Order 2012- 9-7

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C.

Issued by the Department of Transportation

On 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 2011-0149

 

ORDER DISMISSING THIRD PARTY COMPLAINT

AND REQUEST TO COMMENCE ENFORCEMENT PROCEEDINGS

On August 15, 2011, Don Edward Williams filed a document titled a Third Party 

Complaint and Request to Commence Enforcement Proceeding against Southwest 

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

Southwest discriminated against 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 Commence 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 on his experience at Southwest’s ticket 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 

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

to a manager and 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 agent 

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 initial agent 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 alleges that 
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he was never informed about his right to talk to a Complaint Resolution 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 animal.

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 service animal without 

documentation. He also claims that Southwest violated 14 CFR 382.117 by improperly 

requiring him to provide documentation 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 requirements 

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 2011-0149-004). Southwest disputes Mr. Williams’ 

version of the facts and avers that it denied Mr. Williams 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. Williams’ 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 Service 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 answer his questions, and Mr. 

Williams continued to berate her personally. Southwest states that despite repeated 

attempts, Mr. Williams did not calm down, and as a result the Supervisor and CRO made 

the decision to deny Mr. Williams boarding based on his abusive, 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. Williams or followed him and 

 

1 All 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 authority 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).
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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 based 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 Opposition to Southwest’s Answer and Motion to Dismiss

(Opposition) on October 21, 2011. In that filing, Mr. Williams argues that Southwest’s 

Motion to Dismiss 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’ complaint in accordance with the Federal Rules of Civil Procedure. Mr. 

Williams also argues that there are still 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 Answer and Motion 

to Dismiss. 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 five 

pounds and traveled inside a bag attached to his wheelchair. 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 allowed 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 allegations of Mr. Williams’ improper behavior are unsupported by the 

evidence and appear to be pretextual. Finally, Mr. Williams argues that Southwest’s 

response failed to dispute that its employees did not receive proper training to proficiency

with regard to Part 382 and that its employees’ lack of training is evident based on the 

content of the statements they provided. 

Southwest filed a Reply to the Complainant’s Opposition on November 22, 2011,

requesting the dismissal of Mr. Williams’ Complaint, arguing 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 Opposition was 

the same dog observed with him on February 15, 2011. According to supplemental 

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

the Opposition, Mr. Williams’ dog was at least three times larger than the dog in the 

photograph that Mr. Williams submitted as an exhibit with his Opposition. The Agents 

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

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

carry-on pet program given its size and reiterated that Mr. Williams 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. 
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Mr. Williams filed a Motion for Leave to Respond to the Unauthorized Reply of 

Southwest and a Request for Expedition of Proceedings. Mr. Williams argues 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 Southwest’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 this 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 times. He states 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 permitted him to fly to Phoenix 

Airport only two days prior to the incident at issue 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 Surreply and Motion for Leave to File, 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 

employees 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 

requested to speak to the employee’s “boss,” which referred to two individuals that were 

not at the airport at the time of the incident. Finally, Southwest maintains that Mr. 

Williams was denied boarding due to his belligerent, verbally abusive, and unsafe

behavior, 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 individual 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 if 
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the carrier finds that the verbal assurances of the passenger are not credible and no other 

indications 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 within 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, which 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 the side of Mr. Williams’ wheelchair. 

Further, we note that although 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 service animal

based upon its agents’ observations of the dog’s appearance and behavior. Further, it 

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. Williams 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 employees who contemporaneously witnessed the exchange leads us to 

conclude that the Southwest agents had good cause to believe that Mr. Williams was 

indeed a safety risk. As such, we 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, we find that Southwest was not required to present Mr. Williams 

with a written explanation of its decision under 14 CFR 382.117(g) because 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 failed to adequately 

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

ACCORDINGLY, I dismiss the third-party complaint in docket OST 2011-0149 with

prejudice.

 

2 Answers to Frequently Asked Questions 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.pdf.
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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//reports/reports_aviation.asp