CPT’s Mark Spivak participated as a plaintiff expert witness in a case in Mississippi filed in Federal District Court. The case raised relevant current events issues regarding the right of passage of airline passengers with service dogs and the behavior and training of airline personnel who interact with disabled passengers.
The Plaintiff, a military veteran who served two tours of duty in Afghanistan and Iraq, arrived at the Manhattan Regional Airport to check-in herself and her service dog for an American Airlines flight departing Manhattan, Kansas and arriving in Biloxi, Mississippi. However, the ticket agent refused to allow passage for the service dog unless the passenger (Plaintiff) produced specific documentation- a letter from a licensed mental health professional, on letterhead, dated within the past 12 months, denoting the license number, date of the license, and state of licensure of the mental health professional, stating that the passenger is a current client of the practice, that the passenger has been diagnosed with a condition categorized within DSM V, and that the dog has been prescribed by the mental health professional as a component of the passenger’s treatment plan. The ticket agent also stated that passengers must provide 48 hours notice to board with a service animal and that the Plaintiff failed to provide ample notice.
Therefore, based on the lack of proper documentation and notification he was denying complimentary boarding privileges for the animal, although he communicated that the Plaintiff could pay a $150 fee to board the animal in cargo.
The Plaintiff argued, contacted customer service, and spoke to supervisors. Nevertheless, American Airlines remained steadfast in requiring monies for her to board her service animal. She left the airport in tears. The next day she returned to the ticket counter with a letter from her mental health professional that she found stored on her email server. She had used the letter to board previous flights on American Airlines. However, she was again denied passage, as the letter was missing a date and the date of license of the mental health professional. She also, in the opinion of the ticket agent, did not provide ample notice, as only 24 hours elapsed from the time she first communicated her wish to fly with her service dog.
She then rebooked for 24 hours later, 48 hours after her original flight. When she arrived at the ticket counter the third time, she was finally allowed to board with her service dog. Interestingly, she was allowed to board without an accompanying pet fee, although she did not produce documentation any different than the day previous. The only differences were that an additional 24 hours elapsed and she became a squeakier wheel when she verbally and in an email threatened to sue.
Yet, American Airlines didn’t give in easily. Not only did American postpone the Plaintiff’s arrival by 48 hours, which caused her to miss business meetings, when she arrived they embarrassed her by announcing loudly that there was a wheelchair awaiting her. Then, within the presence of the public, gate agents strongly insisted that the Plaintiff travel within the terminal in the wheelchair, even though a wheelchair was never requested and was declined repeatedly by the Plaintiff. The actions of the arriving gate agents drew undue attention to the Plaintiff and unnecessarily and with apparent malice caused public embarrassment to the Plaintiff.
The CPT expert wrote an affidavit that was crucial to the Plaintiff receiving a fair settlement prior to trial. In addition, the CPT Expert wrote a rebuttal to the report submitted by the Defense Expert. The affidavit and rebuttal analyzed key factual and legal elements crucial to the Plaintiff’s case.
- In depositions, the Plaintiff stated that during her initial conversation with the ticket agent she never communicated the nature of her disability, only that her dog was a service dog.
- There are a myriad of “invisible disabilities” other than mental health disabilities, including epilepsy, hypokalemic periodic paralysis, neurocardiogenic syncope, narcolepsy, postural orthopedic tachycardia syndrome, Ehlers-Danlos syndrome, lupus erythematosus, autism, diabetes, and severe allergic responses, of which CPT has trained service dogs for all, except diabetes and allergy detection.
- The Plaintiff met the definition of disabled as stipulated by the Americans with Disabilities Act (ADA), as she suffered both a TBI and PTSD from her experiences in the wartime theater.
- Given that the majority of pertinent interactions with the Plaintiff were in a public area prior to the onset of airport security, the ADA applied, not the Air Carrier Access Act (ACAA). Thus, the Defendant, American Airlines, owed the Plaintiff duties of care mandated within the ADA.
- The ADA does not allow owners, landlords, tenants, supervisors, or agents of property to inquire about the specific nature of a person’s disability. According to Title II of the ADA only two “inquiries” are allowed. First, the representative may ask “if the animal is required because of a disability.” Second, the representative may ask “what work or task the animal has been trained to perform.” The representative may not ask about the “nature or extent” of the disability, and “shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal.” Furthermore, “generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability.”
- In Title II of the ADA, under “surcharges,” the law clearly states “a public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees.”
- The treatment the Defendant provided the Plaintiff violated provisions required of commercial facilities and personnel as stipulated within Title II of the ADA.
- The service dog was well behaved throughout the Plaintiff’s ordeal at the airport. The expert’s assessment was confirmed by hours of video, which unfortunately was absent of audio.
