Thompson v . Southwest Airlines 04-CV-313-SM 02/06/06 UNITED STATES DISTRICT COURT

DISTRICT O F NEW HAMPSHIRE

Nadine Thompson, Plaintiff

v. Civil N o . 04-cv-313-SM Opinion N o . 2006 D N H 017 Southwest Airlines C o . , Defendant

O R D E R

Nadine Thompson, an African-American woman, has sued

Southwest Airlines C o . (“Southwest”) for damages arising from

Southwest’s insisting that she purchase an additional seat under

its customer of size policy. Specifically, Thompson asserts

discrimination claims under N . H . R E V . S T A T . A N N . (“RSA”) § 354-A:17

(Count I ) , 42 U . S . C . § 1981 (Count I I I ) , and 42 U . S . C . § 2000d

(Count I V ) , as well as a state common law claim for intentional

infliction of emotional distress (Count I I ) . Before the court is

defendant’s motion for summary judgment. Plaintiff objects. For

the reasons given, defendant’s motion for summary judgment is

granted in part and denied in part.

Summary Judgment Standard

Summary judgment is appropriate when the record reveals “no

genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” FED. R . CIV. P .

56(c). “ A ‘genuine’ issue is one that could be resolved in favor

of either party, and a ‘material fact’ is one that has the

potential of affecting the outcome of the case.” Calero-Cerezo

v . U . S . Dep’t of Justice,

(1st Cir. 2004) (citing

Anderson v . Liberty Lobby, Inc., 477 U . S . 2 4 2 , 248-50 (1986)).

“The role of summary judgment is to pierce the boilerplate of the

pleadings and provide a means for prompt disposition of cases in

which no trial-worthy issue exists.” Quinn v . City of Boston,

8 , 28 (1st Cir. 2003) (citing Suarez v . Pueblo Int’l,

Inc.,

9 , 53 (1st Cir. 2000)).

“Once the movant has served a properly supported motion

asserting entitlement to summary judgment, the burden is on the

nonmoving party to present evidence showing the existence of a

trialworthy issue.” Gulf Coast Bank & Trust C o . v . Reder,

5 , 39 (1st Cir. 2004) (citing Anderson, 477 U . S . at 248;

Garside v . Osco Drug, Inc.,

6 , 48 (1st Cir. 1990)). To

meet that burden the nonmoving party, may not rely on “bare

allegations in [his or her] unsworn pleadings or in a lawyer’s

brief.” Gulf Coast, 355 F.3d at 39 (citing Rogan v . City of

Boston,

4 , 29 (1st Cir. 2001); Maldonado-Denis v .

Castillo-Rodriguez,

(1st Cir. 1994)). When

2 ruling on a party’s motion for summary judgment, the court must

view the facts in the light most favorable to the nonmoving party

and draw all reasonable inferences in that party’s favor. See

Lee-Crespo v . Schering-Plough Del Caribe Inc.,

4 , 37

(1st Cir. 2003) (citing Rivera v . P.R. Aqueduct & Sewers Auth.,

, 185 (1st Cir. 2003)).

Background

The record discloses that Nadine Thompson is approximately

five feet eight inches tall and, at the relevant time, weighed

between 300 and 330 pounds.

On June 9, 2003, Thompson missed her Southwest Airlines

flight from Manchester to Chicago, due to unexpected delays

occasioned by long security check lines. She went to the

customer service desk to make other arrangements. She was

treated cordially, and with respect. The female agent issued her

a new ticket to Chicago, via Nashville, on a flight that was

leaving Manchester shortly. The agent also handed her a new

boarding pass and directed Thompson to go right to the gate and

board the plane, which she did. A male Southwest employee was

standing behind the service counter observing her, but said

nothing. Neither agent suggested that she qualified as a

3 customer of size, or that she would be required to buy a second

seat.

