ADAMS et al v. US AIRWAYS GROUP, INC. et al

Filing 22

MEMORANDUM AND/OR OPINION RE: MOTION TO DISMISS (DOC. #15). SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 10/18/2013. 10/18/2013 ENTERED AND COPIES E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

________________________________________
SHARNAE ADAMS, ET AL.,
:
:
Plaintiffs,
:
:
v.
:
:
US AIRWAYS GROUP, INC. AND
:
US AIRWAYS, INC.,
:
:
Defendants.
:
________________________________________ :

CIVIL ACTION

No. 12-5603

Goldberg, J.

October 18, 2013

MEMORANDUM OPINION

Plaintiffs, passengers on a US Airways flight to Orlando, have alleged that they were
removed from the flight based upon their race.

Plaintiffs have brought claims against

Defendants, US Airways Group, Inc. and US Airways, Inc. (collectively “US Airways”), for race
discrimination under 42 U.S.C. § 1981 (Count I, “Discrimination In The Making and
Enforcement of Contract”) and negligence (Count II, “Negligent Screening, Hiring, Training,
Supervising, Disciplining and/or Retaining” and Count III, “Negligent Breach of Duty of
Common Carrier”).
Presently before the Court is Defendants’ Motion to Dismiss, which raises issues
regarding preemption and pleading sufficiency. For the reasons set forth below, Defendants’
motion will be granted in part and denied in part.

1

I.

FACTUAL AND PROCEDURAL BACKGROUND
Based upon the averments in Plaintiffs’ first amended complaint, the pertinent facts,

viewed in the light most favorable to Plaintiffs, are as follows:
On July 5, 2010, Plaintiffs boarded a US Airways flight from Philadelphia to Orlando for
a family vacation to Disney World. The traveling party consisted of four adults and seven
children. Plaintiffs believe that they were the only African Americans aboard the flight. (First
Am. Compl. ¶¶ 1–11, 17–19, 36.)1
Once Plaintiffs were seated, they fastened their seatbelts with the exception of Malaki
Adams, who has Down syndrome and was a toddler at the time. When his mother, Sharnae
Adams, could not buckle the seatbelt, she pressed the overhead button to call for a flight
attendant. When no one arrived to assist her, Adams moved her son to a seat across the aisle.
(Id. ¶¶ 20–24.)
It is alleged that at this point, an off-duty US Airways flight attendant flying on a “buddy
pass” or “employment pass” became involved. In the altercation that followed, the off-duty
attendant claimed to be a United States Air Marshal, and told Sharnae Adams that she was
violating the law. Before gathering with the other flight attendants, the off-duty attendant
allegedly called Sharnae Adams a “black bitch” and gave her the middle finger. Plaintiff Tyrone
Mitchell was seated near the flight attendants and overheard them say that “the black people”
were causing trouble on the plane. Plaintiffs allege that this statement was also made to the
aircraft’s captain. (Id. ¶¶ 25–32.)

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The adult plaintiffs are Sharnae Adams, Beverly Adams, Tameka Adams and Tyrone Mitchell.
The minor plaintiffs are Malaki Adams, Trent Adams, Troy Adams, Serena Adams, Tammy
Mitchell, Tamara Spellman and Jade Adams. (Id. ¶¶ 1–11.)
2

The plane, which had apparently left the boarding gate, subsequently taxied back to the
terminal where Plaintiffs were removed from the plane. At some point during this process, an
unidentified US Airways employee allegedly referred to the African-American Plaintiffs
collectively as “you people,” and the captain warned Plaintiffs to “keep their mouths shut” or
they would be removed from another flight. Back at the terminal, a manager for US Airways put
Plaintiffs on a later flight to Orlando and as a result, Plaintiffs missed the first day of their
vacation. (Id. ¶¶ 33–35, 37–38, 41–45.)
Plaintiffs commenced this action in the Philadelphia Court of Common Pleas on July 5,
2012, and Defendants removed the case to this Court on October 1, 2012.

Plaintiffs

subsequently filed their First Amended Complaint on November 8, 2012 and on November 26,
2012, Defendants filed the instant Motion to Dismiss. The matter is now fully briefed and ready
for disposition.
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action

for failure to state a claim upon which relief can be granted. When ruling on a Rule 12(b)(6)
motion, the court must accept the facts pled in the complaint as true and construe them in the
light most favorable to the plaintiff. Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir.
2000). The court may dismiss a complaint or claim only if it is clear that no relief could be
granted under any set of facts that could be proved consistent with the allegations. Hishon v.
King & Spalding, 467 U.S. 69, 73 (1984). However, a plaintiff must provide more than a
formulaic recitation of a claim’s elements that amounts to mere labels and conclusions. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint’s “factual allegations must be
enough to raise a right to relief above the speculative level.” Id. “To survive a motion to

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dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 570).
To determine the sufficiency of a complaint under Twombly and Iqbal, a court must take
the following three steps: (1) the court must “tak[e] note of the elements a plaintiff must plead to
state a claim”; (2) the court should identify allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth”; and (3) “where there are well-pleaded
factual allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Burtch v. Milberg Factors, Inc., 662 F.3d 212,
221 (3d Cir. 2011) (citations omitted).
III.

