Cerqueira v. American Airlines, Inc.

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.

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

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 LYNCH, Circuit Judge. An airline passenger, John

Cerqueira, filed suit asserting that his removal from a flight

violated his rights under 42 U.S.C. § 1981 to be free of race

discrimination in contracting. He recovered compensatory damages

of $130,000 and punitive damages of $270,000 against American

Airlines ("American" or "AA"), which on December 28, 2003, refused

to transport Cerqueira on a flight and to rebook him on another

flight. His discrimination claim was made against the statutory

permission granted to airlines, in 49 U.S.C. § 44902(b), to refuse

to transport a passenger "the carrier decides is, or might be,

inimical to safety." The issues raised are of first impression in

this circuit.

The district court failed to instruct the jury on the

statutory permission to air carriers to remove passengers under

§ 44902(b); it also gave instructions inconsistent with that

statute and which were otherwise in error. We thus vacate the jury

verdict in favor of the plaintiff.

We also conclude that no properly instructed jury could

return a verdict against the air carrier and therefore the district

court should have granted American Airlines's motion for judgment

notwithstanding the verdict. We remand with instructions to enter

judgment for American Airlines.

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 I.

The facts of this case center on AA Flight 2237,

scheduled to fly from Boston's Logan Airport to Fort Lauderdale,

Florida on December 28, 2003.

We recite the facts from particular perspectives: that of

the Captain of the aircraft and of the person who within minutes

that same morning decided not to rebook the plaintiff, based on the

information known to them. We explain below why the law compels

this perspective. The exact sequence of events is not entirely

clear from the record; however, the information described was known

in full detail to the Captain when he made the decision not to

transport the plaintiff and in summary to the other decisionmaker.

There is no material dispute of facts about the information before

the decisionmakers.

A. Removal from Flight

The Captain of AA Flight 2237 has worked for AA since

1986, starting as a flight engineer; in 1988, he became an FAA-

designated instructor; around 1989, he was promoted to co-pilot;

and in 1996, he was promoted to the position of Captain. He

testified that he has flown hundreds of flights, and that he had

had security problems at Logan Airport before and dealt with them

in the same way as he dealt with the situation at issue here.

Around 6:00am on December 28, 2003, approximately 35

minutes prior to the scheduled departure, the Captain of Flight

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2237 was walking to the departure gate. A man with a ponytail

approached the Captain and asked him if he was the Captain for the

Fort Lauderdale flight. The Captain initially thought that the

passenger was reporting a problem and so he responded that he was

the Captain for the flight. The passenger said, "Good. I'm going

with you. We're going to have a good day today." The passenger

then immediately left the area; the Captain continued to the gate.

The Captain was greatly concerned about this exchange: he testified

at trial that "it [was] probably one of the most odd exchanges that

I've ever had with anyone in my entire career, and it concerned me

greatly."

After the passengers boarded, the Captain, in the

cockpit, spoke by telephone with Flight Attendant Two in the rear

of the plane.1 He asked her to check on the location of the man

with the ponytail and whether she "had any other concerns that she

could see with this particular passenger." The Captain agreed at

trial that he must have described the man to her but did not recall

the exact description. [The flight attendants described the man

with the ponytail as having a heavy accent.]

Flight Attendant Two checked and returned to the Captain

with information that the man with the ponytail was sitting with

1
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.

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two other men in Row 20, an emergency exit row. The plaintiff,

seated by the window, was one of those men.

The location of the man with the ponytail in an exit row

concerned the Captain. The emergency exit row location is

important to safety because the exit rows are critical if the

aircraft needs to be evacuated. Passengers sitting in the exit

rows need to meet specific regulatory criteria, 14 C.F.R.

§ 121.585(b), which among other things require them to follow the

instructions of crew-members and assist other passengers in

evacuating the aircraft.

Flight Attendant Two told the Captain that she perceived

the man in the ponytail was traveling with the two other men in the

row, one of whom was the plaintiff.2 Regardless, the Captain said

it was not important from his perspective whether or not the three

men were traveling together: "[I]f people are trying to harm the

aircraft or anyone on board, they might be traveling together, they

might not be traveling together."

