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Freitag v. Alaska Airlines, Inc.

United States District Court, D. Oregon

July 6, 2018

KURT FREITAG, Plaintiff,
ALASKA AIRLINES, INC., an Alaska corporation, PORT OF PORTLAND, a municipal corporation, ERIN FLINN, an individual, and DOES 1 and 2, individuals, Defendants.

          Mark C. Hoyt, Tobias N. Tingleaf SHERMAN SHERMAN JOHNNIE & HOYT, LLP Attorneys for Plaintiff

          Caryn Geraghty Jorgensen, John Fetters MILLS MEYERS SWARTLING P.S. Attorneys for Defendant Alaska Airlines, Inc.

          Peter R. Mersereau Beth F. Plass MERSEREAU SHANNON LLP Attorneys for Defendants Port of Portland & Erin Flinn

          OPINION & ORDER

          Marco A Hernandez, United States District Judge.

         Plaintiff Kurt Freitag brings this 42 U.S.C. § 1983 action against Defendants Alaska Airlines ("Alaska"), the Port of Portland, ("the Port"), Port Police Officer Erin Flinn, and Does 1 and 2 who are identified only as Port police employees. Plaintiff brings a Fourth Amendment unlawful arrest claim and a First Amendment retaliation claim against the Port and Flinn. He brings a state law false arrest claim against all Defendants. He also brings a breach of contract claim against Alaska. The claims are based on Plaintiff's arrest at the Portland Airport on May 20, 2015, which occurred when he did not leave the secure area of the airport terminal after losing his seat on an Alaska flight. Alaska moves for summary judgment. The Port and Flinn also move for summary judgment. In response to Alaska's motion, Plaintiff concedes the breach of contract claim. Pl. Resp. 39, ECF 28. I grant Alaska's motion as to the breach of contract claim, I grant Alaska's motion as to the false arrest claim, and I grant the Port Defendants' motion as to all claims.


         On May 12, 2015, Plaintiff, or someone on his behalf, purchased a round-trip Phoenix to Portland to Phoenix ticket on Alaska. He flew to Portland on May 19, 2015 and had a return flight for May 20, 2015. According to Ray Prentice, Alaska's Director of Customer Advocacy, Plaintiff purchased a coach-seat, upgrade-qualifying fare. Prentice Decl. ¶ 2, ECF 26; see also id., Ex. A (copy of Plaintiff's "Passenger Name Record" or "PNR" which Prentice states shows the type of fare purchased by Plaintiff). Prentice further states that as an elite MVP 75k Gold customer, Plaintiff received an automatic first-class upgrade for both flights. Prentice Decl. ¶ 2. Plaintiff denies knowing that he had a first-class seat. Tingleaf Decl., Ex. 1 ("Pl. Dep."[1]) 85:19-86:12, ECF 29-1 (Plaintiff stating that he "can learn it if I'm paying any attention. Sometimes I'm not.").

         Under Alaska's Contract of Carriage, passengers must check in at the ticket counter at least forty minutes before departure and be at the departure gate at least thirty minutes before departure. Beyer Decl., Ex. A at 27 (Rule 135AS), ECF 22-1 at 28. The Contract of Carriage allows Alaska to cancel a ticket if a passenger fails to occupy a reserved space or fails to comply with any term or condition of sale. Id. at 26-27.

         Plaintiff's May 20, 2015 flight from Portland to Phoenix had a scheduled departure time of 8:30 p.m. Fetters Decl., Ex. A ("Olson Dep."[2]) 61:2-22, 70:6-9, ECF 21-1; Prentice Decl. ¶ 3. Plaintiff's bag was checked at the Portland airport ticket counter at 7:55 p.m., five minutes after the forty-minute cutoff. Id.; see also id., Ex. A at 5. Plaintiff asserts that he arrived at the Portland airport one hour before the scheduled departure but he does not dispute that he checked his bag only thirty-five minutes before that time. Pl. Resp. 3-4.