Thompson went to the gate and boarded Southwest Flight 1290

to Nashville. The gate agent also was cordial and welcomed her

on board. Nothing was said at the gate about Thompson’s possibly

qualifying as a customer of size. After she took a seat and

buckled her seatbelt, Southwest Operations Supervisor Joel Drake

came onto the aircraft. Drake thought Thompson was encroaching

upon the space reserved for the seat next to hers. He left the

aircraft without speaking to Thompson. Shortly thereafter,

Southwest Customer Service Supervisor Dave Wilson boarded the

plane. He also determined that Thompson appeared to occupy more

than the space associated with her seat, and he also left the

plane without speaking to her. While he was on the plane to

observe Thompson, Wilson stopped and spoke with a woman of color

and asked to see her ticket. After Drake and Wilson both

observed Thompson, they conferred on the loading bridge and

agreed that she appeared to be what Southwest calls a “customer

of size” (“COS”). (It was either Drake or Wilson that had been

behind the customer service counter when Thompson was reissued

her ticket and boarding pass.)

4 “Customer of size” is a term of art used by Southwest to

classify passengers it requires to purchase a second seat, for

their own comfort and safety, as well as for that of their fellow

passengers. The term is discussed and explained in a variety of

Southwest documents. According to a Southwest document titled

“PR COS Statement”:

As a Company committed to serving our Customers in safety and comfort, we feel the definitive boundary between seats is the armrest(s). If a Customer cannot lower the armrest(s) and encroaches on a portion of another seat, a Customer seated adjacent would be very uncomfortable and a timely exit from the aircraft in the event of an emergency might be compromised if we allowed a cramped, restricted seating arrangement.

(Pl.’s O b j . to Summ. J., Ex. 27C.) Southwest’s “Student Manual”

for “Operations Classroom Training” provides: “A Customer who

must raise the armrest(s) to be seated comfortably, thereby

compromising the adjacent seat(s), is considered a Customer of

size.” (Pl.’s O b j . to Summ. J., Ex. 151C.) In a training memo,

Southwest explained:

When we refer to Customers of size who need to purchase two seats, we are talking about those Customers who obviously need to lift the armrest(s) to fit and who will definitely be in a portion or all of the seat next to him/her. . . . A COS cannot sit in a seat without having the armrest(s) raised, and cannot adjust the size of his lower body in a manner as to avoid compromising the seat adjacent to him.

5 (Pl.’s O b j . to Summ. J., Ex. 185C (emphasis in the original).

Section 04.020.81 of Southwest’s General Operations Manual

provides: “‘Customer of size’ is the appropriate term to use when

referring to a Customer who will occupy more than one seat

because of size.” (Pl.’s O b j . to Summ. J., Ex. 270C.) Finally,

a Southwest web page titled “Customer of Size Q&A” states: “What

is the definitive gauge for a Customer of size? The armrest is

the definitive gauge, as it serves as the boundary between

seats.”1 (Pl.’s O b j . to Summ. J., Ex. 1019.)

According to various policy statements, Southwest strives to

address COS issues at the earliest possible point of contact with

1 Thompson does not allege that she did not encroach upon the adjoining seat’s space. Instead she makes a legal argument: that her ability to put the seat’s armrest down definitively establishes that she was not a “customer of size,” within the meaning of Southwest’s policy. In her statement of disputed facts, Thompson asserts “[p]laintiff disputes that Wilson observed that [her] hips and thighs protruded into [an] adjoining seat . . .,” and in support cites three passages from her deposition. However, none of those passages includes a statement that plaintiff did not occupy more than one seat. Specifically, plaintiff testified: “I sat down, I buckled my seat belt; I put my armrest down,” (Pl.’s O b j . to Summ. J., Ex. 4 (Thompson Dep.) at 3 6 ) ; “My seat belt is buckled, my armrest is down. Why are you asking me to purchase another ticket or get off the plane?” (Thompson Dep. at 4 0 ) ; and “He has yet to say to me you’re too fat, your armrest doesn’t go down, your seatbelt doesn’t buckle, you are encroaching on the other seat. He said nothing of the sort; he just said and repeated several times, for your safety and comfort I need you to purchase another ticket.” (Thompson Dep. at 41.)