Flight Attendant Two also expressed her concerns to the

Captain about the plaintiff. She described an incident she had

2
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."

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with the plaintiff in the terminal. She told the Captain that this

passenger, the plaintiff, had been hostile to her.3

Specifically, she reported to the Captain that prior to

boarding she had been approached by the plaintiff in the gate area.

He was "very hostile and extremely insistent that his seat be

switched to an exit row seat." She explained to the plaintiff that

she was a flight attendant and not a gate agent and asked him to

take a seat until someone could help him. She said that the

plaintiff "continued to stare at her and sat down right close to

the gate. . . . [T]he entire time that she worked at the gate he

was just sitting there staring at her, making her extremely

uncomfortable."4

She also told the Captain that this passenger boarded the

plane into his coach class seat when only the first class

passengers were called to board, and that the plaintiff immediately

went to the bathroom for an extended period of time. The Captain

was concerned about the plaintiff's early use of the lavatory

because it is a very insecure area in which a bomb may have been

3
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."
4
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.

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placed. He requested the co-pilot on the flight check the

lavatory. The co-pilot did so and found nothing.

Flight Attendant Four went to the Captain5 with her

independent concerns about the three men in Row 20. She reported

to the Captain that during (and after) the safety briefing for

those seated in exit rows, two of the three passengers in Row 20

were acting very bizarrely and asking questions such as "Is this

how you want me to do it?"

She reported that after the briefing, one of the three

passengers in Row 20 had pressed the flight attendant call light.

Although Flight Attendant Four was upset by their earlier behavior,

she went to answer the call light. The two men started in again,

laughing, and one asked her, "Where do you want me to put the

door?" She testified that no one "acts like this during an exit

row briefing. This is a serious safety briefing." She observed

the plaintiff, who was leaning forward and watching the other two

passengers: "[H]e wasn't laughing outright but he had this smile

on his face like he found it very amusing." She added, "I don't

think the other passengers [on the plane] found it amusing when

we're talking about a safety issue." She went up front to the

5
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.

-8-
cockpit to report this to the Captain because the behavior "was so

unusual and . . . somewhat frightening."

Flight Attendant Four was anxious and disturbed about

what was happening. Her concerns went to all three men in the row.

She thought they were together because the plaintiff had

specifically requested the seat he occupied and because, she

thought, he would more likely find their conduct to be amusing (as

he appeared to do) and not take their conduct seriously if the

three were friends.

Flight Attendant One also had observed that when the man

with the ponytail boarded the plane, he had looked into the cockpit

and asked the Captain, "Are you our Captain?" Both the Captain and

Flight Attendant One thought this strange. The Captain thought it

strange because he had already spoken with this man in the terminal

and confirmed he was the Captain. Flight Attendant One thought it

strange because it was obvious that he was the Captain given his

location right next to the cockpit door.

In addition, Flight Attendant Two told the Captain of

separate concerns that the plaintiff had an "obvious interest in

flight attendant duties; someone might call it staring." This

worried the Captain, as undue interest from a passenger in the

flight attendants' conduct can trigger a safety concern.

As a result of all of these events, the Captain convened

a meeting of the flight crew on board the aircraft to discuss

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everyone's concerns and determine which course of action -- either

leaving as scheduled or delaying the flight to investigate further

-- was the most appropriate. The plane had been boarded by then

and the jetbridge had been removed.

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" manner. 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,

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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 notified 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 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] concerns." 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 addition, the Captain had a ten-minute conversation with

his superior, an off-site "chief pilot on duty," who offered to

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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 experience with the man 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 that

the flight attendants were uncomfortable with the flight departing.

The Captain was particularly concerned with the report of Flight

Attendant Two that both the plaintiff and the man with the ponytail

"seemed extremely interested in the duties" of two of the flight

attendants.

After the three men were removed for questioning 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 checkpoint. Once he heard the

report, the Captain questioned 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 different flight that morning.

