Per my previous e-mail.

March 10, 2008

 Dear Mr. Spollen:

             Please hear me out and consider the following:

             Among the most important issues in my letters are my contentions that the obligation to load a wheelchair on a flight and the obligation to return it to the passenger in a timely manner are two separate requirements, and that in my case American Airlines violated both, the latter because it refused to put my wheelchair on the next flight from JFK to Paris (or another flight that departed soon after the flight I was on) regardless of the carrier, choosing instead to wait until the following day to put it on an AA flight.  This is important because if the two things are not viewed and enforced as separate obligations, airlines have far less incentive to act quickly and competently upon discovering that a wheelchair missed a flight. 

 DOT’s Investigation Summary Sheet doesn’t make this distinction; it identifies the complaint/issue as failure to return a passenger’s wheelchair in a timely manner, but in the remarks the only violation it identifies is the failure to load my wheelchair.  In its response, AA concedes that I arrived in Paris without my wheelchair, but completely fails to discuss its refusal to put my wheelchair on the next flight from JFK to Paris.  AA attributes the entire problem to a delayed flight, which completely and deliberately evades the point.  It appears that DOT based its finding of a violation on the mere fact that my wheelchair was not on the flight, and DOT didn’t investigate when AA discovered my wheelchair was not on the flight and what AA’s practice is when a wheelchair misses a flight.  Surely it cannot be DOT’s position that an airline’s obligation to return a wheelchair to a passenger on a timely basis consists solely of the obligation to load the wheelchair on the passenger’s flight and return it promptly after that flight has landed.

             You and I didn’t discuss these issues.  It’s important to know DOT’s position.  If DOT agrees in principle that the obligation to load a wheelchair and the obligation to return it timely are two separate obligations, it’s important that DOT also address whether or not it is a violation for an airline to wait as long as AA did to transport my wheelchair to Paris.  Even though DOT’s level of action may only be issuing a warning, not bringing an enforcement action, the scope of DOT’s action should be broader than finding only one violation.  DOT should find two separate violations (not including those involving the other matters I’ve described).  Any future investigations and penalties should be based on there having been (at least) two violations.   

DOT should investigate what AA’s practice is when a wheelchair misses a flight.  Flight delays are sometimes caused by factors outside an airline’s control, but an airline can always control how quickly it acts when it discovers a wheelchair has missed a flight.  It is critically important that DOT send a message to the airlines that if a passenger’s wheelchair misses a flight, the airlines still have an obligation to do everything reasonably necessary to make sure the wheelchair is returned promptly to the passenger.  As it now stands, DOT’s action in my case doesn’t do this.   

            Separately tracking failure to load a wheelchair and failure to mitigate that failure would provide valuable information about what airlines actually do, which, hopefully, would lead to more effective enforcement by DOT and better practices by airlines. 

            A related issue in my case is whether AA knew when my wife and I boarded the JFK-Paris flight that my wheelchair wouldn’t make it given that our San Francisco-JFK flight arrived late.  If so, AA should have informed us and provided us an opportunity to take a flight to Paris that evening on another carrier or to stay overnight in New York and take a flight the next day.  A thorough investigation would include this issue. 

            I applaud your statement that DOT “gets it” that for wheelchair users, our wheelchair is our legs.  It’s also vital to appreciate that not having one’s wheelchair not only eliminates one’s mobility, but harms his or her health, safety and hygiene in critical ways.  For this reason, it’s imperative that airlines provide suitable loaner wheelchairs.  In our conversation, we touched on loaner wheelchairs only very briefly.  If an airline has no obligation to provide a safe and appropriate loaner, what is a person supposed to do when his wheelchair isn’t on a flight?  This is not a rhetorical question. 

            Our conversation ended when you had to catch your car pool, not because we had covered a majority of the issues or reached closure on any of them.  We didn’t discuss AA’s prioritization of later arriving able-bodied passengers at check-in; priority and assistance at the security checkpoint; price discrimination; information barriers; refusal to provide seating accommodations; problems with aisle wheelchairs; inaccessible bathrooms on airplanes; insufficient number of accessible toilet stalls at airports; and the points I made about how DOT characterizes and classifies complaints.  Thank you for sending me the proposed amendments to Section 382, which address some of these topics.  In any further conversation with you, I won’t discuss the topics addressed in the proposed amendments. 

            Regarding my concerns and recommendations about problems at the security checkpoint, I would appreciate the name and contact information of the Department of Homeland Security and TSA staff responsible for policy regarding disabled passengers. 