         Alaska asserts that because Plaintiff missed the forty-minute cutoff, his complimentary first-class upgrade was released and reissued to another elite customer on Alaska's upgrade waitlist. Prentice Decl. ¶ 3. At the check-in counter, Plaintiff was issued a "gate-service document," allowing him to pass through Transportation Security Administration (TSA) security, but unlike a boarding pass, it did not contain a seat assignment. Id. If Plaintiff arrived at the departure gate on time, he would have been issued an available coach seat assignment at the gate. Id. Plaintiff testified in deposition that during the check-in process, nothing was said to him about being late. Pl. Dep. 98:25-99:3. The ticketing agent at the check-in counter gave Plaintiff a baggage claim tag with a "V/S" on it. Prentice Decl., Ex. B. A "V/S" tag indicates that a passenger may be separated from his or her checked luggage if either fails to make it to the aircraft in time. Prentice Decl. ¶ 4. Plaintiff testified he knew nothing about the "V/S" tag and the agent said nothing about possibly being separated from his bag due to timing. Pl. Dep. 104:19-25. The ticketing agent called the gate agents to tell them that Plaintiff was being sent to the gate late.[3] Olson Dep. 44:14-20.

         Plaintiff testified in deposition that after clearing TSA security and approaching the flight gate, he observed eight to ten people in the boarding line. Fetters Decl., Ex. B ("Freitag Dep.") 105:19-22, 106:25-107:2, ECF 21-1. Because he prefers to be the last person to board, Plaintiff went to a vendor to purchase newspapers and soft drinks. Id. at 107:4-5, 107:19-20. He returned to the gate and there were still a couple of people in line. Id. at 107:24-108:2. Plaintiff then "hung back a little bit and let them complete the thing" before pulling his "ticket" out of his pocket and making his way to the boarding scanner. Id. at 108:3-6. According to Alaska, Plaintiff scanned his gate-service document seventeen minutes before departure, or at 8:13 p.m. Tingleaf Decl., Ex. 2 ("Olson Dep. - Pl.") 108:19-22, ECF 29-2.

         Because Plaintiff had only the gate-service document without a seat assignment, the scanner would not let him board. Olson Dep. 150:12-151:5; Pl. Dep. 114:23-115:2. According to Alaska, Plaintiff was told that he lacked a seat assignment because his first-class upgrade had been reassigned to another passenger due to his late check-in. Tingleaf Decl., Ex. 3. Plaintiff allegedly became "quite upset." Id. Plaintiff testified that the gate agent did not mention the "lost" first class ticket and did not offer Plaintiff a coach seat. Pl. Dep. 120:25-121:6. According to Plaintiff, the gate agent, and another gate agent who joined the first agent, kept mentioning "miles." Id. at 117:12-13, 118:12-14, 122:3. Plaintiff assumed that the flight was overbooked and that the agents were going to offer him miles to be used for a future flight. Id.

         According to the unidentified declarant gate agent's account of the events, Plaintiff went to the counter to talk to the declarant afer the scanner rejected Plaintiff's boarding document. Tingleaf Decl., Ex. 3. Contrary to Plaintiff's testimony, the gate counter agent states that he or she told Plaintiff that his first class seat had been given to another passenger. Id. Plaintiff was upset, stating that he had reserved a seat two months prior, and stated that he had checked in on time. Id. The gate agent offered Plaintiff miles or money toward a future flight. Id. Plaintiff was not interested. Id. He became "quite upset" and began to "berate" the gate counter agent. Id. (stating that Plaintiff said something like "how can you treat someone like this"). In his Response Memorandum Plaintiff asserts that he did not yell at, threaten, or berate the gate counter agent. Pl. Resp. 6 (citing Pl. Dep. 190, 195). In the cited deposition testimony, Plaintiff states that in his exchange with the gate individuals, he was not angry and did not raise his voice. Pl. Dep. 190:4-14. He characterized his behavior as "frustrated and confused, perplexed by the situation." Id. at 190:14-19. He also denied using swear words or vulgar or profane language. Id. at 195:7-12.

         The gate agent called a supervisor, Michelle Olson, to assist with the situation. Olson Dep. 45:2-4 (stating that boarding agent Laura Coleman[4] called Olson up from the jetway). Olson was at the bottom of the jetway for the flight and received the agent's call twelve minutes before departure. Id. at 33:25-34:1. Olson walked to the gate to speak with Plaintiff.

         Cary is a customer service agent for Alaska. Tingleaf Decl., Ex. 5 ("Cary Dep.") 14:13-18, ECF 29-5. She does not recall much about the incident with Plaintiff on May 20, 2015. Id. at 15:14-23 (testifying that she doesn't "necessarily recall the incident" but she "was shown a few printouts that had my name on it that maybe jogged a few memories, but I do not recall the event."). What she does recall is Olson, Cary's direct supervisor, coming to the gate because of an escalating incident. Id. at 28:21-29:5.

