ISSAM ABDALLAH; ABDERRAOUF ALKHAWALDEH v. MESA AIR GROUP, INCORPORATED, а Nevada Domestic Corporation; MESA AIRLINES, INCORPORATED, a Nevada Corporation
No. 22-10686
United States Court of Appeals for the Fifth Circuit
October 13, 2023
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
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
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 аttendant, 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 thе 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 “prеmature 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
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 concеrns.
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 destinаtion.
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 non-minority passengers: They were rebooked on a different flight to their eventual dеstination. 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
Later, however, the district court granted Mesa‘s motion for summary judgment, concluding that plaintiffs could not survive on their
Plaintiffs appeal the summary judgment as to their
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., Inc., 974 F.3d 610, 616 (5th Cir. 2020). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
IV.
Before we reach the merits, we must deal with Mesa‘s contention that the entirety of plaintiffs’ appeal fails because it does not challenge one of the grounds of immunity found by the district court. Specifically, the district court found that two separate statutes—
Mesa is correct that the district court held that it had immunity undеr
Although
Also, statements made to security officials can be considered as evidence for other claims. Congress enacted
V.
That settled, we proceed to the merits. Plaintiffs sued Mesa under
Disparate treatment
To succeed on a
The district court held that “[p]laintiffs . . . failed to provide any evidence that they were subjected to different contractual terms than other passengers. All passengers were ordered to deplane. All passengers suffered a delay. And all passengers, including [p]laintiffs, were boarded on the same later flight and reached their destination together.” On appeal, defendants point out that plaintiffs “admitted they did not have any interactions or incidents with Mesa employees other than the usual interactions that accompany boarding an aircraft” and “were never treated differently than any of the other passengers.” The contention is that because all passengers experienced the same flight cancellation, no disparate treatment occurred, so plaintiffs’
We disagree. The “simple test” for determining whether disparate treatment has occurred is “whether the evidеnce shows treatment of a person in a manner which but-for that person‘s [protected characteristic] would be different.” City of L.A., Dep‘t of Water & Power v. Manhart, 435 U.S. 702, 711 (1978) (internal quotation marks and citation omitted). Disparate treatment for a Title VII claim “is established whenever a particular outcome would not have happened ‘but for’ the purported cause. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.” Bostock v. Clayton County, 140 S. Ct. 1731, 1739 (2020) (citation omitted).8
Defendants’ contention is that because all passengers experienced the same сanceled flight, there was no disparate treatment—plaintiffs were treated the same as the non-minority passengers. But that confuses the test. 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.
Defendants counter with James v. American Airlines, Inc., 247 F. Supp. 3d 297, 304 (E.D.N.Y. 2017), and Trigueros v. Southwest Airlines, No. 05-CV-2256, 2007 WL 2502151, at *4 (S.D. Cal. Aug. 30, 2007), each of which compared the experience of the plaintiff (a racial minority) to that of a white passenger on the same plane. Those cases are out of circuit and not precedential for us. But, regardless, they do not contradict our holding: In each, the court found disparate treatment when it compared a person with the protected trait to someone without the protected
To hold otherwise 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? Cоuld 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.
Breach of contract
The district court also held that plaintiffs had not made out a
Defendants reiterate this theory on appeal. Their reasoning appears to be that if a party to a contract decides to invoke a discretionary term of the contract for discriminatory reasons,
To succeed on a
Our conclusion is reinforced by the provision‘s statutory history. Originally,
Less than two years later, Congress addеd the expanded definition to
This circuit has similarly interpreted
Defendants make two suggestions to the contrary, neither of which is persuasive. First, they suggest that Fadeyi does not matter because it was an employment case. But that is a distinction without a difference. We have no cases holding to the contrary in non-employment situations, and further, nothing in Fadeyi limits its holding to employment.
Second, defendants suggest that Domino‘s Pizza, Inc. v. McDonald, 546 U.S. 470 (2006), overruled Fadeyi. They point to one line taken out of context: “Section 1981 plaintiffs must identify injuries from a racially motivated breach of their own contractual relationship, not of someone else‘s.” Id. at 480. In isolation, that statement does suggest that a
Moreover, defendants’ reading of the line makes it inconsistent with our casеlaw more broadly. We know that the text of
Again, interpreting
VI.
The district court held that even if the plaintiffs had made out a
Guided by those other circuits, the district court read a reasonableness limitation into the statute and found Mesa‘s decision to cancel the flight not to be arbitrary and capricious. In doing so, the court implied that Mesa had sufficient non-racially-motivated reasons to delay the flight, but the court did not address the interaction of
On appeal, plaintiffs contend that “[s]ection 44902(b) extends only to refusals to transport motivated by сoncerns about ‘safety,’ not racial discrimination,” so
We therefore must decide the interaction of
To hold otherwise would cause us to give effect to one statute at the expense of the other, which we are instructed not to do. “When confronted with two Acts of Congress allegedly touching оn the same topic, [courts are] not at ‘liberty to pick and choose among congressional enactments’ and must instead strive ‘to give effect to both.‘” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1624 (2018) (quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)). That‘s because we presume that “‘Congress will specifically address’ preexisting law when
VII.
We have so far held that if a but-for cause of Mesa‘s decision to cancel the flight was discrimination on the basis of a protected class, then (1) plaintiffs have made out a claim under
The dispute is also genuine. The record reflects that in her conversations with Smith, Hewitt repeatedly stressed plaintiffs’ race and national origin. Smith related that Hewitt “expressed heavily that ‘she is not flying this plane with a brother name[d] Issam on it,‘” “consistently br[ought] up what she presumed to be their racial ethnicity as Arabic, Mediterranean,” and “wаs extremely ad[a]ment about the two passengers not flying . . . [be]cause of their names.” Further, every occurrence described as suspicious could equally be seen as not suspicious: 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. 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. Badgerow, 974 F.3d at 616 (quoting Anderson, 477 U.S. at 248).
Given the genuine dispute as to a material fact,