Abayev v. American Airlines, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BORIS ABAYEV AND REGINA ABAYEV,

Plaintiffs, MEMORANDUM & ORDER

22-CV-386 (EK)(JRC)

-against-

AMERICAN AIRLINES, INC.,

Defendant.

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ERIC KOMITEE, United States District Judge:

In January 2021, while the COVID-19 pandemic was still

ongoing, Boris and Regina Abayev (the “Abayevs”) boarded an

American Airlines flight in Phoenix, Arizona. Prior to takeoff,

American employees removed Boris Abayev from the plane. He

claims his removal was due to his nationality (he is

Tajikistani); American asserts that he was removed for refusing

to wear his mask properly. Regina (Abayev’s daughter) claims

that an American employee verbally abused her in the course of

these events.

The Abayevs subsequently sued American. They

initially asserted several causes of action, but they have since

withdrawn all but their Title VI claim (alleging discrimination

by a recipient of federal financial assistance).

American moved for summary judgment on that claim,

arguing that the Abayevs are not intended beneficiaries of any

federally funded program or activity. Following oral argument,

the Court called for additional information concerning the

federal-funding issue, and letter-briefing on a new issue:

“whether respondeat superior liability should lie here and, if

not, whether the Abayevs have adduced sufficient evidence to

hold the corporate entity liable.” See Docket Orders dated July

31, 2025. In the end, the respondeat superior issue is

dispositive: the Abayevs cannot hold American liable under Title

VI for the actions of its lower-level employees. For this

reason, summary judgment must be granted.

Background

The facts in this order are drawn from the parties’

submissions in connection with the motion for summary judgment,

including the defendant’s Local Rule 56.1 Statement (“Def. 56.1”

(ECF No. 34-1)) and plaintiffs’ response (“Pl. 56.1 Resp.” (ECF

No. 35-1)). This order also takes judicial notice of “documents

retrieved from official government websites,” Vill. Green At

Sayville, LLC v. Town of Islip, 43 F.4th 287, 299 n.7 (2d Cir.

2022), as well as “legally required public disclosure documents

filed with the SEC.” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd.,

493 F.3d 87, 98 (2d Cir. 2007).1 We view the facts in the light

1 Unless otherwise noted, when quoting judicial decisions this order

accepts all alterations and omits all citations, footnotes, and internal

quotation marks.

most favorable to the plaintiffs. Aegis Ins. Servs., Inc. v. 7

World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013).

The Abayevs boarded a flight from Phoenix to New York

City in January 2021. Pls.’ 56.1 Resp. ¶ 1, ECF No. 35-1. At

that time, when the COVID-19 pandemic remained a prominent

public-health concern, American maintained a policy requiring

passengers to wear a face mask over their nose and mouth. Id.

¶ 3. After boarding, the Abayevs heard an announcement advising

all passengers of this mandate. Id. ¶ 7. The Abayevs admit

that they were aware of the requirement. Id. ¶ 2.

A. Boris Abayev’s Removal from the Plane

The parties’ accounts of Boris Abayev’s removal differ

significantly. (Because most of the operative factual

allegations concern Boris Abayev, and not his daughter, we refer

to Mr. Abayev simply as “Abayev.”) Abayev claims he lowered his

mask to take medication. Id. ¶ 17. After a flight attendant

told Abayev to put his mask back on, Abayev responded that he

first needed to take his medication. Id. ¶ 18. According to

Abayev, the flight attendant then began yelling and waving his

hands in Abayev’s face, knocking Abayev’s pills out of his hand.

Id. ¶¶ 19-20. Abayev claims that the flight attendant also

heard Abayev and his family speaking Russian, and told them to

“speak English.” Id. ¶ 22. When Regina Abayev tried to explain

the situation to the flight attendant, he told her to “shut up.”

Id. ¶ 23.2

American’s account rests primarily on the testimony of

this flight attendant. He testified that a colleague alerted

him to an issue with a passenger’s mask and responses to

questions about sitting in an exit row. Dep. of Lars Kindem

(“Kindem Dep.”) 37:10-38:22, ECF No. 34-11.3 The flight

attendant informed Abayev he would need to pull his mask up.

