaintiff must establish more than mere
‘influence’ or ‘input’ in the decisionmaking process. Rather,
the issue is whether the biased subordinate’s discriminatory
reports, recommendation, or other actions caused the adverse
[} action.”); Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d
1236, 1249 (ilth Cir. 1998) (finding liability if a biased
subordinate manipulates the decisionmaker); Griffin v. Wash.
Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 1998) (finding
liability “where the ultimate decision maker is not insulated
from the subordinate'’s influence.”).
17
among the courts of appeals regarding the circum-
stances under which a corporate defendant is liable
under federal anti-discrimination laws based on a
subordinate’s discriminatory animus.
Further, the First Circuit’s rejection of
respondeat superior liability outside of the employ-
ment context, see Pet. App. 41a (limiting the applica-
tion of the First Circuit’s earlier decision in Cariglia,
363 F.3d at 87-88, to employment discrimination
claims), puts the decision below in direct conflict
with the Fifth, Sixth, and Eighth Circuits, all of
which have applied respondeat superior to claims of
discrimination in activities other than employment.
See Green v. Dillard’s, Inc., 483 F.3d 533, 540 (8th Cir.
2007) (holding that retailer can be vicariously liable
under § 1981 for the discriminatory acts of its em-
ployees); Christian v. Wal-Mart Stores, Inc., 252 F.3d
—— 862, 876-78 (6th Cir. 2001) (finding that retailer could
be liable under § 1981 even where decisionmaker
was unaware of plaintiff's race if lower-level em-
ployee’s racial animus influenced the decision);
Arguello v. Conoco, Inc., 207 F.3d 803, 810-11 (5th Cir.
2000) (holding that corporate defendant in a public
accommodations case under § 1981 could be vicari-
ously liable for the discriminatory actions of a
non-supervisory employee). This Court should grant
certiorari to resolve the conflict.
Even if limited to airline denial-of-service cases,
the decision below conflicts with decisions of other
courts. The First Circuit’s rejection of respondeat
superior where a pilot’s removal decision is based on
18
a flight attendant’s bias rests on the court’s recogni-
tion that a pilot may have to act quickly and without
opportunity to conduct the independent investiga-
tion that would otherwise break the causal chain
between the subordinate’s animus and the removal
decision. See, e.g., BCI Coca-Cola Bottling Co., 450
F.3d at 488 (“[BJecause a plaintiff must demonstrate
that the actions of the biased subordinate caused the
[adverse] action, a [defendant] can avoid liability by
conducting an independent investigation of the
allegations” because, as a result of such investiga-
tion, the defendant “has taken care not to rely
exclusively on the say-so of the biased subordinate,
and the causal link is defeated.”). Thus, the First
Circuit’s rejection of respondeat superior was based
on its holding that “(t]he Captain (or other
decisionmaker) is entitled to accept at face value the
representations made to him by other air carrier
employees,” even if those representations are false
and motivated by bias. Pet. App. 30a. Several other
courts have also held that a pilot is entitled to rely
without further inquiry on information provided by
a crew member despite any exaggerations or false
representations. See, e.g., Ruta v. Deita Airlines, Inc.,
322 F. Supp. 2d 391, 397-98 (S.D.N.Y. 2004);
Al-Qudhai’een v. Am. W. Airlines, Inc., 267 F. Supp.
2d 841, 848 (S.D. Ohio 2003); Christel v. AMR Corp.,
222 F. Supp. 2d 335, 340 (E.D.N.Y. 2002). These
decisions conflict with the decision of the Ninth
Circuit in Cordero v. Cia Mexicana De Aviacion, S.A.,
681 F.2d 669, 672 (9th Cir. 1982), and the position of
the U.S. Department of Transportation (DOT).
19
In Cordero, a pilot excluded a passenger based on
a flight attendant’s report that the passenger had
uttered an obscenity and had raised his arm as if to
strike the flight attendant. Id. at 671. The passenger
claimed that he was the victim of mistaken identity,
and the airline was held liable. Although the Ninth
Circuit found that the pilot had “no duty to conduct
an in-depth investigation,” it concluded that the
airline acted unreasonably in excluding the passen-
ger “withou’ even the most cursory inquiry into the
complaint against him.” Id. at 672 (emphasis added).
Thus, the First Circuit’s conclusion that an airline’s
decisionmaker has no duty to conduct any inquiry
into a subordinate’s report has created a split with
the Ninth Circuit that should be resolved by this
Court.
Moreover, the decision below conflicts with
DOT’s pusition on the issue. DOT brought an en-
forcement action against American based on eleven
separate instances in which American unlawfully
discriminated against passengers perceived to be of
Arab, Middle Eastern, or South Asian descent by
either removing them from flights or denying them
boarding. The enforcement action was resolved by
entry of a Consent Order finding that American
acted in a manner inconsistent with the require-
ments of federal civil rights law. As noted in the
Consent Order, DOT “strongly disagrees” with
American’s assertion “that the pilot-in-command
may rely withcut further inquiry upon the represen-
tations of other crewmembers,” and DOT maintains
20
that “a pilot-in-command’s failure to inquire inde-
pendently into the reasons for such action is incon-
sistent with carriers’ legal obligations.” App. 456.
This case presents an excellent vehicle for this
Court to define the circumstances under which an
airline is liable for discrimination where the forma]
decisionmakers acted on information tainted by the
animus of lower-level employees, because the facts
demonstrate the incongruity of applying blanket
immunity to all such decisions. Immunity for pilot
decisions to remove a passenger without further
inquiry based on crewmember reports should be
limited to situations where 1) the report of the biased
subordinate—if true—would justify the pilot’s
removal decision, and 2) time constraints or security
considerations prevent the pilot from making further
inquiry. Neither circumstance is present here. First,
the information reported to Ehlers by the flight
attendants was insufficient on its face to support the
removal decision because the flight attendants did
not report that Cerqueira had engaged in any behav-
ior that was irregular, threatening, or unusual.
Rather, the flight attendants reported that Cerqueira
had engaged only in common passenger behavior
that does not ordinarily result in denial of service.
Second, in this case, Ehlers had ample time to verify
that Cerqueira posed no threat to safety. Cerqueira’s
flight departed about three hours late and only after
the police had concluded their investigation and
cleared Cerqueira for travel.
21
Finally, as explained in the dissents from denial
of rehearing en banc, there was no imperative for
Marquis, the SOC manager, to make a decision to
deny rebooking without further inquiry into the
situation. Marquis had none of the time constraints
or security considerations that might prevent a pilot
from inquiring into the basis for crewmember
reports. Rather, Marquis made his decision “without
time pressure and with the benefit of additional
information afforded by the police investigation.”
Pet. App. 66a (Torruella, J., dissenting from denial of
reh’g en banc). Thus, although it may be reasonable
insome circumstances to “remove any responsibility
on the part of the Captain to conduct an inquiry into
representations made by other air carrier employees,
there is no convincing rationale for extending that
consideration to decisionmakers such as the SOC
manager who are not compelled by exigent circum-
stances.” Id. at 69a; see also id. at 73a (Lipez, J.,
dissenting from denial of reh’g en banc) (“While the
law affords the Captain great latitude because his
decision must be made quickly, the SOC man-
ager—and American Airlines as a whole—is not
entitled to piggyback on that first decision and
thereby multiply any discriminatory animus underly-
ing it.”).
22
II. The First Circuit’s Bar On Use of Indirect
Evidence to Prove Discrimination in Activities
Other than Employment Conflicts with the
Decisions of Other Courts of Appeals.
It is well-settled that a plaintiff can prove employ-
ment discrimination using indirect evidence under
the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-
804 (1973), and refined in Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). Under
McDonnell Douglas, the plaintiff bears the initial
burden of establishing a prima facie case of discrimi-
nation. Establishment of a prima facie case creates
a presumption of unlawful discrimination, and the
burden of production then shifts to the defendant to
articulate some legitimate, nondiscriminatory reason
for the challenged act. If the defendant fails to carry
its burden, the plaintiff is entitled to judgment as a
matter of law. If the defendant meets its burden of
production, the plaintiff must prove that the reasons
proffered by the defendant are a pretext for discrimi-
nation. The burden of persuasion remains at all
times with the plaintiff. Id.
In the decision below, the First Circuit held that
circumstantial evidence cannot be used to prove
discrimination ina refusal-to-transport case because
the McDonnell Douglas framework was developed in
cases involving employment discrimination. Pet.
App. 38a-39a. This holding conflicts with the deci-
sions of numerous other federal courts of appeals
23
that have used the McDonnell Douglas framework in
cases alleging discrimination in activities other than
employment.*
For example, in Lindsay v. Yates, 498 F.3d 434,
438 (6th Cir. 2007), the Sixth Circuit held that “[tJhe
familiar McDonnell Douglas/Burdine analysis applies
to federal housing-discrimination claims, whether
they are brought under the [Fair Housing Act (FHA)]
or 42 U.S.C. §§ 1981 or 1982.” The Ninth Circuit has
applied the framework to a retaliation claim under
the FHA, Edwards v. Marin Park, Inc., 356 F.3d 1058,
1061-63 (9th Cir. 2004), and the framework has been
applied in cases alleging discrimination in contract-
ing for event space, Lindsey v. SLT Los Angeles, LLC,
447 F.3d 1138, 1144-45 (9th Cir. 2006), and leasing of
commercial space. Chauhan v. M. Alfieri Co., Inc.,
897 F.2d 123, 126-27 (3d Cir. 1990). The Seventh
Circuit has applied McDonnell Douglas burden-
shifting to a claim of discriminatory application of a
‘The district court instructed the jury that Cerqueira had
the burden of showing “by a fair preponderance of the
evidence that he was intentionally discriminated against
because of the perception of his race or ethnicity.” App. 394.
The First Circuit found that the district court erred by
instructing the jury “that American Airlines had the ultimate
burden of showing that its reasons for removing the plaintiff
were legitimate” (Pet. App. 35a), but the instruction the First
Circuit quotes was a mixed-motive instruction that closely
tracked the instruction approved by this Court in Desert
Palace, Inc. v. Costa, 539 U.S. 90, 96-97 (2003). American never
objected to the mixed-motive instruction, and it was not an
issue on appeal.
24
franchise agreement, Elkhatib v. Dunkin Donuts, Inc.,
493 F.3d 827, 829 (7th Cir. 2007), and a case alleging
a discriminatory refusal to sell a medical practice.
Sanghvi v. St. Catherine’s Hosp., Inc., 258 F.3d 570,
577 (7th Cir. 2001). Several courts have applied the
framework to claims of discrimination in retail
transactions, see, e.g., Williams v. Staples, Inc., 372
F.3d 662, 667 (4th Cir. 2004); Christian, 252 F.3d at
868, including a claim of discrimination in food
delivery. Kinnon v. Arcoub, Gopman & Assocs., Inc.,
490 F.3d 886, 893 (11th Cir. 2007). It has been used to
assess the evidence in cases involving discrimination
in competitive bidding, Harris v. Hays, 452 F.3d 714,
717-18 (8th Cir. 2006), hotel accommodations, Murrell
v. Ocean Mecca Motel, Inc., 262 F.3d 253, 257 (4th Cir.
2001), and education. Williams v. Lindenwood Univ.,
288 F.3d 349, 355 (8th Cir. 2002) (discrimination in
expulsion from University); Gant ex. rel. Gant v.
Wallingford Bd. of Educ., 195 F.3d 134, 146 (2d Cir.
1999) (discriminatory transfer from first grade to
kindergarten). Indeed, on at least two occasions, the
First Circuit has applied the burden-shifting frame-
work in cases alleging discrimination outside the
employment context. See Mercado-Garcia v. Ponce
Fed. Bank, 979 F.2d 890, 893 (1st Cir. 1992) (applying
the framework to claim of age discrimination in
credit decision); T & S Serv. Assocs., Inc. v. Crenson,
666 F.2d 722, 724 (1st Cir. 1981) (“Though developed
in the context of Title VII ..., this procedural tech-
nique ‘is merely a sensible, orderly way to evaluate
the evidence in light of common experience as it
bears on the critical question of discrimination.’”)
29
(quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567,
577 (1978); see also Loeb v. Textron, Inc., 600 F.2d
1003, 1015 (1st Cir. 1979) (noting that “McDonnell
Douglas meets a problem of proof that may be
present in any case where motivation is in issue.”).
Even if the First Circuit’s rejection of the
McDonnell Douglas framework is limited to airline
denial-of-service cases, the decision below conflicts
with decisions of several] other federal courts. The
First Circuit acknowledged that its decision conflicts
with Dasrath v. Continental Airlines, Inc., 467 F.
Supp. 2d 431, 445 (D.N.J. 2006). Pet. App. 39a n. 21
(“The district court in Dasrath ... did use the
McDonnell Douglas model, in our view incorrectly.”).
It conflicts with several other decisions as well. See
Simmons v. American Airlines, 34 Fed. Appx. 573,
575-76 (9th Cir. 2002) (unpublished); Thompson v.
Southwest Airlines Co., No. 04-313, 2006 WL 287850,
*5 (D.N.H. Feb. 6, 2006) (unpublished); Huggar v.
