Bary v. Delta Airlines, Inc.

Filing 123

FINDINGS OF FACT AND CONCLUSIONS OF LAW: For the foregoing reasons, I find that the plaintiff has failed to prove any of his claims against defendant. It is hereby ordered that plaintiff's claims be dismissed and judgment be entered in favor of defendant. See attached. Ordered by Magistrate Judge Marilyn D. Go on 3/29/2013. (Albertsen, Joanne)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - -X
MOHAMED BARY,
Plaintiff,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW

- against DELTA AIRLINES, INC.,
Defendant.

02-CV-5202 (MDG)

- - - - - - - - - - - - - - - - - - -X
APPEARANCES:
Sanjay Chaubey, Esq.
350 Fifth Avenue, Suite 5013
New York, New York 10001
Attorney for Plaintiff
Michael Crowley, Esq.
Michael Bojbasa, Esq.
Connell Foley, LLP
888 Seventh Avenue, Suite 3401
New York, New York 10106
Attorney for Defendant
GO, United States Magistrate Judge:
Plaintiff Mohamed Bary brings this action against defendant
Delta

Airlines,

Inc.

("Delta")

alleging

that

certain

of

his

possessions were stolen from a small suitcase he had been forced to
check in before boarding a Delta flight and that Delta unlawfully
discriminated against him in requiring him to do so. This Court held
a bench trial on consent of the parties and sets forth below the
findings of facts and conclusions of law as to plaintiff's claims.
PRIOR PROCEEDINGS
Plaintiff commenced this action on September 26, 2002 and,
following a pre-motion conference before the late Honorable David G.
Trager, filed an amended complaint on July 10, 2003.

Compl. (ct.

doc. 1); Am. Compl. (ct. doc. 15).

In both pleadings, plaintiff

raised claims of discrimination under federal law pursuant to 42
U.S.C. § 1981 and Title VI of the Civil Rights Act, 42 U.S.C.
§ 2000d; claims of discrimination under state law; and state law
negligence and bailment.
The Court stayed the action on November 23, 2005 after Delta's
counsel advised that it had filed a voluntary petition for relief
under Chapter 11 of the Bankruptcy Code.
doc. 34).

See Order of the Court (ct.

After Delta emerged from bankruptcy in 2008, Judge Trager

reopened this case, finding that Mr. Bary's claim had not been
discharged because Delta had not provided reasonable notice to
plaintiff of bankruptcy procedures.

See Order dated April 24, 2008

(ct doc. 47).
Defendant then moved for summary judgment, which Judge Trager
granted in part and denied in part on October 10, 2009.
Court (ct. doc. 82).

Order of the

Judge Trager dismissed plaintiff's Title VI

discrimination claim because plaintiff failed to establish that the
monies received by defendant pursuant to the Air Transportation
Safety and System Stabilization Act of 2001, 49 U.S.C. § 40101,
constituted federal financial assistance within the meaning of Title
VI.

42 U.S.C. § 2000d.

Id. at 13-17.

He also dismissed all of

plaintiff's state-law claims, but gave plaintiff leave to amend his
complaint to advance any additional theories of recovery under
federal common law.
summary judgment

on

Id. at 18-19, 28-34.
plaintiff's

claim

under

Judge Trager denied
42

U.S.C.

§

1981,

concluding that there was a material issue of fact as to whether a
-2-

discriminatory act took place.

Id. at 20-28.

Similarly, he found an

issue of fact as to whether defendant breached the rules of its own
tariff and denied summary judgment on defendant's limitation of
liability defense that any damages for lost or damaged baggage are
capped at $2,500. Id. at 34-47. Last, he denied defendant's request
to limit plaintiff's damages to $13,847.76 based on checks and
deposit slips produced at that time by plaintiff.

Id. at 48-47.

Plaintiff filed a Second Amended Complaint on December 4, 2009
asserting claims of discrimination under 42 U.S.C. § 1981, negligence
under federal common law, negligent misrepresentation and bailment.
Ct. doc. 85.

