Order 2012-5-2

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

On the Second day of May, 2012

Docket OST-2012-0002

Atlantic Southeast Airlines, Inc. Served: May 2, 2012

Compliance with 49 U.S.C. §§ 40127(a), 41702, 

41310, and 41712

CONSENT ORDER

This order concerns violations by Atlantic Southeast Airlines, Inc. ("Atlantic Southeast"

or the “Carrier”),

1 of the Federal statutes prohibiting U.S. and foreign air carriers from 

subjecting any air traveler to discrimination on the basis of race, color, national origin, 

religion, sex or ancestry. The order directs Atlantic Southeast to cease and desist from 

future violations and assesses the carrier $25,000 in civil penalties.

Federal law is clear that an airline cannot refuse passage to or otherwise discriminate 

against an individual because of that person's race, color, national origin, religion, sex, or 

ancestry. Specifically, 49 U.S.C. § 40127 provides that an "air carrier or foreign air carrier 

may not subject a person in air transportation to discrimination on the basis of race, color, 

national origin, religion, sex, or ancestry." 49 U.S.C. § 41310 prohibits air carriers and 

foreign air carriers from unreasonably discriminating against any person in foreign air 

transportation, and 49 U.S.C. § 41702 requires that U.S. carriers provide safe and adequate 

transportation. Finally, 49 U.S.C. § 41712 prohibits unfair and deceptive practices by air 

carriers. Each of these provisions has been interpreted to prohibit air carriers from 

discriminating on the basis of race, color, national origin, religion, sex, or ancestry. See 

American Airlines Inc., OST-2003-15046-18 (Aug. 21, 2003) and United Air Lines, Inc.,

Order 2011-11-2 (Nov. 1, 2011).

The Office of Aviation Enforcement and Proceedings ("Enforcement Office") investigated 

Atlantic Southeast Airline’s compliance with the above-cited statutory prohibitions 

following allegations that two religious leaders (Imams) were removed and denied reboarding on flight 5452, operated as a Delta Connection flight by Atlantic Southeast, at the 

 1 Effective January 1, 2012, Atlantic Southeast Airlines, Inc. acquired and merged with 

ExpressJet Airlines, Inc. The combined company also changed its name to “ExpressJet Airlines, 

Inc.” as of that date.
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Memphis International Airport on May 6, 2011, because their previous removal from the 

aircraft by Delta security officials and the search of the passengers’ seating areas by law 

enforcement officials resulted in passenger concern and unrest. While the Enforcement 

Office finds that the initial decision to remove the Imams from Atlantic Southeast flight 

5452 to conduct secondary screening was not discriminatory, the evidence in the 

Enforcement Office’s view disclosed that Atlantic Southeast violated the law when it failed 

to re-board the passengers on flight 5452 after law enforcement officials and its mainline 

carrier partner’s security officials determined that they were not a security threat and cleared 

them for travel. Once an individual who has been removed from an aircraft because of 

security concerns has been found to not be a security threat, the carrier must allow that 

individual to re-board the same aircraft and take his/her flight so long as the aircraft has not 

yet departed unless a valid safety or security concern exists. The Enforcement Office 

believes that the removed individuals should have been re-boarded in this case.

In mitigation, the Carrier maintains that no Atlantic Southeast employee made any decision 

or took any action with regard to any Atlantic Southeast passenger based on that passenger’s 

race, color, national origin, religion, sex, or ancestry. In that regard, the Carrier notes that 

Federal law also provides air carriers the authority and responsibility to “refuse to transport 

a passenger or property the carrier decides is, or might be, inimical to safety” (49 U.S.C. 

§ 44902(b)) and establishes that “[t]he pilot in command of an aircraft is directly 

responsible for, and is the final authority as to the operation of the aircraft.” 14 CFR § 

91.3(a). The Carrier further states that even though it continues to strenuously deny that any 

violation of Federal law occurred, it has elected to settle this matter with the Enforcement 

Office rather than to engage in costly and protracted litigation. 

The Carrier maintains that there is no Federal law, regulation, or guidance that speaks

directly to the unique circumstances with which the Atlantic Southeast employees were 

faced. It further asserts the following to demonstrate that no discrimination occurred: (1) 

Atlantic Southeast had initially boarded and was already in the process of transporting all 

passengers on flight 5452 when its mainline carrier partner’s gate staff boarded the aircraft 

and requested identification for the Imams, which was collected by the flight attendant and 

returned several minutes later; (2) Atlantic Southeast then began transporting all passengers 

boarded on flight 5452, which left the gate without incident, and did not discriminate 

against any of them based on any protected classification; (3) Atlantic Southeast’s mainline 

carrier partner’s gate staff recalled the flight due to “security concerns” and the captain was 

directed to return the aircraft to the gate without further information; (4) following removal 

of the two passengers and their bags from the aircraft by the mainline carrier’s personnel, 

two uniformed TSA officials boarded the aircraft, put on gloves and conducted an on-board 

search in the areas where the two passengers were removed – in full view of a plane full of 

passengers; (5) upon repeated requests for more information on the nature of the security 

issue, the captain was told only that one of the passengers was on the “No Fly” list; (6) 

during and after the TSA search, passengers became visibly upset, with at least one 

passenger crying audibly and asking to get off the aircraft because she thought something 

was wrong; (7) shortly thereafter and now delayed over one hour, flight 5452 departed the 

gate without the removed passengers on board but was then called back due to “security” 

reasons for the second time; (8) the mainline carrier partner’s personnel advised the captain 

that TSA had cleared the two removed passengers and requested that they be re-boarded on 

flight 5452; (9) in light of the foregoing circumstances and the events witnessed by the 
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passengers and crew, the captain exercised what he believed was his discretion as pilot-incommand to not re-board the removed passengers due to safety concerns; and (10) the two 

removed passengers were transported to their destination on another Atlantic Southeast 

flight later that day without incident.

