INVESTIGATIVE REPORT PA07-0007 CHARGING PARTY: Emily Gillette RESPONDING PARTY: Delta Air Lines/Mesa Air Group/Freedom Airlines CHARGE: Public accommodations/breastfeeding SUMMARY OF CHARGE: On November 9, 2006, Emily Gillette filed a charge of discrimination against Delta Air Lines and Mesa Air Group/Freedom Airlines alleging discrimination based on her right to breastfeed her daughter. Specifically, on October 13, 2006, after Ms. Gillette and her husband and daughter boarded Delta Air Lines/Freedom Airlines flight 6160 in Burlington, Vermont bound for New York, Ms. Gillette began to breastfeed her daughter while seated at the back of the plane. The flight attendant asked Ms. Gillette to cover up her daughter’s head. When Ms. Gillette refused to do so, the flight attendant had the Gillettes removed from the flight. The pilot would not override the flight attendant’s decision and the Gillettes were forced to spend the night in Burlington before departing the next morning. SUMMARY OF RESPONSE: On December 12, 2006, Delta Air Lines (“Delta”) filed a response to the charge denying that it discriminated against Ms. Gillette. Specifically, Delta stated that 1.) it permits breastfeeding on its flights; 2.) Mesa Air Group/Freedom Airlines (“Mesa”/“Freedom”) took appropriate steps to address the situation; 3.) in accordance with the “Connection Agreement” between Delta and Freedom, Delta has no operational authority or control over Freedom aircraft or its employees, and; 4.) according to the “Connection Agreement,” Freedom employees are not agents of Delta Air Lines and therefore the charge against Delta should be dismissed. On December 14, 2006, Mesa Air Group/Freedom Airlines filed a response to the charge denying that it discriminated against Ms. Gillette. Specifically, Freedom stated that 1.) the flight attendant involved in this case acted in a manner contrary to company policy; 2.) Freedom does not have a policy that prohibits breastfeeding on its flights; 3.) the pilot spoke with Ms. Gillette and offered to overturn the flight attendant’s decision and 1 that the offer was declined; and 4.) upon declining the pilot’s offer, Freedom provided the Gillettes with accommodations and alternative transportation. PRELIMINARY RECOMMENDATION: This investigative report makes a preliminary recommendation that the Human Rights Commission find that there are reasonable grounds to believe that Mesa Air Group/Freedom Airlines discriminated against Ms. Gillette for breastfeeding in violation of 9 V.S.A. §4502(a) and (j) of the Vermont Fair Housing and Public Accommodation Act. This investigative report makes a second preliminary recommendation that the Human Rights Commission find that there are no reasonable grounds to believe that Delta Air Lines discriminated against Ms. Gillette for breastfeeding in violation of 9 V.S.A. §4502(a) and (j) of the Vermont Fair Housing and Public Accommodation Act. SUMMARY OF INVESTIGATION: Interviews: Emily Gillette, 1/29/07 Leigh Attaway, 10/29/07 Richard Bengoa, 9/4/07 Cindy Bevins, 12/26/07 Christopher Burrows, 10/31/07 Deborah Connors, 10/29/07 Anna DaSilva, 10/26/07 Bobby Kubicki, 10/27/07 Matthew Poydock, 12/18/07 Documents: Charge of Discrimination, 11/9/06 Response to Charge, 12/12/06 (Delta), 12/14/06 (Freedom) Response to request for information from Charging Party, 2/6/07, 4/9/07 Response to request for information from Respondent, Delta: 8/21/07, 10/24/07; Freedom: 8/13/07, 9/7/07 Elements of the case: 1. The Charging Party is a member of a protected class (breastfeeding mother) 2. The Charging party made herself available to receive services ordinarily provided by the Responding parties to all members of the public in the manner in which they are ordinarily provided; and 3. The Charging party was denied the same accommodations, advantages, facilities and privileges of the place of public accommodation that similarly situated persons outside the protected class did. 2 I. Facts A. Background 1. Earl and Emily Gillette live in Espanola, New Mexico. At the time of the incident on October 13, 2006, the Gillettes were scheduled to fly from Burlington, Vermont to New York City with their then 22-month old daughter on Delta Air Lines/Freedom Airlines flight 6160. 