# Abayev v. American Airlines, Inc.

> District Court, E.D. New York · September 23, 2025

URL: https://www.frixlaw.com/law-library/cases/11143290

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 23, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x

BORIS ABAYEV AND REGINA ABAYEV,

Plaintiffs, MEMORANDUM & ORDER
22-CV-386 (EK)(JRC)

-against-

AMERICAN AIRLINES, INC.,

Defendant.

------------------------------------x
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withdrawn all but their Title VI claim (alleging discrimination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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11143290. Public record. Not legal advice.