6 passengers who may qualify, i.e., at check-in o r , failing that,

in the gate area, prior to boarding. (See, e.g., Pl.’s O b j . to

Summ. J., Exs. 1 3 , 1 4 , 1 6 , and 20.) Southwest’s policy also does

not require passengers to purchase a second seat in mid-trip or

once they have boarded a flight. (See Pl.’s O b j . to Summ. J.,

Ex. 170C.) However, that same policy requires that when a COS

has boarded a flight without purchasing a second seat, that

person must be told of the COS policy and informed that he or she

will have to purchase a second seat the next time he or she flies

with Southwest, on a return flight or otherwise. (Id.)

After speaking with Drake, Wilson boarded the plane a second

time and asked Thompson to accompany him back onto the loading

bridge. On the loading bridge, Wilson spoke to Thompson. He

told her that “for her comfort and safety” she needed to purchase

a second seat. According to both Drake and Wilson, Thompson

asked whether her ticket was refundable if she decided not to

take the Southwest flight.2 Thompson told Wilson and Drake that

she “felt quite safe and . . . was comfortable,” and that she was

“not going to purchase a second seat for [any] reason.”

2 Thompson does not mention this detail in her version of events, nor does she dispute i t . (Pl.’s O b j . to Summ. J., Ex. 1 ) .

7 (Thompson Dep. at 39-40.) Then she reboarded the aircraft,

returned to her seat, buckled the seatbelt, and put the armrest

down. After Thompson went back onto the plane, Drake telephoned

Southwest headquarters to find out what to do about Thompson’s

refusal to purchase a second seat. He was told to call airport

security for assistance in removing Thompson from the aircraft,

if necessary. He called security, and two deputy sheriffs came

to the gate area.

After Wilson discussed the situation with Drake, two local

deputy sheriffs, and another Southwest Customer Service

Supervisor (Laurie Forbush), he went back onto the aircraft to

discuss the situation with Thompson. He told her that her ticket

was fully refundable. Thompson showed Wilson that she was able

to buckle her seatbelt and put her armrest down. Wilson,

however, says that, even with the armrest down, Thompson’s hips

and thighs encroached on the adjoining seat’s space. But, taking

the evidence in the light most favorable to Thompson, after she

demonstrated that she could lower the armrests with ease, and sit

comfortably, he said nothing, but glowered in apparent anger.

Then he turned and abruptly left the aircraft in a manner

suggesting that he was angry. Thompson says no Southwest agent

ever gave any explanation for their insistence that she buy a

8 second seat, but simply repeated the mantra “for your own comfort

and safety, etc. etc.” The customer of size policy was not

explained to her by anyone. As Wilson was walking up the aisle,

Thompson, frustrated and humiliated, collected her belongings and

followed him off the plane. In the words of plaintiff’s

complaint:

On further reflection while [sitting] in her seat upset and humiliated over the public encounter the Plaintiff concluded that Southwest did not want her on their plane and considering how she felt publicly humiliated she did not want to continue giving them her business.

Plaintiff unbuckled her seat belt gathered her belongings and exited the plane.

(Compl. ¶¶ 41-42.)

On the loading bridge, on her way back to the gate area,

Thompson encountered Drake, Forbush, and the two deputy sheriffs.

There she asked Wilson: “Did you ask me to purchase another

ticket because I’m too fat to sit in the seat; did you ask me to

purchase another ticket because I’m a black woman?” (Thompson

Dep. at 98.) She also asked: “do you call the sheriffs, you

know, just for random fat people or do you call the sheriffs for

black people?” (Thompson Dep. at 100.)

9 Drake, Wilson, Forbush, and the two deputy sheriffs escorted

Thompson from the loading bridge to the ticket counter, where she

obtained a refund for the ticket she purchased. Between the

entrance to the loading bridge and the ticket counter, Thompson

shouted to those in the area that “Southwest has just asked me to

get off the plane either because I’m too fat or too black or just

a woman . . .” (Thompson Dep. at 108; see also id. at 105.)

After Wilson refused to give Thompson his name, she screamed at

him, calling him a “ coward” and a “ racist pig.”

