Last week a story broke that US Airways had removed Johnnie Tuitel from a flight for being “too disabled.” Since the story broke there have been countless stories in the news and comments in various social media channels regarding the removal of Mr. Tuitel from the flight and speculation surrounding the circumstances of the incident.
I sat down to write about this incident on this past Friday, sure than US Airways was wrong … then I began to explore the incident further, including reading US Airways Contract of Carriage, speaking with flight attendants, interviewing US government officials in the aviation and transportation sector, seeking comments from US Airways employees and sitting down to read Title 14 — Aeronautics and Space, Chapter II — Department of Transportation Code of Federal Regulations (CFR) Part 382 : Nondiscrimination On The Basis Of Disability In Air Travel … specifically ‘§ 382.31 Refusal of Transportation’ … which then led to also reading 49 U.S.C. 44902, 14 CFR 91.8, 14 CFR 121.533 … and CFR § 382.65 … yup, just the light reading most folks want to spend their Friday nights with.
Before I get further into this subject, let me go over the undisputed facts … on the 23rd of September 2010 Johnnie Tuitel, who is wheelchair bound due to cerebral palsy, was assisted to his seat by a US Airways gate agent at Palm Beach International Airport. Shortly after being assisted to his seat, Mr. Tuitel was approached by the same gate agent whom informed Mr. Tuitel the airline needed to speak with him outside the aircraft. Mr. Tuitel was then assisted into a wheel chair, removed from the aircraft and told that he would need to fly with a companion as his disability prevents him from aiding himself from exiting the aircraft unassisted in the event of an emergency.
On the surface, US Airways’ actions were wrong … and procedurally the way the situation was handled by US Airways was incorrect … however within this grey area, legally the actions taken by the US Airways ground staff at Palm Beach Int’l Airport were correct as per Department of Transportation regulations.
The decision to remove a passenger from a flight due to disabilities is a tricky one, and one fraught with potential legal ramifications, however US Airways’ Contract of Carriage, which is publicly available, states its policy under Section 3.1 (7)Refusal of Transport.
US Airways may require a passenger with a disability in one of the following categories to travel with a safety assistant, as a condition of being provided air transportation, if US Airways determines that a safety assistant is essential for safety:
A passenger with a mobility impairment so severe that the person is unable to physically assist in his or her own evacuation of the aircraft;
From a public relations perspective, the decision to remove Mr. Tuitel from the aircraft is not a popular one, especially given that the way this situation was handled was incorrect. Should a US Airways passenger be determined ‘too disabled to fly alone’ the airline policy requires the passenger be consulted to discuss their ability or inability to aid themselves in an emergency evacuation of the aircraft. Should the passenger and the airline reach an impasse, a Complaint Resolution Officer (CRO) need to be contacted and brought into the conversation.
In the situation regarding Mr. Tuitel, not only was Mr. Tuitel, not part of the conversation, but additionally no CRO was brought into the conversation, and reports from US Airways staff at West Palm Beach familiar with the incident indicate the Captain of the aircraft, who legally has the final word, was not brought into the conversation either.
Mr. Tuitel, who has flown an estimated 500,000 miles in the past few years as a motivational speaker and advocate, publicly states he was fully aware of the US Airways Contract of Carriage rules, but he preferred to fly alone to keep costs down. Further more Mr. Tuitel’s view is that should “something happen are you going to help me? of course you are.” While the vast majority of people are good natured and have the best of intentions, in an emergency, the person seated with Mr. Tuitel may be unable to assist him and bring him to safety, or be preoccupied with their own safety to pay attention to Mr. Tuitel’s needs.
No airline wants the appearance of discrimination, however the safety of all passengers on board during the event of an emergency comes before all else. What happens if Mr. Tuitel is unable to aid himself? The potential is there that he can not only become further injured in an accident, but also become a hindrance to other escaping the plane … not intentionally … but that is why the DOT has written CFR § 382.31 Refusal of Transportation’
US Airways has reached out to Mr. Tuitel, inviting him to come meet with executives and discuss the situation and work on ways that airlines can be better able to assist disabled passengers. US Airways, an airline that has frequently been quiet during times of public relations crisis has been open and forthcoming in this situation. In a phone conversation with US Airways spokeswoman Michelle Mohr, she acknowledged “we could have done better job discussing the situation with Mr. Tuitel” and that “We are looking into why a CRO was not involved in addressing this situation.” These are all positive things …
… however the airline still faces a problem. The situation of refusing travel to disabled passengers falls into a grey area, as airline staff are not specialists in disabilities. A ground agent or pilot may not know a disabled passengers abilities or limitations. No airline, or corporation, likes to be in a grey area, because it is challenging to enforce policy, especially a safety policy, while attempting to win a public perception problem within a grey area.
While Mr. Tuitel has expressed he has no plans to sue US Airways, he has stated that he believes the actions preventing him from flying alone violated the American Disabilities Act (ADA) and his civil rights. In fact no attorney I consulted believes any civil rights were violated nor does the American Disabilities Act cover any area of the Department of Transportation and Federal Aviation Administration (FAA) regulations regarding air travel safety issues. US Federal regulations regarding air travel for this disabled are covered under Title 14 — Aeronautics and Space, Chapter II — Department of Transportation Code of Federal Regulations (CFR) Part 382 : Nondiscrimination On The Basis Of Disability In Air Travel
Here is where US Airways finds the legality in its Contract of Carriage pertaining the refusal of air travel to those deemed ‘to disabled to fly’ … CFR Part 382, Subpart C — Requirements Concerning Services, § 382.31 Refusal of Transportation (d)
Carrier personnel, as authorized by 49 U.S.C. 44902, 14 CFR 91.8, or 14 CFR 121.533, may refuse to provide transportation to any passenger on the basis of safety, and may refuse to provide transportation to any passenger whose carriage would violate the Federal Aviation Regulations. In exercising this authority, carrier personnel shall not discriminate against any qualified individual with a disability on the basis of disability and their actions shall not be inconsistent with the provisions of this Part. In the event that such action is inconsistent with the provisions of this Part, the carrier shall be subject to remedies provided under § 382.65.
