ADA Decisions, Winnie Tunison, Plaintiff v Continental Airlines, Inc, Defendant., 5 ADD ¶5-173, (Jul. 31, 1997)

[Statement of Case]

Attridge, Magistrate Judge: On August 8, 1996, plaintiff Winnie Tunison, a deaf, blind woman traveled on a Continental Airlines flight from Washington, D.C. to Newark, New Jersey en route to Providence, Rhode Island unaccompanied by any attendant. At Newark, Ms. Tunison was required to change airplanes. She was met at the Newark arrival gate by Continental Gate Agent Melissa McCarthy and escorted to the departure gate for the Newark to Providence portion of her journey. Ms. Tunison and Ms. McCarthy were able to communicate by means of sign language, which Ms. Tunison had learned before she became sightless. Ms. McCarthy helped seat and orient Ms. Tunison with respect to her location on the airplane and conveyed to her a safety briefing. Beth Walls, the senior or first flight attendant became concerned that she may not be able to assist Ms. Tunison in the event of an emergency. She informed the aircraft captain, Jeffrey Peterson, of the presence of a deaf, blind passenger and of her safety concerns. Based upon what he believed he was informed by Ms. Walls, and after review of the applicable portions of the on-board Operations Manual, Captain Peterson determined that Ms. Tunison required an assistant. Ms. Tunison disputed this decision; nevertheless, at the captain's request, arrangements were made by Continental for an unassigned flight attendant to accompany Ms. Tunison on the flight from Newark to Providence at Continental's expense. On arrival at Providence, Captain Peterson met the captain of the return flight and discussed the status of Ms. Tunison with him. On Ms. Tunison's return to Washington from Providence some two weeks later, she was informed that Continental required that she be accompanied by an attendant or assistant. Since Ms. Tunison disputed the need for such assistance, Continental again provided an assistant at its expense as required by federal regulation. 14 C.F.R. §382.35.

Ms. Tunison seeks compensatory and punitive damages as well as declaratory and injunctive relief for violations of the Air Carrier's Access Act (ACAA), 49 U.S.C. §41705, for violations of the regulations implementing the Act and for breach of an oral contract. [1] Continental Airlines has moved to dismiss the complaint or in the alterative for summary judgment. Since Continental relies on matters outside the pleadings, “the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56”. FED. R. CIV. P. 12(b).

Rule 56 directs the entry of judgment if the pleadings, depositions, answers to interrogatories, admissions and affidavits together with all reasonable inferences from that evidence viewed in the light most favorable to the non-movant show no genuine issues as to any material fact. FED. R. CIV. P. 56(c).

Discussion

The ACAA

The ACAA prohibits an air carrier from discriminating “against an otherwise qualified individual on the following grounds:

(1) the individual has a physical or mental impairment that substantially limits one or more major life activities.

(2) the individual has a record of such an impairment.

(3) the individual is regarded as having such an impairment.”

49 U.S.C. §41705.

Although the ACAA does not specifically provide for a private right of action, the defendant has not raised this issue. Moreover, those circuits that have considered this issue have uniformly held that a private cause of action does exist under the ACAA. Shinault v. American Airlines. Inc., 936 F.2d 796, 800 (5th Cir. 1991); Tallarico v. Trans World Airlines. Inc., 881 F.2d 566, 570 (8th Cir. 1989). Therefore, based on the reasoning of the 5th and 8th Circuit cases and in the absence of any argument to the contrary, the Court will presume that the ACAA does provide the plaintiff with a private cause of action for damages for its violation.

The Court, in consideration of the evidence presented viewed in a light most favorable to the non-movant plaintiff, concludes that genuine issues of material fact exist as to whether the defendant violated the Act and its implementing regulations so as to preclude the entry of judgment on the issue of liability. The existence of disputed material facts also precludes the entry, as a matter of law, of a judgment declaring that Continental discriminated against Ms. Tunison in violation of 42 U.S.C. §41705 and its implementing regulations. The Court further concludes that the evidence of record is insufficient to support a claim for punitive damages. Last, the Court declines to exercise its equitable jurisdiction to grant the requested injunctive relief.

