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 )

____________________________________ ______ )

ANSWER AND MOTION TO DISMISS 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 bob.kneisley@wnco.com (202) 263

- 6284

September 26 , 20111 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 )

____________________________________ ______ )

ANSWER AND M OTION TO DISMISS OF SOUTHWEST AIRLINES CO.

Southwest Airlines Co. (“Southwest”) hereby files this A nswer and M otion To

Dismiss in response to the formal third

- party complaint submitted to the Department by
the Disability Rights Legal Center on behalf of Don Edwards Williams dated August 12,

2011. 1 The C omplaint alleges that Southwest violated the Air Carrier Access Act
(“ACAA”) and the Department’s implementing regulations in 14 CFR Part 382 by
discriminating against Mr. Williams based on his disability when Southwest refus ed to

allow him to travel with his claimed service animal

. The C omplaint requests that the
Department order Southwest to (1) implement “policies and procedures to prevent
discrimination and reasonably accommodate passengers with a disability
, ” (2) provide
“adequate training and education” to Southwest’s Phoenix Airport employees and Dallas
Customer Service and Claims Department personnel on disability rights, including
effectively assisting passengers with a disability, and (3) pay damages to Mr. Williams,
including a refund for his ticket, as well as attorneys’ fees and costs.

1 Southwest requested and received an extension of time from the Principal Deputy Assistant General Counsel for Aviation Enforcement and Proceedings to fil e its Answer to the C omplaint until September 26, 2011. See letters of Southwest counsel to this docket dated August 25, 2011 and September 14, 2011.2 Th e Complaint makes serious allegations

. Strict compliance with the

Department’s disability regulations is an important priority for Southwest

, and the

company devotes significant resources to ensur ing that it provides non
- discriminatory

access to all members of the disability community. However, in this particular case, the
facts show conclusively that Mr. Williams was denied boarding as a direct result of h is
verbally abusive and unsafe conduct , including profanities and excessive yelling
, toward
several Southwest employees who repeated ly 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 and in accordance with Southwest’s Contract of Carriage

. Therefore, the
Complaint should be dismissed.

I. MR. WILLIAMS WAS PROPERLY DE NIED BOARDING BY A SOUTHWEST COMPLAINT RESOLUTION OFFICIAL (“CR O ”) AS A DIRECT RESULT OF HIS DISRUPTIVE AND VERBALLY ABUSIVE BEHAVIOR, NOT DUE TO HIS DISABILITY.
On the morning of February 15, 2011

, Mr. Williams, traveling in a power

wheelchair and accompanied by a large dog, approached a full service kiosk at the
Southwest ticket counter at the Phoenix Sky Harbor Airport to rebook his flight to Los
Angeles. Although not mentioned in Mr. Williams’ C omplaint, he was in fact first
assisted by Southwest Customer Service Agent LaRita West who pulled up his flight

information. While assisting Mr. Williams, LaRita was in a position to closely observe

his dog. Based on its appearance, LaRita reasonably concluded that the dog was a pet

rather than a service animal

. In addition to being “unclean
, ” the dog had a red bandana

and a rope around its neck, no leash or collar, barked at employees
, and did not sit3 obediently at the side of Mr. Williams’ wheelchair. See Exhibit A, Declaration of LaRita
West (hereafter West Decl.) at ¶ 4 and Exhibit B, Declaration of E llen MacMilla n
(hereafter Macmillan Decl.) at ¶ 4

. Based on her observations, LaRita informed Mr.
Williams that the dog would not be able to travel with him because the animal exceeded
the size limitations of Southwest’s pet carriage policy

. Mr. Williams immediately became
“quite angry
, ” insisting that the dog was a service animal. West Decl. at ¶ 5

. In the face
of Mr. Williams’ escalating temper
, LaRita asked for assistance from a Southwest
Complaint Resolution Official (“CRO”) in accordance with 14 CFR § 382.117

. Id.