After further discovery, the parties consented to

proceeding before me for all purposes pursuant to 28 U.S.C. § 636(c).
Plaintiff then moved to strike the defendant's jury demand which
Delta made only in response to plaintiff's Second Amended Complaint
which this court granted.

See Minute Entry (ct. doc. 112).

A bench trial was held on February 1, 3 and 4, 2011.

At the

conclusion of plaintiff's case in chief, defendant moved for judgment
for judgment as a matter of law to dismiss plaintiff's claims.
Tr. at 334-37.

The Court reserved decision on the motion, except for

plaintiff's claim for punitive damages, which was dismissed.
340-44.

Trial

Tr. at

Although this Court did not require post-trial submissions,

defendant filed a post-trial memorandum and requested the Court to
dismiss the remainder of plaintiff's claims.

See ct. doc. 117.

Plaintiff objected to defendant's filing of the "motion" but did not
respond on the merits.

Letter to the Court from Sanjay Chaubey, Esq.

dated March 9, 2011 (ct. doc. 118).
-3-

Based on my review of the testimony and other evidence presented
at trial, I set forth below my findings of fact and conclusions of
law pursuant to Fed. R. Civ. P. 52 and grant judgment in favor of
defendant.
SUMMARY OF TESTIMONY
Plaintiff testified in his case and defendant presented three
witnesses:

Mr. Craig Lowe, a current Delta employee who worked as

the Manager of Corporate Security for Delta at LaGuardia Airport in
2001; Ms. Vera Hall, the Delta ticket agent, now retired, who
interacted

with

plaintiff

during

the

incident;

and

Mr.

James

Wlodarcyzk, a former Delta employee who was Ms. Hall's supervisor at
the time of the incident.
The undisputed testimony presented is that Mohammed Bary bought
a round trip ticket on Priceline for a flight on Delta from LaGuardia
to Colorado to participate in a jewelry trade show in Denver.

When

Mr. Bary arrived at the airport to depart on the flight in the
morning of November 8, 2001, he went to a Delta ticket counter where
Vera Hall was stationed.

He had two bags and requested to check one

of his bags, a canvass bag the size of a small gym bag which
contained clothing.

His other bag was a small nylon suitcase which

contained jewelry and gems that he was taking to the trade show.
Plaintiff kept his jewelry in boxes and two pouches, with his more
precious stones and rare gems put in separate paper packets inside
the two pouches and in a ring box.

-4-

Tr. at 31, 33, 59-61, 71-72.

Ms. Hall informed plaintiff that he was selected for extra
screening and both of his bags would have to be searched and checkedin as baggage.

Although plaintiff protested because he was carrying

gems and jewelry in the suitcase, a search of Mr. Bary's two bags was
subsequently conducted. Following the search, he boarded an airplane
and later arrived in Denver without incident.

After arriving in

Denver, plaintiff took his suitcase with the jewelry to the facility
where the trade show would be held and stored the suitcase in a
locker in a guarded area.

As he was setting up at the show the next

day, he discovered that the two pouches and a ring box were missing.
He immediately took a taxi to the Denver airport to report his loss
and subsequently filed claims with Delta.
The parties presented vastly different versions of the events
surrounding the search.

Mr. Bary testified that after advising him

that he was on a "random checklist," Ms. Hall led him with his bags
a short distance away to an area to the side of the ticketing
counter.

Tr. at 27-30.

A security officer conducted the search at

a table in full view of the public.

Tr. at 31-32, 35-36.

After

opening the suitcase with the jewelry, the security guard spent
fifteen to twenty minutes examining its contents, taking every gem
out of its paper packet or box and questioning plaintiff in detail
about each item.

Tr. at 32-35, 59-60.

Ms. Hall stood at the guard's

side for most of the search, but left at some point to return with a
second baggage tag.

Tr. at 33, 36, 42, 305-07.

When the search

ended, Ms. Hall put baggage tags on the two bags, gave plaintiff his
boarding passes and forced him to check in the bags.
-5-

Tr. at 36, 72.

After locking his suitcase, plaintiff asked why he was singled out.
Tr. at 38, 249.

