                United States Court of Appeals
                                 For the First Circuit

No. 07-1824

                                     JOHN D. CERQUEIRA,

                                         Plaintiff, Appellee,

                                                  v.

                                  AMERICAN AIRLINES, INC.,

                                       Defendant, Appellant.



                                             Before
                                      Boudin, Chief Judge,
                                Campbell, Senior Circuit Judge,
                                    Torruella, Circuit Judge,
                                   Stahl, Senior Circuit Judge,
                            Lynch, Lipez, and Howard, Circuit Judges.

                                     ORDER OF COURT
                                   Entered: February 29, 2008

       Pursuant to First Circuit Internal Operating Procedure X(C), the petition for rehearing en

banc has also been treated as a petition for rehearing before the original panel. The petition for

rehearing having been denied by a majority of the panel of judges who decided the case and the

petition for rehearing en banc having been submitted to the active judges of this court and a majority

of the judges not having voted that the case be heard en banc, it is ordered that the petition for

rehearing and petition for rehearing en banc be denied.




                                                 -1-
       TORRUELLA, Circuit Judge, dissenting. I respectfully dissent from the denial of John

Cerqueira's petition for rehearing en banc. The panel opinion offers a sweeping interpretation of 49

U.S.C. § 44902(b) which goes further than any other court and, more importantly, further than

Congress had intended in enacting that provision. Its application to an airline's denial of rebooking

is a matter of first impression; no other court has applied it in such a manner. The issue is of

exceptional importance not only for its novelty but also in light of the high-security environs in

which we find ourselves today.

                                                  I.

       There are two distinct parts to this case: (1) the Captain's decision to remove Cerqueira from

his original flight and (2) American Airlines' refusal to rebook him on another, later flight. With

respect to the first, the panel opinion concludes that Section 44902(b) endows the Captain with

tremendous immunity when making difficult, split-second decisions regarding a passenger on his

flight. Indeed, "even mistaken decisions are protected as long as they are not arbitrary or capricious

. . . assum[ing] that . . . [a] responsible decisionmaker could credit the information provided." Slip

Op. at 29. I agree that such considerations for the Captain are not only necessary but are also

consistent with the underlying legislative intent:

       Congress was certainly aware that decisions under [§ 44902(b)] would in many
       instances probably have to be made within minutes of the plane's scheduled take-off
       time, and that the carrier's formulation of opinion would have to rest on something
       less than absolute certainty.


Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975) (emphasis added).

       The decision to deny rebooking is a separate and independent decision made by the SOC

manager. It is clear that Cerqueira was not going to reboard the original fight: after deciding to


                                                 -2-
remove Cerqueira (and the other two passengers) from the flight, the Captain was told by the state

police officers that "[t]hese three gentlemen are not traveling with you today. It's out of your hands."

Slip Op. at 14-15. The rebooking decision concerned whether Cerqueira was to be rebooked on

another, later flight after being cleared by the police. There was no imperative that the SOC manager

make an immediate decision with respect to rebooking; the decision was made without time pressure

and with the benefit of additional information afforded by the police investigation.1

        No other court has applied Section 44902(b) to this type of situation. All of the cases

discussed in the opinion arise in a context in which a decisionmaker must determine whether to

remove or bar a particular passenger from a flight because of security-related concerns. See, e.g.,

Cordero v. Cía. Mexicana de Aviación, S.A., 681 F.2d 669, 672 (9th Cir. 1982) (refusal to allow

plaintiff to continue on the flight after an unscheduled stop); Williams, 509 F.2d at 944 (refusal to

transport plaintiff on his ticketed flight); Dasrath v. Cont'l Airlines, Inc., 467 F. Supp. 2d 431, 432-

33 (D.N.J. 2006) (passengers removed by pilot for security reasons); Al-Qudhai'een v. Am. W.

Airlines, Inc., 267 F. Supp. 2d 841 (S.D. Ohio 2003) (same). None have ever raised questions about

future travel. In fact, in Williams, TWA had offered various alternate flight arrangements to the

plaintiff after refusing him passage on his original flight. Williams, 509 F.2d at 945. In contrast,

American Airlines refunded the remaining portion of Cerqueira's trip, refused to rebook him on an




1
    The panel opinion's treatment of the SOC manager's decision conflates the fact that the decision
was made quickly with the need for that decision to be made so quickly. A captain's decision
regarding a security threat is necessarily a hasty one because it involves a take-off schedule and
affects all of those on the plane. The SOC manager's decision enjoys the luxury of time: the next
available flight was not scheduled to depart until that afternoon and Cerqueira was cleared by the
state police before 9:00 A.M.