DISCUSSION
A. State Law Negligence Claims
Defendants first challenge Plaintiffs’ state law negligence claims, alleged in Counts II

and III. Count Two, styled as "Negligent Screening, Hiring, Training, Supervising, Disciplining
and Retaining" pertains to US Airways alleged negligent staff training regarding seat-belting and
staff use of a "buddy pass." Count Three, styled as "Negligence Breach of Duty of Common
Carrier," generally alleges that US Airways was negligent in removing Plaintiffs from the plane
and in handling seatbelt issues.
Defendants argue that part of these claims are preempted by the Airline Deregulation Act,
49 U.S.C. § 41713(b)(1) (the “Deregulation Act”).2 Defendants also contend that Plaintiffs have
failed to adequately state their claims. (Defs.’ Br. 4, 7.) We address each argument in turn.
2

Defendants assert that the Deregulation Act preempts Count II in its entirety and Count III to
the extent it is premised on Plaintiffs removal from the plane. However, Defendants do not
argue that the Deregulation Act is implicated by Count III’s seatbelt-related allegations, and thus
do not raise their preemption argument with respect to those claims. (Defs.’ Br. 4-7, n.3.)
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1. Deregulation Act Preemption
The Airline Deregulation Act was enacted to promote “maximum reliance” on market
forces by reducing airline regulation. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378
(1992).

To prevent states from frustrating this purpose, Congress included an express

preemption provision, which provides that a state may not enact or enforce any “law, regulation,
or other provision having the force and effect of law related to a price, route, or service of an air
carrier.”3 49 U.S.C. § 41713(b)(1). The United States Supreme Court has considered the scope
of this provision on three separate occasions.
First, in Morales v. Trans World Airlines, Inc., the Court determined that the
Deregulation Act has a “broad pre-emptive purpose,” superseding state laws that have “a
connection with or reference to” the rates, routes, or services of an airline. 504 U.S. at 384.
Following this standard, the Court found that state guidelines concerning the way airlines
advertise their fares are preempted. Id. at 391. While it did not directly address tort actions, the
Court noted that some state laws may have “too tenuous, remote, or peripheral” a connection to
the price, route or service of an airline to have a preemptive effect. Id. at 390.
The Court again considered preemption under the Deregulation Act in the context of a
frequent flyer contract dispute in American Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995).
There, the Court held that the Deregulation Act preempted a state consumer fraud claim because
it directly related to the “marketing mechanisms appropriate to the furnishing of air
transportation services.” Id. However, the Court reasoned that state actions to enforce contracts
3

“Pennsylvania common law is considered an ‘other provision having the force and effect of
law’ for purposes the Airline Deregulation Act.” Thompson v. U.S. Airways, 717 F. Supp. 2d
468 (E.D. Pa. 2010) (citing United Airlines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 607 (7th
Cir. 2000)).
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were not preempted because they were the result of voluntary private agreements, not state
action. Id.
After Congress employed the language of the Deregulation Act to deregulate the trucking
industry, the Supreme Court again interpreted 49 U.S.C. § 41713. See Rowe v. N.H. Motor
Transp. Ass’n, 552 U.S. 364, 370 (2008) (noting that when Congress purposefully uses language
from an existing statute, it also imports the judicial interpretation of that language). Noting that
the trucking statute copied the preemption language of the Deregulation Act, the Court looked to
Morales for guidance and held:
(1) that [s]tate enforcement actions having a connection with, or
reference to carrier rates, routes, or services are pre-empted; (2)
that such pre-emption may occur even if a state law’s effect on
rates, routes or services is only indirect; (3) that, in respect to preemption, it makes no difference whether a state law is consistent or
inconsistent with federal regulation; and (4) that pre-emption
occurs at least where state laws have a significant impact related to
Congress’ deregulatory and pre-emption-related objectives. . . .
Finally, Morales said that federal law might not pre-empt state
laws that affect fares in only a tenuous, remote, or peripheral . . .
manner.
Id. at 370–71 (citations omitted) (internal quotation marks omitted) (emphasis omitted).
Applying this standard to the preemption language of the trucking statute, the Court held that
federal law preempted a Maine statute requiring tobacco retailers, when shipping tobacco, to
employ a transport carrier that provides a special recipient-verification service. Id. at 377.
Despite these cases, the Supreme Court has offered no clear definition of what constitutes
an airline “service.” Circuit Courts have adopted conflicting views on the meaning of service.
Id.
The United States Court of Appeals for the Fifth Circuit has developed an expansive view
of airline services. See Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en

