Abada v. Delta Air Lines Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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AVRAHAM ABADA,

TARA GREAVES, and

EUGENE RODRIGUES, MEMORANDUM AND ORDER

Plaintiffs, 19-CV-3903(KAM)(VMS)

19-CV-3904(KAM)(VMS)

v. 19-CV-3962(KAM)(VMS)

DELTA AIR LINES, INC.,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

The plaintiffs in these related actions, Avraham Abada

(“Mr. Abada”), Tara Greaves (“Ms. Greaves”), and Eugene

Rodrigues (“Mr. Rodrigues,” and together with Mr. Abada and Ms.

Greaves, “Plaintiffs”),1 brought federal, state, and local law

discrimination claims against their former employer, Delta Air

Lines, Inc. (“Delta” or “Defendant”). Plaintiffs, who are all

represented by the same counsel, and Defendant agreed to have

all three related cases addressed by a single motion to dismiss.

Delta filed a motion to dismiss the three complaints pursuant to

Federal Rule of Civil Procedure 12(b)(6). (ECF No. 23.) For

1 Mr. Abada brought case number 19-cv-3903. Ms. Greaves brought case number

19-cv-3904. Mr. Rodrigues brought case number 19-cv-3962. Unless it is

indicated otherwise, all citations the docket throughout this Memorandum and

Order are citations to the docket in Mr. Abada’s case, 19-cv-3903.

the reasons that follow, Delta’s motion to dismiss is GRANTED

with respect to each of Plaintiffs’ respective complaints.

Background

Plaintiffs are former Delta employees who filed

separate complaints in three separate cases. The three

complaints, which contain virtually identical allegations

regarding Delta’s conduct, allege that Delta discriminated

against them, either because of their religion or national

origin, or because they associated with people of a certain

religion or national origin.

By way of background, a benefit Delta offers certain

of its employees is a travel companion pass. (ECF No. 19,

Amended Complaint (“Am. Compl.”), ¶ 19.) Delta’s travel

companion pass policy allows an employee to offer a travel

companion pass to any family member or friend, allowing that

person to travel on a Delta flight, with or without the

employee. (Id.) Delta requires that the employee be “familiar”

with any person to whom they provide a travel companion pass.

(Id.) A person travelling on a travel companion pass may only

travel for leisure, rather than for business purposes. (Id.)

In 2017, Plaintiffs were each initially suspended

without pay by Delta, and then terminated, purportedly for

violating Delta’s travel companion pass policy. (See ECF No.

25, Memorandum in Opposition to Motion to Dismiss (“Opp.”), at

2.) Mr. Abada identifies as being of Jewish, Hebrew, and

Israeli descent, and alleges that he cooperated with Delta’s

investigation, and that he did not violate Delta’s policy.

(Id.) According to his allegations, Delta’s actions were

“focused more broadly to target Jewish and Israeli individuals.”

(Am. Compl. ¶ 30.) Ms. Greaves and Mr. Rodrigues, who were also

investigated and then terminated for violating the policy, are

not of Jewish, Hebrew, or Israeli descent, but allege that they

were discriminated against because of their “association” with

individuals of Jewish, Hebrew, or Israeli descent. (Opp. at 2.)

Plaintiffs’ complaints contain allegations of anti-

Semitic statements made by Delta employees toward Jewish

employees, and anti-Semitic statements made by Delta employees

toward Jewish passengers on flights to Israel. (Am. Compl. ¶

17.) Plaintiffs allege that a particular Delta manager made

derogatory statements toward a Jewish Delta employee, including,

“[W]hy [are] you [J]ewish guys killing kids in Gaza[?]” and

“Heil Hitler!” while regularly referring to the employee as a

“[J]ewish guy.” (Id.) Plaintiffs also allege that Delta

managers and employees referred to a Delta flight to Israel as

“Hell Aviv,” and that the flight attendants working on the

flight routinely harassed and criticized Jewish passengers.

(Id.)

Further, according to the complaints, the

discriminatory beliefs held by a number of Delta managers led to

an effort within the company to target those employees who

provided travel companion passes to Jewish individuals.

Plaintiffs allege that a set of “talking points” was distributed

among Delta managers that explained that managers “were

targeting persons with ‘interest in frequent travel to Tel

Aviv’” for potential violations of the travel companion pass

policy. (Id. ¶ 23.)