E llen MacMillan
, a 30

- year Southwest employee
, the most senior Customer

Service Supervisor in Phoenix and an experienced CRO

, came over to try to defuse the

situation. She r epeated ly asked Mr. Williams to “please calm down” and to “ lower his

voice ” so that they could try to “ resolve the matter

. ” MacMill a n Decl. at ¶ 6

. However,
nothing worked. Ellen states that “ Mr. Williams would not allow me to talk or answer any
of his questions as he continued to berate me personally

. ” MacMill a n Decl. at ¶ 5

. At
one point during her “conversation” with Mr. Williams, Ellen even contemplated calling
the airport police for assistance, but instead asked Mr. Williams one more time to please
refrain from making a scene

. MacMillan Decl. at ¶ 6

. However, Mr. Williams did not

calm down despite these repeated attempts. Therefore, Ellen, as a Supervisor and

CRO

, made the decision to deny Mr. Willi ams boarding based on his abusive,

combative , and unsafe behavior

. Ellen states that she did :

“ everything I could to diffuse his anger and to find a way to say yes to allowing him to travel. I was convinced that denying him boarding was the appropriate action at the time, because I felt that if he could not calm down while speaking with me it would be danger ous to put him on a flight. I felt that he would be potentiall y disruptive on the aircraft. My concern was for4 all our Employees involved and it appeared to me Mr. Williams was too angry and agitated to fly .” MacMill a n Decl. at ¶ 7

. Contrary to statements in the Complaint , Ellen did not “snatch” anything from Mr.

Williams or “follow[ ] him around and instruct[ ] other Southwest employees not to assist

him” as Mr. Williams alleges

. Williams Complaint at ¶ 12, 13; West Decl. at ¶ 6;

MacMill a n Decl. at ¶ 8

. Instead, “Mr. Williams proceeded to leave and move on to the
US Airways side of the airport, continuing with the loud, abusive language from across

the airport.” West Decl. at ¶ 6 ; MacMillan Decl. at ¶ 8

. Southwest ’s records show that

the co mpany began processing a refund of Mr. Williams’ ticket the day of the incident,
February 15, and that the refund was approved on February 24 and mailed t o Mr.

Williams on February 2 5 , in the regular course of business

. MacMillan Decl. at ¶ 9;

Exhibit C

.

II. RESPONSES TO THE COMPLAINT’S SPECIFIC ALLEGATIONS

Southwest denies all assertions of wrongdoing in the Complaint

. Pursuant to 14
CFR § 302.408(b), Southwest’s responses to each specific allegation are as follows:

1. ALLEGATION : “Southwest Violated Mr. Williams’ Right to Travel with a

Service Animal.”

RESPONSE : SOUTHWEST DENIES THIS ALLEGATION. Mr. Williams was
not denied the right to travel with a service animal. Instead, Southwest denied Mr.

Williams boarding based solely on his improper and unsafe behavior. As attested to by
Southwest employees who were involved and clearly remember the incident with Mr.

Williams
, he was verbally abusive and refused to calm down, despite repeated attempts5 by Southwest employees

, ma king him a potential danger to other passengers and

unsuitable for air travel. Moreover, due to the fact that “ Mr. Williams would not allow me
[CRO Ellen MacMilla n] to talk or answer any of his questions
, ” n o useful communication

was possible with Mr. Williams and Southwest employees were not able to ask Mr.

Williams any clarifying questions about his dog

. MacMillan Decl. at ¶ 5

. CRO Ellen
asked for documentation only after observing credible visual cues that strongly
suggested the dog was not a trained service animal, as discussed above and in
compliance with 14 CFR § 382.117.
While Part 382 protects the right of a qualified individual with a disability to travel

with a service animal, it does not require airlines to allow anyone to travel who exhibits

serious concerns for passenger or flight safety. Specifically, Southwest’s C ontract of
Carriage states that the carrier “may refuse to transport...any Passenger... whose
conduct is or has been known to be disorderly, abusive, offensive, threatening,
intimidating, violent ....” See Exhibit D , Article 6(a) (1) and (8)(i). Mr. Williams’ be havior
fell squarely within this description and Southwest therefore appropriately and lawfully
refused to transport him.

2. ALLEGATION : “Southwest Employee s Took Unlawful Adverse Action Against

Mr. Williams.”

RESPONSE : SOU THWEST DENIES THIS ALLEGATION. Southwest

employees did not take adverse action against Mr. Williams based on his disability.

Instead, Mr. Williams was lawfully denied boarding because his behavior was unsafe

and incompatible with air travel. Moreover, as both Southwest Agent LaRita West and

Sou thwest Supervisor Ellen MacMilla n attest, nothing was seized from Mr. Williams

.6 In addition, Southwest promptly refunded Mr. Williams’ ticket. Southwest’s records show

that the company requested a refund for Mr. Williams on February 15, the same day as

the incident
, and that the refund was approved on February 24 and mailed on February

25 , in the regular course of business

. MacMillan Decl. at ¶ 9; Exhibit C

.

