Two men flying from Birmingham, Alabama, to Dallas who had their flight delayed and subsequently canceled because of what they allege was racial profiling by a flight attendant and pilot will have another chance to sue the airline after the Fifth Circuit on Friday revived their claims.
A three-judge panel issued an 18-page opinion determining that disputed fact issues in the lawsuit brought by Issam Abdallah and Abderraouf Alkhawaldeh should have precluded U.S. District Judge Reed O’Connor from granting Mesa Airlines an early win in the case.
Abdallah and Alkhawaldeh, both frequent American Airlines fliers, purchased their tickets through AA and Mesa operated the flight back to the Dallas Fort Worth International Airport. The men, who hold gold and executive platinum status with AA, respectively, allege their flight was initially delayed after a flight attendant “grew concerned” about their presence on the plane and told the pilot.
Despite the reassurances of security officers, the pilot delayed takeoff until the flight was canceled, according to the opinion, causing everyone on board to deplane and rebook a different flight to DFW.
“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,” the panel wrote. “Because plaintiffs have established genuine disputes of material fact, we reverse the summary judgment.”
Abdallah first raised the suspicions of another passenger when the other passenger tried to get Abdallah to leave his assigned seat, mistakenly thinking it was assigned to him.
Suspicions grew, according to the opinion, after Abdallah then asked flight attendant Diana Trujillo if he could move to the exit row. After allowing him to move, Trujillo was interrupted by Abdallah — a frequent flier who was familiar with the script — while giving instructions about assisting in an emergency to passengers seated there.
“Defendants state that Trujillo had never experienced that before,” according to the opinion.
Alkhawaldeh, who was the last to board the plane, was upgraded to first class because of his executive platinum status. According to the opinion, Mesa alleges it was “unusual” for a first-class passenger to board last.
Trujillo’s suspicions were raised again, according to the opinion, after Alkhawaldeh waived to his friend, Abdallah, and then 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,” according to the opinion.
The passenger who had mistakenly tried to take Abdallah’s assigned seat then told Trujillo to report Abdallah to the captain “as a security threat” and alleged he had been bullied by Abdallah.
“[Trujillo] 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,” the opinion states.
The captain, Hermon Hewitt, who the opinion notes is a woman from Eritrea and is of “Middle Eastern descent,” took Trujillo’s concerns to a gate agent, the ground security coordinator, Mesa’s flight supervisor, dispatch, the TSA and other law enforcement, and sought 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,’” according to the opinion. “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.”
A full search of the aircraft was conducted and the plane’s lavatory waste was also emptied in an attempt to “reassure Captain Hewitt and the flight crew,” while passengers were told the delay was because of maintenance issues.
But the allegedly suspicious conduct of Abdallah and Alkhawaldeh continued.
According to the opinion they were observed texting on their phones in a language that wasn’t English and Abdallah “quickly” got up to use the bathroom after passengers were told to 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,’” according to the opinion. “She found that suspicious but could not distinguish between those sounds and the sound of urination.”
Despite reassurances, Hewitt unilaterally delayed the flight until the 90-minute mark that would require passengers to deplane.
“[Hewitt] 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,” according to the opinion.
While in line to reschedule their flights home, Abdallah and Alkhawaldeh were approached by an FBI agent and a police officer for questioning. Abdallah consented and Alkhawaldeh refused to submit to questioning in the private room without an attorney.
Both eventually flew back to Dallas on their rebooked flights.
The men filed suit in the Northern District of Texas April 13, 2021, and originally listed American Airlines as a defendant as well. In September 2021, Abdallah and Alkhawaldeh voluntarily dismissed AA from the lawsuit.
In March 2022, Mesa, Abdallah and Alkhawaldeh told the court mediation had been unsuccessful in resolving the dispute. And the parties filed a joint report in June 2022 letting Judge O’Connor know settlement talks hadn’t been fruitful.
“The parties met face-to-face and discussed settlement of this matter. No meaningful progress was made toward settlement. The prospects of settlement are low,” they wrote.
A week after that, Judge O’Connor granted Mesa summary judgment in June 2022 and notice of appeal was filed the next month.
Judge O’Connor held that because Abdallah and Alkhawaldeh failed to point to “a specific contract term” Mesa breached, and because there was no differential treatment that would support their § 1981 claim for racial discrimination — because all passengers were forced to deplane and rebook — Mesa was entitled to summary judgment.
Any differential treatment suffered by Abdallah and Alkhawaldeh, Judge O’Connor held, was at the hands of the TSA, the FBI or airport security. The judge also found Mesa was entitled to immunity under § 44902(b) because there was “a reasonable relationship between the facts before the captain and her decision to deplane.”
The Fifth Circuit dismantled the district court’s analysis of the § 1981 claim, writing “plaintiffs have shown disparate treatment because they allege that their protected class was the but-for cause of the flight cancellation, and to survive summary judgment, plaintiffs do not need to identify a specific contractual term that was breached.”
“Defendants’ contention is that because all passengers experienced the same canceled flight, there was no disparate treatment — plaintiffs were treated the same as the non-minority passengers. But that confuses the test,” the Fifth Circuit held. “Disparate treatment can be shown by comparing one person’s experience to that of a person without the protected trait. But it can also be shown if, but for that person’s protected trait, the outcome would have been different. Plaintiffs allege that but for their protected classes (race and national origin), the flight would not have been canceled. That is an allegation of disparate treatment.”
To adopt Mesa’s argument, the court wrote, “would lead to intolerable results — would an employer avoid Title VII liability if it merely started a hiring freeze every time a black man added his name to the applicant pool?”
“Could a school fire a female employee so long as it fired a male employee as well? The Supreme Court tells us that the answer is no: The but-for reason for the action, even though it happened to those not in the protected class as well, was discrimination based on the protected class,” the panel held.
The panel wrote that every action of Abdallah and Alkhawaldeh that Mesa alleged was suspicious could also be found to be not suspicious by a jury.
“A hand wave, refusing to leave one’s assigned seat, boarding late, sleeping, and using the restroom are far from occurrences so obviously suspicious that no one could conclude that race was not a but-for factor for the airline’s actions,” the court held. “It is of course possible that a jury could find that it was not. But that is not the question before us — because ‘a reasonable jury could return a verdict for’ the plaintiffs, the dispute is genuine.”
Judges Jerry E. Smith, Carolyn Dineen King and Jennifer Walker Elrod sat on the panel.
Abdallah and Alkhawaldeh are represented by Lena F. Masri, Hannah Mullen and Justin Sadowsky of the Council on American-Islamic Relations in Washington, D.C.
Mesa is represented by Steven Sanfelippo, Ross Cunningham and Bryan David of Cunningham Swaim in Dallas.
The case number is 22-10686.