2. Leigh Attaway is a coordinator in the corporate customer care department and Anna DaSilva is a customer service representative for Delta Air Lines. At the time of the incident, Christopher Burrows, Deborah Connors, and Bobby Kubicki were customer service agents at the Burlington International Airport for ComAir, an independent company that provides ground handling services under contract with Freedom Airlines. Richard Bengoa is a pilot with Freedom Airlines and was the captain of the Freedom Airlines flight on October 13, 2006. Tammie Kinzie was the flight attendant.1 Matthew Poydock is a regional manager for Mesa Airlines. 3. Freedom Airlines is a wholly-owned subsidiary of Mesa Air Group, Inc. Mesa Air Group includes Mesa Airlines as well as partnerships with Delta Air Lines (Delta Connection), United Airlines (United Express), USAirways (USAirways Express), and Midwest Airlines. Freedom Airline flights are operated only under the Delta Connection program. 1 Ms. Kinzie would not respond to requests for an interview and therefore was not interviewed for this investigation. 3 4. Cindy Bevins is a Transportation Security Administration (TSA) officer who was working at the Burlington International Airport on October 13, 2006. B. The chain of events Friday, October 13, 2006: 5. Ms. Gillette: On Friday, October 13, 2006, Ms. Gillette, her husband, and her then twenty-two month old daughter were scheduled to fly from Burlington, Vermont to New York, New York on Delta Flight 6160 at 6:53 p.m. Due to mechanical problems, the passengers did not board the flight until approximately 9:40 p.m. There were 9 rows of seats in the aircraft and the Gillettes were seated in row 8, seats C and D. Ms. Gillette was in the seat next to the window. 6. Once the Gillettes settled into their seats, Ms. Gillette started to breastfeed her daughter. Ms. Gillette said no skin was showing from her collarbone down and her daughter’s head was towards to aisle. The flight attendant, Tammie Kinzie, came over to Ms. Gillette with a blanket in her hand and said to Ms. Gillette, “You need to cover up.” Ms. Gillette said, “I’m fine,” and Ms. Kinzie replied, “You need to cover up, you are offending me.” Ms. Gillette said, “I’m not doing anything wrong and what you’re asking me to do is illegal and I won’t cover up.” Ms. Kinzie said, “It [what I’m asking you to do] is not illegal and you need to cover your child’s head.” Ms. 4 Gillette responded, “It is illegal and I’m not doing anything wrong and I will not put a blanket on my child’s head.” 7. Ms. Kinzie walked away. Within three minutes a Delta ticket agent,2 Bobby Kubicki, came on board and said, “I’m so sorry but the flight attendant is having you removed from the flight.” The Gillettes both said, “What?” and Ms. Gillette said, “My family is waiting in New York. We haven’t done anything wrong. Please let us go to New York.” Mr. Gillette said, “I’m not getting off this flight.” Mr. Kubicki pleaded with the Gillettes and said, “Please just get off and I’ll work the matter.” The Gillettes agreed to do so and Mr. Kubicki helped the Gillettes gather their belongings. As they proceeded down the aisle, a woman (with whom Ms. Gillette had spoken in the terminal prior to boarding the flight) asked, “Where are you going?” Ms. Gillette told her, “We’re getting kicked off the plane for breastfeeding.” Ms. Gillette started to cry at this point. 8. At the front of the plane Ms. Kinzie was standing at the cockpit door. Ms. Gillette said to her, “How could you do something so mean and hurtful? What you did shamed me and embarrassed me.” Ms. Kinzie put her hand towards Ms. Gillette’s face and said, “Just get off the plane.” The pilot and co-pilot were turned around in their seats and overheard this 2 Ms. Gillette mistakenly identified Mr. Kubicki, Mr. Burrows, and Ms. Connors as Delta ticket agents; as stated above, they all work for ComAir under contract with Freedom Airlines. 5 conversation.3 Ms. Gillette said to them, “Please help me, I haven’t done anything wrong.” They did not respond and turned away. The Gillettes disembarked from the aircraft. 9. Mr. Kubicki walked the Gillettes to the entrance of the terminal. Another Delta ticket agent, Christopher Burrows, came down and appeared angry that the Gillettes were being removed from the plane. Both Mr. Kubicki and Mr. Burrows said they would try to fix the situation. Mr. Kubicki and Mr. Burrows went back to the plane and when they returned, one went to call Delta.4 Meanwhile, the Gillettes stood on the tarmac at the entrance to the terminal for about 20 minutes. During that time, Ms. Gillette called her father in New York to inform him about what was happening. Ms. Gillette also called Delta Air Lines and was told that Delta could not do anything at that time except record the fact that the Gillettes were being removed from the airplane. 