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banc). Under this view, the Deregulation Act preempts state laws, including common law, which
relate to the “bargained-for or anticipated provision of labor” from the airline to the customer.
Id. Because features beyond air transportation are included in a bargain with an airline, the
definition encompasses “items such as ticketing, boarding procedures, provision of food and
drink, and baggage handling, in addition to the transportation itself.” Id.
A majority of circuits have adopted this broad definition of service. See Air Transp.
Ass’n of Am., Inc. v. Cuomo, 520 F.3d 218, 223 (2d Cir. 2008) (holding that Deregulation Act
preempted state law that required amenities for passengers experiencing ground delays); Branche
v. Airtran Airways, Inc., 342 F.3d 1248, 1258–59, 1260-61 (11th Cir. 2003) (adopting broader
reading of the term “services” but concluding that state whistleblower claim not preempted
because it did not implicate a bargained-for feature of air carriers); Smith v. Comair, Inc., 134
F.3d 254, 259 (4th Cir. 1998) (citing Hodges to find that boarding procedures are an airline
service); Travel All Over the World, Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1433 (7th
Cir. 1996) (adopting the Fifth Circuit’s definition of service but finding slander and defamation
claims not preempted).
Conversely, the United States Court of Appeals for the Ninth Circuit has adopted a more
limited definition of airline services. See Charas v. Trans World Airlines, Inc., 160 F.3d 1259,
1266 (9th Cir. 1998) (en banc). Noting that the Deregulation Act was enacted as an economic
deregulation statute, the Ninth Circuit determined that the act was intended to insulate airlines
from state economic regulations, not from liability for their own tortious conduct.

Id.

Accordingly, the court found that Congress meant service in the public utility sense, meaning the
“provision of air transportation to and from various markets at various times.” Id. In that
context, “service does not refer to the pushing of beverage carts, keeping the aisles clear of

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stumbling blocks, the safe handling and storage of luggage, assistance to passengers in need, or
like functions.” Id.4
The United States Court of Appeals for the Third Circuit weighed in on this circuit split
in Taj Mahal Travel, Inc. v. Delta Airlines, Inc., 164 F.3d 186 (3d Cir. 1998). There, a travel
agency brought a defamation action against an airline for advising the travel agency’s customers
that their tickets were considered stolen. Id. at 188. The Third Circuit held that the defamation
claims were not preempted by the Deregulation Act.

The court concluded that, when

determining whether the Deregulation Act preempts a state law, the focus should be on “the
competitive forces of the market,” rather than on the distinction between “services” and
“operations.” The court importantly noted that “[w]hen state law does not have a regulatory
effect, it is ‘too tenuous, remote or peripheral’ to be preempted.” Id. at 194 (citing Morales, 504
U.S. at 390). Applying these considerations to the defamation claims at issue, the court found
that application of state law in the case before it did “not frustrate Congressional intent, nor [did]
it impose a state utility-like regulation on the airlines.” Id. at 195. As such, state claims were
“‘too tenuous, remote, or peripheral’ to be subject to preemption, even though [the defendant’s]
statements refer[red] to ticketing, arguably a ‘service.’” Id. In so holding, the Third Circuit
stressed that “the Supreme Court, although it has not yet directly addressed the pre-emption
clause as applied to state court claims, has strongly indicated that they would not be barred.” Id.
In discussing the scope of the Deregulation Act’s preemption provision, the Taj Mahal
court focused much of its discussion on tort claims for physical injuries, despite the fact that
4

The Ninth Circuit also subsequently held that the Deregulation Act does not preempt a
passenger’s state disability discrimination claim. Newman v. Am. Airlines, Inc., 176 F.3d 1128,
1131 (9th Cir. 1999). However, as discussed infra, the Third Circuit considered the Ninth
Circuit’s definition of service before Newman. Thus, we cannot assume that the Third Circuit
would similarly expand Charas’ reasoning to claims related to alleged discriminatory denial of
air travel.
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defamation claims were at issue. See id. at 194 (“It would make little sense to require insurance
to pay for bodily injury claims if airlines were insulated from such suits by the preemption
provision.”); id. (“We consider it highly unlikely that claims caused by careening service carts
and plummeting luggage were to be removed from state adjudication.”); id. (“It is highly
unlikely that Congress intended to deprive passengers of their common law rights to recover for
death or personal injuries sustained in air crashes.”). The Third Circuit also did not expressly
adopt the approach of any of the other circuit courts. After acknowledging the differing views,
the court simply noted that the Charas approach offered “a more promising solution.” Id.
Following Taj Mahal, the Third Circuit clarified the connection necessary to render a
state law “related to” an airline’s price, routes or services such that it is preempted by the
Deregulation Act. In Gary v. Air Grp., Inc., 397 F.3d 183 (3d Cir. 2005), the court stated that a
state law will have the “requisite connection” to price, routes or services where “the law
expressly references the air carrier’s price, routes or services, or has a forbidden significant effect
upon the same.” 397 F.3d at 186 (quoting United Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d
323, 335 (1st Cir. 2003) (internal quotation marks omitted)).
Because the Third Circuit did not expressly adopt Charas’ definition of “service,” district
courts in this circuit have found preemption, citing the reasoning of the majority approach. We
discuss these cases below but decline to follow their reasoning.
In Panitich v. Cont’l Airlines, 2008 WL 906240, at *5 (D.N.J. Mar. 31, 2008), the court
found that in Taj Mahal, the Third Circuit adopted Charas “only insofar as it limits the extension
of the preemption provision to all state common law causes of action, and in particular to
personal injury claims." While the Panitich court was correct in noting that the Third Circuit did
not "expressly" adopt the Ninth Circuit’s more "limited view," the Third Circuit expressly stated