Northwest Airlines, Inc., No. 98-594, 1999 WL 59841,
*3-4 (N.D. Ill. Jan. 27, 1999) (unpublished).
Although the First Circuit’s rejection of the
McDonnell Douglas framework is contrary to the
weight of appellate authority, we acknowledge that
the application of McDonnell Douglas outside the
employment context has been a source of confusion
for a number of other courts. For example, in Chris-
tian v. Wal-Mart Stores, the Sixth Circuit overturned
a district court decision that omitted the traditional
McDonnell Douglas framework from its analysis of a
claim of discrimination ina retail establishment. 252
26
F.3d at 868. The Sixth Circuit noted that the district
court had used an alternative three-part test fash-
ioned by the Second Circuit and subsequently
adopted by the Fifth, Seventh, and Tenth Circuits,
which required the plaintiff to demonstrate an intent
to discriminate rather than establish facts that, if
unexplained, would support an inference of discrimi-
nation. Id. (citing Mian v. Donaldson, Lufkin &
Jenrette Sec. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993);
Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th
Cir. 1994); Morris v. Office Max, Inc., 89 F.3d 411, 413
(7th Cir. 1996); Hampton v. Dillard Dep’t Stores, Inc.,
247 F.3d 1091 (10th Cir. 2001)). The Sixth Circuit
rejected the alternative test used by those courts
because “it propagates the false notion that a plain-
tiff must provide direct evidence of the defendant’s
‘intent to discriminate” and “would turn the pur-
pose of the prima facie case on its head[.]” Id. at 872.
But see Bellows v. Amoco Oil Co., 118 F.3d 268, 274
(5th Cir. 1997) (“The plaintiff may establish a prima
facie case by direct evidence or, more commonly, by
circumstantial evidence of discriminatory motive.”);
Daniels v. Advantage Rent-A-Car Inc., 80 Fed. Appx.
936, 940 n. 4 (5th Cir. 2003) (unpublished) (assuming,
but not deciding, that the McDonnell Douglas frame-
work applies outside the employment context).
Further, the Seventh, First, and D.C. Circuit have
split on whether McDonnell Douglas applies to credit
discrimination cases. Compare Latimore v. Citibank
Fed. Sav. Bank, 151 F.3d 712, 714 (7th Cir. 1998) with
Mercado-Garcia, 979 F.2d at 893, and Crawford v.
Signet Bank, 179 F.3d 926, 928-29 n.5 (D.C. Cir. 1999)
27
(applying McDonnell Douglas to mortgage discrimi-
nation claim under § 1981 and acknowledging split
with the Seventh Circuit).
This Court has applied the McDonnell Douglas
framework in employment discrimination cases
brought under statutes other than Title VII, see
Patterson v. McLean Credit Union, 491 U.S. 164, 186
(1989) (applying framework to employment discrimi-
nation claim under § 1981), superseded on other
grounds by 42 U.S.C. § 1981(b) (enlarging the cate-
gory of conduct subject to § 1981 liability); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 142 (2000) (“[W]Je shall assume, arguendo, that
the McDonnell Douglas framework is fully applica-
ble” to claims under the Age Discrimination in
Employment Act (ADEA)); St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 506 n.1 (1993) (“[Wle shall
assume that the McDonnell Douglas framework is
fully applicable to racial-discrimination-in-employ-
ment claims under 42 U.S.C. § 1983.”), but it has not
addressed whether the model may be used outside
the employment context. The Court should grant
certiorari to provide guidance on this important
issue.
This case is a particularly good vehicle for ad-
dressing the issue because it presents two separate
claims of discrimination that would be resolved
under different prongs of the McDonnell Douglas
framework. With respect to Ehlers’s decision to
remove Cerqueira from flight 2237, American articu-
lated a non-discriminatory reason—that Cerqucira’s
28
behavior as reported by Walling raised security
concerns—but the jury rejected that explanation as
pretext and found that discrimination was the true
motivation. The jury was entitled to disbelieve
Ehlers’s proffered explanation and infer discrimina-
tion because the evidence showed that Cerqueira did
not engage in any behavior that is uncommon or that
ordinarily results in denial of service. Further,
Ehlers lacked credibility in general because his
testimony was often at odds with that of other Ameri-
can Airlines employees, his own deposition testi-
mony, and American’s judicial admissions.° But
‘For example, Ehlers claimed that he did not see Cerqueira
before deciding to have him removed from the flight (App.
312), but Ehlers’s testimony was directly contradicted by that
of two other airline employees who testified that, on two
separate occasions, Ehlers pointed out the passengers in the
exit row. App. 326,334. When confronted with that testimony,
Ehlers testified that he “may or may not have done that.” App.
301. Similarly, Ehlers testified at trial that Walling had
reported that the exit row passengers were “staring” at the
flight attendants, but Ehlers never mentioned this at his
deposition despite repeated inquiries (App. 315-16), and
Walling did not claim to have made such a report. Indeed,
Ehlers admitted at trial that several elements of his testimony
had changed since the time of his deposition. App. 320.
Ehlers also denied that he made the decision to have
Cerqueira removed from flight 2237 (App. 317), but American
made a judicial admission that he did (App. 295). Ehlers also
testified that his only interaction with Ashmil or Rokah was in
the terminal and that he did not notice an accent. App. 297.
But Flight Attendant Milenkovic testified that Ashmil or
(continued...)
29
because the court below held that Cerqueira could
prove discrimination only by presenting direct
evidence of Ehlers’s discriminatory animus, the
jury’s disbelief of Ehlers’s explanation was rendered
irrelevant.
With regard to American’s refusal to rebook
Cerqueira on any other flight even after he was
cleared for travel by the police, American was unable
to articulate any specific explanation for its decision.®
Marquis testified that he has no recollection of the
reasons for his decision, and an entry in Cerqueira’s
computerized Passenger Name Record states only
that Cerqueira was denied boarding on Flight 2237
due to unspecified “security issues” and should not
be rebooked. App. 321-23, 423. As explained by this
Court in Burdine, American’s silence in the face of
Cerqueira’s prima facie case “requires judgment for
the plaintiff because no issue of fact remains in the
*(...continued)
Rokah spoke to Ehlers onboard the airplane, in the presence
of Milenkovic, and that the passenger spoke with a heavy
accent. App. 377.
‘There is no evidence that the decision to deny rebooking
was made “within minutes” of the decision to have Cerqueira
removed for questioning and for the same reasons, as the First
Circuit apparently believed. See Pet. App. 4a, 36a, 37a. The
police were called to remove Cerqueira at about 7:00 am, but
the first computer entry reflecting the decision to deny
rebooking was not made until 9:01 am, by which time
Cerqueira had been cleared by the police. See Pet. App. 17a,
69a n.2; App. 443.
30
case.” 450 U.S. at 254; accord St. Mary’s Honor Ctr.,
509 U.S. at 509-10. But by rejecting the McDonnell
Douglas framework, the court below has made
silence a defense in any case where the plaintiff lacks
direct evidence. That holding alone warrants this
Court’s review.
IfI. This Case Presents Important Issues at the
Intersection of Aviation Security and Civil
Rights that Should be Settled by This Court.
A. The First Circuit’s conclusion that safety
must be prioritized over nondiscrimina-
tion conflicts with the decisions of other
federal courts.
The permissive refusal provision of the Federal
Aviation Act (FAA) provides that an “air carrier may
refuse to transport a passenger or property the
carrier decides is, or might be, inimical to safety.” 49
U.S.C. § 44902(b). The Act does not set forth a
standard to assess whether an airline’s refusal-to-
transport decision is protected by § 44902(b), but the
courts that have addressed the issue, including the
courts below, have applied the arbitrary or capri-
cious standard articulated by the Second Circuit in
Williams v. Tiarns World Airlines, 509 F.2d 942, 948
(2d Cir. 1975) (holding that denial-of-service deci-
sions are protected if “rational and reasonable and
not capricious or arbitrary”).’ See Pet. App. 27a
‘Williams involved the interpretation of 49 U.S.C. § 1511(a),
(continued...)
31
(“We agree with Williams and hold that an air car-
rier’s decisions to refuse transport under § 44902(b)
are not subject to liability unless the decision is
arbitrary or capricious.”); Cordero, 681 F.2d at 672
(“We believe there are persuasive reasons for adopt-
ing the Williams test.”); Pet App. 45a (“Despite the
lack of explicit statutory or controlling legal guid-
ance, this Court is convinced by the weight of per-
suasive authority that the ‘arbitrary and capricious’
standard does in fact apply.”) (citations omitted).
Although the First Circuit correctly recegnized that
§ 44902(b) does not protect decisions that are arbi-
trary or capricious, it rejected the district court’s
conclusion that a jury verdict based on a finding of
intentional discrimination on account of race neces-
sarily satisfies the arbitrary or capricious standard.
Pet. App. 36a.
The First Circuit’s rejection of the principle that
decisions driven by racial animus are per se arbitrary
and capricious creates a direct conflict with the
decisions of several other federal courts. See
Shgeirat v. U.S. Airways, Inc., 515 F. Supp. 2d 984,
1004 (D. Minn. 2007) (“Aj refusal to board a passen-
ger that is motivated by a passenger’s race is inher-
ently arbitrary and capricious.”); Dasrath, 467 F.
Supp. 2d at 434 (“A decision based on race wouid be
arbitrary and capricious.”); Alshrafi v. American
Airlines, Inc., 321 F. Supp. 2d 150, 162 (D. Mass. 2004)
‘(...continued)
the predecessor to § 44902(b).
32
(“[A]ctions motivated by racial or religious animus
are necessarily arbitrary and capricious, and there-
fore beyond the scope of the discretion granted by
Section 44902.”); Bayaa v. United Airlines, Inc., 249
F. Supp. 2d 1198, 1205 (C.D. Cal. 2002) (finding “no
merit” to airline’s argument that civil rights laws
conflict with § 44902(b) and holding that § 44902(b)
“does not grant [the airline] a license to discrimi-
nate”); Chowdhury v. Northwest Airlines Corp., 238F.
Supp. 2d 1153, 1154 (N.D. Cal. 2002) (“(‘1'Jhere is no
apparent conflict between tlie federal statutes
prohibiting racial discrimination and the federal law
giving air carriers the discretion to refuse to carry
passengers for safety reasons.”).
Further, the First Circuit’s conclusion that stat-
utes protecting passengers from discrimination are
subordinate to an airline’s refusal rights under
§ 44902(b) is inconsistent with the Second Circuit’s
decision in Williams and the Ninth Circuit’s decision
in Cordero. In Williams, an airline denied service to
a ticketed passenger whom the FBI reported was a
dangerous fugitive known to carry firearms and who
had been diagnosed as schizophrenic. 509 F.2d at
945. The passenger sued the airline alleging discrim-
ination. The Second Circuit held that the airline’s
denial-of-service decision was protected by the
permissive refusal provision of the FAA because the
airline had a reasonable basis for its decision, and
there was “no evidence that [the airline] was at any
time influenced by race prejudice or discrimination
in the slightest.” Id. at 948. Thus, Williams does not
33
stand for the principle that anti-discrimination law is
limited by § 44902(b); rather, Williams holds that
where an airline acts “properly and reasonably” in
denying service, the passenger will not be able to
prove that discrimination motivated the airline’s
decision. Id. at 949. Likewise, if the passenger
proves that discrimination motivated the decision,
the decision will be arbitrary and capricious and the
protection afforded by § 44902(b) for safe.y-related
denials of service will not apply. The Ninth Circuit
reached the same conclusion in Cordero, holding that
the permissive refusal provision of the FAA does not
“render[] immune from liability a carrier whose
decision to deny passage is unreasonably or irratio-
nally formed. While we agree with the district court
that air safety is a paramount concern of air carriers
and of the public generally, we do not believe that
requiring carriers to act reasonably in formulating
opinions to deny passage undercuts this concern.”
681 F.2d at 671."
‘The First Circuit claims agreement “with Williams that
Congress did not intend the non-discrimination provisions of
the FAA or of § 1981 to limit or to render inoperative the
refusal rights of the air carrier” Pet. App. 28a (citing Williams,
509 F.2d at 948), but ignores the qualification in Williams that
non-discrimination law does not limit refusal rights “in the
face of evidence which would cause a reasonably careful or
prudent carrier of passengers to form the opinion that the
presence aboard a plane of the passenger-applicant ‘would or
might be inimical to safety of the flight.’” 509 F.2d at 948
(quoting the predecessor statute to § 44902(b)). Cordero
(continued...)
34
Because the First Circuit concluded that
§ 44902(b) can protect an airline’s denial-of-service
decision even where the decision violates anti-
discrimination law, the decision below conflicts with
the Second Circuit’s decision in Williams, the Ninth
Circuit’s decision in Cordero, and the district court
decisions in Shgeirat, Dasrath, Alshrafi, Bayaa, and
Chowdhury. This Court should grant certiorari to
resolve this conflict.
B. The decision below effectively endorses
racial profiling.