         Olson testified at deposition that she had been told of an irate passenger who wanted to speak with a supervisor. Olson Dep. 49:1-3. When Olson approached, there was no indication of irate behavior and Plaintiff was standing and waiting quietly for her. Id. at 48:14-22. Olson recognized Plaintiff as someone who flies Alaska frequently and she used Plaintiff's name and approached with a smile to "diffuse anything that was happening." Id. at 49:5-10; 45:16-23, 46:6-10. Olson explained to Plaintiff that his first-class upgrade was released to another passenger because of his late check-in at the ticket counter and he could either accept a coach seat or a refund. Id. at 38:6-39:6, 115:6-18, 120:4-21. According to Olson, Plaintiff denied he was late and continued to demand a first-class seat. Id. at 50:1-3, 53:25-54:1, 55:25-56:2, 87:14-15. At this point, Olson states, Plaintiff was not shouting or throwing things but he nonetheless he was not calm and was insisting that "this is my first class seat," "I'm not getting on without my first class seat." Id. at 55:3-9 (further stating that Plaintiff was "not really in the mode to listen to options"). Plaintiff did not want a coach seat. Id. at 39:23-24. Olson testified that because the plane was so close to its departure time, she had only a few minutes to get Plaintiff onboard. Id. at 100:17-20. She tried to appease him but was also trying to get the flight out on time. Id. at 110:19-20. She offered him any coach seat on the plane. Id. at 100:20-21. Plaintiff did not take one but he eventually agreed to a refund. Id. at 103:10-13.

         According to Olson, within three or four minutes of interacting with Plaintiff, and while she was processing his refund request, Plaintiff began to make inappropriate comments to her, including that she should kill herself. Id. at 40:4-9 (testifying that Plaintiff repeatedly said he was not sure how Olson could live her herself, how she could go home at night and sleep, and that she should just go home and kill herself); 124:7-15. Olson began to feel that the situation was unsafe. Id. at 40:7-9. She knew that after she completed processing his refund, Plaintiff would no longer be a ticketed passenger and could not remain in the secure area of the airport. Id. at 40:12-14, 103:14-104:5[5]. Because she did not feel safe escorting Plaintiff out of the secured area, she called the Port police. Id. at 103:14-104:5, 138:17-24. She called the non-emergency line and asked the Port police to escort Plaintiff from the gate area. Id. at 129:5-11 (testifying that she called the non-emergency line when everything was done with the refund and he needed an escort). According to Olson, Plaintiff continued to "run on" with dialogue as to Olson's "worthlessness and need[] to kill herself" while waiting for the Port police to arrive. Id. at 40:16-20. Plaintiff denies that he called Olson names or threatened her in any way. Pl. Resp. 8.[6]

         Port police officer Flinn received a call from dispatch at 8:22 p.m., reporting a disturbance at an Alaska boarding gate. Fetters Decl, Ex. C ("Flinn Dep.") 17:17-18:7, ECF 21-2; see also Id. at 20:21-21:7 (Flinn received a call at 8:22 of an incident with an irate male at Alaska boarding gate number B1). She went to the area with Officers Klein and Brown. Id. at 22:7-8. Flinn was the lead officer. Id. at 23:13-18. When the officers arrived on scene, they saw Plaintiff and Alaska personnel, all of whom were "standing around." Id. at 24:8-13, 25:2-4. According to Flinn, Plaintiff "appeared to be agitated with the situation[.]" Id. at 27:1-2. Flinn needed to investigate further to determine if it was "more a customer service-type situation or not." Id. at 27:3-5.

         Flinn initially spoke with Olson. Id. at 24:21-23, 27:18-20. Flinn recalls Olson telling her that Plaintiff was not going to be flying on the Phoenix flight and he was not ticketed. Id. at 29:15-19. Olson told Flinn that Plaintiff had previously been excluded from flying on Alaska some years ago. Id. at 30:4-7; see also Flinn Decl. ¶ 6, ECF 24 (stating that during her initial conversation with Olson, Olson told her that she had dealt with Plaintiff on previous occasions during which he had become aggressive with Alaska employees and that he had been previously excluded from flying on Alaska); Tingleaf Decl., Ex. 9, ECF 29-9 (Flinn's police report stating that Olson told her that Plaintiff had previously been placed on a "no fly" list for Alaska due to erratic behavior). During deposition, Olson admitted that she was aware that Plaintiff had previously been temporarily banned from flying with Alaska but she did not actually know what caused the ban. Olson Dep. - Pl. 129:12-132:12 (further explaining that she made an assumption based on his being on the no-fly list and stating that "we don't put somebody on that list just because").

