Full Opinion (html_with_citations)

Case: 22-10686     Document: 00516930639         Page: 1     Date Filed: 10/13/2023




           United States Court of Appeals
                for the Fifth Circuit                            United States Court of Appeals
                                                                          Fifth Circuit

                                ____________                            FILED
                                                                 October 13, 2023
                                 No. 22-10686                      Lyle W. Cayce
                                ____________                            Clerk

   Issam Abdallah; Abderraouf Alkhawaldeh,

                                                           Plaintiffs—Appellants,

                                       versus

   Mesa Air Group, Incorporated, a Nevada Domestic Corporation;
   Mesa Airlines, Incorporated, a Nevada Corporation,

                                           Defendants—Appellees.
                  ______________________________

                  Appeal from the United States District Court
                      for the Northern District of Texas
                            USDC No. 4:21-CV-540
                  ______________________________

   Before King, Smith, and Elrod, Circuit Judges.
   Jerry E. Smith, Circuit Judge:
          On an otherwise-ordinary Mesa Airlines flight from Birmingham to
   Dallas Fort Worth International Airport, a flight attendant grew concerned
   about two passengers: plaintiffs Issam Abdallah and Abderraouf Alkhawal-
   deh. She alerted the pilot, who, despite the reassurance of security officers,
   delayed takeoff until the flight was canceled. The passengers were told the
   delay was for maintenance issues, and all passengers, including the two in
   question, were rebooked onto a new flight that reached DFW. After learning
   the real reason behind the cancellation, plaintiffs sued Mesa under 42 U.S.C.
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   § 1981.    The airline countered that it had immunity under
49 U.S.C. § 44902
(b), which allows an airline to remove a passenger it fears “is, or
   might be, inimical to safety,” and
49 U.S.C. § 44941
(a), which grants im-
   munity to airlines for statements made to security officers regarding potential
   safety threats. The strange fact pattern—namely, that all passengers had
   their flight canceled—raises several issues of first impression for this circuit:
   Whether such conduct constitutes disparate treatment under § 1981,
   whether a § 1981 claim can exist without a “breach” of contract, and whether
   § 44902(b) grants immunity to airlines for allegedly discriminatory decisions,
   thereby negating § 1981’s application against airlines in this context.
          Because plaintiffs have established genuine disputes of material fact,
   we reverse the summary judgment.

                                          I.
          Plaintiffs bought their tickets from American Airlines; the flight was
   operated by Mesa. Both plaintiffs are United States citizens and frequent
   fliers of American: Abdallah held Gold status, and Alkhawaldeh held Execu-
   tive Platinum status. Both are “members of a racial and national origin
   minority group[] as Egyptian and Jordanian and members of the Arab, Mid-
   dle Eastern and Muslim communities.”
          Abdallah boarded first. After he found his seat, another passenger
   asked him to move, thinking Abdallah’s seat was his. Later, Abdallah asked
   Diana Trujillo, a flight attendant, whether he could move to an empty seat in
   the exit row. She agreed. When she later recited the exit-row instructions to
   him, Abdallah interrupted to “preemptively agree to assist in an emer-
   gency.” Plaintiffs say that this was because Abdallah was a frequent flier, had
   heard those instructions many times before, and was ready to rest. Defen-
   dants state that Trujillo had never experienced that before.
          Separated from Abdallah and not yet on the plane, Alkhawaldeh was