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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 passenger, who were not

traveling together, who had concerns about passengers in the exit

row; passengers who were becoming very nervous." The Captain

testified, "And I remember one woman, with two 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 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 Massachusetts 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

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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.6 Also during this period, the State Police troopers

conducted lengthy interviews with passengers who had observed what

the Captain called the "suspicious 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 conversations 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

6
Thus, the flight attendants decided they would not
continue on the trip before they knew whether the plaintiff would
be a passenger should the flight continue.

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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 report, which he filed with

the company. Pertinently, 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
passengers 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 passengers 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 plaintiff's appearance. The

plaintiff was seated in 20F, a window seat which is not visible to

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the Captain from the front of the plane.7 The Captain flatly

denied that the plaintiff's ethnic appearance had anything to do

with his decision to remove plaintiff from the flight:

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 together. 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
passengers concerned. I would have been
derelict in my duty to ignore those concerns
and depart with that flight.

I fly hundred of flights. I fly the equivalent
of a flight every day. I fly thousands of
passengers -- all races, all religions --
every day. I've had other security problems
at Logan Airport and they're dealt with the
same way. I would do everything 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 whether a

passenger who had been removed from a plane for questioning could

7
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.

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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 and

those involved with the investigation 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

customer 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. Refund ticket . . . Do not rebook

on AA."

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 afternoon flight available, but that she

was not authorized to make a decision to rebook. Approximately

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twenty to thirty minutes later, the customer service manager who

had spoken to the SOC manager came to the ticket counter. The

customer service manager asked for the plaintiff's 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.8 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 and 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.

8
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.

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 Nine days after the incident, on January 6, 2004, the

plaintiff received a response from a customer 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 Discrimination ("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.9

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 plaintiff's case in chief, AA

9
He amended his complaint a month later to remove all of
the individual defendants, leaving only American Airlines.

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moved for judgment as a matter of law. The district court denied

the motion. AA renewed its motion at the close of all the

evidence, 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 notwithstanding 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 discriminatory 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

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found that its jury instructions did not constitute 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,10 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.

III.

This case does not involve any claim of constitutional

right on the part of the plaintiff, in which the power of Congress

is constrained by the Constitution. Rather, the case involves only

the intersection of various statutes, which articulate competing

policy concerns.

As a matter of federal policy, under the Federal Aviation

Act, "assigning and maintaining safety [ranks] as the highest

10
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, National Association for
the Advancement of Colored People, and Puerto Rican Legal Defense
Fund.

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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).11 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 1961,12

Congress mandated air carriers to refuse to transport passengers

and property where a passenger does not consent to a search of his

person or property for dangerous weapons, explosives, or

destructive substances. In addition to mandating that some

11
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.
12
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
Stat. 1204 (1994).

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passengers be refused transport, Congress also authorized, at

subsection (b), air carriers to engage in "permissive refusal":

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.

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 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

passenger or property is inimical to safety; the authorization

extends to situations in which the carrier decides 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

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it be subject to regulations of the Under Secretary of

Transportation for Security.

In turn, the Under Secretary has not promulgated

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 aircraft.

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.13 The 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 entertained actions involving § 44902(b)

brought under other general statutes which prohibit discrimination,

13
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 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.

-24-
such as § 1981 and Title VI of the Civil Rights Act.14 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. Department 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

the same.15 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 (1st Cir. 1994). Congress

14
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 qualify 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.
15
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 (5th Cir. 1989). The resolution of
this case on other grounds means we do not reach the preemption
questions.

-25-
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 defense16: the statute is an affirmative 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

16
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 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.

-26-
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 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

permissive 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.

-27-
 Thus, in evaluating whether a decision to refuse

transport is arbitrary or capricious,17 the following principles

apply:

(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 air carrier. The

congressional intent in providing permission for air carriers to

refuse transport because 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 is

restricted to what information was actually known by the

decisionmaker at the time of the decision. The test is not what

the decisionmakers reasonably should have known. Courts have

routinely refused to permit consideration of information not

17
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 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. 1979)); 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).