Ms. Hall responded that we (Delta) "always allow

only [what] we like and we will not allow if we don't like."

Tr. at

38.
Defendants'

witnesses

testified

that

they

interacted

with

plaintiff in a manner consistent with their understanding of the
federal rules for airline security and Delta's procedures.

After

printing a baggage tag for plaintiff, Ms. Hall informed plaintiff
that he was selected to have his bags searched and could not carry
them onto the plane.

Tr. at 404-06.

When plaintiff protested that

he carried valuable gems and did not want a public search, Mr.
Wlodarczyk and two unidentified persons from a private security
contractor conducted a private search of the jewelry bag.

Tr. at

456. After the search concluded, plaintiff was permitted to take his
luggage with him when he left the secure area in the direction of the
airplane gates.
I found that defendant's witnesses, particularly Ms. Hall, were
credible and provided a more plausible version of the events.

I thus

make findings of fact as follows.
FACTUAL FINDINGS
Plaintiff Mohamed Bary was born in the Republic of Sri Lanka and
lives in the United States as a legal resident.
¶ 9; Tr. at 15.

See ct. doc. 85 at

As a buyer and seller of gems and jewelry, often on

consignment, he attends a number of trade shows around the country
each year and usually travels by plane.

-6-

Ct. doc. 85 at ¶ 10; Tr. at

17.

Prior to November 8, 2001, he was able to carry on to the plane

a small, nylon suitcase containing his jewelry.

Tr. at 19, Pl.'s

Trial Ex. 51.
Plaintiff booked a flight on Priceline for travel to Denver on
November 8, 2001 and arrived early in the morning on that date for
his flight.

Tr. at 26; Pl.'s Trial Ex. 1.1

Plaintiff approached the

ticket counter staffed by Ms. Hall and stated that he wished to check
one bag.

Tr. at 27, 405, 430.

When Ms. Hall printed a tag for the

bag, she was alerted by coded letters on the tag that plaintiff had
been designated as a random selectee for a search of his bags by
hand.

Ct. doc. 85 at ¶ 14; Tr. at 401-03, 405-06, 425.

Ms. Hall

informed plaintiff that he was selected for a random search and would
have to check in both bags.

Tr. at 28, 405-07.

Because she

mistakenly believed that selectees could not carry any bags on board
the airplane, Ms. Hall generated a second baggage tag.

Tr. at 431.

Plaintiff protested and eventually stated that he didn't want to
check in his bag because he was carrying large amounts of jewelry.
Tr. at 408, 411, 431.
had to be followed.

Ms. Hall told him that these were rules that
Tr. at 408.

In the course of the discussion

between the two, plaintiff became visibly angry and refused to have
his bags searched in public view.

Id.

1

After Mr. Bary continued to

Plaintiff testified that he arrived early to be certain he
had time to pass through security and requested an earlier
flight. Tr. at 26.
Ms. Hall did not recall whether plaintiff
requested to change his original flight, but, upon examination of
the computerized Passenger Name Record (PNR) for plaintiff, noted
that the PNR indicated that the flight had been canceled and that
plaintiff's flight had been changed by someone else to a flight
routed through Cincinnati. Tr. at 401, 405, 421-424; Ex. 83.
-7-

say that he did not want to have his bag checked nor to open it up,
Ms. Hall told him to wait in front of the ticket counter and told him
she would get her supervisor, James Wlodarczyk.

Tr. at 411-12, 425-

24, 433.
Ms.

Hall

found

ticketing area.

Mr.

Wlodarczyk

Tr. at 412.

a

short

distance

from

the

When Ms. Hall told him that a passenger

was giving her a hard time after being told he had to have his bags
searched, Mr. Wlodarcyzk instructed Ms. Hall to bring plaintiff to
him for a private search.

Tr. at 411-12, 428-29, 432, 440-41, 450.

Ms. Hall returned to the counter, affixed baggage tags on both of
plaintiff's bags, and gave Mr. Bary his boarding passes and baggage
claim check.

Tr. at 410, 412-413, 429-30.

Ms. Hall instructed Mr.