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   upgraded to first class because of his Executive Platinum status. He visited
   the restroom in the terminal, then asked the gate agent whether he could use
   his status to upgrade Abdallah as well. After his request was denied, he was
   the last to board the plane. Defendants found this “unusual” and contend
   that most first-class passengers board early to enjoy the first-class amenities.
   As Alkhawaldeh boarded, he gave the flight crew a package of chocolates that
   he had bought from a store in the airport. He placed his luggage into the
   overhead compartment, waved at Abdallah, and sat down. Trujillo found the
   wave to be “odd” but was unable to explain how it was different from a stan-
   dard wave of the hand.
           Trujillo became more concerned about plaintiffs. The passenger1 who
   had mistakenly asked for Abdallah’s seat told her that Abdallah had bullied
   him and asked for an explanation as to why Abdallah had moved to the exit
   row. The passenger then told Trujillo to report Abdallah to the captain as a
   security threat.
           Trujillo had not seen the interaction between Abdallah and the pas-
   senger, and she had been a flight attendant for less than a year. She stated
   she felt “scared,” so she alerted the captain of the passenger’s suspicions,
   Abdallah’s move to the exit row, his “premature acceptance of his exit-row
   responsibilities,” and his wave to Alkhawaldeh. Hermon Hewitt, the cap-
   tain,2 asked Trujillo whether she was confident, to which Trujillo responded
   that her gut had “never been wrong.”
           Hewitt then spoke with the gate agent, American’s Ground Security

           _____________________
           1
             Defendants allege that not only the passenger in question but also a passenger
   sitting next to him complained to Trujillo. Plaintiffs maintain it was only the one passenger.
           2
            Defendants note that Hewitt is a woman from Eritrea and “is of Middle Eastern
   descent.”




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   Coordinator, Mesa’s flight supervisor, dispatch, the Transportation Security
   Administration (“TSA”), and other law enforcement, telling them of her
   concerns and asking for help deplaning. India Smith, the Ground Security
   Coordinator, reported that Hewitt had “expressed heavily that . . . ‘she is not
   flying this plane with a brother name[d] Issam on it,’ after consistently
   bringing up what she presumed to be their racial ethnicity as Arabic, Medi-
   terranean,” and “was extremely ad[a]ment about the two passengers not
   flying . . . [be]cause of their names.”3 Smith asked Trujillo to explain the
   suspicious hand gesture, but Trujillo “could not tell [her] or show [her] the
   hand gestures that were made to make her feel uncomfortable.” Ultimately,
   Smith concluded that based on plaintiffs’ flight histories, calm demeanor,
   and reasonable actions, there was no safety risk. The ground crew did a full
   search of the aircraft and instructed the crew to dump the lavatory waste,
   allegedly to “reassure Captain Hewitt and the flight crew.”
          The flight crew informed passengers that the flight was delayed for
   maintenance issues. Plaintiffs were observed to be texting “on their phones
   in a different language.” Abdallah “quickly” got up to use the bathroom.
   The same passenger (or passengers, according to defendants) who had previ-
   ously complained about Abdallah flagged Trujillo down to ask why he had
   “run to the bathroom,” noting that the incident occurred right after an
   announcement that all passengers should remain in their seats. Trujillo stood
   outside the door of the bathroom and listened to the sound of “liquid . . .
   being poured” into the lavatory, interrupted by “multiple flushes.” She
   found that suspicious but could not distinguish between those sounds and the
   sound of urination.
          Despite the recommendations of ground security, Hewitt unilaterally

          _____________________
          3
              Defendants state that Hewitt did not know the names of the passengers.




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   delayed takeoff until the 90-minute mark (at which point passengers would
   have to deplane). She stated that she was suspicious because Osama bin
   Laden’s son had just been assassinated by the U.S. Government, and she was
   fearful of 9/11. The passengers all deplaned. Later, Alkhawaldeh heard a
   flight attendant telling a passenger that the flight was canceled for security
   concerns.
          As plaintiffs stood in line to reschedule their flights, a plainclothes
   officer came to interrogate them. Other uniformed and plainclothes officers
   were also following and surveilling them. Finally, as they waited at their gate
   for their rescheduled flights, an FBI agent and uniformed police officer asked
   Alkhawaldeh to come into a private room for questioning. Alkhawaldeh
   refused questioning without a lawyer but handed over his identification and
   luggage for a search. The agent also asked to question Abdallah, who con-
   sented. Eventually, plaintiffs flew on their rebooked flights to their ultimate
   destination.
          In short, the flight attendant—allegedly for discriminatory reasons—
   became concerned that the two were a safety concern and alerted the captain
   of the potential threat. The pilot, also for allegedly discriminatory reasons,
   ignored the recommendations of security agents and made the decision to
   cancel. The two passengers were not made aware of any safety concerns
   while on the flight, and they were treated exactly the same as the non-
   minority passengers: They were rebooked on a different flight to their even-
   tual destination. The conditions of carriage for their tickets allowed for such
   re-bookings and stated that the scheduled flight time was not a part of the
   contract.