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that "the approach espoused by the Court of Appeals for the Ninth Circuit in Charas offers a
more promising solution." We view this as a fairly clear directive regarding the law of this
Circuit. Taj Mahal Travel, 164 F.3d at 194.
The district court in Panitich distinguished the facts before it from those in Taj Majal,
such that claims for intentional and negligent infliction of emotional distress stemming from an
airline’s refusal to accommodate a passenger’s peanut allergy were preempted. The court found
that food and beverage services were “a ‘service’ within the meaning of the [Deregulation Act]'s
preemption provision.” Panitich, 2008 WL 906240 at *6 n.4. While directives on food service
may constitute a “public utility-style regulation” that the Deregulation Act seeks to eliminate, the
facts alleged here, which could be read as part defamation, part breach of contract and part
discrimination are tenuously related to “the competitive forces of the market,” which is what the
Third Circuit looks to in its preemption analysis. Taj Mahal Travel, 164 F.3d at 194.
Shulick v. United Airlines, 2012 WL 315483, at *7 n.6 (E.D. Pa. Feb. 2, 2012) involved
botched travel plans and missed flights—facts that are completely different than the ones before
us. Plaintiffs brought claims under the Pennsylvania Unfair Trade Practices and Consumer
Protection Law, which prohibits “misrepresenting the standard or quality of goods and
services…and engaging in fraudulent or deceptive conduct which creates likelihood of
confusion.” Id. at *5. The court found the state law preempted as it would affect airlines’ ability
to advertise, cancel flights and provide service. Conversely, the allegations here do not implicate
any type of regulations affecting air travel.
The parties dispute the effect of Taj Mahal’s application to the instant case and whether
Plaintiffs’ claims are preempted by the Deregulation Act. We initially note that Plaintiffs’
claims are ordinary negligence claims, and do not expressly reference a subject preempted by the

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Deregulation Act. Thus, we will look at the facts underlying Plaintiffs’ causes of action to
determine whether enforcement of the state claim would have an impermissible effect on
Defendants’ price, routes or services.
The state law claims in question and facts supporting those claims primarily arise from
Plaintiffs removal from the aircraft and the treatment Plaintiffs received from the flight attendant
flying on the buddy pass. (See Pls.’ Br. 16.) Even assuming that the off-duty flight attendant
and other staff’s actions somehow relate to airline services, we find that, under Taj Mahal, these
claims are “too tenuous, remote, or peripheral” to be subject to preemption. Defendants have not
articulated, nor can we discern, any impermissible regulatory effect that these claims would have
on an airline’s services. Enforcement of these state actions would not require airlines to offer
services that the market does not currently provide, nor would it require airlines to modify their
policies on removal or treatment of passengers in any substantial way (that is, because as
discussed infra, the Federal Aviation Act already sets forth regulations with respect to such
conduct). Therefore, at this stage of the litigation, we decline to find that the Deregulation Act
preempts Plaintiffs’ claims. The Deregulation Act’s purpose of deregulation regarding prices,
routes and services does not mean that US Airways should be granted immunity from all tort
liability.
Our ruling that preemption does not apply also includes the treatment by the flight
attendant flying on the buddy pass. We cannot conclude, based solely on the pleadings, that
Plaintiffs’ negligence claim relates to the service of an airline. No factual record has been
developed on the duties of a flight attendant flying on an employee pass or on how the
altercation originated. The flight attendant allegedly called Sharnae Adams a “black bitch,” gave
her the middle finger and attempted to intimidate her by impersonating an air marshal. Viewing