Plaintiffs’ respective cases were each filed in July

2019. (See ECF No. 1, Complaint; Case No. 19-cv-3904, ECF No.

1; Case No. 19-cv-3962, ECF No. 1.) Plaintiffs brought

discrimination claims under 42 U.S.C. § 1981 (“Section 1981”),

Title VII of the Civil Rights Act of 1964 (“Title VII”), the New

York State Human Rights Law (“NYSHRL”), and the New York City

Human Rights Law (“NYCHRL”). (See Am. Compl. ¶¶ 41-60.) The

three cases were marked as related. On February 14, 2020, with

leave of the court, Plaintiffs filed amended complaints. (See

Am. Compl.; Case No. 19-cv-3904, ECF No. 12; Case No. 19-cv-

3962, ECF No. 12.2) Given the similarity of Plaintiffs’

allegations, the parties agreed that briefing a single motion to

2 It appears that Plaintiffs’ counsel inadvertently filed Ms. Greaves’s

amended complaint in Mr. Rodrigues’s case, rather than filing Mr. Rodrigues’s

amended complaint, an error which has not been corrected. Because Ms.

Greaves’s allegations are virtually identical to Mr. Abada’s, the court

assumes that Mr. Rodrigues’s are identical as well.

dismiss all three actions would be the most efficient approach,

and Delta moved to dismiss the three amended complaints. (See

ECF No. 23, Motion to Dismiss; see also ECF No. 24, Memorandum

in Support of Motion to Dismiss; ECF No. 26, Reply in Support of

Motion to Dismiss.) Plaintiffs opposed the motion. (See Opp.)

In their opposition, Plaintiffs “withdr[e]w their claims under

Section 1981,” leaving only their claims under Title VII, the

NYSHRL, and the NYCHRL. (Opp. at 1.)

Legal Standards

I. Motion to Dismiss

“To survive a motion to dismiss, a complaint must

contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial

plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678.

The “court must accept as true all of the allegations

contained in a complaint,” but the court need not accept a

plaintiff’s “legal conclusions.” Id. Where the factual

allegations, even accepted as true, do not plausibly suggest

unlawful conduct, the plaintiff’s complaint must be dismissed

upon the defendant’s motion. Id. at 679-80.

II. Title VII

Under the McDonnell Douglas framework established by

the United States Supreme Court, a plaintiff bringing a claim

for disparate treatment under Title VII “must first establish a

prima facie case of discrimination by showing: (1) she belonged

to a protected class, (2) was qualified for the position she

held or sought, and (3) suffered an adverse employment action

(4) under circumstances giving rise to an inference of

discriminatory intent.” Fanelli v. New York, 200 F. Supp. 3d

363, 370 (E.D.N.Y. 2016) (citing Terry v. Ashcroft, 336 F.3d

128, 137-38 (2d Cir. 2003)). “This burden is minimal and does

not require specific evidence of discrimination.” Brown v.

Baldwin Union Free Sch. Dist., 603 F. Supp. 2d 509, 514

(E.D.N.Y. 2009) (citing Joseph v. Leavitt, 465 F.3d 87, 90 (2d

Cir. 2006)). However, at the motion to dismiss stage, a

plaintiff “must allege facts that allow the [c]ourt, in

substance, to infer the essential elements of a prima facie

case.” Sosa v. New York City Dep’t of Educ., 368 F. Supp. 3d

489, 495 (E.D.N.Y. 2019).

“A plaintiff sustains an adverse employment action if

he or she endures a materially adverse change in the terms and

conditions of employment.” Id. (quotation omitted). “Examples

of materially adverse employment actions include termination of

employment, a demotion evidenced by a decrease in wage or

salary, a less distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or other

indices unique to a particular situation.” Feingold v. New

York, 366 F.3d 138, 152 (2d Cir. 2004) (alternation and

quotation omitted); see also Vega v. Hempstead Union Free Sch.

Dist., 801 F.3d 72, 85 (2d Cir. 2015) (“A plaintiff sustains an

adverse employment action if he or she endures a materially

adverse change in the terms and conditions of employment.”).

III. New York State Human Rights Law

“Claims of disparate treatment under Title VII [and]

the NYSHRL . . . are assessed using the [same] burden-shifting

framework established by the Supreme Court in McDonnell Douglas

. . . .” Bowen-Hooks v. City of New York, 13 F. Supp. 3d 179,

209–10 (E.D.N.Y. 2014); see also Hyek v. Field Support Servs.,

Inc., 461 F. App’x 59, 60 (2d Cir. 2012) (summary order).