Id. at 52:20-53:2. He claims he made no physical contact with

Abayev. Id. at 61:15-17.

Later, that same flight attendant was informed by a

colleague that Abayev’s mask remained lowered. Id. at 58:19-

59:15. He informed the pilot, who directed him to remove Abayev

from the plane. Id. The flight attendant testified that he did

not hear the Abayevs speaking Russian until after the pilot had

directed him to remove Abayev. Id. at 40:4-20.

The flight attendant then filed an incident report,

recommending that Abayev be banned from American flights for not

complying with American’s mask requirement. Incident Rep. 5-6,

ECF No. 34-13. An American employee subsequently told Abayev

that he was not allowed to fly on American. Dep. of Boris

2 Boris Abayev also testified that the flight attendant saw him wearing

a Star of David necklace. Pls.’ 56.1 Resp. ¶ 21. But this fact is not

material, as Title VI does not extend to religious discrimination.

3 Page numbers in citations to record documents other than deposition

transcripts and briefs refer to ECF pagination.

Abayev 53:25-54:3, ECF No. 34. Abayev also received an email

from American informing him that he would no longer be permitted

to travel on the airline until the face mask policy was lifted.

Abayev Ban 2, ECF No. 34-17.

B. Procedural History

The Abayevs filed suit in January 2022, alleging

violations of 42 U.S.C. § 1981, Title VI, the Federal Aviation

Act, and state tort law. Compl., ECF No. 1. American did not

to move to dismiss. Later, the Abayevs withdrew “all other

causes of action previously asserted” aside from the Title VI

claim. Pls.’ Resp. Mem. 1, ECF No. 35. American has moved for

summary judgment on that issue.

The Court requested additional information regarding

the federal financial assistance American had received. See

Docket Order dated July 31, 2025. It also notified the parties

on July 31 that it was contemplating summary judgment on the

respondeat superior issue, and invited supplemental submissions.

See Mem. & Order 1-2, ECF No. 37; Fed. R. Civ. P. 56(f).

Legal Standard

Summary judgment is appropriate when there is no

genuine dispute of material fact, such that the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

A dispute is genuine if a “reasonable jury could return a

verdict for the nonmoving party.” Frost v. N.Y.C. Police Dep’t,

980 F.3d 231, 242 (2d Cir. 2020). And “[a] fact is material if

it might affect the outcome of the suit under governing law.”

Id.

The movant bears the burden of showing that there is

no genuine dispute of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). If the movant carries that burden,

“the nonmoving party must come forward with admissible evidence

sufficient to raise a genuine issue of fact for trial in order

to avoid summary judgment.” Jaramillo v. Weyerhaeuser Co., 536

F.3d 140, 145 (2d Cir. 2008). If the nonmoving party fails to

do so, the Court should grant summary judgment. In performing

this analysis, the Court resolves all ambiguities and draws all

inferences in favor of the nonmoving party. E.g., Gallo v.

Prudential Residential Servs., Ltd. P’ship, 22 F.3d 1219, 1223

(2d Cir. 1994).

Discussion

We take up two issues in this discussion: whether

American received federal financial assistance “as a whole,” as

required to hold it liable under Title VI, and whether the

Abayevs have adduced sufficient evidence to hold American liable

for the acts of its employees. Our discussion of the first

resolves the motion only in part, whereas the second is

dispositive of the entire case. Nevertheless, we set out our

analysis on the first issue at some length, given this Court’s

divergence from prior opinions on the issue.

A. Federal Financial Assistance Under Title VI

Title VI prohibits “discrimination under any program

or activity receiving [f]ederal financial assistance.” 42

U.S.C. § 2000d. As relevant here, the statute defines

the phrase “program or activity” to extend to “all of the

operations of . . . an entire corporation” if — but only if —

financial assistance is extended to that corporation “as a

whole.” Id. § 2000d-4a(3)(A)(i).