Our only discussion of passengers being able to remain in their own wheelchairs during flights consisted of your saying that won’t happen, and my acknowledgment that it seemed unlikely to happen soon.  It’s reasonable to discuss whether DOT believes this wouldn’t be feasible from a safety and operations standpoint, as distinguished from merely being unacceptable to the airlines, and whether it has recently been seriously considered. 

            Some of our precious time was taken by your describing a case in which a passenger whose wheelchair was damaged on his flight home stayed for nearly a week in an expensive hotel across the street from the dealer repairing his wheelchair when he easily could have stayed in his own home.  His claim for the cost of his hotel stay was, justifiably given the facts you described, denied by the airline.  What does this have to do with my case? 

I respect your time, and I certainly don’t expect you to miss your carpool, but it’s reasonable to ask for another 15 or 20 minutes of your time to discuss, at a minimum, the issues in the first several paragraphs of this e-mail, which concern an airline’s obligations once it has discovered that it failed to load a passenger’s wheelchair on a flight.  I recognize that we won’t be able to cover most of the other issues in this amount of time.  If you aren’t available, I request to speak with Ms. Workie or Ms. Chesley or another enforcement attorney who is familiar with my case. 

Regarding the request in my previous e-mail for a copy of DOT’s warning to AA, I was unaware that the warning consisted only of the October 11, 2007 form letter and the brief Investigation Summary Sheets enclosed with it.  I had thought there would be a more detailed letter to the airline. Your e-mail has clarified that.  If these materials are available electronically, I would appreciate a copy. 

I also didn’t have an opportunity to ask you how many complaints have been made against American Airlines since March 4, 2003 (the date of DOT’s consent order) regarding lost, damaged and delayed wheelchairs and other violations of the obligations to accommodate passengers who use wheelchairs.  I now request that information.  Also, how many of those complaints have been investigated, in how many did DOT find a violation, and what action did DOT take?  If available, please include a breakdown by type of violation.  Also, please provide copies of the case files of 10 complaints against American Airlines since March 4, 2003 about lost, damaged and delayed wheelchairs in which DOT found violations that it considers among the most serious and egregious.  If you believe that selecting the most serious and egregious violations is too subjective, then select the 10 most recent cases.  This information is a matter of public record.  It certainly isn’t my intention to burden you; it will be easier for both of us to proceed informally rather than through a FOIA request.  If the files in any particular case are large, let me know before e-mailing or copying them and we can discuss how much information I want. 

Also, how many DOT staff, at all levels and job descriptions, are involved in investigating and enforcing the civil rights of airline passengers with disabilities?  How many investigations has DOT done in the past five years of all air carriers regarding lost, damaged and delayed wheelchairs and other violations of the obligations to accommodate passengers who use wheelchairs?  How many enforcement actions have been taken? Having this information will enable me and others to decide whether to contact our elected representatives and urge an increase in DOT enforcement staff levels. 

I have a few recommendations for improving DOT’s website as it relates to disabled passengers.  To get to the information about disability issues, a reader has to go first to the DOT’s Aviation Consumer Protection homepage, then to the bottom of another page about complaints in general, then click within a sentence about filing a disability complaint, which brings the reader to another page about filing complaints, at the bottom of which are links to various rules including Section 382.  There doesn’t appear to be a way to go easily and directly to the rules.  Also, much of the information about disability issues is combined with information about other consumer issues.  For example, links to DOT guidance about disability issues are combined on a single long page with links to guidance about a myriad of unrelated issues, and the links are in chronological order rather than arranged by subject.  The website would be greatly improved by having a separate homepage about disability issues, including regulations, guidance, complaints, etc. The Justice Department’s www.ada.gov website is an excellent model. 

The DOJ website includes informative, detailed quarterly and annual reports about enforcing the ADA that discuss specific cases.  The DOT report on disability related complaints is an aggregate summary of complaints and doesn’t describe investigations and enforcement actions.  Does DOT have the resources to issue a more complete report similar to those issued by DOJ? 

I appreciate that investigating and enforcing the civil rights of airline passengers with disabilities is difficult and DOT’s resources are limited.  It is not my intention to add unnecessarily to your burden; everything I’m asking for is reasonable.   

What are my rights to appeal, both within and outside DOT, the decision not to pursue enforcement action and other aspects of DOT’s decision? 

Thank you for your time.  Although I’m being persistent and thorough, this does not reflect any intention to question your professionalism, diligence or experience. 

Sincerely, 

Howard Chabner