3 Mr. Kubicki said that he did not overhear this conversation. Mr. Bengoa told this investigation that he did not recall seeing the Gillettes disembark from the airplane. He said that at that time he was outside talking with the fueler and dealing with the maintenance issue and did not know what was happening until he saw the Gillettes later at the gate (see below). 4 Ms. Gillette could not recall clearly who called Delta but believes that it was Mr. Burrows who went to call Delta at this point in time. Mr. Burrows said Mr. Kubicki made some telephone calls that night but could not recall if Mr. Kubicki tried to call Delta. Mr. Kubicki said that he did not call Delta that evening but that while he was documenting the incident on the Gillettes’ passenger name record, someone from Delta called from Salt Lake City. Mr. Kubicki did not know how Delta had found out about the incident. Mr. Kubicki told the Delta person that he was going to document everything on Ms. Gillette’s passenger name record and explained what had happened. Mr. Kubicki asked the Delta person if she could make arrangements for the Gillettes to fly to New York the next morning and she said she could take care of that matter. 6 10. Subsequently, Mr. Kubicki or Mr. Burrows returned and told the Gillettes, “I’m sorry, you’re not getting back on the plane. Please come upstairs and we’ll figure out what to do.” They went inside the terminal to the gate counter. At some point while the Gillettes were at the gate counter, another [ComAir] ticket agent, Ms. Connors, became involved in making arrangements for the Gillettes to stay over night in Burlington. 11. In addition, one of the Transportation Security Administration (TSA) staff, Cindy Bevins, came over and inquired into the situation. According to Ms. Gillette, Ms. Bevins was very supportive and advised the Gillettes to write everything down. While Ms. Bevins was conversing with the Gillettes, the co-pilot,5 Mr. Bengoa, walked up to the gate counter. Ms. Bevins asked Mr. Bengoa if the Gillettes could re-board the airplane. Mr. Bengoa said, “I’m sorry this happened. I have two kids and my wife breastfed both of them.” Mr. Bengoa went on to admit that Ms. Kinzie’s actions were wrong but stated that while he had authority over the cockpit, the flight attendant had authority over the cabin and that he could not override her decision;6 he did not offer to allow the Gillettes to re-board the 5 Ms. Gillette thought that Mr. Bengoa was the co-pilot; as stated above, he was the captain for the flight that night. 6 Mr. Bengoa stated that he did not say specifically who has authority over the cockpit and cabin. He said that he only commented on how the flight attendant is trained to deal with the cabin while the pilots handle the front of the plane. 7 airplane.7 12. The Gillettes were at the gate counter for approximately 40 minutes while Mr. Kubicki, Mr. Burrows, and Ms. Connors made arrangements for a hotel room, meal vouchers, transportation to the hotel, and airplane tickets for the next day. The first Delta flight to New York the next morning was booked and nothing was available until the afternoon. The Gillettes said that they needed to leave in the morning and that they did not want to fly on Delta. The ground crew then told Ms. Gillette that it would be easier for her to call the Delta 800 number to make arrangements to fly on another airline. Ms. Gillette called Delta from the ticket counter, explained what had happened, and made arrangements for a flight on another airline the following morning. Ms. Gillette did not leave the airport until sometime after midnight. 