American received two sources of financial assistance

from the federal government during the time period at issue: the

Essential Air Service (“EAS”) program and the Payroll Support

Program (“PSP”). In their briefs, the parties engage at some

length with the rule set forth in Association Against

Discrimination in Employment, Inc. v. City of Bridgeport, 647

F.2d 256, 276 (2d Cir. 1981), which required “a logical nexus

between the use of federal funds and the practice toward which

agency action is directed.” But the legal standard set out in

that case has been superseded by statute, as discussed below.

B. Reading Section 2000d-4a: Funding to the Corporation

“As a Whole”

With the Civil Rights Restoration Act of 1987,4

Congress “overruled prior case law requiring a close nexus

between the beneficiaries of federal funding and the alleged

discrimination.” Bloomberg v. N.Y.C. Dep’t of Education, 119

F.4th 209, 215 (2d Cir. 2024); see also O’Connor v. Davis, 126

F.3d 112, 117 (2d Cir. 1997). Now, we ask where the federal

funding went. If it was extended to the corporation “as a

whole,” then all of the operations of the company will

constitute the “program or activity” at issue, and any

discrimination, anywhere in the company, will be actionable

under Title VI. 42 U.S.C. §§ 2000d-4a, 2000d-4a(3)(A)(i).

In determining whether federal assistance was extended

to a corporation “as a whole,” some district courts have looked

to the purpose of the funding. Often relying on legislative

history, these courts have concluded that funding extended for a

“specific purpose” is not assistance to the company “as a

whole.” So, in Collins v. Giving Back Fund, the district court

cited a Senate Report in observing that “as a whole means that

federal assistance is extended to the organization otherwise

than for some specific purpose.” No. 18-CV-8812, 2019 WL

3564578, at *11 (S.D.N.Y. Aug. 6, 2019) (citing S. Rep No. 100-

4 Pub. L. No. 100-259, § 6, 102 Stat. 28, 31 (codified at 42 U.S.C.

§ 2000d-4a).

64, at 17 (1987)). In a similar vein, Abadi v. American

Airlines, Inc. held that the Coronavirus Aid, Relief, and

Economic Security Act (“CARES Act”) — one of the statutes at

issue here — “was aimed at helping businesses make payroll and

pay operating expenses in order to keep people employed through

the economic downturn,” and therefore had not been extended to

the company “as a whole.” No. 23-CV-4033, 2024 WL 1346437, at

*33 (S.D.N.Y. Mar. 29, 2024).

In my view, however, the text of the statute counsels

a different approach. The more natural reading is that the

statute uses the phrase “as a whole” to describe the breadth of

the company’s operations that are affected by the funding. The

statute explicitly directs a focus on what parts of a company

the money goes “to,” not what purpose it goes “for.” See 42

U.S.C. § 2000d-4a(3)(A)(i) (“if assistance is extended to such

corporation . . . as a whole”) (emphasis added).

This reading becomes even more compelling when one

compares subsection 3(A), which refers to the corporation as a

whole, to subsection 3(B), which speaks to an “entire plant or

other comparable, geographically separate facility.” The

contrast between these two provisions provides an answer to the

question: the corporation “as a whole,” as opposed to what? The

answer is: as opposed to a single plant, a geographically

separate unit, or the like. Thus, the relevant inquiry under

subsection 3(A) will ask whether the funding in question

benefits all (or at least most) of a company’s component parts

or, on the other hand, a narrower slice of its operations — only

one (or a few) “plants,” functions, regions, subsidiaries, or

(in the case of an airline) routes.5

This is consistent with common usage of the phrase at

issue. One dictionary defines “as a whole” to mean “[a]ll parts

or aspects considered; altogether.” American Heritage

Dictionary (3d ed. 1992); see also As a Whole, Merriam-

Webster.com Dictionary (“as a complete unit . . . used to make a

statement that relates to all the parts of something”);6 As a

Whole, Cambridge English Dictionary (“when considered as a group

and not in parts”).7 In the corporate context, Investopedia uses

the phrase “company as a whole” in describing consolidated

financial statements: they are “the combined financial

statements of the parent company and all of its subsidiaries.