This Court should also review the decision below
because its rejection of the principle that decisions
driven by racial stereotypes are irrational is an
endorsement of racial profiling in airline denial-of-
service decisions. Indeed, the First Circuit’s original
slip opinion stated explicitly that “[rJace or ethnic
origin of a passenger may, depending on context, be
relevant information in the total mix of information
raising concerns that transport of a passenger ‘might
be’ inimical to safety.” Slip. Op. of Jan. 10, 2008, at
38. The First Circuit later issued an Errata Sheet
that eliminated this statement (Pet. App. 77a), but
the First Circuit’s conclusion that racial profiling is
*(...continued)
expressed the same principle this way: “We have not found,
nor have we been shown, any legislative history indicating that
in enacting (§ 44902(b)] Congress intended to limit the
protections afforded ticket-holders under” anti-discrimination
law. 681 F.2d at 672.
35
a legitimate security measure is implicit in its
amended opinion. Although the court below agreed
that “a reasonable decision is not arbitrary or capri-
cious” and “a decision which is arbitrary is totally
devoid of reason” (Pet App. 28a n.17 (citing Williams
and Cordero)), it held that denial-of-service decisions
based on race are not necessarily arbitrary or capri-
cious. Pet. App. 36a (rejecting district court’s reason-
ing that the “instruction on finding intentional
discrimination was adequate to cover § 44902(b),
because if there was intentional discrimination
... that would itself per se be arbitrary or capri-
cious.”). Thus, the opinion below protects airline
denial-of-service decisions that are based on stereo-
types about the propensity of passengers with a
Middle Eastern appearance to commit acts of terror-
ism.
By allowing racial profiling in airline denial-of-
service decisions, the First Circuit goes further than
courts that have sanctioned the use of race in investi-
gative decisions where race is part of a description of
a particular suspect, see, e.g., Brown v. City of
Oneonta, 221 F.3d 329, 337-38 (2d Cir. 2000) (distin-
guishing between permissible use of race to identify
suspect based on witness description and unlawful
profiling based cn racial stereotype); United States v.
Avery, 137 F.3d 343, 353 (6th Cir. 1997) (holding that
“the Fourteenth Amendment protects citizens from
police action, including the decision to interview an
airport patron, based solely on impermissible racial
considerations”); Buffkins v. City of Omaha, 922 F.2d
36
465, 468 n.8 (8th Cir. 1990) (holding that detention of
airport patron was not racial discrimination under
§ 1981 because she matched the racial description of
the person described in a tip, but noting that its
“conclusion would be very different if the officers,
acting without a tip, focused their investigation on
Buffkins solely because of her race.”), and the First
Circuit’s opinion is in tension with this Court’s
rejection of racial stereotyping. See, e.g., Shaw v.
Reno, 509 U.S. 630, 643-44 (1993); Edmonson uv.
Leesville Concrete Co., 500 U.S. 614, 630-31 (1991);
Batson v. Kentucky, 476 U.S. 79, 85-88 (1986).
Nevertheless, the First Circuit is not alone. Since
the terrorist attacks of September 11, 2001, many
commentators have endorsed racial profiling as a
tool in the fight against terrorism. See, e.g., R.
Richard Banks, Racial Profiling and Antiterrorism
Efforts, 89 Cornell L. Rev. 1201 (2004) (describing
disagreement among commentators on legitimacy of
racial profiling in antiterrorism efforts); Stephen J.
Ellman, Racial Profiling and Terrorism, 19 N.Y.L.
Sch. J. Hum. Rts. 305 (2003) (discussing whether
racial profiling is justifiable as a response to terror-
ism).
The debate over the legality of racial profiling in
aviation is an issue that will continue to arise with
frequency and should be addressed by this Court.
Indeed, DOT’s Aviation Consumer Protection Divi-
sion reports that, between January 1, 2001 and
March 31, 2008, it received 953 complaints of discrim-
37
ination against U.S. airlines.’ Further, in the months
following the terrorist attacks of September 11, 2001,
DOT’s Office of Aviation Enforcement and Proceed-
ings received numerous complaints alleging that
airlines had unlawfully discriminated against pas-
sengers perceived to be of Arab, Middle Eastern, or
South Asian descent by either removing them from
flights or denying them boarding. These complaints
resulted in administrative enforcement actions
against four major air carriers, each of which was
resolved by the entry of a Consent Order.” As these
Consent Orders illustrate, this case presents issues
*See Air Travel Consumer Reports published by U.S.
Department of Transportation, Office of Aviation Enforcement
and Proceedings, Aviation Consumer Protection Division, on
February 2002, February 2003, February 2004, February 2005,
February 2006, February 2007, February 2008, and May 2008,
http://airconsumer.ost.dot.gov/reports/index.htm.
“American Airlines, Inc., No. OST-2003-15046, Consent
Order (DOT Feb. 27, 2004), http://www.regulations.gov/
fdmspublic/component/main? main=DocketDetail&d=DOT-
OST-2003-15046.; Delta Airlines, Inc., No. OST-2004-16943,
Consent Order (DOT June 21, 2004), http:/Awww.regulations.
gov/fdmspublic/component/main? main=Document/Detail&
o=09000064803laaea; Continental Airlines, Inc., No.
OST-2004-16943, Consent Order (DOT Apr. 2, 2004),
http://www.regulations.gov/fdmspublic/component/main?m
ain=DocumentDetailé&o =09000064803laade; United Air Lines,
Inc., No. OST-2003-14194, Consent Order (DOT Nov. 19, 2003),
http://www.regulations.gov/fdmspublic/component/main?m
ain =DocumentDetail&0=090000648030df3f.
38
“of exceptional importance... in light of the high-
security environs in which we find ourselves today”
(Pet. App. 64a (Torruella, J., dissenting from denial
' of reh’g en banc)), and the Nation’s longstanding
commitment to nondiscrimination in all walks of
American life. The Court should grant review for
that reason as well.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
Michael T. Kirkpatrick
Counsel of Record
Public Citizen Litigation Group
1600 20th Street, NW
Washington, DC 20009
(202) 588-1000
David S. Godkin
Birnbaum & Godkin, LLP
280 Summer Street
Boston, MA 02210
(617) 307-6100
May 2008 Counsel for Petitioner
la
United States Court of Appeals
For the First Circuit
No. 07-1824
JOHN D. CERQUEIRA,
Plaintiff, Appellee,
v.
AMERICAN AIRLINES, INC.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Circuit Judge,
Campbell and Stahl, Senior Circuit Judges.
2a
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.
January 10, 2008
LYNCH, Circuit Judge. An airline passenger,
John Cerqueira, filed suit asserting that his removal
3a
from a flight violated his rights under 42 U.S.C.
§ 1981 to be free of race discrimination in contract-
ing. 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 other-
wise 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 notwith-
standing the verdict. We remand with instructions
to enter judgment for American Airlines.
} 3
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.
4a
We recite the facts from particular perspec-
tives: 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 se-
quence 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 sum-
mary to the other decisionmaker. There is no mate-
rial 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, approxi-
mately 35 minutes prior to the scheduled departure,
the Captain of Flight 2237 was walking to the depar-
ture 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
5a
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 passen-
ger 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 Atten-
dant Two in the rear of the plane.’ 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 descrip-
tion. [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
'We refer to the three flight attendants assigned to
Flight 2237 using AA’s official designations for their positions:
Flight Attendant One, Flight Attendant Two, and Flight
Attendant Four. There was no Flight Attendant Three.
6a
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. 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 passen-
ger, the plaintiff, had been hostile to her.°
Specifically, she reported to the Captain that
prior to boarding she had been approached by the
*The plaintiff is an American citizen. The other two
men were Israeli, a fact learned by the State Police later. The
plaintiff testified that the two other men “looked Middle
Eastern" and that they looked like the plaintiff "in the sense
that they had dark hair and... an olive complexion.”
‘Plaintiff's theory of discrimination was that Flight
Attendant Two was motivated by discriminatory bias based on
national origin, because of the plaintiff's appearance as having
“dark hair” and an “olive complexion.”
Ta
plaintiff in the gate area. He was “very hostile and
extremely insistent that his seat be switched to an
ex’i 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. ...[TJhe entire
time that she worked at the gate he was just sitting
there staring at her, making her extremely uncom-
fortable.””
She also toid 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 bath-
room for an extended period of time. The Captain
was concerned about the plaintiffs 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.
‘As Flight Attendant Two walked down the jetbridge to
the aircraft with the other flight attendants, she told them that
her encounter with the plaintiff had made her uncomfortable.
This is also what she told the Captain. Plaintiff denies her
version of the events, but this is what she communicated to the
Captain at the time.
8a
Flight Attendant Four went to the Captain’°
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
“Ts 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 passen-
gers: “[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.”
Fiight Attendant Four was anxious and dis-
turbed about what was happening. Her concerns
went to all three men in the row. She thought they
*in his deposition, the Captain had testified that he
could not recall the other two flight attendants expressing
concerns to him. At trial, he testified that they also expressed
concerns to him; their testimony verified that fact.
9a
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 Cap-
tain, “Are you our Captain?” Both the Captain and
Fligk* 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. Fligut 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, Flignt 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 con-
cern.
As a result of all ot these events, the Captain
convened a meeting of the flight crew on board the
aircraft to discuss everyone’s concerns and deter-
mine which course of action -- either leaving as
scheduled or delaying the flight to inves'igate further
-- was the most appropriate. The plane had been
boarded by then and the jetbridge had been re-
moved.
10a
At this point, Flight Attendant Two reported to
the Captain that other passengers had expressed
their discomfort with the man with the ponytail and
with comments he and others in Row 20 had made,
which included wishing other passengers “Happy
New Year” and acting in a “very boisterous” man-
ner. Flight Attendant Two also reported that the
passengers in Row 20 now seemed to be feigning
sleep; she thought the sleep was feigned given that
these passengers had shortly before been boisterous
and making lively comments.
The Captain did not question the information
he received from Flight Attendant Two, who was a
thirty-seven-year veteran with a stellar reputation.
In the meeting the Captain had convened, the flight
attendants said they were not comfortable with the
flight going ahead.
The Captain then decided that based on his
own observations and the crew’s observations,
including the separate information from the three
flight attendants, there was adequate reason to
investigate the security concerns in more detail, even
if this meant delaying the takeoff of a fully boarded
plane. Thus, the Captain made the first decision not
to depart the gate, but to investigate further.
The Captain called the gate agent and had the
jetbridge brought back to the plane. The Captain
then called the ground security coordinator and
notifed him of the concerns he and all of the flight
attendants had with the three passengers. The gate
agent and the ground security coordinator both
lla
came aboard the aircraft, and the Captain further
discussed the security concerns with them.
The second decision made was to remove the
three men from the plane for further questioning by
appropriate authorities. At the Captain’s request,
the three men were removed from the aircraft for
further questioning because “of the number of
concerns, not just [Flight Attendant Two’s] con-
cerns.” When the three passengers were removed
from the plane, they were asked to take their carry-
on bags with them. The Captain did not interview
the three passengers himself, as he was busy with
the flight and that was not his responsibility.
The Captain then called company systems
operations control in Dallas both to give them a full
report on the security issues and to notify them that
the flight would not be departing on time. In addi-
tion, the Captain had aten-minute conversation with
his superior, an off-site “chief pilot on duty,” who
offered to come from home to the airport and help.
The Captain said he would handle it on his own.
The Captain testified his decision not to takeoff
and to remove the three men in Row 20 from the
plane for questioning was based on his odd experi-
ence with the raan with the ponytail, the information
and concerns about all three passengers in the exit
row expressed by all three flight attendants, as well
as the fact thai the flight attendants were uncomfort-
able with the flight departing. The Captain was
particularly concerned with the report of Flight
Attendant Two that both the plaintiff and the man
12a
with the ponytail “seemed extremely interested in
the duties” of two of the flight attendants.
After the three men were removed for ques-
tioning by the State Police in a separate location in
the terminal, a passenger on the plane reported that
one of the three men in Row 20 had box cutters
confiscated from him at the Transportation and
Security Administration (“TSA”) security check-
point. Once he heard the report, the Captain ques-
tioned the passenger himself. The Captain then
reported it personally to the head of TSA at Logan
and told him that “if box cutters had been taken
from one of my passengers on board my aircraft, that
... aircraft was not going to fly the entire day no
matter what was checked.” The head of TSA did
research and reported back to the Captain that box
cutters had been taken from a passenger on a differ-
ent flight that morning. Nonetheless, the Captain
testified, “That event, in and of itself, concerned me
greatly.”
At some point, Flight Attendant Four reported
to the Captain that “we had more than one passen-
ger, who were not traveling together, who had
concerns about passengers in the exit row; passen-
gers who were becoming very nervous.” The Cap-
tain testified, “And I remember one woman, withtwo
small children, I believe, and she was getting very
nervous to the point where I thought she might not
go with us.”
The Captain then made a third decision, to
empty the aircraft of all passengers, all carry-on
belongings, and all cargo, and have the aircraft
l3a
searched with dogs. He did so because of the box
cutter concern, and because the Captain recognized
that tension levels were rising among the other 126
passengers, and after consulting with three Massa-
chusetts State Police officers and the TSA.