Bary to follow her with his bags and led him to Mr. Wlodarczyk.
at 412.

Tr.

She then returned to her ticketing podium and did not see

plaintiff again that day.

Tr. at 412, 414, 429, 451.

She was not

present for any part of the hand search of plaintiff's bags since it
was not part of her responsibility as a ticketing agent. Tr. at 41213.
Plaintiff complained to Mr. Wlodarczyk that he was the subject
of discriminatory treatment, but, in Mr. Wlodarczyk's view, was not
forthcoming

until

asked

several

times

that

the

reason

for

his

complaint was that he was carrying valuable gems in his suitcase.
Tr. at 450, 453-54, 465.

When he learned that plaintiff carried

gems, Mr. Wlodarczyk explained that Delta had a policy for screening
jewelers and escorted plaintiff to a security checkpoint where
plaintiff

showed

his

boarding

pass
-8-

and

identification.

After

plaintiff put his bags on a belt2 (presumably for X-ray inspection)
and passed through a magnetometer, Mr. Wlodarczyk led him to a
curtained-off area just beyond the checkpoint for a private search to
be conducted.

Tr. at 450, 453.

Mr. Wlodarczyk had called the

private security contractor to conduct a search and the search was
conducted by a screener with the screener's supervisor and Wlodarcyzk
present.

Tr. at 453, 456.

The search lasted around five to eight

minutes, during which time jewelry trays were removed from the bag
and the bag was inspected.

Tr. at 456, 474.

After the search was

completed, plaintiff left the private screening area with his bags
and walked in the direction of the concession area, which led to the
gates.

Tr. at 456, 459-60; see also 360 (testimony of Mr. Lowe as to

standard procedure).

Mr. Wlodarczyk did not see Mr. Bary again.

He

later informed Ms. Hall that selectees were permitted to take carryon baggage on their airplanes.3

Tr. at 406-07, 412-15, 425-27, 437.

After arriving in Denver, plaintiff met a fellow jeweler, Mr.
Shafy, in the claim area, who gave him a ride to the trade show venue
in a rental car.

Tr. at 57, 252-54.

Plaintiff put his suitcase with

the jewelry into a locker in a special area guarded by security
personnel and cameras.

Tr. at 254-55, 257-58.

Plaintiff did not

2

Both plaintiff and Ms. Hall testified that plaintiff had
two bags, while Mr. Wlodracyzk stated did not know how many bags
Mr. Bary was carrying and had no recollection that plaintiff had
another bag besides the suitcase with the jewelry. Tr. 468-69.
3

Ms. Hall stated that she learned of her mistake regarding
selectees' right to carry bags on the plane at least a day after
the incident, Tr. at 432, while Mr. Wlodarczyk stated it he
discussed it with her later that day. Tr. at 484. The Court
agrees with Ms. Hall’s testimony, but does not find this
discrepancy to be material.
-9-

open his bag at the airport nor any time before he put it into the
locker.

Tr. at 252, 254-55.

The next day, he went to storage area,

took his bag from the locker and prepared to display his jewels.
at 58, 258.

Tr.

Upon opening the bag, he saw some jewelry in boxes, but

discovered that the two pouches and a ring box containing the most
valuable gems were missing.

Tr. at 316-17.

Plaintiff reported the missing items to the Denver airport
police and, upon his return to New York, to authorities at LaGuardia
airport.

Tr. at 58-59, 66.

He also called Delta customer service

and, pursuant to their instructions, drew up a list of the missing
items at his hotel.

Tr. at 61; Pl.'s Trial Ex. 5.

He also wrote

multiple letters to Delta Airlines concerning the loss of his gems.
Tr. at 78-80, 83, 86-87, 88-89.
As Mr. Lowe testified, in November 2001, airlines were required
by the Federal Aviation Administration ("FAA") as part of airport
security

procedures

to

use

a

computer

program

for

the

random

designation of certain passengers as "selectees" who would then be
subject to additional screening. Tr. at 349-51. The designation was
made by the program upon the printing of baggage tags which were
generated for all airports from a system-wide computer for Delta.
Tr. at 352-54.

