O rder 2012

- 9

- 7

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY WASHINGTON, D.C.

Issued by the Department of Transportation

O n the Seventh day of September , 2012

Formal Third Party Complaint and Served September 7 , 2012 Request to Commence Enforcement Proceedings of Don Edward Williams OST 201 1

- 0149

O RDER D ISMISSING T HIRD P ARTY C OMPLAINT
A ND R EQUEST TO C OMMENCE E NFORCEMENT P ROCEEDINGS

On A ug ust 15, 201 1

, Don Edward Williams filed a document titled a Third Party Complaint and Request to Commence Enforcement Proceeding against Southwest

Airlines C o. (Southwest) pursuant to 14 CFR 382.159 . His complaint alleges that

Southwest discriminated again st him on the basis of his disability in violation of the Air Carrier Access Act and its implementing regulation, 14 CFR Part 382 (Part 382)

. (Docket

OST 2011

- 0149

- 001 ).

Don Edward Williams’ Complaint

In his Third Party Complaint and Request to Comm ence Enforcement Proceeding

, Mr.

Williams states that he is a qualified individual with a disability who requires the assistance of a service dog and the use of a wheelchair for mobility. Mr. Williams ’ complaint is based o n his experience at Southwest ’s ti cket counter at Phoenix Sky Harbor International Airport (PHX) on February 15, 2011.

Mr. Williams alleges that on that date, he approached a Southwest agent at the ticket

counter and the agent rudely and abruptly requested that Mr. Williams show his

docu ments for his service animal. Mr. Williams asserts that he asked the agent to speak

to a manager a nd the agent informed him that she was the “director of the day” and there

was no one else with whom he could speak. Mr. Williams states that he asked the a gent if she was prejudiced and that she then became irate, snatched his airline ticket, and told

him that he did not need to fly that day. Mr. Williams states that he attempted to approach other Southwest agents throughout the airport

, but the in itial age nt followed him around and instructed other Southwest employees not to assist him. Mr. Williams alleges that he then had to purchase a new ticket from US Airways. He also alleg es that2

he was never informed about his right to talk to a Complaint Resolutio n Official (CRO) 1

or told that he had a right to submit a complaint in writing and that Southwest never

refunded the price of his ticket. He also states that Southwest did not provide him with the required written explanation of its denial of his service a nimal.

Mr. Williams claims that Southwest took adverse action against him in violation of 14

CFR 382.11 after he asserted his right to travel with his servi c e animal without

documentation. He also claims that Southwest violated 14 CFR 382.117 by improper ly requiring him to provide documen ta t ion for his service animal and 14 CFR 382.151 by failing to make a CRO available to him. Finally, Mr. Williams claims that Southwest violated 14 CFR 382.141 by failing to adequately train its personnel on the requirem ents
of the Air Carrier Access Act and its implementing regulation

.

Southwest’s Response

On September 27 , 2011, Southwest submitted its Answer and Motion to Dismiss Mr. Williams’ Complaint . (Docket OST 2011

- 0149

- 00 4 ). Southwest disputes Mr. Williams’

v ersion of the facts and avers that it denied Mr. Wil liams boarding on February 15, 2011,

as a direct result of Mr. Williams’ behavior and not based on a disability

- related reason.

According to Southwest, when Mr. Williams approached the Southwest ticket counter, the Southwest Customer Service agent who assisted him observed that Mr. Williams’ dog was unclean, had a red bandana and a rope around its neck, did not wear a leash or collar, barked at employees, and did not sit obediently at the side of Mr. Wi lliams’ wheelchair.

Southwest states that based on the dog’s appearance and behavior, its agent believed that Mr. Williams’ dog was a pet and informed him that it would not be able to travel with

him because it exceeded the size limitations in Southwest’s pet carriage policy. According to Southwest

, Mr. Williams immediately became angry insisting that the dog

was a service animal

, thus prompting its agent to immediately request assistance from a

CRO.

According to Southwest, its most senior Customer Servi ce Supervisor in Phoenix , who

was an experienced CRO

, came to help diffuse the situation and repeatedly asked Mr.

Williams to calm down and lower his voice. Southwest states that Mr. Williams would

not allow the Customer Service Supervisor to talk or to an swer his questions

, and Mr.