The Captain testified that it was an extremely
difficult decision to empty the aircraft of passengers
and baggage. He knew it meant inconvenience to
over 100 people, that it would cost AA a great deal of
money, and that he and his flight crew would be late
getting back to their families. Indeed, he met some
resistance from AA employees to unloading the bags,
because it is “quite a project.” The Captain told
them, “(T]hat’s just what we’re going to have to do.
We have to make sure this aircraft is safe to depart.”
This process took three hours.
The three men from Row 20 had been moved to
a secured location away from the gate and apart
from the other passengers and were questioned by
one of the State Police troopers. The Captain was
told that the State Police, in questioning the three
men, had become concerned about the passport of
one of the men.
While the search of the plane was conducted,
the passengers were kept in a secured area. During
this period, the flight attendants became even more
concerned. The flight attendants informed the
Captain that they elected not to continue the trip.°
‘Thus, the flight attendants decided they would not
continue on the trip before they knew whether the plaintiff
(continued...)
l4a
Also during this period, the State Police troopers
conducted lengthy interviews with passengers who
had observed what the Captain called the “suspi-
cious behavior” of the three men. The Captain had
lengthy and ongoing discussions with local AA
management, the State Police, TSA management,
and air marshals.
From the Captain’s perspective, it was the
State Police who decided that the three men would
not travel that day on the flight. During his conver-
sations with the sky marshals service, systems
operations control, and the chief pilot on duty, “a
state police officer approached me and told me, point
blank, ‘These three gentlemen are not traveling with
you today. It’s out of your hands.” The Captain
accepted this decision.
After this, the Captain made the decision that
the flight would continue on to Fort Lauderdale after
all the passengers other than the three men had
been re-screened by security, and the re-screened
bags reloaded. The original flight attendants refused
to continue the trip. They were replaced by another
three attendants from a reserve crew. The flight
departed approximately three hours late at 9:33am.
The captain informed the pertinent AA personnel of
this. The flight went without the plaintiff or the
other two men.
Within twenty-four hours of the situation, the
Captain, as is standard AA practice, prepared a
*(...continued)
would be a passenger should the flight continue.
l5a
report, which he filed with the company. Perti-
nently, the Captain’s concerns about the three men
had not abated. In fact, in his report, the Captain
noted:
I would like to get the status of the pas-
sengers who we did not transport.
Whether they took a later flight, no flight,
etc. I would like to know whether the
authorities found anything that pertains
to our security concerns. And, will pas-
sengers be allowed to fly AA again if no
‘problems’ were found? |
That report, in evidence, was consistent with his
testimony.
At no time, the Captain testified, did he ever
see the plaintiff, nor was he aware of the piaintiff’s
appearance. The plaintiff was seated in 20F, a
window seat which is not visible to the Captain from
the front of the plane.’ The Captain flatly denied
that the plaintiff's ethnic appearance had anything to
do with his decision to remove plaintiff from the
flight:
"During the Captain’s testimony, counsel for the
plaintiff suggested to the Captain that when the gate agent
came on the plane, the Captain emerged from the cockpit to
point at the man with the ponytail in Row 20. The Captain said
he could not recall having done that, but that he might have
been able to point out only the passenger with the ponytail
whom he recognized without leaving the front of the plane.
l6a
I’m emphatic about it, one, because I had
never seen Mr. Cerqueira up to that
point; two, I had a number of concerns
from three separate employees, and more
than one passenger not traveling to-
gether. I didn’t have one passenger with
concerns, I had more than one passenger
with concerns. So I have all of the people
working for me concerned for numerous
reasons, and I have some of my passen-
gers concerned. I would have been dere-
lict in my duty to ignore those concerns
and depart with that flight.
I fly hundred of flights. I fly the equiva-
lent of a flight every day. I fly thousands
of passengers -- all races, all religions --
every day. I’ve had other security prob-
lems at Logan Airport and they’re dealt
with the same way. I would do every-
thing the same way.
The first time the Captain ever saw the plaintiff was
at trial.
B. Denial of Rebooking
During the questioning of the three men by the
State Police, the Captain had communicated the
situation to the systems operations control (“SOC”)
manager in Dallas. The SOC manager was the only
person with the authority to make a decision on
17a
whether a passenger who had been removed from a
plane for questioning could be rebooked. At some
point during the period, the SOC manager decided
to deny rebooking to the plaintiff. He made this
decision based on the information communicated to
him by the Captain which included the Captain’s
information from those involved with the investiga-
tion in Boston.
The SOC manager communicated his decision
to the AA customer service manager at Logan,
advising her that the plaintiff was denied boarding
and instructing her to refund his ticket. The cus-
tomer service manager then made an entry into the
plaintiff's passenger record at 9:01am, which stated
that the passenger was “denied travel on [flight] 2237
per SOC [manager] due to security issue.” A few
minutes later, at 9:08am, an employee at the SOC
amended the record to note that the passenger was
“denied boarding . . . due [to] security issues. Re-
fund ticket ... Do not rebook on AA.” It is the deci-
sion not to rebook that morning which is at issue.
The three passengers were released at some
point roughly around 9:00am. The passengers were
escorted to the AA ticket counter, and one of the
state troopers communicated to an AA agent that the
passengers were “free to go.” Another trooper noted
in the police administrative log at 9:00am that the
three passengers “were denied boarding [and] will
be re-booked.”
After being escorted to the ticket counter, the
plaintiff asked a reservations agent to rebook him.
The reservations agent told him that there was an
18a
afternoon flight available, but that she was not
authorized to make a decision to rebook. Approxi-
mately twenty to thirty minutes later, the customer
service manager who had spoken to the SOC man-
ager came to the ticket counter. The customer
service manager asked for the plaintiffs credit card
and refunded the Boston to Fort Lauderdale portion
of his trip. When the plaintiff asked the customer
service manager why he was not being rebooked, she
told him that the decision had been made by AA’s
corporate offices.*® For any further information, she
informed the plaintiff, he would need to contact the
corporate offices directly. Apparently, the other two
passengers were also denied rebooking.
The plaintiff then called other airlines to try
ana make alternate arrangements to fly to his home
in Florida that day. All of the flights he found were
expensive, so he did not book one. His parents came
to pick him up at the airport and he returned to his
parents’ house in Fall River, Massachusetts.
Later that day, the plaintiff wrote an e-mail to
American Airlines customer service asking for any
information they had about the incident, including
what he was accused of saying on the plane, and the
implications of the incident for his future travel with
AA or any other airline.
The following day, the plaintiff completed his
journey on another airline without incident.
‘The plaintiff testified that the customer service
manager told him that the decision was made because of
something the plaintiff had said on the plane.
19a
Nine days after the incident, on January 6,
2004, the plaintiff received a response from a cus-
tomer relations official at AA. The response stated
that the airline had “fully reviewed the decision” to
deny boarding and explained that it was because
“our personnel perceived certain aspects of your
behavior which could have made other customers
uncomfortable on board the aircraft.” It informed
the plaintiff that “[t]here is no indication that you
will be denied boarding in the future.”
II.
The plaintiff filed a complaint of discrimination
with the Massachusetts Commission Against Dis-
crimination (“MCAD”) in the fall of 2004. After the
MCAD concluded that the plaintiff had established a
prima facie case, the plaintiff brought suit in August
2005 in the federal district court of Massachusetts
against American Airlines, the Captain, Flight
Attendant Two, the reservations agent, and the
customer service manager, alleging discrimination
under both federal and state statutes, and seeking
compensatory and punitive damages and declaratory
and injunctive relief.®
The case was tried to a jury in January 2007.
We describe later the jury instructions requested and
the instructions actually given. At the close of the
*He amendcd his complaint a month later to remove all
of the individual defendants, leaving only American Airlines.
20a
plaintiff's case in chief, AA moved for judgment as a
matter of law. The district court denied the motion.
AA renewed its motion at the close of all the evi-
dence, and the district court denied the motion
again. After deliberating, the jury found for the
plaintiff and awarded him compensatory damages of
$130,000 and punitive damages of $270,000.
The defendants then filed two post-judgment
motions. The first was a motion for judgment not-
withstanding the verdict on the grounds that the
plaintiff had not proved that AA had intentionally
discriminated against him, and that he had not
proved that AA’s decision was arbitrary or capricious
under 49 U.S.C. § 44902(b). The second sought a new
trial on the same basis and also claimed that the
court erred in not giving an explicit jury instruction
on § 44902(b), that it had erred in instructing the jury
that AA was liable if any of the information that went
into the airline’s decisions was tainted with discrimi-
natory animus, that AA should have been allowed to
offer testimony related to its security procedures,
and that the court’s admission of a consent order
between the Department of Transportation and AA
represented unfair prejudice. In the alternative, the
second motion sought remittitur of the damages
awarded to the plaintiff.
After oral argument, the district court denied
AA’s first motion for JNOV from the bench. In a
written opinion, Cerqueira v. American Airlines, Inc.,
484 F. Supp. 2d 232 (D. Mass. 2007), the district court
rejected the defendant’s second motion. The court
found that its jury instructions did not constitute
2la
prejudicial error and that its evidentiary rulings
were proper. The court also rejected AA’s request
for a remittitur. In a second opinion, the court
awarded the plaintiff attorneys’ fees. Cerqueira v.
Am. Airlines, Inc., 484 F. Supp. 2d 241 (D. Mass.
2007).
On appeal,’® AA argues there was error in the
failure to give the requested § 44902(b) instructions,
errors in the instructions given, and error in the
admission of the consent order. The defendant also
argues that the verdict is not supported by the
evidence and that the punitive damages award is
unreasonable. Accordingly, the defendant asks for
judgment to be entered for AA, or alternatively that
a new trial be granted. .
ITI.
This case does not involve any claim of consti-
tutional right on the part of the plaintiff, in which the
power of Congress is constrained by the Constitu-
tion. Rather, the case involves only the intersection
of various statutes, which articulate competing policy
concerns.
We appreciate the assistance provided by amici curiae
Air Transport Association of America, Inc., Lawyers’
Committee for Civil Rights Under Law, Asian American
Justice Center, Mexican American Legal Defense &
Educational Fund, Nationa! Association for the Advancement
of Colored People, and Puerto Rican Legal Defense Fund.
22a
As amatter of federal policy, under the Federal
Aviation Act, “assigning and maintaining safety
[ranks] as the highest priority in air commerce.” 49
U.S.C. § 40101(a)(1). Thus, the highest priority is
assigned to safety, even though the federal aviation
statute also has a general prohibition on race and
national origin discrimination. “An air carrier...
may not subject a person in air transportation to
discrimination on the basis of race, color, national
origin, religion, sex or ancestry.” 49 U.S.C.
§ 40127(a)." Plaintiff's suit is brought under 42
U.S.C. § 1981, which was expanded in the Civil
Rights Act of 1991 to cover the making, performance,
modification, and termination of contracts. Id.
§ 1981(b).
In 49 U.S.C. § 44902(a), which became effective
in 1961,” Congress mandated air carriers to refuse to
''The provision was enacted in 2000. It appears to have
been a replacement for an earlier statute which was repealed.
This older section was part of a larger, comprehensive scheme
of airline regulation, and as such was repealed in 1983 as part
of the Airline Deregulation Act of 1978, Pub. L. 95-504, 92 Stat.
1705. The repealed statute, 49 U.S.C. § 1374, barred airlines
from giving any person “undue or unreasonable preference or
advantage” or subjecting any person to “unjust discrimination
or any undue or unreasonable prejudice or disadvantage.”
Plaintiff does not purport to bring suit under § 40127(a) and we
do not reach the question of whether it creates an implied right
of action.
"In 1994, Congress moved the statute from 49 U.S.C.
§ 1511(a) to 49 U.S.C. § 44902(b). Pub. L. 103-272, § 1(e), 108
(continued...)
23a
transport passengers and property where a passen-
ger does not consent to a search of his person or
property for dangerous weapons, explosives, or
destructive substances. In addition to mandating
that some passenge’'s be refused transport, Congress
also authorized, at subsection (b), air carriers to
engage in “permissive refusal”:
Subject to regulations of the Under Sec-
retary, an air carrier, intrastate air car-
rier, or foreign air carrier may refuse to
transport a passenger or property the
carrier decides is, or might be, inimical to
safety.
49 U.S.C. § 44902(b). Thus Congress supplemented
the discretion airlines already had under common
law to exclude certain passengers, in light of their
duty of utmost care to all passengers. See Williams
v. Trans World Airlines, 509 F.2d 942, 946 n.8 (2d Cir.
1975). It is obvious that § 44902(b) was enacted in
furtherance of the first priority of safety in air traffic,
49 U.S.C. § 40101(a)(1). The legislative history
confirms this. See generally Crimes Aboard Aircraft
in Air Commerce: Hearing Before the Aviation
Subcomm. of the S. Comm. on Commerce, 87th Cong.
(1961).
The permissive refusal authorization in
§ 44902(b) has several distinct components. The
2(_.continued)
Stat. 1204 (1994).