-28-
actually known to the decisionmakers. 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 Captain (or other decisionmaker) to make a thorough

inquiry into the information 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 provided. See Williams, 509 F.2d at 948; see also

Cordero, 681 F.2d at 672 (recognizing that the decision 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 Al-Qudhai'een, 267 F. Supp.

-29-
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.

A. Error in Refusal To Instruct on § 44902(b)

We review jury instructions de novo, recognizing that

properly preserved objections to the omission 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 American's decision to remove the plaintiff . . . was based

-30-
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 capricious' . . . ."

(4) "[Y]ou must review all of the facts known to [the

Captain, the SOC manager,] and the Massachusetts 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 representations 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."

-31-
 Each of these instructions accurately states the law.18

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 to 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 information 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 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 requested instructions;

nonetheless, the court erroneously 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

18
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.

-32-
the error. Further, these instructions were themselves based on

error.

The court did instruct that the jury was "entitled 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 mandated 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 instructional error is not a matter of

mere wording. The omitted instructions 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 omissions to give the correct

-33-
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 a company. . . .
Companies are people and they're bureaucracies
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 . . . if you think they're
acting within the scope of their employment
and they're doing what they are doing as
employees of American Airlines, then that
conduct is attributed to American Airlines.

(2) that it could find for the plaintiff if it concluded

that a lower-ranking American employee, 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 perception 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:

-34-
 [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, your verdict must be for
American Airlines.

The court, in its written opinion denying American'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 instruction 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

capricious. 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, let

alone that their decisions to refuse to transport a passenger,

which were made under time pressure, were based on any

discriminatory animus. The decision not to reboard the plaintiff

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 appearance, 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.

-35-
 The SOC manager, who was in Dallas, based his decision,

made that same morning and within minutes, not to rebook the

plaintiff on information about the situation, specifically all of

the security concerns that formed the basis of the Captain's

decision relayed to him from Boston. There is no evidence that any

of the security concerns which made the Captain's decision

appropriate had been proven unfounded by the time the SOC manager

decided that morning to deny rebooking. Further, there is no

indication that the SOC manager was aware of the plaintiff's

appearance, race, or ethnicity.

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-discrimination. 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 court: (1) that

instructions from Title VII employment 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

-36-
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 VII; it arose under § 198119 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 transport 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 an air carrier 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 plaintiff's burden to show the

decision was arbitrary or capricious. The test we have outlined

under § 44902(b) is inconsistent with the use in Title VII cases of

19
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).

-37-
prima facie case methodology and the burden-shifting test. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).20

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 Captain's bias but on any

employee of the airline involved in providing information to the

decisionmakers. (We discuss this error further.) The instructions

also erroneously appeared to equate acting based on any perceptions

of a person's race or ethnic heritage with illegal discrimination.

Race 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. 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.)

20
The district court in Dasrath, without explanation, did
use the McDonnell Douglas model, in our view incorrectly. 467
F. Supp. 2d at 445.

-38-
 We return to the deemed attribution problem with the

instructions. Not only is that type of instruction flatly

inconsistent with § 44902(b), it was not justified either by

reference to the Restatement (Second) of Agency ("Restatement") or

under Cariglia.

Even in interpreting Title VII, the Supreme Court has not

adopted Restatement § 219 principles 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 superior doctrine to impose

liability on an air carrier based 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 generally21 and we

need not do so here.

21
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 to impute
liability to an employer, an employee's actions must be "within the
scope of his or her duties"); Restatement § 219(1).

-39-
 The district court also erroneously invoked another

doctrine from employment law, which has no applicability on the

facts here. In Cariglia, this court recognized that under the

Massachusetts state employment discrimination statute, liability

may be found where (a) a discriminating subordinate (b) causes the

firing of a plaintiff by (i) intentionally giving false information

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 87-88.22 This theory was applied to a state

employment 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.23 The Captain consulted with State

22
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.
23
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

-40-
Police and TSA personnel; it was the State Police who told the

Captain that the plaintiff would not reboard the aircraft for the

flight. The State Police had spoken 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 plaintiff's 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 defendant.

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 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.

-41-