The Carrier believes that these circumstances supported the captain’s judgment that it was 

unreasonable to re-board the two removed passengers based on legitimate safety concerns. 

It further argues that but for the captain’s inability to obtain information and the two 

intervening acts of the removal of the passengers and the search of the aircraft, in neither of 

which Atlantic Southeast played any role, Atlantic Southeast would have transported the 

Imams on flight 5452 without incident – as it had already attempted to do. Rather, the 

Carrier maintains that the captain’s decision was an appropriate exercise of discretion based 

on the intervening acts of its mainline carrier partner’s personnel and the TSA that created 

legitimate safety concerns, and was not based on any protected classification. According to 

the Carrier, there was a valid safety and/or security concern present and this scenario does 

not fit the generic circumstance described by the Enforcement Office where an individual 

was simply not permitted to re-board the same aircraft that had not yet departed. Atlantic 

Southeast's aircraft had departed and was called back to the gate – not once but twice, which 

only served to increase the distress of passengers and en route safety concerns. Finally, 

Atlantic Southeast disagrees that the failure to re-board the Imams on the original flight 

warrants a determination of discrimination where no such intent was present and its contract 

of carriage necessarily permits such operational flexibility. 

The Enforcement Office has carefully considered all the information provided by Atlantic 

Southeast, but continues to believe that enforcement action is warranted. To avoid litigation, 

the Enforcement Office and Atlantic Southeast have reached a settlement of this matter. 

Without admitting any violations of the law occurred, Atlantic Southeast consents to the 

issuance of an order to cease and desist from future violations of 49 U.S.C. §§ 40127, 41310, 

41702, and 41712 and to the assessment of a civil penalty of $25,000. The Enforcement 

Office believes that this settlement is appropriate and serves the public interest and creates an 

incentive for all carriers to comply fully with the civil rights laws enforced by the 

Department of Transportation.

This order is issued under the authority contained in 49 CFR 1.57a and 14 CFR 385.15.

ACCORDINGLY,

1. Based on the above discussion, we approve this settlement and the provisions of this order as 

being in the public interest;

2. We find that Atlantic Southeast Airlines, Inc., engaged in discriminatory conduct in 

violation of 49 U.S.C. §§ 40127, 41310, 41702, and 41712 when it denied boarding on 

Atlantic Southeast flight 5452 to two Imams, as discussed above;

3. We order Atlantic Southeast Airlines, Inc., and all other entities owned and controlled by it, 

and their successors and assigns, to cease and desist from future violations of 49 U.S.C. 

§§ 40127, 41310, 41702, and 41712;
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4. We assess Atlantic Southeast Airlines, Inc., a civil penalty of $25,000, which shall be due 

and payable within 30 days from the date of issuance of this order. Failure to pay the 

penalty as ordered shall subject Atlantic Southeast Airlines, Inc., to the assessment of 

interest, penalty, and collection charges under the Debt Collection Act, and to possible 

additional enforcement action for failure to comply with this order;

5. We order Atlantic Southeast Airlines, Inc., to provide civil rights training to the flight 

and cabin crewmembers of the flight described above. That training must cover the 

incident covered in this order and make clear that in the absence of a valid safety or 

security concern, passenger or crew unrest is not an acceptable basis to deny boarding. 

Upon completion of that training, but no later than 14 months after the service date of 

the order, Atlantic Southeast Airlines, Inc., shall submit a sworn statement from an 

appropriate company official certifying that the flight and cabin crewmembers have 

received the civil rights training required under this order;

6. Any failure of Atlantic Southeast Airlines, Inc., to conduct the training or document it 

adequately to the Enforcement Office in accordance with ordering paragraph 5 shall 

constitute a continuing violation of this consent order and subject Atlantic Southeast 

Airlines, Inc., to enforcement action; and

7. Payment of the penalty shall be made by wire transfer through the Federal Reserve 

Communications System, commonly known as "Fed Wire," to the account of the U.S. 

Treasury. The wire transfer shall be executed in accordance with the instructions contained 

in the Attachment to this order. Failure to pay the compromise penalty assessment as 

ordered will subject Atlantic Southeast Airlines, Inc., to an assessment of interest, penalty, 

and collection charges under the Debt Collection Act and to possible enforcement action 

for failure to comply with this order.
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This order will become a final order of the Department 10 days after its service unless a timely 

petition for review is filed or the Department takes review on its own initiative.

BY:

ROSALIND A. KNAPP

DEPUTY GENERAL COUNSEL

(SEAL)

An electronic version of this document is available at

www.regulations.gov