24a
statute says the air carrier “may” refuse to transport,
thus vesting discretion over the decision in the air
carrier. 49 U.S.C. § 44902(b). That discretion is very
broad. The carrier need not decide that the passen-
ger or property is inimical to safety; the authoriza-
tion extends to situations in which the carrier de-
cides the passenger or property “might be” inimical
to safety. Id. The congressional authorization is
granted to the air carrier to make the decision. The
only limit contained in the statute on that discretion
is that it be subject to regulations of the Under
Secretary of Transportation for Security.
In turn, the Under Secretary has not promul-
gated regulations limiting the airline’s discretion
directly under 49 U.S.C. § 44902(b). However, one
other regulation is directly pertinent, as it states that:
The pilot in command of an aircraft is
directly responsible for, and is the final
authority as to the operation of that air-
craft.
14 C.F.R. § 91.3(a). In other words, the pilot in
command stands in the role of the air carrier for a
decision to remove a passenger from a flight.’* The
‘While it is true, as amicus for plaintiff points out, that
the statute refers to the air carrier’s decision, the appropriate
focus is on the actual decisionmaker: the pilot in command of
the aircraft where the passenger is removed from the pilot’s
flight. That is so as a matter of law under 14 C.F.R. § 91.3. In
(continued...)
25a
authorization in § 44902(b) also applies to decisions
by others than the pilot not to rebook a passenger
based on safety concerns. In this case, that decision
was made by another person, based on information
from the pilot.
Section 44902 itself does not provide for judicial
review of decisions to refuse transportation by the
pilot in command. Nonetheless, courts have enter-
tained actions involving § 44902(b) brought under
other general statutes which prohibit discrimination,
such as § 1981 and Title VI of the Civil Rights Act.”
See, e.g., Williams, 509 F.2d 942; Dasrath v. Cont’l
Airlines, Inc., 467 F. Supp. 2d 431 (D.N.J. 2006); Al-
Qudhai’een v. Am. W. Airlines, Inc., 267 F. Supp. 2d
841 (S.D. Ohio 2003).
Accordingly, the parties have assumed that the
protections of 49 U.S.C. § 44902 and the U.S. Depart-
ment of Transportation administrative enforcement
mechanisms to protect the rights of passengers, 49
U.S.C. §§ 46101, 46301, do not preclude the filing of
actions under 42 U.S.C. § 1981, and we will assume
'8(.. continued)
practice in this context, it is not the air carrier that makes the
decision to refuse transport to the passenger on the flight, but
the pilot in command, who acts for the air carrier.
‘AA argues that no Title VI claim is stated here
because the only federal financial assistance AA receives is
government compensation under the Stabilization Act, which
does not quaiify as federal! financial assistance under 42 U.S.C.
§ 2000d. We need not reach the issue. Any Title VI claim
would fail for the same reasons we express.
26a
the same.” It is clear that § 44902(b), being the more
specific statute, applies to this case. See Vimar
Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 29 F.3d
727, 732 (Ist Cir. 1994). Congress has, by statute,
explicitly given safety the highest priority. See 49
U.S.C. § 40101(a)(1) (recognizing “safety as the
highest priority in air commerce”).
Some courts have described an air carrier’s
reliance on § 44902(b) as a defense in the nature of
an immunity. See, e.g., Al-Qudhai’een, 267 F. Supp.
2d at 848 (finding defendants “immun{[e] under 49
U.S.C. § 44902(b)”). In our view, § 44902(b) does not
merely create a defense”: the statute is an affirma
“The plaintiff's claim based on the state public
accommodation discrimination law, Mass. Gen. Laws ch. 272,
§ 98, may fail under the preemption clause of the Airline
Deregulation Act of 1978, 49 U.S.C. § 41713(b). See, e.g., Am.
Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995) (holding that
the Airline Deregulation Act preempted state-law consumer
fraud claim); Morales v. Trans World Airlines, Inc., 504 U.S.
374, 391 (1992) (holding that the Airline Deregulation Act
preempted state-law false advertising claim). In several cases,
federal circuit courts have held that the federal interest
expressed in 49 U.S.C. § 44902(b) and its predecessor governs
airlines’ boarding procedures and preempts state law contract
claims. See, e.g., Smith v. Comair, Inc., 134 F.3d 254, 258-59
(4th Cir. 1998); O’Carroll v. Am. Airlines, Inc., 863 F.2d 11, 13
(Sth Cir. 1989). The resolution of this case on other grounds
means we do not reach the preemption questions.
‘Although §44902 does not merely provide immunity,
the law of qualified immunity provides some useful parallels,
though qualified immunity is a judicially created defense. For
(continued...)
27a
tive 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.
The courts, by judicial construction of
§ 44902(b), have adopted a standard for liability for
an airline’s permissive refusal to transport decisions.
This standard reconciles the primary priority of
safety with other important policies, such as § 1981's
prohibitions on racial discrimination. The standard
most frequently articulated is that developed by the
Second Circuit in Williams: that the air carrier’s
decision to refuse air transport must be shown to be
arbitrary or capricious. See Williams, 509 F.2d at 948.
The arbitrary or capricious standard was later
adopted by the Ninth Circuit in Cordero v. Cia
Mexicana de Aviacion, S.A., 681 F.2d 669, 671-72 (9th
Cir. 1982). We agree with Williams and hold that an
air carrier’s decisions to refuse transport under
§ 44902(b) are not subject to liability unless the
decision is arbitrary or capricious. There is no need
'*(,..continued)
example, in Saucier v. Katz, 533 U.S. 194, 205 (2001), a decision
about the appropriate level of force is evaluated from the “on-
scene perspective,” id., and not with the benefit of “20/20 vision
of hindsight,” id. (quoting Graham v. Connor, 490 U.S. 386, 396
(1989)) (internal quotation marks omitted). Under the qualified
immunity tests, even mistaken decisions can be protected by
immunity.
28a
here to repeat the cogent reasoning in Williams. See
509 F.2d at 947-49.
We also agree with Williams that Congress did
not intend the non-discrimination provisions of the
FAA or of § 1981 to limit or to render inoperative the
refusal rights of the air carrier. Id. at 948. Congress
left decisions to refuse passage to the air carrier, and
any review in the courts is limited to review for
arbitrariness or capriciousness. Congress was also
well aware that the air carriers’ decisions to deny
transport have to be made very quickly and based on
limited information. See id. (noting that the permis-
sive refusal statute specifically provides for the
subjective judgment of the air carrier).
Section 44902(b) must be interpreted in that light.
Congress “did not contemplate that the flight would
have to be held up or cancelled until certainty was
achieved.” Id. Thus, in evaluating whether a
decision to refuse transport is arbitrary or capri-
cious,’ the following principles apply:
The term “reasonableness” is widely used in the law
and we do not use it here. Of course, a reasonable decision is
not arbitrary or capricious. See Williams, 509 F.2d at 948. And
a decision which is arbitrary is totally devoid of reason. See
Cordero, 681 F.2d at 672. The arbitrariness or capriciousness
standard here is not the same as reasonableness under a
negligence standard. See Adamsons v. Am. Airlines, Inc., 444
N.E.2d 21, 24-25 (N.Y. 1982), cert. denied, 463 U.S. 1209 (1983).
Similarly, in the context of Fourth Amendment rights,
air carriers are not even held to normal standards for
“reasonableness” for inspection of property. See United States
(continued...)
29a
(1) In cases involving removal from flights
under § 44902, it is the decision by the pilot in charge
who refuses passage which stands as the decision of
the aircarrier. The congressional intent in providing
permission for air carriers to refuse transport be-
cause of safety concerns would be undercut if the
focus were on the air carrier writ large, and not on
the individuals given the authority for the decision.
(2) Review of a decision to refuse transport by
the Captain is restricted to what information was
actually known by the decisionmaker at the time of
the decision. The test is not what the Captain rea-
sonably should have known. Courts have routinely
refused to permit consideration of information not
actually known to the Captain. See, e.g., Dasrath,
467 F. Supp. 2d at 446 (“[I]f [the Captain] reasonably
believed that something had taken place (even if it
had not), his reasonable belief is what is critical, not
what actually took place.”); Al-Qudhai’een, 267 F.
Supp. 2d at 847 n.4.
(3) Because the decision must be made in an
expedient manner, and it is the Captain who bears
the ultimate responsibility of ensuring the safety of
the aircraft, there is no obligation on the part of the
"(...continued)
v. Momoh, 427 F.3d 137, 141 (1st Cir. 2005) (recognizing that
Fourth Amendment reasonableness analysis is inapplicable to
an air carrier’s inspection of property) (citing United States v.
Edwards, 602 F.2d 458 (1st Cir. 1279)); see also, e.g., 49 U.S.C,
§ 44902(a) (requiring air carriers to refuse to transport
passengers who do not submit to a search).
30a
Captain (or the SOC manager, whose prompt deci-
sion not to rebook was based on the Captain’s deci-
sion) to make a thorough inquiry into the informa-
tion received, the sources of that information, or to
engage in an investigation. See, e.g., Cordero, 681
F.2d at 672. The Captain (or other decisionmaker) is
entitled to accept at face value the representations
made to him by other air carrier employees. See, e.g.,
id.; Williams, 509 F.2d at 948. Thus, even mistaken
decisions. are protected as long as they are not
arbitrary or capricious. We will assume that there is
an exception to this where no_ responsible
decisionmaker could credit the information pro-
vided. See Williams, 509 F.2d at 948; see also
Cordero, 681 F.2d at 672 (recognizing that the deci-
sion must be made on a rational appraisal of the
facts).
Such an exception has no application in this
case, as our recitation of the facts makes clear.
(4) The biases of a non-decisionmaker may not
be attributed to the decisionmakers. See AIl-
Qudhai’een, 267 F. Supp. 2d at 848 (noting that the
pilot “is entitled to rely on the information provided
to him by his crew despite any exaggerations or false
representations”).
In light of these principles, the jury verdict
cannot stand either on the law or on the evidence.
The district court erred both when it refused to give
several instructions requested by American and in
the instructions it did give.
3la
A. Error in Refusal To Instruct on § 44902(b)
We review jury instructions de novo, recogniz-
ing that properly preserved objections to the omis-
sion of desired jury instructions constitute reversible
error only if the omitted instructions were (1) correct
as a matter of substantive law, (2) not substantially
covered in the charge as a whole, and (3) integral to
an important point in the case. Roger Edwards, LLC
v. Fiddes & Sons, Ltd., 387 F.3d 90, 95 (1st Cir. 2004);
Sanchez-Lopez v. Fuentes-Pujols, 375 F.3d 121, 133
(1st Cir. 2004).
American Airlines requested the following jury
instructions on § 44902(b), which are consistent with
Williams and Cordero:
(1) “The Federal Aviation Act permits an
airline, through its Captain, to exercise his discretion
to deny any passenger air transport whom the
Captain believes is or may be inimical to the safety of
the passengers or aircraft. If you find that Ameri-
can’s decision to remove the plaintiff... was based
upon its concern for the safety and security of the
passengers you must return a verdict in favor of
American.”
(2) “The law endows the airline with discretion
in accepting or rejecting a passenger, based on
considerations of safety and problems inherent to air
travel, and that such discretion, if exercised in good
faith and for a rational reason, must be accepted.”
(3) “You must return a verdict for American
unless you find its actions were ‘arbitrary or capri-
cious’....”
32a
(4) “[Y]Jou must review all of the facts known to
[the Captain, the SOC manager, ] and the Massachu-
setts State Police at the time they formed their
decision. You must not rely on any facts disclosed in
hindsight.”
(5) “A Captain... is entitled to base a decision
to remove a passenger from a flight on the represen-
tations made to him by other airline employees about
the passenger’s behavior. . . . [T]he Captain is not
obligated to leave the cockpit and investigate the
truthfulness of the flight attendant’s statements.”
Each of these instructions accurately states the
law.”® The district court, nonetheless, declined to
give any of these instructions. The court never
informed the jury that it must find the Captain’s
decision io be arbitrary or capricious in order to hold
AA liable. The court also erred when it declined to
instruct the jury that the legality of the air carrier’s
decision was to be judged based only on the informa-
tion known to the decisionmaker at the time of the
decision and not based on information gained later
in hindsight. Further, at no point did the court
instruct the jury that the Captain was entitled to rely
‘“While some courts have stated that the arbitrary or
capricious standard is an objective one, see Dasrath, 467 F.
Supp. 2d at 445, we stress that the point of view taken is that of
the pilot in command who is the decisionmaker, and not that
of the average juror. We have no need to decide whether a
seemingly arbitrary or capricious decision by a Captain to deny
passage is nonetheless protected by the Captain's subjective
good faith, as American argues.
33a
on the representations of other employees, and that
he had no duty or obligation to investigate the
truthfulness of representations made to him. The
defendant properly objected to the court’s failure to
so instruct. Cerqueira did not object to these re-
quested instructions; nonetheless, the court errone-
ously chose not to give them.
The plaintiff argues that these omissions do not
require reversal because the court did give other
instructions which, he claims, covered these points.