                                         II.
          Plaintiffs sued Mesa and American for racial and national-origin dis-
   crimination under
42 U.S.C. § 1981
 and Title VI of the Civil Rights Act of




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   1964. They then voluntarily dismissed all their claims except for the § 1981
   claim against Mesa. The district court denied Mesa’s motion to dismiss the
   remaining claim, holding that plaintiffs had alleged facts sufficient to permit
   a plausible inference that the stated security rationale was pretextual and that
   Mesa could not prove its entitlement to immunity under
49 U.S.C. § 44902
(b).
          Later, however, the district court granted Mesa’s motion for summary
   judgment, concluding that plaintiffs could not survive on their § 1981 claim
   because they had not identified “a specific contract term” that Mesa had
   breached and because there was no “differential” treatment as applied to the
   contract terms (because all passengers were ordered to deplane, suffered a
   delay, and were reboarded and reached their destination). All “differential
   treatment,” said the court, was “attributable to TSA, the FBI, or other air-
   port security.” Finally, the court held that Mesa was entitled to § 44902(b)
   immunity because Mesa “successfully show[ed] a reasonable relationship
   between the facts before the captain and her decision to deplane,” and to
   § 44941(a) immunity over communications between the airlines and the
   security staff.
          Plaintiffs appeal the summary judgment as to their § 1981 claim and
   the finding of immunity under § 44902(b).

                                         III.
          We review a summary judgment de novo, “viewing all the facts and
   evidence in the light most favorable to the non-movant.” Badgerow v. REJ
   Props., Inc.,
974 F.3d 610
, 616 (5th Cir. 2020). Summary judgment is appro-
   priate “if the movant shows that there is no genuine dispute as to any material
   fact and the movant is entitled to judgment as a matter of law.” Fed. R.
   Civ. P. 56(a). “A genuine dispute of material fact exists when ‘the evidence
   is such that a reasonable jury could return a verdict for the nonmoving




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   party.’” Badgerow, 974 F.3d at 616 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248
 (1986)).
                                          IV.
          Before we reach the merits, we must deal with Mesa’s contention that
   the entirety of plaintiffs’ appeal fails because it does not challenge one of the
   grounds of immunity found by the district court. Specifically, the district
   court found that two separate statutes—49 U.S.C. §§ 44902 and 44941—
   granted Mesa immunity, but plaintiffs have appealed only the § 44902 find-
   ing. Therefore, claim defendants, plaintiffs have forfeited any argument
   about § 44941(a) immunity, which they claim was a sufficient and independ-
   ent ground for the summary judgment. See Cap. Concepts Props. 85-1 v. Mut.
   First, Inc.,
35 F.3d 170, 176
 (5th Cir. 1994).
          Mesa is correct that the district court held that it had immunity under
   § 44941(a). Mesa is also correct that plaintiffs did not appeal that decision in
   their opening brief. Any argument regarding this issue is therefore forfeited.
   Tex. Mortg. Servs. Corp. v. Guadalupe Sav. & Loan Ass’n (In re Tex. Mortg.
   Servs. Corp.),
761 F.2d 1068
, 1073–74 (5th Cir. 1985). But Mesa is incorrect
   that said forfeiture dooms the entirety of plaintiffs’ appeal. Section 44941(a)
   provides immunity for “a voluntary disclosure of any suspicious transaction
   . . . to any employee or agent of the Department of Transportation, the
   Department of Homeland Security, the Department of Justice, any Federal,
   State, or local law enforcement officer, or any airport or airline security
   officer.” Thus, the district court held only that “Mesa is entitled to immun-
   ity for any reports made to the proper authorities,” not that it was entitled to
   immunity for the entirety of plaintiffs’ claims.
          Although § 44941(a) grants immunity for any communications made
   between Mesa and external security agents—and to any impact that “flowed
   from the decisions made by such law enforcement officers,” Baez v. JetBlue