The consolidated financial statements give an overview of how

well the entire corporation is being managed and are useful in

5 This focus is consistent with the view expressed by a district court

confronting similar language in the Rehabilitation Act. In Faris v. Centers

for Disease Control, the court acknowledged precedents focusing on the

“particular purpose” analysis, but went on to observe that that focus “does

not obviously follow from the statutory text itself,” and to deny the motion

to dismiss. No. 22-CV-23, 2024 WL 4369899, at *13 (W.D. Ky. Sept. 30, 2024).

6 Accessible at https://www.merriam-

webster.com/dictionary/as%20a%20whole (last accessed Sept. 22, 2025).

7 Accessible at

https://dictionary.cambridge.org/us/dictionary/english/as-a-whole (last

accessed Sept. 22, 2025).

valuing the company as a whole.” Caroline Banton, Are

Subsidiaries Included in Company Statements?, Investopedia (June

30, 2021) (emphases added).8

The same phrase appears in the transcript of a recent

Bloomberg Businessweek podcast. There, editor Brad Stone and

reporter David Gura discussed the LVMH conglomerate and its

acquisition of “other fashion houses, along with watchmakers and

jewelry designers, and the cosmetics retailer Sephora.” See

David Gura & Thomas Lu, Big Take Podcast: How Bernard Arnault

Built LVMH Into a Luxury Powerhouse, Bloomberg (June 25, 2024).9

At one point, Gura asks: “[W]hen you look at this company as a

whole, how do all of these brands work together?” Id. (emphasis

added).10 The question emphasizes the difference between a

company’s integrated operation and its component brands — the

whole versus the parts. The conversation makes no reference to

the company’s purpose.

8 Accessible at

https://www.investopedia.com/ask/answers/06/subsidiarycbsheet.asp (last

accessed Sept. 22, 2025).

9 Accessible at https://www.bloomberg.com/news/articles/2024-06-

25/luxury-brands-dior-louis-vuitton-celine-tiffany-are-key-to-lvmh-empire

(last accessed Sept. 22, 2025).

10 This emphasis continues in Stone’s answer: “Yeah, to the casual

shopper, it may seem like they’re totally separate. But behind the scenes,

there are incredible synergies and economies of scale — from the supply chain

to marketing, the way in which they can command lower rates across all the

media properties in the world, to executives who will shuffle from one brand

to the other.” Id. Again, the speaker is referring to the sum of the

corporate parts — in this case, a collection of affiliated subsidiaries under

a single parent — and not to any breadth of purpose.

As in business, so too in law. The phrase “as a

whole” is one that judges regularly confront in the

interpretation of statutes, contracts, and other texts. In

statutory construction, it is a “cardinal rule that a statute is

to be read as a whole.” King v. St. Vincent’s Hosp., 502 U.S.

215, 221 (1991). In contract law, the “writing is interpreted

as a whole.” See Restatement (Second) of Contracts § 202(2).

These principles do not dictate a resort to purpose; instead,

they require that all parts of a statute’s (or contract’s) text

be considered.

On the other side of the ledger, the courts focused on

the “purpose” of federal funding tend to provide examples that

do not withstand scrutiny. One frequently repeated example is

that of financial assistance “for the purpose of preventing the

company from going bankrupt.” Abadi, 2024 WL 1346437, at *33;

Phillips v. Goldsteins’, Rosenbergs’, Raphael-Sachs, Inc., No.

12-CV-3833, 2013 WL 6506170, at *4 (E.D. Pa. Dec. 10, 2013).

This, they say, is assistance “as a whole,” whereas funding for

“job training” is not. Abadi, 2024 WL 1346437, at *33;

Phillips, 2013 WL 6506170, at *4. But even bankruptcy funding

still has “some specific purpose” — namely, allowing a company

to continue to pay its creditors.

As applied to Title VI, then, we must look to the

breadth of the company’s operations affected by the funding,

with a focus on whether the federal funding extends to one

geography, division, or subsidiary of the corporation — or, on

the other hand, to all of it.

