Opinion
21-123-cv
03-28-2022
Avraham Abada, Plaintiff-Appellant, v. Delta Air Lines, Inc., Defendant-Appellee.
FOR PLAINTIFF-APPELLANT: Daniel E. Dugan (Stewart Lee Karlin, on the brief), Steward Lee Karlin Law Group, PC, New York, NY. FOR DEFENDANT-APPELLEE: Ira G. Rosenstein, Morgan Lewis & Bockius LLP, New York, NY.
UNPUBLISHED OPINION
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this Court's Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation "summary order"). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 28th day of March, two thousand twenty-two.
Appeal from an order and judgment of the United States District Court for the Eastern District of New York (Kiyo A. Matsumoto, Judge).
FOR PLAINTIFF-APPELLANT: Daniel E. Dugan (Stewart Lee Karlin, on the brief), Steward Lee Karlin Law Group, PC, New York, NY.
FOR DEFENDANT-APPELLEE: Ira G. Rosenstein, Morgan Lewis & Bockius LLP, New York, NY.
PRESENT: José A. Cabranes, Reena Raggi, Susan L. Carney, Circuit Judges.
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the order and judgment of the District Court be and hereby are AFFIRMED.
Plaintiff Avraham Abada ("Abada") sued his former employer, Defendant Delta Air Lines, Inc. ("Delta"), alleging that he was fired on the basis of his religion or national origin, in violation of 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"). Delta maintains a travel companion policy (the "Policy") under which its employees can offer "travel companion passes" to friends or family members. In 2017, Delta investigated Abada for violating the Policy and subsequently fired him. In February 2020, Abada filed his operative amended complaint in the District Court (along with co-Plaintiffs who do not join in this appeal), in which he alleged that he was targeted for violating the Policy because he identifies as Jewish, Hebrew, and of Israeli heritage. Delta filed a motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the District Court granted the motion. Abada appeals. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
DISCUSSION
We review a district court's grant of a motion to dismiss for failure to state a claim de novo. Louisiana Stadium & Exposition Dist. v. Fin. Guar. Ins. Co., 701 F.3d 39, 42 (2d Cir. 2012). "[A]though 'a court must accept as true all of the allegations contained in a complaint,' that 'tenet' 'is inapplicable to legal conclusions,' and 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.'" Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
I. Title VII and NYSHRL
We evaluate a disparate treatment Title VII claim under the McDonnell Douglas framework established by the Supreme Court. Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015); see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). To adequately plead a Title VII claim, a plaintiff must establish a prima facie case of discrimination by showing: "1) he belonged to a protected class; 2) he was qualified for the position; 3) he suffered an adverse employment action; and 4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). "[C]laims under the NYSHRL are analyzed identically to claims under . . . Title VII, [and] the outcome of an employment discrimination claim made pursuant to the NYSHRL is the same as it is under . . . Title VII." Smith v. Xerox Corp., 196 F.3d 358, 363 n.1 (2d Cir. 1999), overruled on other grounds by Meacham v. Knolls Atomic Power Lab'y, 461 F.3d 134 (2d Cir. 2006).
Abada has failed to allege that he was fired under circumstances giving rise to an inference of discriminatory intent. His amended complaint alleges that Delta distributed a "Talking Points" memorandum from which he quotes three descriptions of individuals Delta was allegedly targeting or investigating for violations of the Policy: individuals with "interest in frequent travel to Tel Aviv"; "certain individuals who live in the New York and Atlanta area who appear to be connected in one or more ways"; and employees "having possible ties to this group of people." App'x 31. Neither party provided the District Court or this court with the full memorandum, such that the excerpts- not even full sentences-included in Abada's amended complaint are the only portions of this document before the court. Abada claims that the individuals described in these excerpts are, in fact, "Jews and Israelis," and that the ways these individuals are "connected" includes, "of course, connection by ethnicity race, language and religion." Id. These assertions, however, are entirely conclusory and not entitled to a presumption of truth. See Harris, 572 F.3d at 72. They are therefore insufficient to carry Abada's discrimination claims across the plausibility threshold. See Littlejohn, 795 F.3d at 310.
Abada also alleges that various Delta employees made antisemitic and racist statements directed at other employees or passengers. These allegations are insufficient to state a claim because they are without any link to the adverse employment action taken against Abada. See Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 307 (2d Cir. 2021) ("[R]emarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark.") (internal quotation marks omitted).
In sum, the District Court correctly dismissed Abada's Title VII and NYSHRL claims.
II. NYCHRL
We analyze claims under the NYCHRL "separately and independently from any federal and state law claims, . . . construing the NYCHRL's provisions 'broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'" Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Albunio v. City of New York, 16 N.Y.3d 472, 477-78 (2011)).
Even under this broader pleading standard, and construing the law and facts in Abada's favor as we must, his claims fail. "[T]he NYCHRL is not a 'general civility code'" and a "plaintiff still bears the burden of showing that the [challenged] conduct is caused by a discriminatory motive." Mihalik, 715 F.3d at 110 (quoting Williams v. New York City Hous. Auth., 61 A.D.3d 62, 79 (1st Dep't 2009)). Abada's pleadings fail to suggest such a discriminatory motive.
CONCLUSION
We have reviewed all of the arguments raised by Abada on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the December 18, 2020 order and December 21, 2020 judgment of the District Court.