(Thompson Dep. at 57-58.) By all accounts, no Southwest employee

used any words that were explicitly or implicitly racist or

sexist in character. (Thompson Dep. at 112.) Plaintiff’s claim

of racial animus rests on “the aggression and tone” displayed by

Wilson and Drake (Thompson Dep. at 1 1 2 ) , Wilson’s conversation

with another African-American woman on the plane, and the fact

that Wilson and Drake were acting in contravention t o , not

consistently with, Southwest’s actual policy relative to

customers of size.

Once Thompson’s ticket was refunded, the deputies escorted

her from the ticket counter to the main terminal area. Thompson

says the deputies were kind and consoling. They expressed

exasperation at Southwest’s behavior. The deputies offered their

office as a place for Thompson to compose herself, provided her

10 with coffee, and volunteered to assist her in rebooking on

another airline. With their help, Thompson was booked on a

United Airlines flight leaving a bit later that day (she did not

have to purchase a second seat).

Thompson sued Southwest for intentional discrimination

(Counts I , I I I , and IV) and for intentional infliction of

emotional distress (Count I I ) . Her basic point is this: because

she could demonstrably buckle her seatbelt, lower her armrest,

and ride comfortably, she was not, by the terms of Southwest’s

own policy, a customer of size.3 She says that because she was

not a customer of size, and, even if she was, Southwest’s policy

specifically did not require her to buy a second seat after she

was allowed to board, Wilson and Drake must have had some other

reason for asking her to purchase a second seat. Because Wilson

looked at the ticket of another customer of color when he boarded

the aircraft (which was odd, since Southwest has open, not

reserved, seating), and used an angry and aggressive tone with

her, particularly when he must have realized that she was not a

customer of size under the policy (and did not have to buy a

3 Thompson also notes that she had never before been subjected to the Southwest COS policy, although she routinely flew on Southwest.

11 second seat even if she w a s ) , the reason for asking her to

purchase a second ticket was not related to a legitimate interest

in enforcing company policy, but was racially motivated.4

Discussion

A . Count III:

In Count I I I , plaintiff asserts that defendant violated

by discriminating against her in the making and

enforcement of her contract to fly on Southwest Airlines.

Specifically, she asserts: “Defendant Southwest engaged in

4 In her objection to defendant’s motion for summary judgment, plaintiff explains:

But for defendant’s employee, Dave Wilson’s action of first entering the [aircraft] while plaintiff was in her seat and first finding another black woman to question, plaintiff might not have known that her race and gender played a factor in her selection for the COS policy.

(Pl.’s O b j . to Summ. J. at 10.) She further explains:

Based on the fact that Wilson came on the flight looking for an African American woman [and] found one other than M s . Thompson and left the aircraft and returned moments later this time locating M s . Thompson, who by defendant’s own documentation did not fit the requirements of policy of COS, is evidence that her status as an African American woman played a substantial part in the employees selection for an additional charge for service to fly with defendant on the morning of June 9, 2003.

(Obj. to Summ. J. at 12-13.)

12 intentional discrimination on the basis of Plaintiff’s race,

color and gender in removing her from Defendant’s plane on or

about June 9, 2003.” (Compl. ¶ 66.) Plaintiff left the plane of

her own accord, as Wilson and Drake were about to board the plane

with sheriff’s deputies to physically remove her. (See Compl. ¶¶

42-43; Thompson Dep. at 4 0 , 52-53, 96-97). Her claim, properly

construed, is that Southwest denied her the right to fly unless

she purchased a second seat, and did so because of her race.

Defendant moves for summary judgment on grounds that plaintiff

has presented neither direct nor indirect evidence of intentional

racial discrimination, and has presented no evidence to suggest

that Southwest’s stated reason for its actions was in fact a

pretext for racial discrimination.5

“To state a claim under [

], a plaintiff must

show (1) that [s]he is a member of a racial minority, (2) that

the defendant discriminated against h[er] on the basis of h[er]

race, and (3) that the discrimination implicated one or more of

the activities enumerated in the statute.” Garrett v . Tandy

5 Defendant also points out, and defendant does not appear to contest, that gender discrimination claims are not cognizable under

. Defendant is correct. See Runyon v . McCrary,

6 0 , 167 (1976). Plaintiff’s § 1981 claim is limited to a claim of racial discrimination.