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these allegations in the light most favorable to Plaintiffs, this behavior bears no clear relation to
an airline service, though that could become apparent through the course of discovery.
Therefore, Count II will survive with respect to the allegations pertaining to Plaintiffs’ on-board
treatment.
2. Sufficiency of Allegations
a. FAA Preemption – Standard of Care
Given our determination that Plaintiffs’ negligence claims survive the Deregulation Act’s
preemption, we next address Defendants’ contention that Plaintiffs have failed to state a claim.
Before examining the adequacy of the allegations, we evaluate the threshold issue of whether the
Federal Aviation Act, 49 U.S.C. §§ 40101 et. seq. (“FAA”), preempts the state-law standard of
care for each claim.
i. Relevant Law
Congress enacted the FAA to increase air safety by creating a single, uniform system of
regulations. Abdullah v. Am. Airlines, Inc., 181 F.3d 363, 368 (3d Cir. 1999) (citing City of
Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973)). As such, the Third Circuit
has held that the FAA preempts “the entire field of aviation safety.” Id. at 365. Federal law
therefore determines the appropriate standards of care for aviation safety, while state law
controls the other negligence elements (breach, causation and damages), as well as the choice
and availability of remedies. Id. at 372, 375; Elaasaad v. Independent Air, Inc., 613 F.3d 119,
125 (3d Cir. 2010).
The contours of the field of “aviation safety” extend beyond in-flight situations. See
Elaassaad, 613 F.3d at 127, 130 (noting that, while the court’s holding in Abdullah v. American
Airlines, Inc. was limited to in-air safety, preemption would apply to claims related to other

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operations, including the takeoff and landing of an aircraft). Indeed, the Federal Aviation
Administration promulgated Regulation 91.13 to define the general parameters of an airline’s
duty, and such regulation applies to both in-flight operations and ground operations. 14 C.F.R.
§ 91.13.
ii. Applicable Standard of Care for Plaintiffs’ Negligence Claims
In Count II, Plaintiffs allege that Defendants were negligent in screening, hiring, training,
disciplining and/or retaining the in-flight staff.

More specifically, Plaintiffs assert that

Defendants were negligent in that they did not properly train the in-flight staff on how to
properly aid in the seat-belting of developmentally delayed children and did not set out a policy
regarding the in-flight function and role of staff flying on “buddy passes.” Plaintiffs also allege
that Defendants created conditions, policies or customs, which facilitated Plaintiffs’ “abuse” by
the flight attendants and captain. In addition, Plaintiffs state that the flight attendant on the
“buddy pass” committed negligence, and that Defendants are vicariously liable for her conduct.
(First Am. Compl. ¶¶ 57-70.)
In Count III, Plaintiffs assert that Defendants breached the duty of a common carrier by
removing Plaintiffs from the airplane for no reason. Further, Plaintiffs allege that Defendants
were negligent in providing security, namely ensuring that there were functioning seatbelts on
the aircraft. (Id. ¶¶ 71-77.)
With respect to the allegations that Defendant negligently failed to provide and assist
with seatbelts, we find that they implicate air safety.

The FAA contains safety-related

regulations that pertain to the training, hiring and retention of flight attendants, and while there is
not a specific regulation addressing the provision of functioning seatbelts, the FAA sets forth a
general standard of care that “[n]o person may operate an aircraft . . . in a careless or reckless

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manner so as to endanger the life or property of another.” 14 C.F.R. § 91.13; see also Elassaad,
613 F.3d at 129 (noting the application of the FAA’s broader standard “where there is no specific
provision or regulation governing air safety”).

Based on the allegations contained in the

complaint, the plane’s engine was running and it had taxied away from the gate when the
conduct occurred, such that the plane was being operated “other than for the purpose of air
navigation” under 91.13(b). See 14 C.F.R. § 91.13(b); see also Elaassaad, 613 F.3d at 130
(noting that subsection (b) applies “to those acts which impart some physical movement to the
aircraft, or involve the manipulation of the controls of the aircraft such as starting or running an
aircraft engine”). Accordingly, we conclude that the FAA’s general prohibition on careless or
reckless operation of an aircraft preempts the state-law standard of care with regard to these
allegations.5
Similarly, Plaintiffs’ Count III allegations related to their removal from the airplane
involve issues of air safety. The FAA sets forth an airline’s right “to refuse to transport a
passenger or property the carrier decides is, or might be, inimical to safety.” 49 U.S.C. § 44902
The discretion to refuse transport is broad and requires only a belief that a passenger may be
inimical to safety. Cerqueria v. American Airlines, Inc., 520 F.3d 1, 12 (1st Cir. 2008). When
removal from a flight is at issue, the pilot in command is the final authority. Id. (citing 14 C.F.R.
§ 91.3(a).) On review, courts have generally looked to whether the decision to refuse passage
was arbitrary or capricious. See, e.g., Williams vs. Trans World Airlines, 509 F.2d 942 (2d Cir.