3. ALLEGATION : “Southwest Failed to Provide Written Explanation for the
Denial of His Service Animal to Mr. Williams And Violated His Right to a ‘Complaint

Resolution Official.’”

RESPONSE : SOUTHWEST DENIES THESE ALLEGATION S . As explained

in detail above, Mr. Williams, not his dog , was denied boarding for reasons unrelated to
his disability . Therefore, written explanation pursuant to 14 CFR § 382.117(g) was not

required. In addition, Customer Service Agent LaRita West immediately called for

C omplaint Resolution Official (“CRO”) Ellen MacMilla n when Mr. Williams became
verbally abusive. Neither LaRita nor Ellen could get Mr. Williams to stop yelling, lower
his voice or calm down long enough to provide an opportunity to explain that Ellen was

a CRO. In addition, Mr. Williams also spoke with a S outhwest Customer Support &
Services CRO in Southwest’s Customer Relations Department between February 15
and 18, just a few days after the incident

.

4

. ALLEGATION : “Southwest Is in violation of Its Duty to Train Its Personnel on
the ACAA and Its Implementing Regulations.”

RESPONSE : SOU THWEST DENIES THIS ALLEGATION. Southwest
devotes significant and appropriate resources to employee training on the requirements

of the Air Carrier Access Act and compliance with Part 382. Part 382 requires that air7 carriers develop a program that will result in each covered employee receiving refresher
training at least once every three years. Southwest far exceeds this requirement by

p roviding Part 382 training annually

. In addition, Southwest e mployees who are
designated as CROs also receive annual recurrent training and are trained to be
thoroughly familiar with the requirements of Part 382 as well as the company’s specific

procedure s. Finally , i n accordance with Part 382 Section 141, both of the employees

with whom Mr. Williams interacted at the Phoenix Airport, LaRita West and Ellen

MacMillan
, had completed initial and recurrent disability

- related training
, including
sensitivity training and equal treatment of Customers

, in 2010

. Relying solely on the number of Southwest passengers who have filed

complaints with DOT related to service animals
, the Complaint also asserts that

Southwest does not provide ade quate training and “allow[s] systematic and pervasive
acts of discrimination against persons with disability.” The Complaint fails to point out
that, among the carriers identified in the Complaint’s “Appendix A,” Southwest had the

lowest ratio of disabili ty related complaints in 2007, 2008, and 2010. In 2009, only one

other airline had a lower complaint ratio than Southwest. See Exhibit E

. These data

demonstrate the opposite of what the Complaint asserts, i.e ., that Southwest’s
performance in handling disabled passengers is unparalleled in the airline industry.
This outstanding achievement is the result of Southwest’s unfettered commitment to
fully train its employees and to provid e all customers, including t hose with disabilities,
with the highest level of customer service.
Southwest’s commitment to offering the highest level of customer service to
passengers with disabilities is further demonstrated on southwest.com where

# EXHIBIT A

# EXHIBIT B1 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 )

____________________________________ ______ )

DECLARATION OF ELLEN MACMILL A N

I, Ellen MacMill a n, hereby state the following:

1. I am a Southwest Airlines Co. (“Southwest”) Customer Service Supervisor
at the Phoenix Sky Harbor Airport, a position I have held since 198 2

.
2. I am also trained as a Complaint Resolution Official (“CRO”) and have
held this designation since inception of the CRO program . I completed both initial and
recurrent disability

- relat ed training, including sensitivity training and equal treatment of

Customers, in 2010.

3. I vividly recall my encounter with Mr. Don Edward Williams on February

15, 2011

. Mr. Williams came to the ticket counter in a power wheelchair accompanied
by a large dog early i n the morning and was initially helped by C ustomer Service Agent
(“C SA ” ) LaRita West. I became involved with Mr. Williams when La R ita requested my

assistance.

4. I observed Mr. Williams’ dog and it did not look or act like a service

animal. It had a rope and a red bandana around its neck
, it did not have a leash or

collar and it was unclean and disheveled

. The dog also barked at employees and did
not remain attentively at the side of Mr. Williams’ wheelchair. Overall, the dog did not2 appear to have the temperament of a trained service dog. Nevertheless, I wanted to see
if Mr. Williams could give me credible verbal assurances that his dog was in fact a

service animal so that he could continue his travel with the dog as planned.