13 Corp.,

4 , 98 (1st Cir. 2002) (citing Morris v . Dillard

Dep’t Stores, Inc.,

(5th Cir. 2001)). In cases

brought under

, as in Title VII cases, where the

plaintiff offers no direct evidence of discrimination, the court

employs the McDonnell Douglas-Burdine-Hicks burden-shifting

analysis. See Straughn v . Delta Air Lines, Inc.,

3 , 33

(1st Cir. 2001) (citing Conward v . Cambridge Sch. Comm.,

2 , 19 (1st Cir. 1999)).

Under the McDonnell-Douglas paradigm, “the plaintiff ‘must

carry the initial burden . . . of establishing a prima facie case

of . . . discrimination.”

(quoting McDonnell Douglas Corp.

v . Green,

9 2 , 802 (1973)). If the plaintiff does s o ,

then it falls to the defendant “to articulate ‘a legitimate, non-

discriminatory reason for its adverse . . . action.’” Straughn,

250 F.3d at 33 (citations omitted). Then, if the defendant

“proffers a nondiscriminatory reason for its action, the burden

shifts back to the plaintiff to show that the reason . . . was a

coverup for a discriminatory decision.” Id. at 34 (citations and

internal quotation marks omitted). “Despite these shifting

burdens of production, the plaintiff throughout retains the

burden of persuasion.” Conward,

(citing Mesnick

v . Gen. Elec. Co.,

(1st Cir. 1991)).

14 The court of appeals for this circuit has not yet described

the elements of a prima facie case applicable to a § 1981 claim

arising out of the purchase of goods and services or the denial

of access to a public accommodation. The Fourth Circuit,

however, described the elements of a “cause of action relating to

the purchase of goods or services,” in Williams v . Staples, Inc.,

6 2 , 667 (4th Cir. 2004). In another denial of services

case, the Sixth Circuit adopted a slightly more plaintiff-

friendly set of elements, under which a plaintiff must prove:

(1) plaintiff is a member of a protected class; (2) plaintiff sought to make or enforce a contract for services ordinarily provided by the defendant; and (3) plaintiff was denied the right to enter into or enjoy the benefits or privileges of the contractual relationship in that (a) plaintiff was deprived of services while similarly situated persons outside the protected class were not and/or (b) plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

Christian v . Wal-Mart Stores, Inc.,

6 2 , 872 (6th Cir.

2001) (adopting test first used in Callwood v . Dave & Buster’s,

Inc.,

(D. Md. 2000)). The Fourth Circuit, in

Williams, thought Callwood unpersuasive, noting “Callwood

purports to provide an alternative analytical approach in public

accommodation discrimination cases in which there is scant

evidence as to how members of the protected class are treated

15 differently from members outside the class.”

n.5. That may be s o , but given that “the prima facie case is ‘a

small showing that is not onerous and is easily made,’” Che v .

Mass. Bay Transp. Auth.,

1 , 38 (1st Cir. 2003) (quoting

Koseris v . Rhode Island,

0 7 , 213 (1st Cir. 2003)), and

given the preference, in this circuit, for considering

comparative evidence under the third step of McDonnell Douglas,

see Conward,

9 , this court will employ the less

stringent test set out in Christian.

Plaintiff has produced sufficient evidence to establish the

first two elements of her prima facie case. As an African

American, she is a member of a protected class, and she entered

into and attempted to enforce a contractual relationship with

Southwest.

Regarding part (a) of the third element, relating to

treatment of similarly situated persons outside the protected

class, plaintiff saw “other large women [presumably like her, as

she claims, not qualifying as customer of size] on that flight

who were not asked to purchase another ticket.” (Thompson Dep.

at 33.) But, her evidence on that score is weak. It consists of

an assertion that “60% of our population is overweight, so [she]

16 would assume that 60% of the women on the flight were possibly

overweight and [she] was the only person asked to purchase

another seat” (Thompson Dep. at 3 3 ) , and that “it’s pretty common

sense that if you went to the airport right now, that there are

probably hundreds of white males who weigh what [Thompson]

weigh[s] who are getting on flights without incident every day.”

