Abdallah v. Mesa Air Grp., Inc.

83 F.4th 1006

Issam ABDALLAH; Abderraouf Alkhawaldeh, Plaintiffs—Appellants, v. MESA AIR GROUP, INCORPORATED, a Nevada Domestic Corporation;Mesa Airlines, Incorporated, a Nevada Corporation, Defendants—Appellees.

No. 22-10686

United States Court of Appeals, Fifth Circuit

FILED October 13, 2023

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:21-CV-540, Reed Charles O'Connor, U.S. District Judge

Lena F. Masri, Hannah Mullen, Justin Sadowsky, Council on American-Islamic Relations, Washington, DC, for Plaintiffs-Appellants.

Steven Dominic Sanfelippo, Michael Ross Cunningham, Esq., Bryan Scott David, Cunningham Swaim, L.L.P., Dallas, TX, for Defendants-Appellees.

Before King, Smith, and Elrod, Circuit Judges.

Jerry E. Smith, Circuit Judge:

On an otherwise-ordinary Mesa Airlines flight from Birmingham to Dallas Fort Worth International Airport, a flight attendant grew concerned about two passengers: plaintiffs Issam Abdallah and Abderraouf Alkhawaldeh. She alerted the pilot, who, despite the reassurance of security officers, delayed takeoff until the flight was canceled. The passengers were told the delay was for maintenance issues, and all passengers, including the two in question, were rebooked onto a new flight that reached DFW. After learning the real reason behind the cancellation, plaintiffs sued Mesa under 42 U.S.C. § 1981. The airline countered that it had immunity under 49 U.S.C. § 44902(b), which allows an airline to remove a passenger it fears "is, or might be, inimical to safety," and 49 U.S.C. § 44941(a), which grants immunity to airlines for statements made to security officers regarding potential safety threats. The strange fact pattern—namely, that all passengers had their flight canceled—raises several issues of first impression for this circuit: Whether such conduct constitutes disparate treatment under § 1981, whether a § 1981 claim can exist without a "breach" of contract, and whether § 44902(b) grants immunity to airlines for allegedly discriminatory decisions, thereby negating § 1981's application against airlines in this context.

Because plaintiffs have established genuine disputes of material fact, we reverse the summary judgment.

I.

Plaintiffs bought their tickets from American Airlines; the flight was operated by Mesa. Both plaintiffs are United States citizens and frequent fliers of American: Abdallah held Gold status, and Alkhawaldeh held Executive Platinum status. Both are "members of a racial and national origin minority group[ ] as Egyptian and Jordanian and members of the Arab, Middle Eastern and Muslim communities."

Abdallah boarded first. After he found his seat, another passenger asked him to move, thinking Abdallah's seat was his. Later, Abdallah asked Diana Trujillo, a flight attendant, whether he could move to an empty seat in the exit row. She agreed. When she later recited the exit-row instructions to him, Abdallah interrupted to "preemptively agree to assist in an emergency." Plaintiffs say that this was because Abdallah was a frequent flier, had heard those instructions many times before, and was ready to rest. Defendants state that Trujillo had never experienced that before.

Separated from Abdallah and not yet on the plane, Alkhawaldeh was upgraded to first class because of his Executive Platinum status. He visited the restroom in the terminal, then asked the gate agent whether he could use his status to upgrade Abdallah as well. After his request was denied, he was the last to board the plane. Defendants found this "unusual" and contend that most first-class passengers board early to enjoy the first-class amenities. As Alkhawaldeh boarded, he gave the flight crew a package of chocolates that he had bought from a store in the airport. He placed his luggage into the overhead compartment, waved at Abdallah, and sat down. Trujillo found the wave to be "odd" but was unable to explain how it was different from a standard wave of the hand.

Trujillo became more concerned about plaintiffs. The passenger¹ who had mistakenly asked for Abdallah's seat told her that Abdallah had bullied him and asked for an explanation as to why Abdallah had moved to the exit row. The passenger then told Trujillo to report Abdallah to the captain as a security threat.

Trujillo had not seen the interaction between Abdallah and the passenger, and she had been a flight attendant for less than a year. She stated she felt "scared," so she alerted the captain of the passenger's suspicions, Abdallah's move to the exit row, his "premature acceptance of his exit-row responsibilities," and his wave to Alkhawaldeh. Hermon Hewitt, the captain,² asked Trujillo whether she was confident, to which Trujillo responded that her gut had "never been wrong."