5. I tried to i ntroduce myself as the Customer Service Supervisor on duty but

Mr. Williams continued to yell insults about Southwest , the e mployees, me , as well as
the way we conduct business. He immediately told me that I could not ask him about
his dog since this was the basis of his dis cussion with La Rita

. I did my best to diffuse

the situation but to no avail. Mr. Williams would not allow me to talk or answer any of
his questions as he continued to berate me personally. He req uest ed to talk to my

boss , and I explained to him that there was no one else currently available because it
was very early in the morning.

6. After continued conversation and repeate d requests for Mr. Williams to

“ please calm down
, ” “ lower your voice
, ” so th at we could try to resolve the matter,
nothing worked. I contemplated calling the local airport police for assistance, but

instead asked Mr. Williams one more time to “ please refrain from making a scene

. ” In

total, t he interaction lasted for approximatel y ten to fifteen minutes. Ultimately , I opted to
deny Mr. Williams boarding based on his improper and unsafe behavior

.

7. As a CRO, I was doing everything I could to diffuse Mr. Williams’ anger
and to find a way to say yes to allowing him to travel. I was convinced that denying him
boarding was the appropriate action at the time, because I felt that if he could not calm
down while speaking with me it would be dangerous to put him on a fli ght. I felt that he

c ould be potentially disruptive on the aircraft

. My concern was for all of our e mployees
and it appeared to me Mr. Williams was too angry and agitated to fly.

# EXHIBIT C

### REFUNDPRO SCREEN SHOT SHOWING REFUND ISSUED TO MR. DON EDWARDS WILLI AMS O N FEBRUARY 24, 2011

# EXHIBIT D

## SOUTHWEST AIRLINES CO. CONTRACT OF CARRIAGE

— PASSENGER

6. Acceptance of Passengers

a. Refusal to Transport

General. Carrier may, in its sole discretion, refuse to transport, or may remove from an aircraft at any point, any Passenger in any of the circumstances listed below. The fare of any Passenger denied transportation or removed from Carrier’s aircraft en route un der the provisions of this Article will be refunded in accordance with Article 9 of this Contract of Carriage . The sole recourse of any Passenger refused transportation or removed en route will be the recovery of the refund value of the unused portion of his Ticket. Under no circumstances shall Carrier be liable to any Passenger for any type of special, incidental, or consequential damages.
(1) Safety. Whenever such action is necessary, with or without notice, for reasons of aviation safety.
(2) Force Majeure E vent: Whenever advisable due to Force Majeure Events outside of Carrier’s control, including, without limitation acts of God, meteorological events, such as storms, rain, wind, fire, fog, flooding, earthquakes, haze, or volcanic eruption. It also includes , without limitation, government action, disturbances or potentially volatile international conditions
, civil commotions, riots, embargoes, wars, or hostilities, whether actual, threatened, or reported, strikes, work stoppage, slowdown, lockout or any othe r labor related dispute involving or affecting Carrier’s service, mechanical difficulties by entities other than Carrier, Air Traffic Control, the inability to obtain fuel, airport gates, labor, or landing facilities for the flight in question or any fact not reasonably foreseen, anticipated or predicted by Carrier.
(3) Government Request or Regulation. Whenever such action is necessary to comply with any Federal Aviation Regulation or other applicable government regulation, or to comply with any governmenta l request for emergency transportation in connection with the national defense.
(4) Interference with Flight Crew. Passengers who interfere or attempt to interfere with any member of the flight crew in carrying out its duties.
(5) Search of Passenger or Property. Any Passenger who refuses to permit the search of his person or property by Carrier or an authorized government agency for explosives, hazardous materials, contraband, or concealed, deadly, or dangerous weapons or articles.(6) Proof of Identity. Any Passenger who refuses upon request to produce positive identification acceptable to the Carrier.
(7) Incompatible Medical Requirements. Carrier will refuse to transport persons requiring the following medical equipment or service s, which either are not authorized or cannot be accommodated on Carrier’s aircraft: medical oxygen for use onboard the aircraft except FAA