Punitive Damages

Traditionally, punitive damages have been recoverable in the discretion of the fact finder when a plaintiff proves reckless disregard or callous indifference to an individual's federally protected right. Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 1640, 75 L.Ed.2d 632 (1983). Moreover, “evidence that suffices to establish an intentional violation of protected civil rights also may suffice to permit the jury to award punitive damages”. Kolstad v. American Dental Ass'n, [70 EPD ¶44,622] 108 F.3d 1431, 1438 (D.C. Cir. 1997)(internal citations omitted)(emphasis added). However, not every intentional violation of a federally protected right will sustain an award of punitive damages. Id. For example, as in the present case, when the airline does not deny that it acted intentionally but defends on the grounds that it did not act unlawfully but acted out of consideration of the safety for the plaintiff, her fellow passengers and the crew, and when, as in the present case, there is no evidence that the respective aircraft captains acted wantonly or out of malice or in reckless disregard of a federally protected right, punitive damages may not lie. Id. at 1438, 1439; accord Shinault, 936 F.2d at 805; Tallarico, 881 F.2d at 571, 572.

In deciding whether the issue of punitive damages should be submitted to a jury for its consideration, the Court must make an initial assessment of the evidence to determine “whether evidence sufficient to support a finding of intentional discrimination also suffices to instruct the jury on punitive damages”. Kolstad, 108 F.3d at 1439. A review of the undisputed facts leads to the conclusion that the evidence is insufficient to allow a jury to find that Continental acted with malice, wantonness or in reckless disregard of a federally protected right of the plaintiff. The plaintiff concedes that she had traveled on at least two prior Continental flights including the Washington to Newark leg of her August 8,1996, flight before encountering the requirement, as she puts it, of having a “baby sitter.” Whether, in the instances about which the plaintiff complains, the captains acted wrongly, that is negligently rather than unlawfully, depends on what information the finder of fact believes was conveyed to the pilots that led to the conclusion that safety considerations required Ms. Tunison to have an assistant. In matters of safety, the captain's decision may not be overruled. 14 C.F.R. §91.3 and §382.65(a)(5)(i). While this evidence of record may be sufficient to permit a jury to find Continental's negligent acts may have led to the discriminatory treatment of the plaintiff and therefore to a violation of 49 U.S.C. §41705, the evidence with respect to the issue of punitive damages is insufficient to support any finding that Continental, its aircraft captains, or its flight attendants acted out of malice, wantonness or in reckless disregard of Ms. Tunison's statutorily protected right.

The plaintiff also alleges that Continental maintained a policy of discriminatory treatment of deaf, blind passengers by requiring that such passengers be accompanied during flight with an assistant. The undisputed facts fail to support such a theory with respect to the issue of punitive damages. Moreover, in light of the experiences that the plaintiff had with Continental, it appears that Continental had no fixed policy on this issue. While such evidence may support a claim for compensatory damages, it is not sufficient to allow a jury to consider the imposition of punitive damages. Accordingly, the defendant's motion for summary judgment on the issue of punitive damages will be granted.

Injunctive Relief

The plaintiff urges the Court to enter an order requiring Continental to revise its policies and practices which the plaintiff claims violate the ACAA regulations.

The Court declines to exercise its equity jurisdiction to enter a mandatory injunction against a single airline based on fact-specific incidents that potentially involve the safety of airline passengers and its crew. The Court is of the belief that the Department of Transportation is in a better position to evaluate specific complaints and, if it finds it appropriate, to assess civil penalties for violations of its antidiscriminatory regulations. 49 U.S.C. §46301. And, if civil penalties are ineffective to assure compliance, the Secretary is further authorized to revoke any part of a carrier's operations certificate for intentionally discriminating against qualified handicapped passengers. 49 U.S.C. §41110(2)(B). Thus, the Secretary has ample tools to address any failure of an airline carrier to comply with its regulations.

Moreover, the Department of Transportation is in a much better position of evaluating individual complaints of discrimination to determine if global remedies should be imposed to further implement, refine or augment existing regulations so as to attain the legislative goal of indiscriminate transportation of qualified handicapped passengers regardless of the nature of their handicap. Accordingly, the plaintiff's request for injunctive relief will be denied.

An appropriate order accompanies this memorandum.

Upon consideration of the defendant's motion to dismiss or in the alternative for summary judgment, the opposition, reply, the applicable law, the entire record and for the reasons stated in the accompanying memorandum, it is this 31st day of July 1997:

ORDERED that the motion is granted in part and denied in part. Summary judgment is hereby entered in favor of the defendant Continental Airlines on the plaintiff's claim for punitive damages. The defendant's motion for summary judgment is denied in all other respects.

FURTHER ORDERED that the plaintiff's request for injunctive relief is denied.