Hewitt then spoke with the gate agent, American's Ground Security Coordinator, Mesa's flight supervisor, dispatch, the Transportation Security Administration ("TSA"), and other law enforcement, telling them of her concerns and asking for help deplaning. India Smith, the Ground Security Coordinator, reported that Hewitt had "expressed heavily that . . . 'she is not flying this plane with a brother name[d] Issam on it,' after consistently bringing up what she presumed to be their racial ethnicity as Arabic, Mediterranean," and "was extremely ad[a]ment about the two passengers not flying . . . [be]cause of their names."³ Smith asked Trujillo to explain the suspicious hand gesture, but Trujillo "could not tell [her] or show [her] the hand gestures that were made to make her feel uncomfortable." Ultimately, Smith concluded that based on plaintiffs' flight histories, calm demeanor, and reasonable actions, there was no safety risk. The ground crew did a full search of the aircraft and instructed the crew to dump the lavatory waste, allegedly to "reassure Captain Hewitt and the flight crew."

The flight crew informed passengers that the flight was delayed for maintenance issues. Plaintiffs were observed to be texting "on their phones in a different language." Abdallah "quickly" got up to use the bathroom. The same passenger (or passengers, according to defendants) who had previously complained about Abdallah flagged Trujillo down to ask why he had "run to the bathroom," noting that the incident occurred right after an announcement that all passengers should remain in their seats. Trujillo stood outside the door of the bathroom and listened to the sound of "liquid . . . being poured" into the lavatory, interrupted by "multiple flushes." She found that suspicious but could not distinguish between those sounds and the sound of urination.

Despite the recommendations of ground security, Hewitt unilaterally delayed takeoff until the 90-minute mark (at which point passengers would have to deplane). She stated that she was suspicious because Osama bin Laden's son had just been assassinated by the U.S. Government, and she was fearful of 9/11. The passengers all deplaned. Later, Alkhawaldeh heard a flight attendant telling a passenger that the flight was canceled for security concerns.

As plaintiffs stood in line to reschedule their flights, a plainclothes officer came to interrogate them. Other uniformed and plainclothes officers were also following and surveilling them. Finally, as they waited at their gate for their rescheduled flights, an FBI agent and uniformed police officer asked Alkhawaldeh to come into a private room for questioning. Alkhawaldeh refused questioning without a lawyer but handed over his identification and luggage for a search. The agent also asked to question Abdallah, who consented. Eventually, plaintiffs flew on their rebooked flights to their ultimate destination.

In short, the flight attendant—allegedly for discriminatory reasons—became concerned that the two were a safety concern and alerted the captain of the potential threat. The pilot, also for allegedly discriminatory reasons, ignored the recommendations of security agents and made the decision to cancel. The two passengers were not made aware of any safety concerns while on the flight, and they were treated exactly the same as the nonminority passengers: They were rebooked on a different flight to their eventual destination. The conditions of carriage for their tickets allowed for such re-bookings and stated that the scheduled flight time was not a part of the contract.

II.

Plaintiffs sued Mesa and American for racial and national-origin discrimination under 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964. They then voluntarily dismissed all their claims except for the § 1981 claim against Mesa. The district court denied Mesa's motion to dismiss the remaining claim, holding that plaintiffs had alleged facts sufficient to permit a plausible inference that the stated security rationale was pretextual and that Mesa could not prove its entitlement to immunity under 49 U.S.C. § 44902(b).

Later, however, the district court granted Mesa's motion for summary judgment, concluding that plaintiffs could not survive on their § 1981 claim because they had not identified "a specific contract term" that Mesa had breached and because there was no "differential" treatment as applied to the contract terms (because all passengers were ordered to deplane, suffered a delay, and were reboarded and reached their destination). All "differential treatment," said the court, was "attributable to TSA, the FBI, or other airport security." Finally, the court held that Mesa was entitled to § 44902(b) immunity because Mesa "successfully show[ed] a reasonable relationship between the facts before the captain and her decision to deplane," and to § 44941(a) immunity over communications between the airlines and the security staff.

Plaintiffs appeal the summary judgment as to their § 1981 claim and the finding of immunity under § 44902(b).

III.

We review a summary judgment de novo, "viewing all the facts and evidence in the light most favorable to the non-movant." Badgerow v. REJ Props.,...