                                                  -3-
available flight later that afternoon, and simply informed him that the "decision had been made by

AA's corporate offices." Slip Op. at 18.

       This case puts the rebooking scenario squarely in front of the court. Cerqueira's complaint

clearly alleges two separate claims. Yet, with little to no discussion, the panel opinion takes a major

leap in extending the mantle of decisional emergency to an airline decisionmaker who is removed

from the exigencies of split-second passenger safety determinations. In so doing, the opinion

transforms Section 44902(b)'s exceptional immunity into a legal framework that may apply in all

airline decisions. After concluding that Section 44902(b) governs the SOC manager's decision, the

opinion states that the McDonnell Douglas burden-shifting methodology for evaluating indirect

evidence of discriminatory intent is "inconsistent" with the Section 44902(b) test. Slip Op. at 37.

The opinion goes on to conclude that Cerqueira's challenge to the rebooking decision fails because

"[t]here is no evidence that the SOC manager's decision was based on race discrimination . . . there

is no evidence that the SOC manager was aware of the plaintiff's appearance, race, or ethnicity . . .

[and thus] the § 1981 claim against the SOC manager fails." Slip Op. at 36.

       The McDonnell Douglas burden-shifting framework was crafted by the Supreme Court

specifically to ameliorate the difficulties in obtaining direct evidence of racial discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Accordingly, we have used that

framework in evaluating § 1981 claims. See, e.g., Straughn v. Delta Air Lines, Inc., 250 F.3d 23,

33 (1st Cir. 2001); Oliver v. Digital Equip. Corp., 846 F.2d 103, 107 (1st Cir. 1988); T&S Serv.

Assoc., Inc., v. Crenson, 666 F.2d 722, 724 (1st Cir. 1981). In requiring a plaintiff to submit direct

evidence of discriminatory animus in the rebooking scenario, the opinion uses Section 44902(b) to

effectively exempt a broad swath of airline decisions from the McDonnell Douglas burden-shifting


                                                 -4-
methodology. Such was not the intent of Congress in promulgating Section 44902(b), and the

opinion fails to provide a compelling rationale for doing so. I am firmly opposed to the expansion

of the airline's immunity in this manner.

                                                  II.

       Additionally, I think that the panel opinion erroneously concludes that "no properly instructed

jury could return a verdict against the air carrier." Slip Op. at 3. In so concluding, the opinion

improperly encroaches upon the fact-finding responsibilities of the jury. See, e.g., United States v.

Nascimento, 491 F.3d 25, 46-47 (1st Cir. 2007) ("Sifting through conflicting testimony and

determining where the truth lies is the sort of work that falls squarely within the jury's province.").

Under either a § 1981 burden-shifting analysis or the Section 44902(b) arbitrary and capricious

standard, a properly instructed and reasonable jury could find in favor of Cerqueira with respect to

the rebooking decision.

       Applying McDonnell Douglas, a reasonable jury could conclude that the denial of rebooking

was based on the perception that Cerqueira was from the Middle East. The SOC manager based his

decision not to rebook Cerqueira on the security information provided by the Captain, a combination

of his personal concerns and those of his flight attendants. Trial testimony and record evidence

indicated that at least one flight attendant's information may have been race-based. While we

remove any responsibility on the part of the Captain to conduct an inquiry into representations made

by other air carrier employees, there is no convincing rationale for extending that consideration to

decisionmakers such as the SOC manager who are not compelled by exigent circumstances. After

listening to the testimony of the airline employees and reviewing the evidence, a jury should




                                                 -5-
determine whether it believes that the airline acted out of legitimate safety concerns in denying

rebooking, or if the actions were based on race discrimination.

       Alternatively, even if the Section 44902(b) standard applies to the SOC manager's decision,

a reasonable jury could conclude that the airline's failure to inquire into Cerqueira's status before

issuing its denial was arbitrary and capricious.2 While we do not impose a burden on the Captain

to conduct an investigation, the SOC manager can be held to greater scrutiny without compromising

safety. Cerqueira was released by the police with no charges; those facts were within the knowledge

of the airline when the decision not to rebook was made, and, in any event, available sufficiently

prior to the afternoon flight, to allow American Airlines time to rationally consider its rebooking

determination. The failure of American Airlines to do so and its refusal to give any reason for acting

in such an apparently arbitrary manner, when placed against the background of the earlier evidence,

presents sufficient facts to have the rebooking issue go before a properly instructed jury. A

reasonable jury "might have concluded that the [airline] acted unreasonably in excluding [the

passenger] without even the most cursory inquiry into the complaint against him." Cordero, 681

F.2d at 672.