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   Airways Corp.,
793 F.3d 269, 276
 (2d Cir. 2015),4 it does not grant immunity
   for things that occurred solely because of the airline’s actions. The parties
   agree that the decision to delay the flight was Mesa’s alone. They also agree
   that the security officials told Hewitt that there was no safety concern and
   that the plane should take off. Therefore, § 44941(a) does not grant immun-
   ity for Mesa’s decision to cancel the flight or for other actions and statements
   attributable only to the airline.
           Also, statements made to security officials can be considered as evi-
   dence for other claims. Congress enacted § 44941(b) “to give air carriers the
   ‘breathing space’ to report potential threats to security officials without fear
   of civil liability for a few inaptly chosen words.” Air Wis. Airlines Corp. v.
   Hoeper,
571 U.S. 237, 257
 (2014) (quoting N.Y. Times Co. v. Sullivan,
376 U.S. 254, 272
 (1964)). That means that the airport cannot be held liable for its
   words alone. But § 44941(a) does not provide evidentiary privilege to those
   words—plaintiffs can use communications between Mesa and security offi-
   cials as evidence for their discrimination-in-contracting claim, because the
   alleged liability stems from the reason to cancel the flight, not from “a few
   inaptly chosen words.” Id.
                                                V.
           That settled, we proceed to the merits. Plaintiffs sued Mesa under
42 U.S.C. § 1981
(a), which provides that “[a]ll persons within the jurisdiction
   of the United States shall have the same right in every State and Territory to
   make and enforce contracts.” The district court concluded that § 1981 did not
   apply for two separate reasons: First, plaintiffs had not made a showing of

           _____________________
           4
             We find the Second Circuit’s extension of § 44941(a) reasonable, and we formally
   adopt it here. Because all the interrogations and searches done by security officials follow-
   ing the flight cancellation are “adverse consequences [that] flowed from the decisions
   made by . . . law enforcement officers,” Mesa is immune. Id.




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   disparate treatment; second, Mesa had not breached a specific contractual
   term. That is error—plaintiffs have shown disparate treatment because they
   allege that their protected class was the but-for cause of the flight cancella-
   tion, and to survive summary judgment, plaintiffs do not need to identify a
   specific contractual term that was breached. Where a decision designated as
   discretionary under a contract is made but for the protected class, § 1981 ap-
   plies.
   Disparate treatment
            To succeed on a § 1981 claim, plaintiffs must show that “(1) they are
   members of a [protected class]; (2) [d]efendants intended to discriminate on
   the basis of [that protected class]; and (3) the discrimination concerned one
   or more of the activities enumerated in the statute.” 5 Plaintiffs can show
   discrimination in two ways: disparate treatment and disparate impact.
   Pacheco v. Mineta,
448 F.3d 783, 787
 (5th Cir. 2006). Disparate treatment
   describes “actions that treat [a plaintiff] worse than others based on [his]
   race, color, religion, sex, or national origin.”
Id.
 Disparate impact involves
   “practices or policies that are facially neutral in their treatment of these pro-
   tected groups, but, in fact, have a disproportionately adverse effect on such a
   protected group.”
Id.
 Plaintiffs’ live complaint is best read as alleging dis-
   parate treatment.6

            _____________________
            5
             Body by Cook, Inc. v State Farm Mut. Auto. Ins.,
869 F.3d 381, 386
 (5th Cir. 2017).
   “[T]he analysis of discrimination claims under § 1981 is identical to the analysis of
   Title VII claims.” Id.; see also Pratt v. City of Houston,
247 F.3d 601, 606
 (5th Cir. 2001)
   (applying the Title VII analysis to a § 1981 claim).
            6
             Specifically, plaintiffs allege that “defendants intentionally and purposefully dis-
   criminated against [them] based on their race and national origin when, by and through
   their employees and agents, they wrongfully singled out [p]laintiffs from their contracted-
   for flight and had them followed, interrogated, and searched” and that plaintiffs were
   “unable to enjoy the performance, benefits, privileges, terms, and conditions of the con-
   tract they entered into with [d]efendants because they were forced to deplane, followed,