5

To the extent that Plaintiffs’ allegations regarding the seatbelt may have arisen before the
plane’s engine was running, such that the plane was not operating under 14 C.F.R. § 91.13(b),
the result is the same. While the state law standard of care would apply, as discussed infra,
Plaintiffs have failed to state how a malfunctioning seatbelt that they did not use caused their
alleged injuries.
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1975). Because the FAA so clearly links refusal to transport with safety considerations, we find
it preempts state law and that § 44902 governs Plaintiffs’ removal allegations.
On the other hand, the allegations of mistreatment by flight attendants contained in Count
II do not implicate aviation safety, and thus we conclude that a claim premised on such facts
does not fall within the scope of the FAA’s broad preemption. We disagree with Defendants that
the FAA’s training, hiring and retaining regulations set forth the relevant standard of care. Those
regulations are safety-related, and do not pertain to the general treatment of passengers. We
conclude that the state-law standard of care applies to the abusive treatment claims of Count II.
Having determined the FAA provisions that apply to Plaintiffs’ seatbelt and removal
allegations, and that state law negligence governs the altercation with flight attendants, we now
turn to whether Plaintiffs adequately state claims.
b. Whether Count II Adequately States a Claim
First, we turn to the allegation that Defendants were negligent in not properly training the
in-flight staff on how to assist in the seat belting of developmentally delayed children. As
discussed supra, the FAA preempts state law and provides the standard of care in this area.
Plaintiffs have not alleged that Defendants failed to comply with the FAA’s safety-related
regulations on training flight attendants. Thus, Plaintiffs have not stated a breach of the FAA’s
standard of care.
With respect to the allegations of abusive treatment, we look to Pennsylvania negligence
law. Because Plaintiffs seek to hold Defendants directly liable due to negligent screening,
hiring, training, supervising, disciplining or retaining of the flight staff, and vicariously liable
through the theory of respondeat superior, we must consider the claim under both theories. (See
First Am. Compl. ¶¶ 58-60, 61, 66, 68-69, 70.)

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i. Direct Liability
Negligent screening, hiring, training, supervision, or retaining holds an employer directly
liable for its own negligent failure to protect a plaintiff from an employee that it knows, or has
reason to know, is likely to cause injury. RESTATEMENT (SECOND)

OF

TORTS § 317; see also

Dempsey v. Walso Bureau, Inc., 246 A.2d 418, 419–20 (Pa. 1968) (noting that Pennsylvania
adopted the Restatement approach). These claims differ from claims for vicarious liability
because they allow plaintiffs to recover for harms that occur when employees act outside the
scope of their employment. Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 487-88 (3d Cir.
2013) (applying Pennsylvania law). To state a direct claim, the plaintiff must allege “(1) a
failure to exercise ordinary care to prevent an intentional harm by an employee acting outside the
scope of his employment, (2) that is committed on the employer’s premises, (3) when the
employer knows or has reason to know of the necessity and ability to control the employee.” Id.
Under this standard, the employee’s prior behavior must put the employer on notice that it must
control the employee. See Heller v. Patwil Homes, Inc., 713 A.2d 105, 108 (Pa. Super. Ct. 1998)
(noting that an employee’s prior behavior must indicate a propensity to cause the harm in
question and that the employer must know or have reason to know about such prior behavior).
Plaintiffs have failed to allege any prior conduct by any members of the flight staff that
would trigger US Airways’ duty to control them. Plaintiffs make only the conclusory statement
that Defendants knew or should have known that the in-flight staff was “negligent, dangerous
and likely to disrupt passengers.” (Id. ¶ 58.) Such allegation is insufficient to plausibly show
that US Airways knew or had reason to know of a need to control its employees.
Therefore, Plaintiffs have failed to state a claim of direct liability for negligent screening,
hiring, training, supervision, or retaining against US Airways.

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ii. Vicarious Liability
In Pennsylvania, an employer is vicariously liable for the harm caused to third parties by
its employees’ tortious acts, “provided that such acts were committed during the course of and
within the scope of the employment.” Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493
(Pa. Super. Ct. 1998). The conduct of an employee is within the scope of employment if: “(1) it
is of a kind and nature that the employee is employed to perform; (2) it occurs substantially
within the authorized time and space limits; (3) it is actuated, at least in part, by a purpose to
serve the employer; and (4) if force is intentionally used by the employee against another, the use
of force is not unexpected by the employer.” Dillow v. Myers, 916 A.2d 698, 700 n.4 (Pa.
Super. Ct. 2007). Typically, the determination of whether an employee acted within the scope
of his or her employment is a question for the jury. Costa, 708 A.2d 490, 493 (Pa. Super. Ct.
1998) (citing Straiton v. Rosinsky, 133 A.2d 257, 259 (Pa. Super. Ct. 1957)). Nevertheless, a
court need not reach the course and scope of employment issue where a plaintiff has not first
demonstrated an underlying tort, or other harm, committed by an employee.
Here, Plaintiffs have not asserted a separate claim against any of the flight staff, nor have
they articulated a specific cause of action against these individuals. Viewing the allegations in a
light most favorable to Plaintiffs, we read the complaint as potentially asserting one of the
following claims: (1) intentional infliction of emotional distress (IIED); or (2) negligent
infliction of emotional distress (NIED). However, because Plaintiffs have not alleged any bodily
harm as a result of the flight staff’s actions, they cannot make out either claim, such that
Defendants could be held vicariously liable. See Fulton v. United States, 198 Fed App’x 210,
215 (3d Cir. 2006) (citing Reeves v. Middletown Ath. Ass’n, 866 A.2d 1115, 1122-23 (Pa.
Super. Ct. 2004); Doe v. Phila. Cmty. Health Alternatives AIDS Task Force, 745 A.2d 25, 27-29