C. Application of Section 2000d-4a to American’s Funding

As noted above, American received two kinds of federal

funding during the relevant period of January 2021. The first

does not constitute funding to the corporation “as a whole,” in

light of the framework set out above. The second does.

1. EAS Program

The subsidies American received under the EAS program

were plainly not funding to the corporation “as a whole.”

Congress established the EAS program to ensure access to air

travel to and from destinations that would not otherwise be

profitable for the airlines to serve. See generally 49 U.S.C.

§ 41733. As one court put it, the program “subsidizes air

transportation to and from airports in certain eligible

communities” to guarantee that private air carriers serve areas

that otherwise are unable to generate a “sufficient demand for

the service to meet its cost.” Mesa Air Grp. v. Dep’t of

Transp., 87 F.3d 498, 500 (D.C. Cir. 1996).

The EAS is thus narrow in scope. At the time of the

Abayevs’ flight, the EAS subsidized just six routes that

American flew, totaling seventy-six round trips each week. See

U.S. Dep’t of Transp., March 2021 Subsidized Essential Air

Service communities (48 Contiguous States, Hawaii, and Puerto

Rico).11 Those flights constituted a small portion of American’s

network, which planned to add more than 150 new routes in the

summer of 2021 alone. American Airlines Group Inc., Exhibit

99.1 to Form 8-K (July 22, 2021). And American’s EAS funding

totaled just $4.3 million, see Pl.’s Resp. Mem. Ex. 3 (“Pl.’s

Ex.”), at 331-35, ECF No. 35-2 — a significant investment of

taxpayer funds, to be sure, but a tiny fraction of the $30.9

billion in operating expenses that American reported that year.

American Airlines Group Inc., Annual Report (Form 10-K) 96 (Feb.

22, 2022). Because the funding applies to a small part of

American’s operation, it cannot constitute funding to the

company “as a whole.”

2. Payroll Support Program

In stark contrast to the limited scope of the EAS

program, the Payroll Support Program touched virtually every

aspect of American’s business. The program provided COVID-19

relief funds to American (and other airlines) as part of the

CARES Act. 15 U.S.C. §§ 9071-80; Pl.’s Ex. 40. In April 2020,

American signed an agreement with the Department of the Treasury

that remained in effect at the time of the Abayevs’ flight.

11 Accessible at

https://www.transportation.gov/sites/dot.gov/files/2021-

04/Subsidized%20EAS%20report%20for%20communities%20in%2048%20states_HI_PR_Mar

2021_1.pdf (last accessed Sept. 22, 2025).

Payroll Support Program Agreement (“PSP Agreement”) 1-3, ECF No.

39-1. That agreement provided American $2.9 billion

“exclusively for the continuation of payment of Wages, Salaries,

and Benefits” to its employees.12 Id. at 4.13 The definition of

“employee” is extremely broad, including “salaried, hourly,

full-time, part-time, temporary, and leased employees” based in

the United States. Id. at 5. It excepts only corporate

officers and independent contractors. Id.14

So, the program benefitted American employees working

across the country in all aspects of its business: reservation

agents, check-in desk representatives, gate agents, baggage

handlers, maintenance staff, administrative assistants, pilots,

flight attendants, and so on. Under any rational reading, the

program touched “all of the operations” of the airline, see 42

U.S.C. § 2000d-4a (introduction), and extended to the

corporation “as a whole,” id. § 200d-4a(3)(A)(i).15

12 For comparison of scale, we note that the $2.9 billion figure is more

than 670 times the size of the $4.2 million in EAS funding discussed above.

13 American signed two further agreements with the Department of the

Treasury, though only this first contract was in effect at the time of the

Abayevs’ flight. ECF Nos. 39-2, 39-3.

14 “Benefits” is similarly broadly defined, including “pension expenses

. . ., all expenses for accident, sickness, hospital, and death benefits to

Employees, and the cost of insurance to provide such benefits . . . .” PSP

Agreement 4.