But those instructions do not remedy the error.
Further, tliese instructions were themselves based
on error.
The court did instruct that the jury was “enti-
tled to consider that American Airlines is expected to
operate its airlines with the primary goal of the
safety and well-being of the traveling public.” It
instructed that “we expect of American Airlines...
to behave themselves in a way that puts the safety of
the traveling public and their employees first. But
they cannot, they’re forbidden by the law from acting
to discriminate. ...” (Emphasis added.) Through
the juxtaposition of these two sentences, the district
court subordinated the safety principle, which was
given the highest priority by Congress.
Those instructions are, in any event, a far cry
from an instruction that the air carrier was man-
dated by law to put safety first and that the law
specifically authorized air carriers to refuse to
transport passengers who, in the airline’s view,
“might be inimical to safety.” The instructicnal error
is not a matter of mere wording. The omitted in-
34a
structions were required as a matter of substantive
law, were not substantially covered in the charge as
a whole, and were essential to the case. Roger
Edwards, LLC, 387 F.3d at 95.
B. Instructions Actually Given Were in Error
The jury verdict was based on erroneous
instructions which were in error both in the omis-
sions to give the correct instructions and in the
instructions which were given. The court instructed
the jury as follows:
(1) that liability for all employees’ actions
accrued to the air carrier, not just the
decisionmakers’ actions:
Now, American Airlines is acompany....
Companies are people and they’re bu-
reaucracies and they operate hierarchi-
cally; in other words, there are higher-
ups in the company and Jower down
people. But all are employees of the
company and... if you think they’re
acting within the scope of their employ-
ment and they’re doing what they are
doing as employees of American Airlines,
then that conduct is attributed to Ameri-
can Airlines.
(2) that it could find for the plaintiff if it con-
cluded that a lower-ranking American employee,
35a
such as a flight attendant, gave certain information
to the decisionmaker:
But [American] cannot, they’re forbidden
by law from acting to discriminate...
against someone based upon their per-
ception that that person is a certain race
or a certain ethnic heritage. If that’s why
they did what they did, that’s forbidden
by the law. And let’s say that’s why a
lower-level person acted as she did in
respect to this.
If that action is transformed into the
action of the higher corporate people, if
that’s what drives the action of the higher
corporate people, American’s stuck with
it because American should take care
that they’re not acting against a person
based on the perceived race or ethnicity.
The law forbids that.
(3) that American Airlines had the ultimate
burden of showing that its reasons for removing the
plaintiff were legitimate:
[I]f you think there is a forbidden reason
in there, then the burden shifts over to
American Airlines. And if [American
Airlines] would have done it anyway, if
they would have behaved exactly the
same way anyway for legitimate reasons,
if... American Airlines proves that, well,
36a
your verdict must be for American Air-
lines.
The court, in its written opinion denying Ameri-
can’s motion for a new trial, set forth its reasoning
for these jury instructions. See Cerqueira, 484 F.
Supp. 2d at 234. The court reasoned that its instruc-
tion on finding intentional discrimination was
adequate to cover § 44902(b), because if there was
intentional discrimination as defined under the
burden-shifting analysis of the McDonnell Douglas
test, that would itself per se be arbitrary or capri-
cious. Id.; see McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973). That reasoning was a mismatch with
this case.
Here, there is absolutely no evidence that
either the Captain himself or the SOC manager had.
discriminatory animus, iet alone that their decisions
to refuse to transport a passenger, which were made
under time pressure, were based on any discrimina-
tory animus. The decision not to reboard the plain-
tiff on the flight was made by the State Police and
accepted by the Captain. The Captain did not see
the plaintiff and thus was unaware of his appear-
ance, whether Middle Eastern or not, until the time
of the trial. The Captain’s actions were justified in
light of the safety concerns described earlier.
The SOC manager, who was in Dallas, based
his decision, made that same morning and within
minutes, not to rebook the plaintiff on information
provided by the Captain, specifically all of the secu-
rity concerns that formed the basis of the Captain’s
37a
decision relayed to him from Boston. The § 1981
claim against the SOC manager’s decision was
derivative of the § 1981 claim against the Captain’s
decision. There is no evidence that the SOC man-
ager’s decision was based on race discrimination.
There is also no evidence that any of the security
concerns which made the Captain’s decision appro-
priate had been proven unfounded by the time the
SOC manager decided within minutes that morning
to deny rebooking or that the SOC manager’s follow-
ing the Captain’s decision was motivated by race.”
Further, there is no evidence that the SOC manager
was aware of the plaintiff's appearance, race, or
ethnicity. As a result, the § 1981 claim against the
SOC manager fails, and § 1981 imposed no further
duties on him.
If the Captain had made a decision to remove
plaintiff from this flight based only on the Captain’s
bias toward persons who appeared to be of Middle
Eastern descent, such a decision would be arbitrary
within the meaning of § 44902(b). In such instances,
there is congruence between the different statutory
commands -- passenger safety and non-discrimina-
tion. The jury, though, was never asked the correct
questions here.
The instructions given were based on three
incorrect assumptions on the part of the district
"This case does not concern a situation where a SOC
manager’s decision to deny rebooking was not made based on
the Captain’s safety concerns and not made in short proximity
to the Captain’s decision not to allow plaintiff to fly.
38a
court: (1) that instructions from Title VII employ-
ment discrimination cases were appropriate in a
refusal to transport case under § 44902(b); (2) that
the instructions given were required by the doctrine
of respondeat superior; and (3) that the instructions
were required by Cariglia v. Hertz Equipment Rental
Corp., 363 F.3d 77 (1st Cir. 2004).
This claim, however, is not an employment
discrimination claim arising under Title VI]; it arose
under § 1981” and challenged a decision made
pursuant to the authorization given an air carrier by
Congress in § 44902(b). As we have held, the burden
is on the plaintiff to show the decision not to trans-
port was arbitrary or capricious. Cordero (and
Williams) hold the same. See Cordero, 681 F.2d at
672; Williams, 509 F.2d at 948. The jury must be
instructed that the Captain has the power to refuse
transport because transport of a passenger “might
be” inimical to safety unless that decision was
arbitrary or capricious. See Cordero, 681 F.2d at 672.
It is the plaintiffs burden to show the Captain’s
decision was arbitrary or capricious. The test we
**Nothing in the 1991 Amendments to § 1981 suggested
Congress was changing this substantive law. Indeed, we have
held that:
The legislative history of the 1991 amendment
makes it crystal clear that Congress did not
intend to convert Section 1981 into a general
prohibition against race discrimination.
Garrett v. Tandy Corp., 295 F.3d 94, 100 (1st Cir. 2002) (citing
H.R. Rep. No. 40(II), at 37 (1991), reprinted in 1991
U.S.C.C.A.N. 549, 731).
39a
have outlined under § 44902(b) is inconsistent with
the use in Title VII cases of prima facie case method-
ology and the burden-shifting test. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).”
There were a number of other problems with
the instructions given. The primary problem was
that the instructions permitted liability of the air
carrier to turn on the purported bias of non-
decisionmakers. The jury was erroneously
instructed that its focus was not to be on the Cap-
tain’s bias but on any employee of the airline in-
volved in providing information ” to the Captain.
The deemed attribution instruction is flatly
inconsistent with the leeway for the Captain’s
decision under § 44902(b), and it was not justified
either by reference to the Restatement (Second) of
Agency (“Restatement”) or under Cariglia. .
Even in interpreting Title VI, the Supreme
Court has not adopted Restatement § 219 principles
*'The district court in Dasrath, without explanation, did
usethe McDonnell Douglas model, in our view incorrectly. 467
F. Supp. 2d at 445.
*The court also erroneously instructed that the mere
providing of information constitutes discrimination if the
person providing information was motivated by his or her
perception of the plaintiff's race or ethnicity. The court
erroneously instructed that if “one of the reasons that was
actuating, driving, informing people,” but “not the only
reason,” was “that person’s perception of [plaintiff's] race or
ethnicity,” then this was a “forbidden reason.” (Emphasis
added.)
40a
wholesale, as the district court purported here to do.
See Faragher v. City of Boca Raton 524 U.S. 775, 797
(1998) (“The proper analysis here, then, calls not for
a mechanical application of indefinite and malleable
factors set forth in the Restatement ....”). The
district court here interpreted the respondeat supe-
rior doctrine to impose liability on an air carrier for
the Captain’s decision based not on the issue of the
Captain’s bias, but on the purported discrimination
of a lower-level employee who neither had authority
to make the allegedly discriminatory decision nor in
fact made the decision. Further, the Supreme Court
has not addressed the scope of any respondeat
superior liability in § 1981 claims generally” and we
need not do so here.
The district court also erroneously invoked
another doctrine from employment law, which has
no applicability on the facts here as to the Captain’s
decision. In Cariglia, this court recognized that
under the Massachusetts state employment discrimi-
nation statute, liability may be found where (a) a
discriminating subordinate (b) causes the firing of a
plaintiff by (i) intentionally giving false information
“Even under the Restatement, to put the question in
classic agency terms, it was not within the scope of the flight
attendant’s employment duties to make the decision not to
transport plaintiff that day. See Springer v. Seamen, 821 F.2d
871, 881 (1st Cir. 1987), abrogated on different grounds by Jett
v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989) (requiring that in
order toimpute liability to an employer, an employee’s actions
must be “within the scope of his or her duties”); Restatement
§ 219(1).
4la
to and (ii) withholding accurate information from the
decisionmaker, (c) the decisionmaker’s decision is
significantly based on these very inaccuracies, and
(d) the plaintiff has been given no opportunity to
provide contrary information. See Cariglia, 363 F.3d
at 87-88." This theory was applied to a state employ-
ment law claim and is not available in a § 1981
federal claim where the air carrier has made a
decision within the statutory authorization of
§ 44902(b). : ,
Further, even on the Cariglia theory, the facts
did not warrant such an instruction.” The Captain
“Other circuits have recognized a very limited and
more restrictive version of this theory under Title VII. See,
e.g., Brewer v. Bd. of Trs., 479 F.3d 908, 918 (7th Cir. 2007)
(imposing liability when the subordinate “has such power over
the nominal decisionmaker that she is in fact the true,
functional decision maker’’); Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004) (imposing liability
if the biased subordinate is “principally responsible” for the
employment decision). This circuit has not decided the issue
under Title VII.
*We are also very doubtful about the admission into
evidence of the DOT Consent Order, which closed an
enforcement proceeding against American for eleven claims of
racial discrimination brought by other persons under various
federal statutes. Cerqueira, 484 F. Supp. 2d at 236. The
rationale for admission was that the Order showed that AA was
on notice of anti-discrimination policies. Id. at 238. The air
carrier’s knowledge of non-discrimination obligations was
never at issue in this case. The carrier acknowledged it was
aware of its obligations not to discriminate. To the extent the
(continued...)
42a
consulted with State Police and TSA personnel; it
was the State Police who a the Captain that the
plaintiff would not reboara the aircraft for the flight.
The State Police had spoxen to the plaintiff. And,
even if the Captain’s decision was based on his own
experiences with one of the three passengers and
other information, it was independently grounded
and not captive of whatever information (biased or
not) he received from Flight Attendant Two. Even
under conventional discrimination theory, the plain-
tiffs evidence was insufficient to show the “tainted”
information was a cause for his treatment, much less
a but-for cause.
For the reasons given, we reverse and remand
to the district court with instructions to vacate the
judgment and fees award in favor of plaintiff and
enter judgment for the defendant.
*(...continued)
Order suggested that AA had, in other instances, engaged in
discrimination, it was not relevant to the decision made by the
Captain here, who is not the subject of the Order.
43a
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JOHN D. CERQUEIRA,
Plaintiff,
Vv. Civil Action
No. 05-11652-WGY
AMERICAN AIRLINES, INC.,
Defendant.
MEMORANDUM AND ORDER
YOUNG, J. April 9, 2007
This case arose from allegations by John D.
Cerqueira (“Cerqueira”) -- an American citizen of
Portuguese descent -- that American Airlines
(“American”) intentionally discriminated against
him due to his perceived race when American
removed him from a flight and subsequently denied
him further service. These allegations were tried
before a jury beginning on January 3, 2007. On
January 12, 2007, the jury returned a verdict for
Cerqueira and assessed $130,000 in compensatory
damages and $270,000 in punitive damages. Jury
Verdict [Doc. No. 100].
On January 30, 2007, American filed two
post-judgment motions. The first motion was for
44a
judgment notwithstanding the verdict (“JNOV”) that
alleged the absence of sufficient evidence of inten-
tional discrimination when analyzed under an
“arbitrary and capricious” standard. Def.’s Mot. for
JNOV [Doc. No. 122] at 21. The second motion
sought a new trial on the same basis as the JNOV
and argued that the introduction for a limited pur-
pose of a consent order between the Department of
Transportation (“DOT”) and American constituted
unfair prejudice. Def.’s Mot. for New Trial and
Remittitur [Doc. No. 124] at 1-2. This motion also
sought the remittitur of a portion of the damages
awarded to Cerqueira. Id. at 1.