IV. New York City Human Rights Law

The NYCHRL makes it “unlawful for an employer or an

employee or agent thereof” to discharge an employee based on,

inter alia, the employee’s race, religion, or national origin.

N.Y.C. Admin. Code § 8–107(1)(a). It is also unlawful to

discriminate against such person in “terms, conditions or

privileges of employment.” Id. Under the NYCHRL, “an employer

is strictly liable for the unlawful harassment of employees by

their supervisors or managers, regardless of whether the

harassment culminates in a tangible employment action.” Dillon

v. Ned Mgmt., Inc., 85 F. Supp. 3d 639, 657, 658 (E.D.N.Y.

2015). To sustain a claim under the NYCHRL, a plaintiff need

not establish a materially adverse employment action. Mihalik

v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 114 (2d

Cir. 2013).

Although the NYCHRL was formerly construed to be

coextensive with its federal and state counterparts, the law was

amended in 2005 and requires an independent analysis. Id. at

109. Courts must construe the NYCHRL’s provisions “broadly in

favor of discrimination plaintiffs, to the extent that such a

construction is reasonably possible[.]” Id. (quoting Albunio v.

City of New York, 16 N.Y.3d 472, 477-78 (2011)).

Discussion

Although Plaintiffs alleged that the statements made

by certain Delta employees created “a hostile and discriminatory

work environment” (Am. Compl. ¶ 8), Plaintiffs acknowledge in

their opposition to the motion to dismiss that they are not

pursuing hostile work environment claims (Opp. at 7).

Accordingly, Plaintiffs’ claims are solely that they received

disparate adverse treatment because of their religion or

national origin, or because of their association with

individuals of a certain religion or national origin. In other

words, Plaintiffs allege that they were investigated and

terminated because of Defendant’s discriminatory motivations.

The court will first address the sufficiency of

Plaintiffs’ allegations in the context of their Title VII and

NYSHRL claims before turning to their claims under the NYCHRL,

which requires a separate analysis.

I. Claims Pursuant to Title VII and the New York State Human

Rights Law

There appears to be no dispute that each Plaintiff has

pleaded sufficient plausible facts to meet first three

requirements of a prima facie case of discrimination under the

McDonnell Douglas framework established by the United States

Supreme Court for analyzing claims under both Title VII and the

NYSHRL. First, each Plaintiff either (1) was a member of a

protected class based on their religion or national origin (Mr.

Abada), or (2) alleged an association with individuals who were

members of a protected class (Ms. Greaves and Mr. Rodrigues).

See Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008)

(“[A]n employer may violate Title VII if it takes action against

an employee because of the employee’s association with a person

of another race.”). Second, Defendant has not argued that any

of the Plaintiffs were not qualified for their positions. Each

Plaintiff worked for Delta for more than ten years (see Am.

Compl. ¶ 24), and so presumably each was qualified for his or

her job. And third, each Plaintiff suffered an adverse action,

as each was terminated from his or her position by Delta.

Defendant argues that Plaintiffs cannot meet the fourth prong,

because they have failed to allege sufficient facts for the

court to draw an inference of discrimination, and that the

reasons proffered by Delta for Plaintiffs’ terminations (that

each Plaintiff violated Delta’s travel companion pass policy)

was not a pretext for discrimination.

Plaintiffs allege that Delta managers made harassing

and derogatory remarks to Jewish employees, and that Jewish

passengers on Delta flights were “routinely” harassed by Delta

employees. (Id. ¶ 17.) Plaintiffs further allege that “talking

points” were distributed among Delta managers that showed an

intent to target employees for investigation if those employees

shared their travel companion passes with Jewish individuals.

(Id. ¶ 23.)

The portions of these “talking points” cited by

Plaintiffs, however, make no specific reference to individuals

of Jewish, Hebrew, or Israeli descent. The complaints quote

three fragments allegedly from the “talking points” which show

that, presumably, Delta was conducting an investigation focused

on: people with an “interest in frequent travel to Tel Aviv” or

“certain individuals who live in the New York and Atlanta area

who appear to be connected in one or more ways,” and the

employees who “ha[d] possible ties to this group of people.”