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           The question is whether plaintiffs experienced disparate treatment. 7
   The district court held that “[p]laintiffs . . . failed to provide any evidence
   that they were subjected to different contractual terms than other passengers.
   All passengers were ordered to deplane. All passengers suffered a delay. And
   all passengers, including [p]laintiffs, were boarded on the same later flight
   and reached their destination together.” On appeal, defendants point out
   that plaintiffs “admitted they did not have any interactions or incidents with
   Mesa employees other than the usual interactions that accompany boarding
   an aircraft” and “were never treated differently than any of the other passen-
   gers.” The contention is that because all passengers experienced the same
   flight cancellation, no disparate treatment occurred, so plaintiffs’ § 1981
   claim must fail.
           We disagree. The “simple test” for determining whether disparate
   treatment has occurred is “whether the evidence shows treatment of a per-
   son in a manner which but-for that person’s [protected characteristic] would
   be different.” City of L.A., Dep’t of Water & Power v. Manhart,
435 U.S. 702, 711
 (1978) (internal quotation marks and citation omitted). Disparate treat-
   ment for a Title VII claim “is established whenever a particular outcome
   would not have happened ‘but for’ the purported cause. In other words, a
   but-for test directs us to change one thing at a time and see if the outcome
   changes. If it does, we have found a but-for cause.” Bostock v. Clayton


           _____________________
   interrogated, searched, and significantly delayed in arriving to their destination.”
           Because of the airline’s immunity under § 44941(a), we focus on the impact of the
   deplaning, flight cancellation, and subsequent delay, all of which are purely attributable to
   Mesa. We do not consider the subsequent search and interrogation.
           7
            In the alternative, plaintiffs contend that they do not need to show disparate
   treatment if they can establish intentional discrimination. We have no need to reach that
   issue.




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   County,
140 S. Ct. 1731, 1739
 (2020) (citation omitted).8
           Defendants’ contention is that because all passengers experienced the
   same canceled flight, there was no disparate treatment—plaintiffs were
   treated the same as the non-minority passengers. But that confuses the test.
   Disparate treatment can be shown by comparing one person’s experience to
   that of a person without the protected trait. But it can also be shown if, but
   for that person’s protected trait, the outcome would have been different.
   Plaintiffs allege that but for their protected classes (race and national origin),
   the flight would not have been canceled. That is an allegation of disparate
   treatment.
           Defendants counter with James v. American Airlines, Inc.,
247 F. Supp. 3d 297, 304
 (E.D.N.Y. 2017), and Trigueros v. Southwest Air-
   lines, No. 05-CV-2256,
2007 WL 2502151
, at *4 (S.D. Cal. Aug. 30, 2007),
   each of which compared the experience of the plaintiff (a racial minority) to
   that of a white passenger on the same plane. Those cases are out of circuit
   and not precedential for us. But, regardless, they do not contradict our hold-
   ing: In each, the court found disparate treatment when it compared a person
   with the protected trait to someone without the protected trait, which, as we
   noted above, is a sufficient but not necessary way of showing disparate treat-
   ment. The test is whether the outcome would be different but for the pro-
   tected class: That can be shown by comparing the experience of the plaintiff
   to what his treatment would have been but for the protected class or by com-
   paring the experience of the plaintiff to another individual without the pro-
   tected class. If either leads to a different outcome, disparate treatment has

           _____________________
           8
             We note that Bostock based its reasoning on the specific phrasing of 42 U.S.C.
   § 2000e-2(a)(1), which is distinct from § 1981(a). But we are bound by Fifth Circuit pre-
   cedent: “[T]he analysis of discrimination claims under § 1981 is identical to the analysis of
   Title VII claims.” Body by Cook,
869 F.3d at 386
.