Williams conti nued to berate her personally. Southwest states that d espite repeated attempts, Mr. Williams did not calm down

, and as a result the S upervisor and CRO made the decision to deny Mr. Williams boarding based on his a busive, combative and unsafe

behavior. Southwest contends that it did not have an opportunity to question Mr. Williams about his service animal because Mr. Williams immediately became belligerent. Southwest denies that the CRO snatched things from Mr. Wi lliams or followed him and

1 A ll airlines must designate at least one Complaint Resolution Official (CRO) who is trained to be an expert on all of the requirements of the Air Carrier Access Act and its implementing regulation, 14 CFR

Part 382 and has the aut hority to dispositively resolve complaints on behalf of the carrier. 14 CFR 382.151. U.S. carriers must make a CRO available at each airport it serves during all times it is operating at that airport. 14 CFR 382.151(b).3

instructed other agents to not assist him. Southwest states that the company mailed a refund to Mr. Williams on February 25 , 2011

. Southwest states that it did not violate Part

382

, as Mr . Williams was denied transportation bas ed on his disorderly, abusive and

unsafe conduct. Southwest also states that it is in compliance with the training requirements in Part 382.

Further Pleadings

Mr. Williams filed an O pposition to Southwest’s Answer and M otion to D ismiss (Opposition) on October 21, 2011

. In that filing, Mr. Williams argues that Southwest’s

M otion to D ismi ss was filed in violation of the Department of Transportation ’s procedural rules

, and that it failed to properly challenge the legal sufficiency of Mr. Williams’ complai nt in accordance with the F ederal Rules of Civil Procedure

. Mr. Williams also argues that there are s till material facts in dispute. In addition to the procedural arguments, Mr. Williams challenged the credibility of the Southwest employees that provided sworn statements in support of Southwest’s A nswer and M otion

to D ismiss

. Mr. Williams alleges that contrary to the Southwest employees’ description,

the dog traveling with Mr. Williams on the date of the incident weighed less than f ive pounds and traveled inside a bag attached to his wheelchai r. Mr. Williams states that the employees’ sworn statements make it clear that the employees never sought to obtain credible assurances regarding the service animal, but informed him from the outset that

he was not a llowed to travel with the dog because he did not have any documentation stating she was a service animal. Mr. Williams claims that during the entirety of the incident at issue, he never yelled at or berated any Southwest employee and that Southwest’s alleg ations of Mr. Williams’ improper behavior are unsupported by the

eviden ce and appear to be pretextual

. Finally, Mr. Williams argues that Southwest’s response fail ed to dispute that its employees did not receive proper training to proficiency with regard t o Part 382 and that its employees’ lack of training is evident based on the content of the statements they provided.

Southwest filed a R eply to the Complainant’s O pposition on November 22, 2011, requesting the dismissal of Mr. Williams’ C omplaint , arguin g that Mr. Williams presented no credible evidence of individual or systemic violations of any law by

Southwest. Southwest denied that the dog Mr. Williams described in the O pposition was the same dog observed with him on February 15, 2011. According to s upplemental

declarations provided by the Southwest agents in response to Mr. Williams ’ allegations in

the O pposition, Mr. Williams’ dog was at least three times larger than the dog in the photo graph that Mr. Williams submitted as an exhibit with his Opposi tion . The Agents

also assert that the dog was standing on the ground and not in a bag. Additionally, the

agents stated that the y informed Mr. Williams that the animal would not qualify for the

carry

- on pet program given its size and reiterated that Mr. Wi lliams was belligerent and

abusive. Southwest also states that Mr. Williams has failed to establish that Southwest lacks adequate training programs. Finally, in response to Mr. Williams’ allegation that Southwest never refunded him his airfare, Southwest states that their records indicate that

the refund was mailed to Mr. Williams on February 25, 2011. However, as Mr. Williams claimed he never received it, Southwest re

- issued the refund to him.4

Mr. Williams filed a M otion for L eave to R espond to the U n authorized Re ply of

Southwest and a R equest for E xpedition of P roceedings. Mr. Williams argue s that Southwest’s reply was an unauthorized responsive document based upon 14 CFR 302.6(b) and failed to show “good cause” as required by 14 CFR 302.6(c)(2). Mr.

Williams states that Southwest’s re

- issuance of his refund demonstrates that Southwes t’s

witnesses are not credible. Additionally, Mr. Williams states that Southwest provides no evidence to support the sufficiency of its training programs for all of their employees and of the individual employees involved in th is incident. Mr. Williams challenges Southwest’s assertion that it has 45 trained CROs at Phoenix airport and an average of 12

that are onsite and available to assist customers at all time s . He state s that this statement contradicted Southwest’s own employee’s statement in response to Mr. Williams request to speak to her boss that no one else was currently available because it was very early in the morning. Mr. Williams also notes that Southwest perm itted him to fly to Phoenix Airport only two days prior to the incident at issu e with the same service animal. He also asserts that even if his dog was larger as Southwest claims, it would still not exceed Southwest’s pet size requirements.