(Thompson Dep. at 43.)

Regarding part (b) of the third element, relating to

“hostile” and “objectively discriminatory” service, plaintiff

points to a number of disturbing factors: the “aggression and

tone” that Wilson used with her (Thompson Dep. at 1 1 2 ) ; Wilson’s

conversation with another woman of color; the refusal to explain

the customer of size policy, or to respond in a civil manner to

her inquiries, but instead merely repeating “for your own comfort

and safety . . . etc.”; and the plain misapplication of the COS

policy to her (both because she demonstrably was not a customer

of size, and, even if she was, because the policy did not require

her to buy a second seat after the gate agent freely boarded

her).

Plaintiff’s evidence is not particularly strong on the

overall merits, but it is sufficient to establish the third

17 element. The prima facie burden is a light one, see Che,

8 , and, positing liberal inferences favorable to

plaintiff, the court will proceed to the second step of the

McDonnell Douglas analysis.

Defendant “articulate[ed] ‘a legitimate, non-discriminatory

reason for its adverse . . . action.’” Straughn, 250 F.3d at 3 3 .

Plaintiff’s height and weight are undisputed as are Drake’s and

Wilson’s observations that plaintiff’s body encroached upon the

space reserved for the adjacent seat. Thompson has never said

that she did not encroach on an adjacent seat; she only says that

she was able to put her armrest down and ride comfortably.

Southwest argues that its agents were simply enforcing, in good

faith, its COS policy, which, if true, would qualify as a

legitimate non-discriminatory reason for Southwest’s agents to

tell Thompson she needed to purchase a second seat.

Because defendant produced evidence of a legitimate non-

discriminatory reason for its action, plaintiff can avoid summary

judgment only by producing evidence from which it can be found

that defendant’s “action was the result of discriminatory

animus.” Che,

9 . “Evidence that the [defendant’s]

stated reasons [for taking an allegedly discriminatory action]

18 are pretextual can be sufficient for a jury to infer

discriminatory animus.”

Pretext, in turn, can be proven:

(1) by “show[ing] that discriminatory comments were made by the

key decisionmaker or those in a position to influence the

decisionmaker,” Santiago-Ramos v . Centennial P.R. Wireless Corp.,

6 , 55 (1st Cir. 2000) (citation omitted); (2) by

“show[ing] that [the] nondiscriminatory reasons were after-the-

fact justifications, provided subsequent to the beginning of

legal action,” Santiago-Ramos,

(citation omitted);

(3) “by presenting evidence of disparate treatment,” Che,

(citation omitted); or (4) by “by showing that the

[defendant’s] proffered explanation is unworthy of credence.’”

(quoting Reeves v . Sanderson Plumbing Prods., Inc.,

(2000)).

Here, plaintiff concedes that no Southwest employee made any

explicitly or implicitly racist remarks (Thompson Dep. at 111-

1 2 ) , and defendant’s reasons for asking Thompson to purchase a

second seat are not after-the-fact justifications; those reasons

were, in a sense, given at the time, albeit not clearly. In

fact, Thompson’s demonstration to Wilson that she could lower her

armrest, and her comments to other passengers in the gate area,

demonstrate that applicability of the COS policy to her was

19 Southwest’s ostensible reason for its actions long before suit

was filed.

Plaintiff’s weak suggestion of disparate treatment might be

glossed over with regard to her prima facie burden, but it is

plainly not sufficient to meet the more demanding burden of

establishing pretext. See Koseris, 331 F.3d at 213 (“The pretext

analysis . . . is more demanding.”) (citing Tex. Dep’t of Cmty.

Affiars v . Burdine,

4 8 , 255 (1981)). She testified

that “there were other large women on that flight who were not

asked to purchase another ticket.” (Thompson Dep. at 33.)