(Id.) Plaintiffs assert in conclusory fashion that the “certain

individuals” referred to in the document were Jewish, Hebrew, or

Israeli individuals. The portions of the document Plaintiffs

have quoted, however, do not support an inference that there was

an intent to discriminate against people based on their religion

or national origin. Those short excerpts only reference an

investigation into employees providing travel companion passes

to people living in New York and Atlanta for travel to Tel Aviv.

They do not reference people of a particular religion or

national origin at all, much less reference them in a derogatory

manner that would suggest a discriminatory motive. See Kajoshaj

v. New York City Dep’t of Educ., 543 F. App’x 11, 14 (2d Cir.

2013) (summary order) (affirming dismissal where “Plaintiffs

d[id] not, for instance, assert that any defendant referenced

their religion or national origin, much less that they did so in

a derogatory manner”). Merely because the people referenced in

the document, living in New York or Atlanta with an interest in

traveling to Tel Aviv, could be individuals of Jewish, Hebrew,

or Israeli descent is not, on its own, sufficient for the court

to infer that Delta was targeting employees who provided their

travel companion passes to Jewish individuals “because of” those

employees’ associations with people of a certain religion or

national origin. Holcomb, 521 F.3d at 138 (emphasis added).

In addition to basing their allegations on portions of

the “talking points” document, Plaintiffs also cite certain

statements by Delta employees that were derogatory. For

example, a Delta manager allegedly asked a Jewish employee,

“[W]hy [are] you [J]ewish guys killing kids in Gaza[?]” and

other Delta employees referred to the Delta flight to Israel as

“Hell Aviv.” (Am. Compl. ¶ 17.) Assuming the truth of these

allegations, they are disturbing, and appear to reflect a

significant animus on the part of certain Delta employees. What

is crucially missing from the complaints, however, is any link

between this alleged animus and the adverse actions taken

against Plaintiffs. Plaintiffs do not allege that the specific

employees who made the quoted derogatory remarks were involved

in the investigations or terminations of Plaintiffs. “[V]erbal

comments made by individuals not involved in making [an] adverse

employment decision cannot themselves give rise to an inference

of racial discrimination.” Anderson v. Hertz Corp., 507 F.

Supp. 2d 320, 328 (S.D.N.Y. 2007), aff’d, 303 F. App’x 946 (2d

Cir. 2008); see Yarde v. Good Samaritan Hosp., 360 F. Supp. 2d

552, 560 (S.D.N.Y. 2005) (“It is well settled that stray racial

remarks made by persons not involved in making the adverse

employment decision are not sufficient to establish an inference

of discrimination.”).

Notably, as Defendant points out, the allegations in

this case are nearly identical to those made in a case that was

recently dismissed by Judge Pamela K. Chen. In Fukelman v.

Delta Air Lines, Inc., the plaintiffs similarly “allege[d] that

Delta ‘ha[d] created a culture of anti-Semitism and directed

police type actions toward Jewish, ethnic Israeli and Hebrew

speaking employees and passengers traveling on flights to Tel

Aviv, Israel.’” No. 18-cv-2 (PKC)(PK), 2020 WL 4587496, at *2

(E.D.N.Y. Apr. 13, 2020), report and recommendation adopted,

2020 WL 2781662 (E.D.N.Y. May 29, 2020). In a report and

recommendation that was subsequently adopted in full by Judge

Chen, Magistrate Judge Peggy Kuo found that the same “talking

points” that Plaintiffs cite in this case did “not support the

allegation that employees who were members of the protected

class were ‘targeted’ for investigation and discipline.” Id. at

*11. Further, Magistrate Judge Kuo found that the plaintiffs in

Fukelman did “not provide any specific remarks or questions

during the conduct of the investigation that were ethnically

degrading or could be viewed as discriminatory.”

Likewise, in this case, Plaintiffs have failed to link

the alleged animus on the part of some of Delta’s employees to

the investigations and subsequent terminations of Plaintiffs.

Plaintiffs have provided no examples of remarks that raise an

inference of discrimination made during the investigations, or

by individuals involved in the investigations. Plaintiffs have

also not alleged any facts tending to show that their respective

uses of the travel companion passes were legitimate. And,

although “[a]n inference of discrimination can arise from

circumstances including . . . the more favorable treatment of

employees not in the protected group,” Littlejohn v. City of New

York, 795 F.3d 297, 312 (2d Cir. 2015), Plaintiffs have not

alleged that other employees outside their protected group used

their travel companion passes in a similar manner without being

investigated and terminated.