In its S urr eply and M otion for L eave to F ile, Southwest states that it refunded Mr. Williams’ ticket twice based upon his allegation that he never received it and verification

of the fact that the first check had not been cashed. Southwest also states that it is not obligated to provide Mr. Williams with its proprietary training materials and that the Department has reviewed the materials and has not raised any concerns regarding Southwest’s training program. Additionally, Southwest confirms that both of its employee s involved in this incident received disability awareness training upon hiring

and on an annual basis . Southwest also counters Mr. Williams ’ claim that there were insufficient CROs at Phoenix Airport on February 15, 2011, stating that Mr. Williams

request ed to speak to the employee’s “boss,” which referred to two individuals that were not at the airpo rt at the time of the incident. Finally, Southwest maintains that Mr. Williams was denied boarding due to his belligerent, verbally abusive

, and unsafe

behav ior, and not for any reason related to his dog and that Mr. Williams’ arguments regarding his animal are irrelevant

.

Disposition and Analysis

We have carefully considered Mr. Williams’ formal third party complaint, as well as the other pleadings filed in that docket by both parties

, and we have decided to dismiss the complaint with prejudice. We also find that good cause has been shown to accept all pleadings as filed by both parties in order to form a complete picture of the events that took place on February 15, 2011

.

Pursuant to 14 CFR 382.117(d), as evidence that an animal is a service animal, a carrier must accept identification cards, other written documentation, presence of harnesses, tags, or the credible verbal assurances of a qualified indiv idual with a disability using the

animal. As further guidance, we have indicated that a carrier may require documentation

to prove that an animal accompanying a passenger with a disability is a service animal if5

the carrier finds that the verbal assurance s of the passenger are not credible and no other

indicat ion s exist of the animal’s status as a service animal

, such as a harness, tag or vest. 2

Pursuant to 14 CFR 382.117(g), when a carrier decides not to accept an animal as a service animal, the carrier must explain the reason for its decision to the passenger and

document that reason in writing

, and also provide a copy of the explanation to the passenger at the airport, or w ithin ten days of the incident. In addition , pursuant to 14 CFR 382.19(c), a carrier may refuse to provide transportation to any passenger on the basis of safety, as provided in 49 U.S.C. § 44902 or 14 CFR 121.533, or to any passenger whose carriage would violate FAA or TSA requirements.

We find persuasive Southwest ’s assertion , whic h was corroborated by numerous employee declarations submitted under penalty for perjury

, that Mr. Williams’ dog was large, unclean, wore a red bandana and rope around its neck, wore no leash or collar, barked at employees, and did not sit obediently at th e side of Mr. Williams’ wheelcha ir. Further, we note that a lthough Mr. Williams challenges Southwest’s allegation that his dog was large, Mr. Williams does not dispute Southwest’s claim that Mr. Williams’ dog

did not appear or behave as a trained service animal.

We find that Southwest , consistent with section 382.117(d) and DOT guidance, acted

within its discretion and had reasonable cause to obtain verbal credible assurance or request documentation from Mr. Williams concerning his dog ’s status as a servi ce animal based upon its agents’ observations of the dog’s appearance and behavior

. Further , i t appears from the evidence in the record before us that prior to having an opportunity to verify whether or not Mr. Williams’ dog was a service animal, Mr. Will iams became angry and combative with the Southwest agent . Although Mr. Williams denies that he yelled at or otherwise berated the Southwest employee, our review of several statements by Southwest employee s who contemporaneously witnessed the exchange lead s us to
conclude that the Southwest agents had good cause to believe that Mr. Williams was indeed a safety risk

. As such, w e find that Southwest’s decision to deny Mr. Williams boarding was not based on discrimination, but was based solely on Mr. Williams ’ abusive

behavior and that denying him boarding was within its authority under 49 U.S.C. § 44902

. Therefore, w e find that Southwest was not required to present Mr. Williams with a written explanation of its decision under 14 CFR 382.117(g) be cause its decision to deny boarding was not based on a disability

- related reason. We also find that Southwest complied with Part 382’s requirement to provide a CRO to Mr. Williams

, and

we find unmeritorious the complainant’s allegation that Southwest fail ed to adequately

train it personnel on the requirements of the ACAA and Part 382

. T he Department has reviewed the training records submitted by Southwest regarding the carrier’s training compliance and we find that they comply with requirements of Part 38 2

.

ACCORDINGLY, I di smiss the third

- party complaint in docket OST 2011

- 0 149 with prejudice

.

2 Answers to Frequently Asked Que stions Concerning Air Travel of People with Disabilities Under
the Amended Air Carrier Access Act Regulation, 13

- 14 (May 13, 2009), available at http://airconsumer.dot.gov/rules/FAQ_5_13_09.pd f

.6

This order is issued under authority assigned in 14 CFR 302.406 and shall be effective as the final action of the Department within 30 days after service.

By:

Samuel Podberesky

Assistant General Counsel for Aviation Enforcement and Proceedings

An electronic version of this document is available on the World Wide Web at http://dms.dot.gov//report s/reports_aviation.asp