13. Mr. Bengoa: Before Mr. Bengoa went out to the gate counter, Ms. Kinzie told him that she had just removed some passengers from the plane. Mr. Bengoa asked why, and Ms. Kinzie told him that Ms. Gillette had been non-compliant when she (the flight attendant) asked Ms. Gillette to 7 In its initial response to the Charge, Mesa Air Group stated that “while standing at the gate ticket counter, the Captain of Flight 6160 was asked by a TSA agent in the presence of the Charging Party whether he would permit the Charging Party and her family to re-board the aircraft. The captain replied, ‘yes,’ but the Charging Party refused to re-board the aircraft indicating she would not fly with the same flight attendant.” During their interviews with this investigation, Ms. Gillette, Ms. Bevins, and Mr. Bengoa all stated that Mr. Bengoa did not, in fact, offer the Gillettes the opportunity to re-board the airplane. See statements below. Ms. Bevins and Ms. Gillette both said that Ms. Gillette did not say that she would not get back on the airplane with the same flight attendant on board. Mr. Kubicki was also at the gate counter at this time but because he was focusing on closing the flight, he did not overhear this conversation between Ms. Gillette, Ms. Bevins, and the pilot. 8 cover up while breastfeeding her daughter. At that point, Mr. Bengoa thought the Gillettes had been disruptive in some fashion as that usually is the only reason why someone would be removed from a flight (as opposed to breastfeeding).8 14. Mr. Bengoa then spoke to the Gillettes at the gate counter and apologized. Ms. Gillette was upset and crying and told Mr. Bengoa that she had been quiet and simply breastfeeding her daughter and that there was no reason why she should have been removed from the aircraft. Mr. Bengoa did not speak further with the Gillettes. 15. A TSA agent (Ms. Bevins) was standing with the Gillettes. The TSA agent asked Mr. Bengoa if he could overrule the flight attendant’s decision. Mr. Bengoa said yes he could but did not say anything more. Ms. Gillette heard this and said that she did not want to go on that flight or with that flight attendant.9 Mr. Bengoa said that he did not specifically offer re- boarding to the Gillettes but felt that an offer had been made when he told 8 Christopher Pappaioanou, Director of Legal Affairs for Freedom Airlines, stated that the Freedom flight attendant manual says that the only time passengers should be removed are in instances where there is a threat or assault or intimidation of a flight crew member, or when a passenger does not comply with a request that would affect the safety of the flight. If and when this happens, the flight attendant is supposed notify the flight crew and wait for instructions from the flight crew. According to David Seiler, senior attorney for Delta, Delta’s policy is that the captain has the final authority about decisions to remove passengers from airplanes. 9 As stated above, both Ms. Bevins and Ms. Gillette said that Ms. Gillette did not make this statement. 9 the TSA agent that he could overrule Ms. Kinzie’s decision.10 Since there were no extra flights attendants, Mr. Bengoa returned to the airplane. 16. When Mr. Bengoa got back on the aircraft he asked Ms. Kinzie what had happened and if the Gillettes had been loud or unsafe. Ms. Kinzie said, “no,” but that Ms. Gillette had refused to cover herself while breastfeeding. Mr. Bengoa asked if the Gillettes had accused or threatened the flight attendant. Ms. Kinzie said no, that Ms. Gillette simply had not obeyed her order. At that point Mr. Bengoa did not say anything further. He did not want to start a conflict with Ms. Kinzie as they needed to get the airplane off the ground. 17. The next day, Mr. Bengoa spoke with Ms. Kinzie’s supervisor and told the supervisor that what Ms. Kinzie had done was wrong. The flight supervisor followed through with Ms. Kinzie. Mr. Bengoa eventually received a call from the chief pilot who called to ask what had happened. There was an internal investigation for which Mr. Bengoa made the following statement: This was on flight 6160 from BTW [sic] to JFK. Passengers were on board and the fueler came to the flight deck to advise me that the single point was not pumping any fuel, I went out to the wing with him to try and solve the problem. I then went to the terminal to call maintenance to ask for advise [sic], the station supervisor was at the ticket counter at that time. Supervisor went to the aircraft and I followed a couple of 10 According to Mr. Bengoa, only the captain has the authority to remove someone from a flight. The flight attendant is supposed to come to the captain with any problems. A flight attendant can provide input but the captain has final authority. The passenger has to be on the airplane when this happens; in this case, Mr. Bengoa said that the flight attendant overstepped her authority by having the Gillettes removed from the airplane. 10