On February 27, 2007, this Court held oral
argument on both of American’s motions. The Court
denied American’s motion for JNOV, but it took the
second motion under advisement to consider and
address in writing the following three issues:
(1) whether the Court erred in preventing American
from referencing conformity with non-public regula-
tions issued by the DOT; (2) whether American
suffered unfair prejudice from the introduction in
evidence of the consent order between American and
the DOT; and (3) whether new Supreme Court
precedent on the issue of punitive damages requires
remittitur of the judgment. This Memorandum and
Order explains the denial of American's motion for
JNOV and then proceeds through the three issues
taken under advisement.
45a
I. DISCUSSION
A. The Required Evidentiary Standard
Both American’s motion for JNOV and its
motion for a new trial challenge this Court’s jury
instructions for failing to instruct that evidence of
intentional discrimination must satisfy an “arbitrary
and capricious” standard. Def.’s Mem. in Supp. of
Mot. for JNOV [Doc. No. 123] at 9-11; Def.’s Mot. for
New Trial and Remittitur at 1. American argues that
a provision of the Federal Aviation Act, 49 U.S.C.
§ 44902(b), requires a jury to consider the evidence in
light of that standard. American Mem. in Supp. of
Mot. for JNOV at 7-8.
The Federal Aviation Act provides that “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.” 49
U.S.C. § 44902(b). The provision makes no explicit
mention of the standard that a plaintiff must satisfy
in order to overcome this statute and claim damages
for a refusal to transport. See id. Further, no control-
ling law mandates the application ofan arbitrary and
capricious standard.
Despite the lack of explicit statutory or control-
ling legal guidance, this Court is convinced by the
weight of persuasive authority that the “arbitrary
and capricious” standard does in fact apply. See
Williams v. Trans World Airlines, 509 F.2d 942, 946-48
(2d Cir. 1975) (stating that the test is whether the
airline’s determination was “rational and reasonable
46a
and not capricious or arbitrary” under the circum-
stances); Dasrath v. Continental Airlines,
Inc.{[Dasrath IT], 467 F. Supp. 2d 431, 443-44 (D.N.J.
2006) (addressing a motion for summary judgment);
Alshrafi v. American Airlines, Inc., 321 F. Supp. 2d
150, 164 (D.Mass. 2004); Schaeffer v. Cavallero, 54 F.
Supp. 2d 350, 351 (S.D.N.Y. 1999); Adamsons v.
American Airlines, Inc., 58 N.Y.2d42, 48 (N.Y. 1982);
MacIntosh v. Interface Group Massachusetts-Com,
Inc., No. 96-01321, 1999 WL 26914, at *6-*7 (Mass.
Super. Jan. 15, 1999) (Doerfer, J.). In addition, this
standard likely comports with the policy behind the
statutory regime that provides airlines with much
discretion when they must engage in the difficult
decision whether to refuse service to passengers. See
Williams, 509 F.2d at 948.
Nevertheless, despite the applicability of the
“arbitrary and capricious” standard to claims that
seek to overcome section 44902(b), the failure here to
give an explicit jury instruction respecting this
standard was, on the trial record before the Court,
not prejudicial error. In Alshrafi, this Court recog-
nized that “actions motivated by racial or religious
animus are necessarily arbitrary and capricious, and
therefore beyond the scope of the discretion granted
by Section 44902.” 321 F. Supp. 2d at 162. The
District Court of New Jersey reached a similar result
on a motion to dismiss in Dasrath [Dasrath I], where
it held that when the removal from an airline was the
alleged product of “intentional racial] discrimination,
not ofa rational determination that [the passengers’]
presence was ‘inimical to safety[,]’” the “(pJlaintiffs
47a
ha[d] ... pleaded sufficiently that the removal was
not the sort of rational safety measure shielded by
§ 44902.” 228 F. Supp. 2d 531, 539-40 (D. N.J. 2002).
As a result, since this Court did instruct the
jury that American’s liability depended upon a
finding of intentional discrimination on account of
race, Trial Tr. Vol. V [excerpt 3] at 16:16-17:23, the
jury verdict necessarily satisfied the standard of
“arbitrary and capricious.” For this reason, the
Court denied American’s motion for JNOV. The
Court further rejects American’s argument to the
extent that American advances it in its motion for a
new trial.
B. Exclusion of Possible Sensitive Source
Information
In its motion for a new trial, American argues
that the Court’s ruling barring American from
making any reference to Sensitive Source Informa-
tion (“SSI”) in non-public regulations issued by the
Department of Transportation prevented American
from effectively presenting its defense. Def.’s Mem.
in Supp. of Mot. for New Trial and Remittitur [Doc.
No. 125] at 14-15; Trial Tr. Vol. Pre-Trial 3:1-15.
This issue first came before this Court through
a motion in limine by Cerqueira. PI.’s Sixth Mot. In
Limine [Doc. No. 47] at 1. Cerqueira moved to ex-
clude any evidence that American’s employees acted
in conformity with standing policies or training -- the
substance of which American refused or was unable
to provide in discovery. Id. American opposed the
48a
motion on the ground that it could not disclose that
information due to its potential status as sensitive
source information pursuant to 49 C.F.R. § 1520.9.
Def.’s Opp’n to PI.’s Sixth Mot. In Limine [Doc. No.
66].
On the surface, this motion appeared to raise
the complicated and charged issues of what consti-
tutes sensitive source information and when it may
be permissibly withheld. See Gordon v. Federal
Bureau of Investigation, 390 F. Supp. 2d 897, 900-01
(N.D. Cal. 2004) (exemplifying the careful consider-
ation required of an SSI determination); Judicial
Watch, Inc. v. United States Dep’t of Transp., No. Civ.
02-566-SBC, 2005 WL 1606915, at *10-*11 (D.D.C.
July 7, 2005) (same). On reflection, however, this
Court determined that such an inquiry would be
proper only if faced with a motion to compel discov-
ery pursuant to Federal Rule of Civil Procedure
37(a). Instead, when raised in a motion in limine that
did not challenge the classification status but only
sought to exclude non-disclosed evidence, no such
searching analysis is required.
It ought first be noted that this Court finds no
bad faith in American’s failure to produce the re-
quested information. American raised a genuine
issue as to whether its security policies and training
met the definition of sensitive source information
contained in 49 C.F.R. § 1520.5. See Def.’s Opp’n to
Pl.’s Sixth Mot. In Limine at 1-2. The Court holds
that American demonstrated good faith in its con-
cern that it must comply with the disclosure require-
ments of 49 C.F.R. § 1520.9. Those regulations re-
49a
quired American to obtain the permission of the
applicable governing agency (e.g., Department of
Homeland Security or Department of Transporta-
tion) before releasing such information to Cerqueira
and to this Court. See id.
Despite American’s good faith compliance with
these requirements, the duty to receive such permis-
sion rests with American. While the Court sympa-
thizes with the bureaucratic morass that American
apparently entered when it sought permissicn to
disclose, this Court must also discharge its duty to
effectuate the imperatives of efficiency and broad
discovery. See generally Fed. R. Civ. P. 26, advisory
committee’s notes. In addition, this is not a case
where the governing agency advised the Court that
more time was required to balance security issues
with proper discovery disclosure. See In re September
‘11 Litigation, 431 F. Supp. 2d 405, 408 (S.D.N.Y.
2006).
As a result of these considerations, this Court
treated the motion in limine as conceptually analo-
gous to a motion for failure to disclose discoverable
material under Federal Rule of Civil Procedure 37.
The Court imposed the appropriate sanction of
denying the use of such undisclosed information at
trial. See Fed. R. Civ. P. 37(c)(1); Trial Tr. Vol.
Pre-Trial 3:1-5 (barring reference by American to a
standard of procedure unless that standard was fully
revealed and subject to complete crossexamination).
The Court is unpersuaded by American that the
fashioned sanction constituted too broad a remedy or
caused undue prejudice. As the Court explained to
50a
American at the Pre-Trial hearing, “[tJhis is a case,
a quintessential jury case where the jury can decide
.. What happened, and more importantly, why it
happened. If there was racial profiling no set of
standards will save American Airlines. If there was
not, we’re not interested in what other standards
American Airlines met or did not meet.” Trial Tr.
Vol. Pre-trial 4:2-7. The exclusion of any reference to
Sensitive Source Information was properly ordered
by this Court.
C, Introduction of Consent Order
American also contends that the Court erred by
admitting in evidence a Consent Order agreed to by
DOT and American. American objects to this admis-
sion despite the attending instruction to the jury that
limited the consideration of the document to the
issue of American’s notice that its employees were
being complained about for racial profiling. Def.’s
Mem. in Supp. of Mot. for New Trial and Remittitur
at 2. American first contested the admission of this
Consent Order in a motion in limine on November
20, 2006. Def.’s Mot. In Limine to Exclude Consent
Order [Doc. No. 53].
On February 27, 2004, American and DOT
agreed to a Consent Order closing an enforcemert
proceeding against American for eleven claims of
racial discrimination under various federal statutes.
Pl.’s Opp’n to Def.’s Mot. In Limine to Exclude
Consent Order [Doc. No. 69], Ex. B at 1-2. The
Consent Order directed American to cease and desist
dla
from such activities and to provide civil rights train-
ing for its employees. Id. at 1. The order contained a
three-page preamble followed by six provisions. In
the preamble, American asserted that no violation of
federal law occurred and that the removals of indi-
viduals from the airplanes were the result of reason-
able security precautions. Id. at 2-3. In contrast, the
enforcement officer of DOT contended that at least
some of the passengers were removed principally
because of their ethnic backgrounds. Id. at 3.
The preamble is followed by six enumerated
clauses. Id. at 4-5. They are described in pithy fash-
ion as follows: (1) DOT’s approval of the “settle-
ment”; (2) DOT’s finding that American acted con-
trary to federal law; (3) a cease and desist clause;
(4) DOT’s requirement for civil rights training; (5) an
enforcement clause; and (6) a recitation that the
order makes no findings of violations for any individ-
ual incident. Id.
In addition to the Consent Order, Cerqueira
attached two other documents to his motion in
opposition to American’s motion in limine: (1) the
Notice of Enforcement Proceeding and Proposed
Assessment of Civil Penalties; and (2) the Enforce-
ment Complaint, which included affidavits from
other alleged victims of American’s discrimination.
Pl.’s Opp’n to Def.’s Mot. In Limine to Exclude
Consent Order, Ex. A.
52a
& Application of Federal Rules of
Evidence 408 and 404(b)
In addressing this motion in limine, the Court
considered whether the Federal Rules of Evidence
would, absent an exception, bar the introduction of
the Consent Order into evidence. The first question
was whether a consent order qualified as a settle-
ment agreement under Federal Rule of Evidence
408. Rule 408 bars the admission of settlement
agreements to prove liability for the underlying
claim. Fed. R. Evid. 408(a). Exclusion is not required,
however, where the settlement agreement is used for
a purpose other than proving the truth of liability,
such as proof of bias or prejudice. Fed. R. Evid.
408(b). The policy justifications behind such an
exclusion are two-fold. First, it illustrates Congress’s
desire to encourage settlement. Second, it seeks to
exclude evidence that is of questionable relevance as
to liability since settlement talks may well be a result
of a desire not to continue with litigation. McInnis v.
A.M.F., Inc., 765 F.2d 240, 247 (1st Cir. 1985).
American did not raise the issue of Rule 408
directly, but did so indirectly by substituting the
term “settlement agreement” for “consent order” in
its motion in limine. Def.’s Mot. In Limine to Exclude
Consent Order at 1. Cerqueira attacked this charac-
terization on the ground that “[{a] consent order is
not a settlement agreement for purposes of Fed. R.
Evid. 408.” Pl.’s Opp’n to Def. Mot. In Limine to
Exclude Consent Order at 4. The Court found little
merit to Cerqueira’s argument.
53a
There is little reason to draw a distinction
between consent orders and settlement agreements.
See McInnis, 765 F.2d at 247 (noting that Rule 408 is
commonly used to bar the “admission of agreements
between a defendant and a third party to compro-
mise a claim arising out of the same transaction as
the one being litigated”). Support for the treatment
of consent orders and settlement agreements as the
same under Rule 408 may be found in the cases cited
by Cerqueira. See Pl. Opp’n to Def. Mot. In Limine to
Exclude Consent Order at 4. Cerqueira cites United
States v. Warren, No. Civ.A.7:04 CR 00021, 2005 WL
1164195 (W.D. Va. May 17, 2005), as his primary
citation for his proposition that Rule 408 does not
apply. Pl. Opp’n to Def. Mot. In Limine to Exclude
Consent Order at 4. Warren, however, proves the
opposite proposition because the district court held
that Rule 408 did apply to the Consent Order at
issue. Warren, 2005 WL 1164195, at *3. There, the
district court simply ruled that the document was
being admitted for a purpose other than proof of
liability, thus meeting an exception to the general
rule. Id. The Fourth Circuit, in the oft-cited case,
Johnson v. Hugo’s Skateway, 974 F.2d 1408, 1413 (4th
Cir. 1992), applied the same logic as the district court
in Warren and held Rule 408 applicable to a Consent
Order, which it stated could be admitted for the
limited purpose of showing motive and intent. Id.