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   occurred.
          To hold otherwise would lead to intolerable results—would an
   employer avoid Title VII liability if it merely started a hiring freeze every time
   a black man added his name to the applicant pool? Could a school fire a
   female employee so long as it fired a male employee as well? The Supreme
   Court tells us that the answer is no: The but-for reason for the action, even
   though it happened to those not in the protected class as well, was discrimina-
   tion based on the protected class.
   Breach of contract
          The district court also held that plaintiffs had not made out a § 1981
   claim because they had not identified a “specific injur[y] caused by a racially
   motivated breach of contract.” Specifically, Mesa’s Conditions of Carriage
   states that passengers are required to “[n]ot threaten the safety of the flight
   in any way,” that Mesa “may not let [a passenger] fly if [he] . . . [p]ose[s] a
   risk to safety or security,” and that such a passenger “may also be liable for
   any loss, damage or expense resulting from [his] conduct.” Further, the
   “flight schedule is not guaranteed and not part of this contract. We are not
   liable if . . . [w]e change the schedule of any flight.” Accordingly, “there may
   be changes to . . . [d]eparture or arrival times.” Finally, “[w]hen your flight
   is cancelled . . . we’ll rebook you on the next flight with available seats.”
   Based on those contractual provisions, the district court found that, because
   the passengers were later rebooked, Mesa’s decision to cancel the flight did
   not breach the contract.
          Defendants reiterate this theory on appeal. Their reasoning appears
   to be that if a party to a contract decides to invoke a discretionary term of the
   contract for discriminatory reasons, § 1981 does not apply because there has
   been no breach. But that contradicts both our precedent and the clear text of
   § 1981.




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          To succeed on a § 1981 claim, a plaintiff must show that “the discrim-
   ination concerned one or more of the activities enumerated in the statute.”
   Perry v. VHS San Antonio Partners, L.L.C.,
990 F.3d 918, 931
 (5th Cir. 2021).
   The enumerated activities are “the making, performance, modification, and
   termination of contracts, and the enjoyment of all benefits, privileges, terms,
   and conditions of the contractual relationship.”
42 U.S.C. § 1981
(b). Defen-
   dants’ position fails on text alone: The right to be free from discrimination
   in “the enjoyment of all benefits, privileges, terms and conditions” means
   that one has the right to be free from discrimination in the discretionary
   “benefits, privileges, terms and conditions” of a contract, too. Defendants
   surely cannot claim that flying at the originally scheduled time is not a “bene-
   fit” of the contract at all, even if it is a completely discretionary one.
          Our conclusion is reinforced by the provision’s statutory history.
   Originally, § 1981 did not enumerate its included activities and forbade dis-
   crimination only in the “mak[ing] and enforce[ing]” of contracts. The
   Supreme Court originally interpreted “to make and enforce” as applying to
   “only conduct at the initial formation of the contract and conduct which
   impairs the right to enforce contract obligations through legal process.”
   Patterson v. McLean Credit Union,
491 U.S. 164, 179
 (1989), superseded by
   statute as stated in CBOCS W., Inc. v. Humphries,
553 U.S. 442
 (2008).
          Less than two years later, Congress added the expanded definition to
   § 1981(b), specifically including all the activities enumerated above. The
   Supreme Court has since stated that the addition “superseded Patterson and
   explicitly defined the scope of § 1981 to include post-contract-formation con-
   duct,” including things such as retaliation. Humphries,
553 U.S. at 451
.
          This circuit has similarly interpreted § 1981 in a broad sense. We have
   held that firing someone under a completely at-will contract with discrimin-
   atory intent is actionable under § 1981 despite noting that, “[u]nder well-




