BEFORE THE U.S. DEPARTMENT OF TRAN S PORTATION

WASHINGTON DC

_____________________________________ _____ ) FORMAL THIRD PARTY COMPLAINT AND ) REQUEST TO COMMENCE ENFORCEMENT ) Docket No. OST
- 2011 - 0149 PROCEEDINGS OF DON EDWARD WILLIAMS )

____________________________________ ______ )

SURREPLY AND MOTION FOR LEAVE TO FILE OF

SOUTHWEST AIRLINES CO.

Communications with respect to this document should be sent to:

Madeleine Johnson Robert W. Kneisley Vice President General Counsel Associate General Counsel Justin Almand Leslie C. Abbott Attorney Senior Attorney SOUTHWEST AIRLINES CO. SOUTHWEST AIRLINES CO. 2702 Love Field Drive 1901 L Street, N.W. Dallas, TX 75235

- 1611 Suite 640 Washington, D.C. 20036 leslie.abbott @wnco.com (202) 263

- 628 5

February 24 , 20121 BEFORE THE U.S. DEPARTMENT OF TRAN S PORTATION

WASHINGTON DC

_____________________________________ _____ ) FORMAL THIRD PARTY COMPLAINT AND ) REQUEST TO COMMENCE ENFORCEMENT ) Docket No. OST
- 2011 - 0149 PROCEEDINGS OF DON EDWARD WILLIAMS )

_______________________________ _____ ______ )

SURREPLY AND MOTION FOR LEAVE TO FILE OF

SOUTHWEST AIRLINES CO.

The parties to this proceeding have now submitted three rounds of pleadings
since last August . All relevant evidence is in the record and the case is ripe for
decision. Confirmation of this fact is that Mr. Williams’ Reply contains almost nothing new, but instead is an overly technical rehash of the same baseless arguments previously advanced by the Complainant. Contrary to Mr. Williams’ assertions,
Southwest has submitted extensive evidence in its Answer , Reply and now Surreply to resolve all material issues of fact in the company’s favor, establishing conclusively that (1) Mr. Williams was denied boarding due to his belligerent, verbally abusive, and unsafe behavior, not due to any disability or service animal

- related issue , (2) Southwest employee s were prevented from asking Mr. Williams clarifying questions regarding his
d og as a direct result of his excessive yelling, including profanities, toward several Southwest employees who repeatedly tried to assist him , and (3) documentation was only requested for Mr. Williams’ dog because he o p t e d t o lash out at Southwest employees, rather than provide credible verbal assurances that his dog was a service
animal

. At this point t he record is clear: the Complaint is without merit and DOT should
dismiss it without delay.2

Beyond these over

- arching points, Southwest will address the few new arguments r aised by Mr. Williams in his January 30 Reply

. Southwest requests leave from the Department to the extent necessary to file this Surr eply. Good cause exists for granting this request, as the Surr eply is narrowly tailor ed to address factual inaccuracies
and mischaracterizations raised in Mr. Williams’ Reply , and will thereby provide the Department with a more complete and accurate record upon which to base its decision. 1

I. CONSISTENT WITH COMPANY POLICY AND IN GOOD FAITH , SOUTHWEST REFUNDED MR. WILLIAMS ’ TICKET TWICE

. As stated in its Reply , Southwes t began processing Mr. Williams’ refund on February 15, 2011, the day of the incident. Mr. Williams stated that he did not receive
the refund and therefore Southwest re

- issued it , mail ing it to his counsel, the DLRC
offices for safe keeping

. The Complainant tries to argue t h a t the reissuance of his
refund somehow establishes that Southwest n ever issued it in the first place. Williams Reply, pp 4

- 5. This argument is nonsense

. South west refunds an average of ten
thousand tickets over the course of a week and the company has provided evidence
that Mr. Williams’ refund was entered into the correct system for processing the day of
the incident. See Southwest Airlines Answer, p. 4 ; Exhibit B, Declaration of Ellen MacMillen, ¶ 9 ; and Exhibit C, RefundPro screen shot showing Mr. Williams’ refund
entered on 2/15/11 and issued on 2/24/11. What possible motivation would Southwest have to withhold Mr. Williams’
refund? I nstead, as explai ned in Southwest’s Reply, i n response to Mr. Williams’ claim that he never received his refund and verification that the original check had not been

1 DOT Rule 6 (14 CFR § 302.6).3

cashed, Southwest reissued his refund

. See Southwest Reply, p. 2, n.1. This is an example of the Complainant trying to invent an issue where none exists.