17

(Pa. Super. Ct. 2000) (“In Pennsylvania, both intentional and negligent infliction of emotional
distress require a manifestation of physical impairment resulting from the distress.”). Therefore,
Count II is dismissed in its entirety.
c. Whether Count III Adequately States a Claim
We next address whether Plaintiffs have plausibly stated a claim with respect to Count
III. Because Count III is premised on both Plaintiffs’ removal and the provision of a faulty
seatbelt, we again must evaluate the underlying allegations individually.
The decision to remove Plaintiffs from the flight is analyzed under § 44902’s broad grant
of discretion to refuse transport for safety reasons, and is subject to review only as to whether it
was arbitrary and capricious. Viewing the allegations in the light most favorable to Plaintiffs, we
find that they have pled facts sufficient to state a plausible claim that their removal was
motivated by racial discrimination and not safety concerns. See infra pp. 21-22. Therefore, we
will not dismiss the removal allegations contained in Count III at this time.
Regarding Plaintiffs’ faulty seatbelt allegations, the relevant standard of care is that “[n]o
person may operate an aircraft in a careless or reckless manner so as to endanger the life or
property of another.” To prevail on this claim, Plaintiffs must demonstrate all of the elements of
their negligence claim, including breach, causation and damages. Elassaad, 613 F.3d at 125.
Plaintiffs make no such demonstration. They assert merely that Malaki Adams’ seatbelt
was defective. However, even if the defective seatbelt was capable of “endanger[ing] the life or
property” of Malaki Adams, it did not do so in this case. Not only was the seatbelt never
required to prevent an injury, but when Sharnae Adams noticed the issue she removed her son
from that seat and any danger it posed. (First Am. Compl. ¶¶ 22, 24.) Because no physical

18

Comment [RMS1]: Possibly replace with
something like “plaintiff asserts claims under
theories of direct and vicariously liability. However,
vicarious liability requires an underlying tort
committed by the employee, which is not alleged
here”

injury or property damage occurred, Plaintiffs cannot allege causation or damages. Accordingly,
Count III’s seatbelt allegations will be dismissed.
B. Race Discrimination
In addition to their negligence claims, in Count I Plaintiffs assert intentional race
discrimination pursuant to 42 U.S.C. § 1981. Section 1981 provides that “[a]ll persons within
the jurisdiction of the United States shall have the same right in every State and Territory to
make and enforce contracts . . . .” 42 U.S.C. § 1981(a). To “make and enforce contracts”
includes the “making, performance, modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id.
§ 1981(b).
In order to establish a right to relief under § 1981, a plaintiff must show: (1) that he
belongs to a racial minority; (2) an intent to discriminate on the basis of race by the defendant;
and (3) discrimination concerning one or more of the activities enumerated in § 1981. Pryor v.
Nat’l Collegiate Athletic Ass’n., 288 F.3d 548, 569 (3d Cir. 2002). Claims under § 1981 follow
the structure of a claim for employment discrimination under Title VII of the Civil Rights Act of
1964. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010) (citing Brown
v. J. Kaz, Inc., 581 F.3d 175, 181 (3d Cir. 2009)) (applying an employment discrimination
analysis to a § 1981 discriminatory lending claim); Dasrath v. Cont’l Airlines, Inc., 467 F. Supp.
2d 431, 444-45 (D.N.J. 2006) (applying the same analysis to a claim for discriminatory removal
from an airplane). Plaintiffs may therefore either present direct evidence of discrimination using
the test announced in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), or indirect evidence
through the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Anderson, 621 F.3d at 267–68.