Subsequently, however, she stated that “she could not tell . . .

anything about them.” (Thompson Dep. at 35.) The rest of her

evidence, consisting of general, but unhelpful, statistical

information, and common sense presumptions about white males who

fly Southwest, is even weaker. In short, plaintiff’s generalized

belief that there must have been other similarly situated white

people on the plane who were treated differently is insufficient

to establish disparate treatment or pretext.

Plaintiff relies primary upon the fourth method of

establishing pretext, by attempting to show “weaknesses,

implausibilities, inconsistencies, incoherencies, or

20 contradictions in the [defendant’s] proffered legitimate reasons’

such that a factfinder could ‘infer that the [defendant] did not

act for the asserted non-discriminatory reasons.’” Santiago-

Ramos,

(quoting Hodgens v . Gen. Dynamics Corp.,

5 1 , 168 (1st Cir. 1998)).

Here, her case is arguably more solid. A rational

factfinder could reasonably conclude that defendant’s explanation

for the conduct of Drake and Wilson is unworthy of credence.

Plaintiff asserts that she was able to put her armrest down and

ride comfortably. If she was able to put the armrest down and

ride comfortably she was not, it would seem, from Southwest’s own

policy statements and clarifications, a customer of size. She

has a point - the Southwest policy is poorly drafted, but, it

does admit of a reasonable construction that precludes COS status

for any passenger who can get the armrest down while seated, or

can be seated without raising the armrest. (Again, the policy

and clarifications are poorly drafted and lend themselves to a

wide range of differing interpretations.)

A jury may find that Drake and Wilson plausibly thought

plaintiff qualified as a customer of size, and were simply

ignorant of the terms of Southwest’s actual policy - both with

21 respect to who qualified as a COS, and (perhaps less

understandably) whether an already-boarded passenger must buy a

second seat even if a COS. A jury might further find that

plaintiff was a COS, o r , that while Drake and Wilson were

incompetent, or merely mistaken, race played no role in their

enforcement actions.

But, on the other hand, on this record a jury could find

that Drake and Wilson misapplied Southwest’s COS policy i f ,

indeed, a passenger who can lower her armrest is not a COS under

the policy. And a jury could find that Drake and Wilson plainly

misapplied the policy when they insisted that Thompson buy a

second seat or be physically removed from the plane. The policy

unmistakably provides that passengers are not to be charged for a

second seat after they have boarded a flight. S o , Drake’s and

Wilson’s inexplicable violation of that part of the policy will

require explanation - and that explanation may or may not be

believed.

Accordingly, on this record, a jury could well find that

Southwest’s non-discriminatory explanation for its agents’

conduct is false - that i s , that Drake and Wilson were not

ignorant or incompetent, but rather deliberately misapplied the

22 policy to Thompson. And, the jury may determine that racial

animus is a fair explanation for that false explanation of

Southwest’s actions and its agents’ misapplication of its policy.

For those reasons, Southwest is not entitled to judgment as a

matter of law on Count III.

B . Counts I and IV

Defendant is entitled to judgment as a matter of law on

Count IV, brought under

(d) because Southwest is

not a recipient of federal financial assistance, a necessary

prerequisite to liability under Title V I . Plaintiff bases her

Title VI claim on defendant’s receipt of federal assistance from

the United States Department of Transportation pursuant to

sections 101 and 103 of the Air Transportation Safety and System

Stabilization Act, Pub. L . N o . 107-42,

(“the

Stabilization Act”).

In Shotz v . American Airlines, Inc.,

(11th

Cir. 2005), the Eleventh Circuit held that compensation under the

Stabilization Act is not federal assistance for Rehabilitation

Act purposes. Id. at 1136-38. The definition of federal

assistance is the same for Title VI as it is for the

Rehabilitation Act. See Jacobson v . Delta Airlines, Inc., 742

, 1209 (9th Cir. 1984) (“The legislative history of the

Rehabilitation Act . . . indicates that those terms [including

“federal financial assistance”] were to be given the same meaning

as the same terms in . . . 42 U.S.C. § 2000d-1 (1982) (Title

VI)).