In short, Plaintiffs have alleged no facts beyond

unrelated comments made by Delta employees who were not involved

in investigating Plaintiffs, and conclusory assertions that

Plaintiffs were targeted because of their religion or national

origin (or because of their association with individuals of a

certain religion or national origin). Their allegations are

insufficient to survive a motion to dismiss. See Fukelman, 2020

WL 4587496, at *12 (“To the extent these Plaintiffs rely on

other comments that are ethnically disparaging, such as those by

other flight attendants about Jewish passengers, no facts are

alleged linking those comments to the disciplinary action, such

that an inference of discriminatory motivation can be found.”).

Even accepting all of Plaintiffs’ allegations as true, that is,

assuming that certain employees did make these degrading

comments and Delta management did circulate a memo with the

quoted language described above, Plaintiffs have not adequately

alleged facts that plausibly state a claim that they were

investigated and terminated as a result of Defendant’s

discriminatory motive.

Accordingly, Defendant’s motion to dismiss is granted

with respect to Plaintiffs’ Title VII and NYSHRL claims.

II. Claims Pursuant to the New York City Human Rights Law

The NYCHRL makes it “unlawful for an employer or an

employee or agent thereof” to discharge an employee based on,

inter alia, the employee’s race, religion, or national origin.

N.Y.C. Admin. Code § 8–107(1)(a). Although the NYCHRL was

formerly construed to be coextensive with its federal and state

counterparts, the NYCHRL was amended in 2005 and requires an

independent analysis. Mihalik, 715 F.3d at 109. Courts must

construe the NYCHRL’s provisions “broadly in favor of

discrimination plaintiffs, to the extent that such a

construction is reasonably possible[.]” Id.

Even under the broader construction required by the

NYCHRL, Plaintiffs cannot make out claims that their

terminations were a result of unlawful discrimination. “As with

[Plaintiffs’] federal and state discrimination claims, [they]

ha[ve] not shown that [they were] treated differently with

respect to [their] termination because of any race or [origin]-

based discriminatory motives harbored by individuals at

[Defendant].” Mauze v. CBS Corp., 340 F. Supp. 3d 186, 209

(E.D.N.Y. 2018), adhered to on reconsideration, 2019 WL 8137641

(E.D.N.Y. Jan. 23, 2019).

As discussed above, Plaintiffs rely only on

allegations of comments unrelated to their individual cases and

short fragments pulled from a single document. Construing the

allegations as true and considering them broadly, there is still

nothing in Plaintiffs’ complaints that ties their terminations

to a Delta employee’s discriminatory motive. “[T]he NYCHRL is

not a ‘general civility code’” and a “plaintiff still bears the

burden of showing that the conduct is caused by a discriminatory

motive.” Mihalik, 715 F.3d at 110; see Sotomayor v. City of New

York, 862 F. Supp. 2d 226, 258 (E.D.N.Y. 2012), aff’d, 713 F.3d

163 (2d Cir. 2013) (under the NYCHRL, “a plaintiff must still

link the adverse employment action to a discriminatory

motivation”). Plaintiffs have failed to plead any facts tending

to show that a discriminatory motive was the reason for their

terminations.

Accordingly, Defendant’s motion to dismiss is also

granted with respect to Plaintiffs’ NYCHRL claims.

Conclusion

For the reasons above, Defendant’s motion to dismiss

is GRANTED, and all three of the amended complaints are

dismissed in their entirety. Plaintiffs have failed to

plausibly allege that they were terminated as a result of

Delta’s discriminatory intent, and thus Plaintiffs have not

stated and cannot state a claim under Title VII, the NYSHRL, or

the NYCHRL. Plaintiffs were previously granted an opportunity

to amend their complaints, but were not able to allege plausible

facts to sustain their claims. Thus, although plaintiffs may be

granted leave to replead after a complaint is dismissed, the

court declines to grant such leave here.

The Clerk of Court is directed to enter judgment in

favor of Defendant in all three related cases, and to close the

three cases.

SO ORDERED.

Dated: Brooklyn, New York

December 18, 2020

__________/s/_______________

Hon. Kiyo A. Matsumoto

United States District Judge