         In describing the immediate issue, Olson told Flinn that Plaintiff arrived late for the flight, Alaska had offered him a seat in coach, Plaintiff was not happy and had demanded his first class seat, and that he had had erratic behavior. Flinn Dep. 30:12-16; see also Id. at 31:6-12 (Olson told Flinn that Plaintiff had arrived at the airport thirty-five minutes before the flight departure time and had arrived to the gate area eleven minutes before that time); Flinn Decl. ¶ 6 (Olson told Flinn that Plaintiff had checked in late at the Alaska ticket counter, had arrived to gate B1 roughly eleven minutes before the flight, was advised that his first class seat had been given away because of late arrivals, that accommodations had been offered to Plaintiff but he had refused them and began calling Olson names, including telling her she was worthless, and that as a result, Plaintiff had become a non-ticketed passenger and was not boarding the flight).

         Flinn knew from Alaska that Plaintiff did not have a boarding pass. Id. at 33:14:21. She testified in deposition that when the airlines choose not to fly a passenger and remove the boarding pass or the passenger's access to the airlines's business, that means the person is no longer a ticketed passenger. Id. at 34:11-15.

         After talking to Olson, Flinn spoke with Plaintiff. Id. at 43:8-9. According to Plaintiff, he was asked to place his luggage down. Pl. Dep. 134:18-22. Flinn states that in her initial contact with Plaintiff, he was agitated. Id. at 43:12-14; see also Flinn Decl. ¶ 7 (when she approached Plaintiff, Flinn explained why she had been dispatched to the gate and he immediately became argumentative). He was demanding to see all of the Alaska employees' identifications. Id. at 13-15. Flinn described Plaintiff as interrupting any kind of conversation she was trying to have to tell him why she was there. Id. at 43:21-25 (also explaining that he kept referring back to Alaska and turning and speaking with them in a louder and agitated tone). She stated: "He seemed to be unreasonable at that point whereas he wasn't taking any direction from anyone." Id. at 43:25-44:2. Flinn testified that in her dealings with Plaintiff, he "seemed very unreasonable and unwilling to listen to anybody else's point of view," that he "demanded things, and there was no real reasoning with him." Id. at 31:2-5.

         According to Flinn, Plaintiff was not taking an aggressive stance or screaming at the top of his lungs, but he was raising his voice. Id. at 44:3:9. Plaintiff "wanted his first class seat." Id. at 44:20. He made statements such as they are "refusing to fly me. They are worthless. I want all their information. I'm filing a complaint." Id. at 45:10-15. Flinn tried to walk Plaintiff through some of the steps for filing a complaint but Plaintiff was "unwilling to hear anybody else at that point." Id. at 45:16-19. Plaintiff denies stating that he was going to file a complaint. Pl. Dep. 197:9-12. He states that he was unable to tell his side of the story to Flinn. Id. at 139:15-140:7 (Plaintiff deposition testimony to the effect of what, in his opinion, is good policing which "didn't happen" and stating that "[w]e never got to anybody's story. . . . and it went "very, very, very rapidly . . . to my being arrested.").

         Flinn asked Plaintiff for his identification. Flinn Dep. at 43:15-16. Plaintiff initially refused. Id. at 43:16-17; see also Pl. Dep. 134:23-24, 135:8-10 (stating that he found the request to show his identification "a little aggravating" and thought the request was "inappropriate"). Plaintiff asked Flinn for her identification. Id. at 46:16-21. Flinn's security badge is pinned to her uniform and she responded to Plaintiff by pointing to her chest and her badge and stating "[i]t's right here." Id. at 46:24-47:2. The badge shows Flinn's full name. Id. at 47:7-8. Plaintiff remained argumentative about the issue. Id. at 47:8-9. Plaintiff then took out his identification and put it up to his chest instead of handing it to Flinn so she could write down his information. Id. at 47:10-13. She normally does not get close enough to a person who is agitated to have been able to read the information on Plaintiff's identification but she had cover officers there and felt okay with obtaining Plaintiff's information from the identification Plaintiff was holding to his chest. Id. at 47:15-22. Thus, in response to Plaintiff's action, Flinn said "[t]hat's fine." Id. at 47:15-16. Plaintiff testified that he ...

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