Under 49 U.S.C 44902, Part (b) states:
(b) Permissive Refusal. – Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.
While the wording ‘inimical’ may be a poor choice of wording, under the ‘spirit of the law’ this can pertain to someone who is unable to assist themselves. Personally I’d like to see this wording changed to more appropriate and defined choice of words.
Additionally, 14 CFR 121.533, Part (d) states:
(d) Each pilot in command of an aircraft is, during flight time, in command of the aircraft and crew and is responsible for the safety of the passengers, crew members, cargo, and airplane.
Simply put, this means if the Pilot In Command believes one passenger being unable to aid themselves without someone there to specifically assist them puts other passengers at risk, they have the full authority to have them removed from the flight … because ultimately it is the pilot’s responsibility … but this leads to the procedural issue that reports state the US Airways pilot was not a part of the conversation to have Mr. Tuitel removed from the flight.
Now if you’re wondering why I didn’t address 14 CFR 91.8 (and you’re still awake after reading all if this) … let me explain why 14 CFR 91.8 has been left out. Neither the DOT, the FAA or a lawyer I had consulted can explain why 14 CFR 91.8 is even listed for compliance. 14 CFR 91 covers “Air Traffic and General Operating Rules,” and specifically §91.8 addresses “Operating Noise Limits.”
Unless the complaint of a passenger being removed from a flight is considered an “Operating Noise Limit” … I can’t find out why its relevant to the “Refusal of Transportation”
OK … so all the legal wording is out of the way … lets get to professional opinions on what occurred. Yes, passenger opinions, media opinions and advocate opinions are important, but I think the opinions of those working in this industry, on the front lines, have the most relevance. Not one person I enquired with agreed with the decision … including US Airways employees.
“The airline screwed up because they didn’t ask him if he felt he could assist himself.We have policies in place and agents in place to make that decision by asking the passenger if they feel they can assist themselves for one thing.”
Another long time flight attendant with a major US legacy airline stated:
“My job as a Flight Attendant is to ensure a passengers safety, An Evacuation would cause anyone an enormous amount of stress, now add to that a disabled passenger to this equation, My job is to get EVERY Passengers out no matter what, no matter who!! I’ve had my share of disabled passengers & I have to tell you, of the ones I’ve had they do wonders to ease MY stress. We are required to give a briefing starting with “In the event of an emergency, what is the best way I can assist you?”
She goes on to say “What USAir did wasn’t right,, What’s next? Passengers are not made from “Cookie Cutters” we are not all the same, What about the passenger who is afraid to fly & then freezes in an emergency? I’d rather have a gentleman like Johnnie Tuitel on my flight.”
While flight attendants have one view, I wondered if the opinion would differ for a US Airways gate agent, one who handles passengers daily and is in the same position as the person who removed Mr. Tuitel from the flight … and their view surprisingly did not differ from the flight attendants, with one agent stating:
“Personally they had already boarded him. I can understand the part of their concern but they should have gotten a CRO to be involved. They are sent specifically to classes in handling disabled pax. I would of had a conversation with him to see if he had traveled before and if he specifically needed any help. I have seen inflights specifically go to deaf pax and show them the exit row. Even an amputee can sit in the exit row.”
This gate agent summed up their feelings on this situation with “[they] didn’t go the extra mile in my mind.”
The most surprising opinion I received comes from a former airline pilot, who is now a US Federal administrator with a focus on aviation safety. I was sure this Gov’t Official would have taken US Airways side in this situation, but he did not, stating:
“I can’t believe they did that even if they thought they could. They are required to have a complaint resolution official to make the ultimate call on whether or not to disallow travel. It is not taken lightly. I can’t believe this guy met the threshold for denying boarding. My guess is some enterprising crew member made this decision on their own and probably said something to the effect of if he flies, I don’t and in that case, what are they going to do? I have personally put people on airplanes that did not have arms and legs. “
This Gov’t Official followed up with “I am guessing the enforcement folks will be all over this since they love to fine people so well now. They may ultimately side with US after they investigate the case, but I don’t see how.”
While my research in speaking with other Government officials and attorneys indicates that US Airways is in the clear legally, it is an interesting perspective that fines could be levied against US Airways by someone directly involved in aviation safety.
After all my research and contemplation I think I view both parties as needing to own up to responsibility in this unfortunate situation. US Airways has said they made some mistakes and hopefully when Mr. Tuitel visits their executives they can find a way to work together for the benefit of the industry.
While US Airways was in the legal right, they handled this situation poorly. The airline’s failure to follow its own procedures will likely be the cause of any fines. Should a law suit be brought later, the airline’s failure to follow its own policy will be its downfall.
As for Mr. Tuitel, he was aware of the US Airways Contract of Carriage before boarding the flight, and with 500,000 miles under his belt, he knew he was playing the odds. Just like rolling the dice in Vegas, sometimes your luck runs out.