15 Indeed, the breadth of this program should satisfy the “purpose”

driven test as well. If bankruptcy funding affects the company as a whole

because it keeps the entire company solvent, this funding likely did, too: if

a once-in-a-century economic shock inhibits an airline’s ability to meet

payroll, and thereby triggers an exodus of employees, that company is likely

(as a matter of common sense) to face a significant mortality risk.

Thus, the airline’s argument about the relationship,

or “nexus,” between the statute and the conduct alleged does not

succeed. For the period during which American received CARES

Act funding, Title VI applies to the operations of the

corporation as a whole.

D. American Cannot Be Held Liable for the Acts of its

Employees Under Title VI

While the Abayevs may have adduced sufficient evidence

that American (as a whole) received “federal financial

assistance,” and is thus covered by Title VI, summary judgment

must nonetheless be granted. The Abayevs seek to hold American

liable for the actions of its lower-level employees, and Title

VI does not permit liability on a respondeat superior theory.

Title VI prohibits intentional violations. Alexander

v. Sandoval, 532 U.S. 275, 280-81 (2001). A recipient of

federal funds is liable “only for its own misconduct. The

recipient itself must exclude persons from participation

in, deny persons the benefits of, or subject persons to

discrimination under its programs or activities.” Davis ex rel

La Shonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 640-41

(1999) (emphasis added); see also Gebser v. Lago Vista Indep.

Sch. Dist., 524 U.S. 274, 287 (1989) (liability under Title IX

cannot rest “on principles of constructive notice or respondeat

superior.”).16

Consistent with this reasoning, courts in this Circuit

have uniformly held that no respondeat superior liability lies

under Title VI. See Bary v. Delta Airlines, No. 02-CV-5205,

2009 WL 3260499, at *7 n.7 (E.D.N.Y. Oct. 9, 2009) (“[L]iability

under Title VI cannot be imputed to institutions based on the

actions of their employees.”), aff’d 553 F. App’x 51 (2d Cir.

2014); Goonewardena v. New York, 475 F. Supp. 2d 310, 328

(S.D.N.Y. 2007); Rodriguez v. New York Univ., No. 05-CV-7374,

2007 WL 117775, at *6 (S.D.N.Y. Jan. 16, 2007). Other circuits

agree. See Foster v. Michigan, 573 F. App’x 377, 389 (6th Cir.

2014) (“Gebser’s interpretation that there is no vicarious[]

liability under Title IX supports the notion that there is no

vicarious liability under Title VI.”); Rodgers v. Smith, 842 F.

App’x 929, 929 (5th Cir. 2021) (per curiam) (reaching same

conclusion); United States v. Cnty. of Maricopa, 889 F.3d 648,

652 (9th Cir. 2018) (same); Ingram v. Kubik, 30 F.4th 1241, 1258

(11th Cir. 2022) (same).17

16 Davis and Gebser addressed Title IX, but the Supreme Court “has

interpreted Title IX consistently with Title VI.” Barnes v. Gorman, 536 U.S.

181, 185 (2002); see also DT v. Somers Cent. Sch. Dist., 348 F. App’x 697,

699 n.2 (2d Cir. 2009).

17 The Abayevs cite no contrary authority. Instead, they argue that

this line of cases applies only to educational institutions; the same “policy

rationale” does not, in their view, apply to airlines. Glassman Ltr. 2-3,

ECF No. 41. But nothing in Gebser limits its application to such

institutions. The Court explained that its “central concern” was “ensuring

So, to prevail on a Title VI claim, a plaintiff must

point to a specific policy or practice of the recipient itself

that is discriminatory. E.g., Bary, 2009 WL 3260499, at *7 n.7

(“Plaintiff produced no evidence demonstrating that Delta itself

acted with the requisite intent by, for example, instituting

discriminatory policies or practices.”).

Both Abayevs’ claims rest exclusively on the conduct

of lower-level American employees — two flight attendants and a

gate agent — rather than any American policy. Neither has

identified record evidence, for example, of a discriminatory

mask or passenger removal policy.