19

To demonstrate direct evidence of discrimination, a plaintiff must present evidence so
“revealing of [discriminatory] animus” that it is unnecessary to rely on indirect evidence. Id. at
269 (quoting Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir.1997)) (alteration in
original). Direct evidence demonstrates that the decision makers placed “substantial negative
reliance on an illegitimate criterion in reaching their decision.” Id. (quoting Walden, 126 F.3d at
513) (internal quotation mark omitted). It must be connected to the challenged decision and
reveal that a discriminatory attitude was more likely than not a motivating factor in the
defendant’s decision. Id. There, to constitute direct evidence, discriminatory statements must be
“made at a time proximate to the challenged decision and by a person closely linked to that
decision.” Id. This means that discriminatory animus by a non-decision maker cannot simply be
applied to the final decision maker. Id. at 270. The Third Circuit has repeatedly explained that
these requirements pose a “high hurdle” for plaintiffs. E.g., id. (citing Walden, 126 F.3d at 513);
Anderson v. Consol. Rail Corp., 297 F.3d 242, 248 (3d Cir. 2002).
To demonstrate indirect evidence of discrimination, a plaintiff bears the initial burden of
establishing a prima facie case of discrimination. Id. at 271. Unlike the high hurdle for direct
evidence of discrimination, the requirements of a prima facie case for indirect evidence of
discrimination are “not onerous.” Id. (citing Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S.
248, 253 (1981)). The purpose at this stage is to eliminate the most common nondiscriminatory
reasons for the defendant’s behavior. Id. By doing so, the test creates an inference that a
defendant’s actions were discriminatory. Id.
If the plaintiff successfully establishes a prima facie case, the burden of production shifts
to the defendant to articular a legitimate, nondiscriminatory reason for the unfavorable treatment.
Id. Once the defendant comes forward with such a reason, the plaintiff must then show by a

20

preponderance of the evidence that the articulated reason was merely a pretext for intentional
discrimination. Id.
Defendants argue that Plaintiffs have not alleged adequate evidence to prove
discrimination directly or indirectly.

Specifically, Defendants contend that Plaintiffs have

asserted insufficient facts to show that their race was the reason they were removed from the
aircraft. (Defs.’ Br. 13–18.)
The decision to remove a passenger from an aircraft is made by the captain. See 14
C.F.R. § 91.3(a) (“The pilot in command of an aircraft is directly responsible for, and is the final
authority as to, the operation of that aircraft.”); see also Cerqueira v. Am. Airlines, Inc., 520 F.3d
1, 13 n.13 (1st Cir. 2008) (noting that, as a matter of law, the pilot in command makes the
decision to remove a passenger).

Under the FAA, the captain may refuse to transport a

passenger that he decides “is, or might be, inimical to safety.” 49 U.S.C. § 44902(b) (2006).
Such a refusal cannot give rise to a claim for damages unless the decision was “arbitrary and
capricious.” Dasrath v. Cont’l Airlines, Inc., 467 F. Supp. 2d 431, 445 (D.N.J. 2006) (citing
Williams v. Trans World Airlines, 509 F.2d 942, 947 (2d Cir. 1975)). This grants airlines
“broad, but not absolute,” discretion to remove passengers for safety reasons. Id. However, an
airline’s discretion under § 49902 is not “a license to discriminate.” Bayaa v. United Airlines,
Inc., 249 F. Supp. 2d 1198, 1205 (C.D. Cal. 2002).
While Plaintiffs have not sufficiently alleged direct evidence that the pilot racially
discriminated in his decision to remove them from the plane, we find that they have adequately
stated a prima facie case through evidence of indirect discrimination. Plaintiffs allege that they
had a racially charged argument with a US Airways flight attendant who called Sharnae Adams a
“black bitch,” gave her the middle finger and impersonated an air marshal, while another US

21

Airways employee referred to Plaintiffs collectively as “you people.” Though the captain was
not present for the initial altercation, the same people who were previously engaged in this
argument communicated with the captain shortly before his decision, and allegedly told him that
the “black people” were causing trouble. The captain then removed all eleven African-American
passengers from the plane, not just Sharnae Adams. The captain also warned Plaintiffs to “keep
their mouths shut” or they would be removed from another flight. (First Am. Compl. ¶¶ 18, 28–
38.)
Viewing these allegations in the light most favorable to Plaintiffs, and bearing in mind
that evidence of the captain’s intent is solely in the possession of Defendants, we find that the
captain’s alleged decision to remove all African-American passengers from the flight and his
hostile parting comments, all on the heels of an overtly racial argument, give rise to an inference
that the captain intentionally discriminated against Plaintiffs when he removed them from the
plane. Therefore, Defendants’ motion to dismiss the § 1981 claim will be denied.6
IV.

CONCLUSION
For the reasons set forth above, Defendants’ Motion to Dismiss will be granted in part

and denied in part.
An appropriate Order follows.

6

We note that Plaintiffs also contend that they have adequately stated a § 1981 claim on the
basis of the flight crew’s behavior prior to the removal. Because it is unclear whether the
discriminatory conduct must rise to the level of an adverse action to state a claim, we find that it
would be premature to dismiss the claim on this basis at this time.
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