II. SOUTHWEST HAS PROVIDED RELEVANT TRAINING MATERIALS TO DOT AND IS UNDER NO OBLIGATION TO SHARE THEM WITH MR. WILLIAMS. Mr. Williams complains that Southwest has not provided him with “a shred of evidence by way of documentation or affidavit” of the sufficiency of its training
programs. Williams Reply, p. 5. The simple reason for this is that Mr. Williams is not
entitled to these proprietary materials as the DOT, not Mr. Williams , is responsible for
review ing airline discrimination training programs and ensuring compliance with Part
382. As noted in its Answer and Reply, the company takes compliance with Part 382
very seriously and devotes significant resource s toward appropriate training. In fact, Southwest’s disability training programs far exceed DOT requirements. The Department has reviewed Southwest’s disability

- awareness training materials and has not raised
any concerns with Southwest regarding its program. Southwest is, of course, mindful that its training program must accurately and sufficiently cover all regulatory requirements in Section 382.141

. However, Southwest is not obligated to share these
materials with Mr. Williams. Mr. Williams further complains that “there is no evidence of Southwest’s official records” that Agent LaRita West and Supervisor E l l e n MacMillan completed training as required by 14 CFR § 382 .145(b)

. Williams Reply, p. 6. While Southwest declin es to provide Mr. Williams with access to its confidential employee training files , S outhwest ’ s records confirm that Agent West received her initial d isability a wareness t raining in 2008 and has completed recurrent disability awarenes s training every year since that time ,4

including in both 2010 and 2011

. I n a d d i t i o n , a s stated previously, Supervisor MacMillan has been a CRO since the inception of the program. Southwest’s CROs receive initial and recurrent disability awareness training a s p a r t o f their CRO training.
Southwest ’s electronic records show that Supervisor MacMillan has received recurrent CRO/disability awareness training annually since 2001 , including in both 2010 and
2011

. Any purported concerns regarding the sufficiency of Southwest ’s disability awareness training for Agent West and Supervisor MacMillan should now be p u t t o r e s t

. III. SOUTHWEST ’S CRO STAFFING AND TRAINING FAR EXCEEDS DOT REQUIREMENTS A ND IS WELL KNOWN TO T HE DEPARTMENT. In another attempt to reinterpret the facts, Mr. Williams claims that the high
number of trained Southwest CROs at the PHX airport is somehow contradict ed by PHX Supervisor Ellen MacMillan ’s statement to Mr. Williams that “there was no one else available” to talk with “because it was very early in the morning.” Williams Reply, p. 6, quoting MacMillan Decl., ¶ 5. However, as Mr. Williams states in his Reply and as Supervisor MacMillan stated in her Declaration, Mr. Wil liams demanded to talk with her “boss,” not a CRO. Since Ellen, a 30

- year employee , is the most senior Customer Service Supervisor in PHX, her “boss” would be the Manager of Customer Service or the PHX Station Manager, neither of whom were at the airport at the time of the incident. Thus, despite Mr. Williams ’ creative logic, Supervisor MacMillan, a trained CRO herself, was not commenting on the number of CROs at t h e PHX airport but on
whether or not her “boss” was available.
As discussed in detail in Southwe st’s Reply, the company designates and trains over 700 employees to be CROs throughout its system , a substantially higher number than required by 14 CFR § 382.151(b). At the Phoenix Airport alone, Southwest has 455

trained CROs, which means that an average of 12 are on site and available to assist customers at all times. This commitment to training demonstrates the importance that Southwest places on compliance with Part 382 and the irrelevance , as well as the inaccuracy, of Mr. Williams’ argument.
IV. MR. WILL IAMS , NOT HIS DOG, WAS DENIED BOARDING DUE TO HIS BELLIGERENT, VERBAL LY ABUSIVE, AND UNSA FE BEHAVIOR

. In its Answer, Reply and now Surreply, Southwest has provided compelling evidence that Mr. Williams, not his dog, was denied boarding due to Mr. Williams’ unruly and verbally a busive behavior. Therefore, the fact that Mr. Williams flew from
LAX to PHX on Southwest with a dog , or from PHX to LAX on US Airways with a dog , or
the details and customer perception of Southwest’s pet policy are irre levant. The bottom line is that, in this particular case, the facts show conclusively that Mr. Williams was denied boarding as a direct result of his verbally abusive and unsafe conduct, including profanities and excessive yelling, toward several Southwes t employees who repeatedly tried to assist him, rather than for any disability

- related reason. Southwest
did not violate the ACAA or Part 382 in its treatment of Mr. Williams but instead appropriately denied him boarding based on his belligerent behavior a nd in accordance with Southwest’s Contract of Carriage.6 CONCLUSIO s N
F or the reasons stated above and in Southwest’s prior submissions, the Complaint is without merit and should be dismissed without delay

.
Respectfully submitted,

______________________ Leslie C. Abbott

February 24 , 2012