After the Court called for further submissions on this

issue, the Abayevs argued that the pilot’s “decision to remove

Mr. Abayev,” and the ensuing maintenance of a sixteen-month ban

against him,” reflect the kind of “institutional decision-

making” that constitutes official policy. Glassman Ltr. 1-2,

ECF No. 41. That argument does not apply to Regina Abayev, as

American never removed her from the plane nor banned her. Her

testimony that a flight attendant told her to “shut up” does not

evidence any policy or practice. See Kent v. Katz, 146 F. Supp.

2d 450, 458 (D. Vt. 2001), aff’d in part, 312 F.3d 568 (2d Cir.

that the receiving entity of federal funds has notice” that it will be liable

for noncompliance with Title IX. See Gebser, 524 U.S. at 287-88.

2002) (“In general, a single incident will not suffice to raise

an inference of the existence of a custom or policy.”)

Mr. Abayev’s treatment on the plane (and removal from

it) likewise evince the kind of “single incident” that does not

constitute policy for purposes of Title VI. And Abayev has not

established that his subsequent ban constitutes “policy,”

either. Even following Gebser, some questions persisted as to

whether entity’s ban of a single individual can constitute

“policy” at all. Cf. Goonewardena, 475 F. Supp. 2d at 328

(assuming without deciding that “an educational institution may

be liable under Title VI for the actions of its employees if the

institution is ‘deliberately indifferent’ to discrimination”).

For purposes of this analysis, we proceed from the proposition

that it can. But even then, plaintiff must adduce evidence

concerning “who at the institution” instituted, or at least knew

of, the challenged ban. Crandell v. N.Y. Coll. of Osteopathic

Med., 87 F. Supp. 2d 304, 320 (S.D.N.Y. 2000); see Zeno v. Pine

Plains Cent. School Dist., 702 F.3d 655, 666 (2d Cir. 2012)

(“Constructive knowledge is not enough; only actual knowledge is

a predicate to liability.”).

Specifically, to hold the company liable for an

unwritten policy or practice, Abayev must point to evidence that

“an official who at a minimum ha[d] authority to address the

alleged discrimination and to institute corrective measures” on

the company’s behalf had “actual knowledge of” the alleged

discrimination. Crandell, 87 F. Supp. 2d at 320 (quoting

Gebser, 524 U.S. at 290); see Khen v. US Coachways, Inc., No.

23-CV-10762, 2025 WL 252901, at *4 (S.D.N.Y. Jan. 21, 2025)

(dismissing Title VI claim based on plaintiffs’ failure to

plausibly allege bus corporation’s knowledge of allegedly

discriminatory policy).

Here, Abayev has adduced no evidence of who banned him

or how that decision was made. He points to an incident report

in which a flight attendant recommended his ban (and deposition

testimony in which the flight attendant readily acknowledged

that recommendation). Incident Rep. 5-6; Kindem Dep. 91:4-10.

And he has an email from a generic American Airlines email

address telling him of the ban, but giving no indication of what

employee (or even corporate department) made the decision.

Abayev Ban 2. Indeed, Abayev never deposed the pilot who made

the decision to remove him from the flight in question.

This meager evidence does not suffice. With no

evidence identifying the decisionmaker, no jury could conclude

that he or she even knew that Abayev was Tajikistani, let alone

that any alleged “policy” was predicated on that basis. (The

documents in question tend, if anything, to support the opposite

conclusion.18)

The Abayevs’ Title VI claims must be dismissed.

Conclusion

For the foregoing reasons, American’s motion for

summary judgment is granted. The Clerk of Court is respectfully

directed to enter judgment and close this case.

SO ORDERED.

/s/ Eric Komitee

ERIC KOMITEE

United States District Judge

Dated: September 23, 2025

Brooklyn, New York

18 Three flight attendants filed reports indicating that Abayev had

refused to comply with American’s mask policy; they said nothing about his

national origin. ECF No. 34-13; Pl.’s Ex. 336-37. Likewise, American’s

email to Abayev cites the airline’s mask policy and even notes that Abayev

would be allowed to travel on American flights “once face coverings are no

longer required.” Abayev Ban 2.