- The service dog passed industry validated evaluations provided by the expert, including the CGC Test and the ADI Public Access Test. Furthermore, the Plaintiff demonstrated the dog’s assistance behavior that mitigated the limitations and effects posed by her disability. The dog passed the Assistance Behavior Test both in a private residential environment and a public environment. Thus, the dog met the ADA definition for a service animal.
- The Plaintiff satisfied the ADA definition of “disability”- “a physical or mental impairment that substantially limits one or more of the major life activities of such individual”- and the ADA definition of “physical or mental impairment.” Furthermore, the Plaintiff produced a letter from the Department of Veterans Affairs that clearly stated she has a service-connected disability, is 40% disabled, and receives a monthly award amount.
- An analysis of the ADA Title II and Title III definition of a “service animal”- “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability… The work or tasks performed by a service animal must be directly related to the individual’s disability… Examples of work or tasks include… helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors.”- concluded that the Plaintiff’s dog met all requirements.
- A review of the definition of “commercial facility” within Title II of the ADA concluded that the ticket counter of the airport terminal by definition was a commercial facility that falls within the aegis of the ADA, not the ACAA.
- The Plaintiff’s service animal was always in-control, properly leashed, and wore an appropriate identification vest. There was no evidence that should lead a reasonable person to believe that the dog was not a legitimate service animal or that the animal’s behavior warranted denial of admission to board an aircraft.
- American’s staff tried very hard to coerce the Plaintiff into paying a fee to transport her service dog in cargo, which was a clear violation of federal law.
- There were a large number of prior consumer complaints alleging that poorly trained or supervised American Airlines employees mistreated persons with disabilities.
- American Airlines’ website duplicates the code of the ACAA, where agents are supposed to make a determination of a service animal based upon “the credible verbal assurance of a qualified individual with a disability” and the “presence of a harness, tags, and/or identification cards or other written documents.” The Plaintiff satisfied the requirements, yet was mistreated and had her civil rights violated by an intransigent ticket agent.
- The Defendant claimed the ACAA applied even in the commercial facility of the ticket counter, which was prior to the entrance of terminal security. The application of law is pertinent. The ADA does not separate psychiatric service dogs from the category of “service animals,” although the ADA specifically excludes emotional support animals (ESAs). In contrast, the ACAA categorizes psychiatric service animals as ESAs. Thus, the ACAA allows an airline to require documentation (the letter described previously) for passengers with mental health disabilities, regardless of whether their accompanying animal is a trained service dog as defined by the ADA or an ESA that provides benefit by its mere presence. On the other hand, the ACAA would not allow the carrier to require documentation for any other form of disability, provided there was credible verbal assurance and the presence of identification, as described above. In addition to the CPT Expert argument that the ADA applied at the ticket counter, CPT’s responded to the Defense claim that the ACCA was the presiding law. CPT stated that there was credible assurance that the dog was a service animal, no identification of the nature of the disability by the Plaintiff, and no valid reason for the ticket agent to assume that the dog was not a legitimate service animal. Moreover, the ticket agent should have been trained and aware that there are many forms of “invisible disability” that may typically remain inapparent. Yet, the ticket agent harassed the Plaintiff by accusing her of trying to transport a pet as a service dog and by attempting to force her to pay a surcharge, a salient violation of federal law governing treatment of the disabled, regardless of whether the ADA or ACAA applied.
- CFRs explain that the spirit of the advance notice provision within the ACAA is to ensure that environmental conditions are suitable for travel with a service dog. Although the ACAA permits an airline to require 48 hours notice, such notice is not mandated within the ACAA. Therefore, even if the ACAA was applicable, which it would have been beyond security, if there was no valid environmental constraint that should deny boarding due to reasons of health and safety for persons or the animal, then the airline’s actions defy the spirit of the law, which ironically is to enhance customer service.
- Even within the ACAA, the requirement of documentation for a psychiatric service dog or ESA is not mandated, although it is allowed. Moreover, CFRs deter airlines from requiring documentation if there is credible verbal and visual assurance that the dog is a legitimate service animal or ESA. The Plaintiff provided verbal assurance and the dog was well behaved. Therefore, in the spirit of the law the ticket agent should not have requested documentation. Furthermore, the letter produced on the second day fulfilled all documentation requirements, except it lacked a date and a date of licensure. Also of importance, the letterhead of the document was VA letterhead.
- The Plaintiff stated she is a military veteran and produced documentation proving such. Moreover, it is common knowledge that many veterans have mental health disabilities. Yet, on the first two occasions the ticket agent refuted the legitimacy of her disability and her dog was denied passage in the cabin. This is not an appropriate way to treat a military veteran or a disabled non-veteran.
- Forcing the dog to fly in cargo, apart from the Plaintiff, raised the probability of the Plaintiff experiencing a panic episode, which would have been potentially damaging to the Plaintiff and disruptive to all persons aboard the flight.
- Lastly, the airline staff’s actions at the gate upon arrival clearly constituted harassment and appeared to occur with malice.