2
    Although the panel opinion emphasizes the "short proximity" (i.e. "within minutes") between
the Captain's decision not to allow Cerqueira to fly and the SOC manager's decision to deny
rebooking, that assertion is unsupported by the record. See Slip Op. at 36. Prior to the flight's
original estimated departure time of 6:35 A.M., Cerqueira was removed from the flight and taken
by the police for questioning. He was released by the police around 9:00 A.M. Although the
Captain had contacted the SOC to provide a "full report on the security issues and to notify them that
the flight would not be departing on time" it was not until 9:01 A.M. that the customer service
manager, "per SOC [manager]," made an entry stating that Cerqueira was to have his ticket refunded.
Several minutes later, another entry stated: "Do not rebook on AA." Slip Op. at 11, 17.

                                                 -6-
                                                III.

       I am deeply troubled by the legal implications of the opinion and, therefore, dissent from the

denial of en banc review.




                                                -7-
        LIPEZ, Circuit Judge, dissenting. I respectfully dissent from the denial of en banc

rehearing for all of the reasons Judge Torruella sets forth in his dissent. I write separately to add one

additional point.

        We recognized in Cariglia v. Hertz Equip. Rental Corp., 363 F.3d 77, 83 (1st Cir. 2004), that

corporate liability for discrimination could attach if a neutral decisionmaker relied on information

that was inaccurate, misleading, or incomplete because of another employee's discriminatory animus.

The Captain testified that he conveyed to the SOC what the flight attendants had reported to him,

and the jury had evidence before it supporting an inference that at least one flight attendant's

information may have been race-based. As such, the plaintiff would be entitled to rely on a Cariglia

theory that corporate liability could attach because the SOC manager relied on information that was

inaccurate, misleading, or incomplete because of a flight attendant's discriminatory animus.

        As the panel decision notes, we have not previously applied this theory of corporate liability

to a discrimination claim under 42 U.S.C. § 1981. However, we have noted that the standards of

liability under § 1981, Title VII, and the Massachusetts state employment discrimination statute

(under which Cariglia arose) are substantially identical. Villanueva v. Wellesley College, 930 F.2d

124, 127 n.2 (1st Cir. 1991); see also T & S Serv. Assocs., Inc. v. Crenson, 666 F.2d 722, 724 (1st

Cir. 1981) (applying the McDonnell Douglas framework, developed under Title VII, in a

nonemployment § 1981 case); cf. Danco, Inc. v. Wal-Mart Stores, Inc., 178 F.3d 8, 13 (1st Cir. 1999)

(noting that the list of activities protected under § 1981 now includes "the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship," tracking the language of Title VII's prohibition on

discrimination with respect to "compensation, terms, conditions, or privileges of employment").


                                                  -8-
Against this backdrop, the panel's conclusion that Cariglia should not extend to the rebooking

decision is dubious.

       The panel concludes that "[t]he § 1981 claim against the SOC manager's decision was

derivative of the § 1981 claim against the Captain's decision" because the SOC manager had only

the information conveyed to him by the Captain. I respectfully submit that this conclusion is flawed.

The SOC manager made a separate decision as to whether the passenger could be rebooked on a

flight that was scheduled to depart hours later. In doing so, he may have relied – perhaps unwittingly

– on information tainted by a flight attendant's racial animus. While the law affords the Captain

great latitude because his decision must be made quickly, the SOC manager – and American Airlines

as a whole – is not entitled to piggyback on that first decision and thereby multiply any

discriminatory animus underlying it. This conflation of the Captain's decision and the SOC

manager's decision should have been considered and corrected by the en banc court. Accordingly,

I dissent from the denial of en banc review.

                                                       By the Court:



                                                           /s/
                                                       Richard Cushing Donovan, Clerk




[Certified copies to Hon. William G. Young and Ms. Sarah Thornton, Clerk, United States District
Court for the District of Massachusetts. Copies to Ms. Cantelo, Mr. Godkin, Mr. Kirkpatrick, Mr.
Fitzhugh, Mr. Bramlett, Ms. Mariani, Ms. Skinner, Ms. Gerber, Mr. Powell, Mr. Schrader, Mr.
Stavers, Mr. Foreman, Ms. Saxena, Ms. Birch, Mr. Eng, Ms. Baldillo, Ms. Valenzuela, Ms. Ciccolo,
Mr. Asaka, & Mr. Maer.]




                                                 -9-