- approved and Carrier accepted Portable Oxygen Concentrators (POCs), incubators, medical devices requiring electrical power from the aircraft, or travel on a stretcher.
(8) Comfort and Safety. Carrier may refuse to transport, or remove from the aircraft at any point, any Passenger in any of the circumstances listed below as may be necessary for the comfort or safety of such Passenger or other Passengers and crew members:
(i) Persons whose conduct is or has been known to be disorderly, abusive, offensive, threatening, intimidating, violent, or whose clothing is lewd, obscene, or patently offensive.
(ii) Persons who are barefoot and older than five years of age, unless required due to a disability.
(iii) Persons who are unable to occupy a seat with the seatbelt fastened.
(iv) Persons who are unwilling to comply with seating requirements under Carrier’s customer of si ze policy as specified in Article 4a(3)(i). Carrier’s failure to enforce or decision not to enforce its customer of size policy for a Passenger traveling on a given flight does not preclude Carrier from enforcing the policy with respect to that Passenger on a subsequent flight.
(v) Persons who appear to the Carrier to be intoxicated or under the influence of drugs.
(vi) Persons who are known by the Carrier to have a communicable disease or infection and whose condition poses a direct threat as defined in CFR § 382.3 to the health or safety of others.
(vii) Persons who have an offensive odor, unless caused by a disability.
(viii) Any person who cannot be transported safely for any reason.
(9) Weapons. Persons who wear o r have on or about their person concealed or unconcealed deadly or dangerous weapons; provided, however, that Carrier will carry Passengers who meet the qualifications and conditions established in 49 CFR § 1544.219.(10) Prisoners. Prisoners (persons ch arged with or convicted of a crime) under escort of law enforcement personnel; other persons in the custody of law enforcement personnel who are being transported while wearing manacles or other forms of restraint; persons brought into the airport in manac les or other forms of restraint; persons who have resisted escorts; or escorted persons who express to Carrier an objection to being transported on the flight.
(11) Non

- Smoking Policy. Persons who are unwilling or unable to abide by Carrier's
non
- smoking rules, and federal laws prohibiting smoking onboard the aircraft as established in 49 USC § 41706.
(12) Misrepresentation. Persons who have made a misrepresentation which becomes evident upon arrival at the airport, and the misrepresentation renders t he Person unacceptable for Carriage.
(13) Prohibition on Solicitation. Persons who refuse to comply with instructions given by Carrier prohibiting the solicitation of items for sale or purchase, including airline Tickets, reduced

- rate travel passes, or t ravel award certificates.

# EXHIBIT E

## All Disability-Related Airline Complaints 2007-2010*

Airline Year Enplanements Complaints Ratio** American 2007 98,165,082.00 3187 3.246571933 Continental 2007 49,005,712.00 499 1.018248648 Delta 2007 73,051,467.00 2532 3.466049491 Northwest 2007 53,736,983.00 1403 2.610864849 United 2007 68,386,110.00 1091 1.595353208 US Airways 2007 57,870,936.00 1312 2.267113841 Southwest 2007 101,991,150.00 698 0.684373105

Airline Year Enplanements Complaints Ratio American 2008 92,772,044 2160 2.328287604 Continental 2008 46,946,338 457 0.973451859 Delta 2008 71,727,986 2585 3.603893186 Northwest 2008 48,920,621 1138 2.326217404 United 2008 63,149,339 1313 2.079198327 US Airways 2008 54,323,815 1591 2.928733926 Southwest 2008 102,041,801 780 0.764392624

Airline Year Enplanements Complaints Ratio American 2009 85,720,516 1973 2.301666033 Continental 2009 43,995,409 822 1.868376766 Delta 2009 67,852,554 2377 3.503184272 Northwest 2009 41,116,559 1276 3.103372537 United 2009 56,070,670 1119 1.995695789 US Airways 2009 51,016,029 1784 3.496940148 Southwest 2009 101,417,913 1993 1.96513608

Airline Year Enplanements Complaints Ratio American 2010 86,129,130 2308 2.679697334 Continental 2010 43,543,539 1026 2.356262315 Delta 2010 126,423,869 3742 2.959884102 Northwest 2010 N/A N/A N/A United 2010 54,034,924 1413 2.614975456 US Airways 2010 51,853,197 2769 5.340075753 Southwest 2010 106,307,267 2020 1.90015232

* Appendix A to Part 382-Report of Disability-Related Complaint Data, U.S. DOT, located at http://airconsumer.ost.dot.gov/publications/gateway1.htm

** Ratio of complaints per 100,000 passengers enplaned

# EXHIBIT F