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   established Texas law, the employer may, absent a specific agreement to the
   contrary, terminate an employee for good cause, bad cause, or no cause at
   all.” Fadeyi v. Planned Parenthood Ass’n, Inc.,
160 F.3d 1048, 1049
 (5th Cir.
   1998). That is squarely on point—if discrimination is a but-for reason that a
   discretionary benefit of a contract was changed, there has been discrimina-
   tion in contracting such that § 1981 applies.
             Defendants make two suggestions to the contrary, neither of which is
   persuasive. First, they suggest that Fadeyi does not matter because it was an
   employment case. But that is a distinction without a difference. We have no
   cases holding to the contrary in non-employment situations, and further,
   nothing in Fadeyi limits its holding to employment.
          Second, defendants suggest that Domino’s Pizza, Inc. v. McDonald,
546 U.S. 470
 (2006), overruled Fadeyi. They point to one line taken out of
   context: “Section 1981 plaintiffs must identify injuries from a racially moti-
   vated breach of their own contractual relationship, not of someone else’s.”
Id. at 480
. In isolation, that statement does suggest that a § 1981 claim
   requires a breach of contract. But that is an incorrect reading of the case.
   First, Domino’s was about whether a plaintiff could bring a § 1981 claim over
   a breach of a contract he was not a party to. The existence of the breach was
   assumed—the emphasis of that line is “their own,” not “breach.” In other
   words, Domino’s involved a theory of racial discrimination based on a breach;
   it did not suggest that all theories of racial discrimination must be based on a
   breach.
          Moreover, defendants’ reading of the line makes it inconsistent with
   our caselaw more broadly. We know that the text of § 1981 is not limited to
   breaches but directly contemplates “making” and “modification” of con-
   tracts, so one line in Domino’s cannot be read, without more, to exclude all
   other forms of § 1981 claims.




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           Again, interpreting § 1981 as defendants suggest would lead to absurd
   results. Would it be the case that an airline could bump all black passengers
   to a separate plane because the conditions of carriage allow for such a change?
   True, “[s]ection 1981 does not supply ‘a general cause of action for race dis-
   crimination.’ It bars race discrimination in contracting.” Perry,
990 F.3d at 931
 (quoting Arguello v. Conoco, Inc.,
330 F.3d 355, 358
 (5th Cir. 2003)).
   But the decision to modify a discretionary element of a contract is part of
   “the enjoyment of all benefits, privileges, terms, and conditions of the con-
   tractual relationship.”
42 U.S.C. § 1981
(b). As we recognized in Fadeyi,
   Congress amended § 1981 at least in part to ensure that “Americans [would]
   not be harassed, fired or otherwise discriminated against in contracts because
   of their [protected class].”
160 F.3d at 1050
 (citation omitted). The decision
   to cancel plaintiffs’ flight fits.

                                                 VI.
           The district court held that even if the plaintiffs had made out a § 1981
   claim against Mesa,
49 U.S.C. § 44902
(b) grants immunity. That subsection
   provides that air carriers “may refuse to transport a passenger or property
   the carrier decides is, or might be, inimical to safety.” This circuit has not
   directly interpreted § 44902(b) since it was recodified in 1994, 9 but our sister
   circuits have generally read a “reasonableness” or “not arbitrary and caprici-
   ous” requirement into the statute.10
           Guided by those other circuits, the district court read a reasonableness
   limitation into the statute and found Mesa’s decision to cancel the flight not
           _____________________
           9
               Revision of Title 49,
Pub. L. No. 103-272, § 1
(e),
108 Stat. 1204
 (1994).
           10
              See Cerqueira v. Am. Airlines, Inc.,
520 F.3d 1
, 14 (1st Cir. 2008); Williams v.
   Trans World Airlines,
509 F.2d 942, 948
 (2d Cir. 1975); Eid v. Alaska Airlines, Inc.,
621 F.3d 858
, 867–68 (9th Cir. 2010); Lu v. AirTran Airways, Inc.,
631 F. App’x 657
, 661–62 (11th
   Cir. 2015).




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                                         No. 22-10686