Similarly, in United States v. Gilbert, 668 F.2d 94, 97
(2d Cir. 1981), the Second Circuit held admissible an
SEC consent decree to show that the defendant was
aware of SEC reporting requirements. Since
54a
Cerqueira sought to admit the Consent Order to
show motive, intent, and notice, Pl.’s Opp’n to Def.
Mot. In Limine to Exclude Consent Order at i, the
Consent Order was properly admitted for a purpose
other than proof of liability, falling within the Rule
408(b) exception.
In addition to the application of Rule 408, this
Court also considered whether the introduction of
the Consent Order would fall under the prohibition
from using prior bad acts to prove propensity under
Rule 404(b). In the case of this Consent Order, the
distinction between the application of Rule 408 and
Rule 404(b) is more academic than practical. Still, an
analysis seeking an exception to Rule 408 ought
center on the use of the settlement agreement itself
for an alternate purpose such as bias or prejudice,
see McInnis, 765 F.2d at 248 (holding the evidence
inadmissible under Rule 408 because the purported
purpose of impeachment was merely camouflaged
causation evidence), while an analysis under Rule
404(b) is proper where the party seeks to enter
evidence of prior acts encapsulated in the agreement
for an alternative purpose, see United States v.
Landrau-Lopez, 444 F.3d 19, 23 (1st Cir. 2006).
Federal Rule of Evidence 404(b) bars evidence
of prior bad acts where they are admitted to show
action in conformity with those previous acts. Fed. R.
Evid. 404(b). Under this general rule, the Consent
Order and the related documents that Cerqueira
sought to admit would be inadmissible because
American’s previous acts of racial discrimination
55a
could not be used to show that it likely committed an
act of racial discrimination in the instant case.
Prior bad act evidence may, however, be
admitted for other purposes in a manner similar to
Rule 408. Id. The limited purposes must be “specially
probative of an issue in the case ... without including
bad character or propensity as a necessary link in
the inferential chain.” United States v. Washington,
434 F.3d 7, 12 (1st Cir. 2006) (quotation marks omit-
ted). The admissibility of evidence under Rule 404(b)
is conducted in two steps: “first, a court must deter-
mine whether the evidence in question has any
special relevance exclusive of defendant’s character
or propensity; and second, notwithstanding its
special relevance, whether the evidence meets the
standard set forth in Fed. R. Evid. 403.”
Landrau-Lopez, 444 F.3d at 23 (quotation marks
omitted).
In considering whether the evidence proffered
presents “special relevance” of other bad act evi-
dence, the First Circuit generally looks to two fac-
tors: “the remoteness in time of the other act and the
degree of resemblance to the crime charged.” United
States v. Frankhauser, 80 F.3d 641, 648 (1st Cir. 1996).
Here, the prior acts contained in the Consent Order
occurred within the past five years and are factually
similar to the alleged discrimination. Under the First
Circuit’s test for special relevance, these prior acts
present significant probative value. See id.
In addition, Cerqueira did not seek teadmit the
evidence as propensity or character evidence. See PI.
Opp’n to Def. Mot. In Limine to Exclude Consent
56a
Order at 1. Instead, he sought to admit the evidence
to show motive, intent, and notice. See id. Intent and
knowledge are recognized as valid limited purposes
under Rule 404(b). See United States v. Tse, 375 F.3d
148, 155 (1st Cir. 2004). “Further, where, as here, the
other bad act evidence is introduced to show know!-
edge, motive, or intent, the Rule 404(b) exceptions to
the prohibition against character evidence have been
construed broadly.” United States v. Flores Perez, 849
F.2d 1, 4 (1st Cir. 1988). As a result, the Court held
that the introduction of the Consent Order for the
limited purpose was valid under Rule 404(b) because
it demonstrated that American had notice of alleged
discriminatory practices prior to the case at hand.
2. No Undue Prejudice under Fed-
eral Rule of Evidence 403
The inquiry, though, did not stop there. Even
where evidence is admissible for an alternative
purpose under Rule 404(b), it may still be excluded
if it constitutes overly prejudicial evidence under
Federal Rule of Evidence 403. Landrau-Lopez, 444
F.3d at 23. The evidence that Cerqueira sought to
admit raised the possibility of undue prejudice since,
even with a limiting instruction, a jury could infer
racial discrimination in the current instance from the
admission of a consent order settling a dispute over
eleven similar complaints. The Consent Order itself
mitigated some of these concerns, however, by
providing a detailed discussion of the positions of
both the DOT and American with respect to the
57a
discrimination complaints. Thus, the Consent Order
included American’s arguments against a finding of
liability for those alleged instances of racial discrimi-
nation. The existence of arguments on both sides of
this issue counseled against redaction of the docu-
ment for fear that redaction would itself cause the
prejudice it sought to prevent.
The Court addressed the concerns of undue
prejudice through a careful consideration of the
content of the Consent Order and the accompanying
documents. The Court resolved to admit evidence of
the underlying DOT enforcement proceeding for the
limited purpose of notice. Trial Tr. Vol. Pre-trial at
11:5-7; Trial Tr. Vol. IV [excerpt] at 2:7-13 (rejecting
Cerqueira’s request for the limiting instruction to
characterize the document as being admitted to
“show a discriminatory atmosphere as evidence of
intent and motive”). The Court refused to allow
Cerqueira to admit all three documents as he had
sought -- namely the Consent Order, Notice of
Enforcement Proceeding, and the Enforcement
Coraplaint. Since the limited purpose of notice would
be served through either the Consent Order or the
Enforcement Complaint, the Court provided Ameri-
can the choice of whether it preferred the former or
the latter. Trial Tr. Vol. Pre-trial at 11:11-22. Ameri-
can chose the Consent Order. Id. at 13:15-21. Fur-
ther, the Court provided a strong limiting instruction
to the jury when the Consent Order was admitted in
evidence. Trial Tr. Vol. IV [excerpt] at 2:21-6:1.
As a result of the careful consideration of
American’s motion in limine, the need faithfully to
58a
apply the exceptions to the general prohibition of
prior bad act evidence in Federal Rule of Evidence
404(b), American’s choice to admit the Consent
Order instead of the Enforcement Complaint, and
the limiting instruction to the jury, this Court holds
that no error occurred by allowing the Consent
Order in evidence for the limited purpose of notice.
D. Remittitur of Punitive Damages
Finally, American argues for a remittitur of the
jury’s award of $130,000 in compensatory damages
and $270,000 in punitive damages by alleging that
their size exceeded the rational appraisal of the
evidence. Def.’s Mem. in Supp. of Mot. for New Trial
and Remittitur at 15-17. American supplemented this
motion to argue that the recent Supreme Court
decision in Philip Morris USA v. Williams, —- U.S. —,
127 S. Ct. 1057 (2007), undermined the award of
punitive damages. Def. Supplemental Mem. in Supp.
of Mot. for JNOV [Doc. No. 137] at 1- 2. After brief
oral argument on this issue, the Court took the
matter under advisement to consider the effect, if
any, of the Philip Morris USA holding.
In Philip Morris USA, the plaintiff's attorney
appealed in closing arguments for the jury to con-
sider the harm Philip Morris’s alleged negligence did
to other parties not before the court. 127 S. Ct. at
1061. The Supreme Court held that punitive dam-
ages may not be used to punish a defendant for harm
done to nonparties. Id. at 1063. Punitive damages
may, however, include damages awarded “in light of
59a
potential harm” when the potential harm at issue
was harm to the plaintiff. Jd. (emphasis in original).
Additionally, the Supreme Court recognized that
harm to nonparties may be relevant to a determina-
tion of “reprehensibility.” Id. at 1063-64. Such evi-
dence may “help to show that the conduct that
harmed the plaintiff also posed a substantial risk of
harm to the general public.” Id. at 1064. A jury
simply must not go further and punish the defendant
for the harm done to those nonparties. See id. This
necessarily presents a difficult inquiry that must
consider the ratio of the punitive award to actual
harm. See id. at 1062-63, 1065. It also must scrutinize
the challenged conduct for indications that it created
a risk that juries would incorrectly feel empowered
to punish for harms done to nonparties. See id.
The Court notes that even a high ratio of the
punitive damages to the compensatory damages does
not imply that the jury included harms done to
others in the calculation of its award. The jury
assessed compensatory damages for the actual harm
done to Cerqueira at $130,000. The punitive award of
$270,000 is only slightly larger than twice the com-
pensatory damages. Though courts are hesitant to
apply a fixed ratio when considering whether a
punitive award is excessive, State Farm Mut. Auto.
Ins. Co. v. Campbell, 538 U.S. 408, 424-25 (2003), a
two-to-one ratio does not raise excessiveness con-
cerns. See generally Elizabeth Cabraser, The Effect of
State Farr. v. Campbell on Punitive Damages in Mass
Torts and Class Action Litigation: What Does the
Immediate Post-State Farm Jurisprudence Reveal?, in
6Va
Civil Practice and Litigation Techniques in Federal
and State Courts 1725 (ALI-ABA 2005); John J.
Bartko, John S. Lottier & David M. Ross, Punitive
Damages: Reaction by Federal and State Courts to
Developing U.S. Supreme Court Guidelines, in Civil
Practice and Litigation Techniques in Federal and
State Courts 1871 (ALI-ABA 2007). Likewise, it does
not raise conceris that punitive damages exceeded
compensatory damages in this instance. This is
especially so in light of the deference that this Court
must give to the jury’s calculation of damages.
Whitfield v. Melendez- Rivera, 431 F.3d 1, 15 (1st Cir.
2005). :
American challenges Cerqueira’s reference to
the Consent Order in closing arguments, raising the
possibility of juror confusion on the issue of punish-
ing American for harm done to persons other than
Cerqueira. Def.’s Supplemental Mem. in Supp. of
Mot. for JNOV at 2-3. Counsel for Cerqueira refer-
enced the Consent Order in his closing in this man-
ner:
Consider also the Department of Trans-
portation consent order... .It shows that
eight months before December 28, 2003,
the government brought an enforcement
action against American Airlines com-
plaining of 11 separate instances where
American Airlines engaged in behavior
similar to that here and which the gov-
ernment alleged was unlawful discrimi-
nation; thus, American Airlines was on
6la
notice that this kind of discrimination is
illegal. American Airlines knew this kind
of behavior is illegal but they did it any-
way. :
Trial Tr. Vol. V [excerpt 4] at 20:20-21:7. American
suggests that a juror could infer from this reference
that he or she ought punish American for the eleven
prior instances of alleged racial discrimination. See
Def.’s Supplemental Mem. in Supp. of Mot. for JNOV
at 2-3.
Contrary to American’s assertion, Cerqueira’s
use of the Consent Order in his closing was properly
within the scope of the limiting instruction discussed
above relative to the admission of that document.
The paragraph in the transcript preceding the
challenged reference to the Consent Order ad-
dressed whether employees of American knew that
removing Cerqueira from the plane based on his
perceived race would constitute a violation of his
civil rights. Id. at 20:13-19. The Consent Order was
then referenced to demonstrate that the employees
ought have had that knowledge due to the previous
enforcement action. Id. at 20:20- 21:7. As discussed
above, the Court properly admitted the Consent
Order for the limited purpose of notice. Cerqueira’s
use of it within that limiting instruction does not
raise the concerns addressed in Philip Morris USA,
where counsel specifically referenced the fact that
other people would likely die from Philip Morris’s
cigarettes. 127 S. Ct. at 1061. Asa result, the Court
does not find that the punitive damages awarded
62a
indicates that the jury sought to punish American for
the alleged discrimination against nonparties.
Il. CONCLUSION
This was a quintessential jury trial. Cerqueira
and American were both ably represented by vigor-
ous advocates and our system gave, as it ought, the
final judgment on a difficult issu’ ¢i racial discrimi-
nation to the trusted institution of collective wisdom
-- the jury. The jury spoke in favor of Cerqueira.
Absent prejudicial error by the Court, this judgment
ought stand. The Court finds no error in this case
and so orders that American’s Motion for a New
Trial and Remittitur [Doc. No. 124] be DENIED.
SO ORDERED.
/s/ William G. Young
WILLIAM G. YOUNG
DISTRICT JUDGE
63a
United States Court of Appeals
For the First Circuit
No. 07-1824
JOHN D. CERQUEIRA,
Plaintiff, Appellee,
v.
AMERICAN AIRLINES, INC.,
Defendant, Appellant.
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
Torruella, Circuit Judge,
Stahl, Senior Circuit Judge,
Lynch, Lipez, and Howard, Circuit Judges.
ORDER OF COURT
Entered: February 29, 2008
64a
Pursuant to First Circuit Internal Operating
Procedure X(C), the petition for rehearing en banc
has also been treated as a petition for rehearing
before the original panel. The petition for rehearing
having been denied by a majority of the panel of
judges who decided the case and the petition for
rehearing en banc having been submitted to the
active judges of this court and a majority of the
judges not having voted that the case be heard en
banc, it is ordered that
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