The persuasive reasoning of Shotz applies with equal force

to the facts of this case: Southwest is not a recipient of

federal financial assistance for purposes of Title V I . Because

Southwest is not a recipient of federal financial assistance

(plaintiff appears not to press this point in her objection to

summary judgment) defendant is entitled to judgment as a matter

of law on Count IV.

Defendant is entitled to judgment as a matter of law on

Count I , a state law claim under N.H. Rev. Stat. Ann. ch. 354-A

because RSA 354-A does not reach air travel. The statute defines

“public accommodation” to include “any . . . public conveyance on

land or water.” RSA 354-A:2, XIV. By adding the qualifier “on

land or water,” the legislature plainly limited the scope of the

state statute, excluding commercial aircraft from the reach of

the term “public conveyance.”

24 C . Count I I : Intentional Infliction of Emotional Distress

In Count I I , plaintiff asserts that defendant intentionally

inflicted emotional distress on her when Drake and Wilson removed

her from Flight 1290. Defendant moves for summary judgment on

Count II on grounds that: (1) it is preempted by the 1978 ADA;

and (2) the conduct alleged by plaintiff is not sufficiently

outrageous to state a claim for intentional infliction of

emotional distress; and (3) plaintiff has not alleged an adequate

factual basis to support a claim for severe emotional distress.

Under New Hampshire law, “one who by extreme and outrageous

conduct intentionally causes severe emotional distress to another

is subject to liability for that emotional distress.” Konefal v .

Hollis/Brookline Coop. Sch. Dist.,

(1998)

(citing Morancy v . Morancy,

(1991)). New

Hampshire generally follows the Restatement, see, e.g., Morancy,

; Jarvis v . Prudential Ins. C o . of Am.,

(1982), which provides, in pertinent part:

Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his

25 resentment against the actor, and lead him to exclaim, “Outrageous!” The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. . . . [P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s feelings are hurt.

RESTATEMENT (SECOND) OF TORTS § 46 cmt. d (1965).

The undisputed facts of this case, viewed in the light most

favorable to plaintiff, do not amount to extreme and outrageous

conduct. No reasonable jury could find defendant liable for

intentional infliction of emotional distress on this record, even

viewing the facts in the light most favorable to the plaintiff.

Defendant’s agents employed no derogatory language of any sort

related to race, gender, or plaintiff’s physical size. If

anything, Wilson stated his concerns with sufficient tact that

plaintiff had difficulty determining the reason for the

conversation on the loading bridge. (See Thompson Dep. at 4 0 ) .

Moreover, rather than speaking with plaintiff about the C O S

policy while she was in her seat, in front of passengers seated

around her, Wilson asked her to go out onto the loading bridge

where they could speak privately. Plaintiff’s claim rests

primarily upon her assertion that Wilson and Drake sought to

26 apply the COS policy to her even though they knew that she did

not meet the customer of size criteria, and even though they knew

she did not have to buy a second seat because she had already

been boarded. But, again, plaintiff did not plainly fall outside

the ambiguous operative policy definition of a COS, and Drake and

Wilson might have believed she was a COS given the observations

they made (her alleged encroachment upon the adjacent seating

space). Neither Wilson nor Drake stepped beyond the bounds of

decency by initiating a discreet conversation with her about the

COS policy, and their insistence that she buy a second seat or be

removed from the plane may well have been mistaken, but their

outward conduct in enforcing that mistake was not outrageous in

any respect. Accordingly, defendant is entitled to judgment as

a matter of law on Count I I .

Conclusion

For the reasons given, defendant’s motion for summary

judgment (document n o . 12) is granted as to Counts I , I I , and IV,

but otherwise denied.

27 SO ORDERED.

Steven J. McAuliffe Chief Judge February 6, 2006

cc: Alfred E. Saggese, Jr., Esq. Mark F. Sullivan, Esq. Neil Osborne, Esq. Brian P. Sexton, Esq. Garry R. Lane, Esq.

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