   to be arbitrary and capricious. In doing so, the court implied that Mesa had
   sufficient non-racially-motivated reasons to delay the flight, but the court did
   not address the interaction of §§ 44902 and 1981.
           On appeal, plaintiffs contend that “[s]ection 44902(b) extends only to
   refusals to transport motivated by concerns about ‘safety,’ not racial discrim-
   ination,” so § 44902(b) immunity cannot apply to a § 1981 claim. Instead of
   arguing the other point, defendants acquiesce, stating, “Mesa d[oes] not ar-
   gue that ‘[§] 44902(b) displaces [§] 1981.’ It argue[s] that it was entitled to
   immunity because Captain Hewitt’s decision to have all passengers deplane
   was not based upon racial discrimination, but on a concern for safety.” As we
   discuss below, however, there is at least a genuine dispute as to that fact.
           We therefore must decide the interaction of §§ 44902(b) and 1981.
   We hold that § 44902(b) does not provide immunity for a § 1981 claim if a
   passenger’s protected status is the but-for cause of the airline’s decision to
   remove that passenger, thus rendering the airline’s action, in the words of
   the Second Circuit, “capricious or arbitrary.” Williams,
509 F.2d 948
.
   Hence a decision motivated by the passenger’s race alone would not be im-
   mune under that standard because, in the words of § 44902(b), the decision
   was not made because the passenger was “inimical to safety.”
49 U.S.C. § 1981.11
 On the other hand, immunity would follow from a finding that the
   airline’s decision was not arbitrary and capricious.
           To hold otherwise would cause us to give effect to one statute at the
   expense of the other, which we are instructed not to do. “When confronted

           _____________________
           11
             Mesa additionally makes the strange argument that § 44902(b) does not apply
   because, by its terms, the statute applies to the “refusal” to transport a passenger, and
   Mesa did eventually transport plaintiffs. That is the exact opposite of Mesa’s position on
   appeal because, if § 44902(b) does not apply, the airline has no immunity. We therefore
   disregard that argument.




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                                     No. 22-10686


   with two Acts of Congress allegedly touching on the same topic, [courts are]
   not at ‘liberty to pick and choose among congressional enactments’ and must
   instead strive ‘to give effect to both.’” Epic Sys. Corp. v. Lewis,
138 S. Ct. 1612, 1624
 (2018) (quoting Morton v. Mancari,
417 U.S. 535, 551
 (1974)).
   That’s because we presume that “‘Congress will specifically address’ preex-
   isting law when it wishes to suspend its normal operations in a later statute.”
Id.
 (quoting United States v. Fausto,
484 U.S. 439, 453
 (1988)).

                                         VII.
          We have so far held that if a but-for cause of Mesa’s decision to cancel
   the flight was discrimination on the basis of a protected class, then (1) plain-
   tiffs have made out a claim under § 1981 and (2) § 44902(b) would not confer
   immunity. If discrimination was not a but-for reason, then there is no § 1981
   claim, and, regardless, the airline would be entitled to immunity. Therefore,
   whether discrimination was a but-for reason is a material dispute. See Hamil-
   ton v. Segue Software, Inc.,
232 F.3d 473, 477
 (5th Cir. 2000) (per curiam) (“A
   fact is ‘material’ if its resolution in favor of one party might affect the out-
   come of the lawsuit under governing law.”).
          The dispute is also genuine. The record reflects that in her conversa-
   tions with Smith, Hewitt repeatedly stressed plaintiffs’ race and national
   origin. Smith related that Hewitt “expressed heavily that ‘she is not flying
   this plane with a brother name[d] Issam on it,’” “consistently br[ought] up
   what she presumed to be their racial ethnicity as Arabic, Mediterranean,”
   and “was extremely ad[a]ment about the two passengers not flying . . .
   [be]cause of their names.” Further, every occurrence described as suspici-
   ous could equally be seen as not suspicious: A hand wave, refusing to leave
   one’s assigned seat, boarding late, sleeping, and using the restroom are far
   from occurrences so obviously suspicious that no one could conclude that
   race was not a but-for factor for the airline’s actions. It is of course possible




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                                    No. 22-10686


   that a jury could find that it was not. But that is not the question before us—
   because “a reasonable jury could return a verdict for” the plaintiffs, the dis-
   pute is genuine. Badgerow, 974 F.3d at 616 (quoting Anderson,
477 U.S. at 248
).
          Given the genuine dispute as to a material fact, Fed. R. Civ. P.
   56(a), summary judgment was inappropriate and is therefore REVERSED
   and REMANDED. We place no limitation on the matters that the district
   court may address or decide on remand, and we express no view on what de-
   cisions should be made.




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