The tags for selectees were printed in reverse colors

from tags for other passengers and bore the letters "PPBM," which
stand for "positive passenger bag match" and served to alert airport
personnel that the passenger is required to be on the same flight as
his or her bags.

Tr. at 352-54.

Passengers designated as selectees

-10-

were required to submit all baggage to a hand search.

Tr. at 355-56,

360.
Because federal regulations regarding procedures for checking in
changed frequently after September 11, 2001, Ms. Hall, as well as
other

ticketing

agents,

received

a

daily

briefing

from

her

supervisors at the start of her shift at 5:00 a.m. on the proper
procedures.

Tr. at 394-98.

Although Ms. Hall incorrectly thought

that all bags of a passenger designated as a "selectee" had to be
checked after a search, she otherwise carried out her duties in
checking in Mr. Bary in a non-discriminatory manner.

Tr. at 440.

Because he wanted to check in a bag, she followed standard procedures
in printing out a baggage tag first.

Tr. at 402-03, 405.

At that

time, she noticed that Mr. Bary was a selectee because the tag
contained the letters "PPBM" and told him that his baggage would be
subject to a hand search.
protested,

she

followed

Tr. at 402, 405-06, 407.
procedures

to

seek

When Mr. Bary

assistance

supervisor and then to return to her counter thereafter.

of

her

Tr. at 408,

410-12, 451.
Likewise,
procedures

Mr.

Wlodarcyzk

in dealing

with

followed

Mr.

Bary.

regulations
Because

FAA

and

airline

regulations

required that a passenger's luggage be hand-searched at a location
beyond the security checkpoint, he took Mr. Bary past a magnetometer
to a "sterile area" for a search.

Tr. at 364, 453.

Federal laws

mandated security measures for selectees and baggage searches and
defendant had corporate policies in place in 2001 to accommodate
jewelers carrying valuables in their luggage.
-11-

Tr. at 349-50, 447,

450.

In accordance with standard procedures for both the security

company and Delta, a supervisor was present for a private hand search
of Mr. Bary’s luggage.

Tr. at 455-56.

After the search was

completed, Mr. Bary was not forced to check in his bag and was
permitted

to

leave

with

his

bag.

Tr.

at

Wlordarcyzk did not take off the baggage tag.

459-60,

462.

Mr.

Tr. at 461.

I find plaintiff's account of the events not believable for a
number of reasons.
interactions
plaintiff's

with

Foremost, I find Ms. Hall’s version of her
Mr.

testimony

Bary
that

very
Ms.

credible
Hall

told

and
him

do
she

not

believe

could

treat

passengers as she wished and acted in a conspiratorial fashion with
the security guards during the search.

I credit her testimony that

it was a busy time at the airport, so she promptly returned to her
station after bringing Mr. Bary to her supervisor and was not present
at the search.

Ms. Hall and Mr. Wlodarczyk also credibly testified

that neither of them had any intention either to discriminate against
plaintiff or to steal from him.

Tr. at 408-09, 415, 461-61.

Plaintiff's testimony that a search was conducted in full public
view at a table near the ticket counter was not plausible.
325.

Tr. at

I did not believe his testimony that the security guard

conducting the search wore a t-shirt and had the time to examine and
ask about the value of every piece of jewelry.

Tr. at 312-14.

In

contrast, Mr. Wlodarcyk credibly testified that the search was
conducted after the bags went through an X-ray and that he and the
two security contractor personnel at the search wore collared shirts,
the screener's bearing an emblem.

Tr. at 455, 459.

-12-

Plaintiff offers no evidence other than his speculation that Ms.
Hall's conduct was motivated by discriminatory intent and that she
plotted with others to steal his jewelry.

Ms. Hall clearly had

nothing to do with the designation of Mr. Bary as a selectee or the
rules governing the search of the baggage of a selectee.

To the

contrary, all of defendant's witnesses credibly testified that after
September

11,

regulations

2001,

and

as

there
to

the

were
method

frequent
used

selected for a hand search of baggage.

changes

for

in

security

identifying persons

Tr. at 356-57 (Mr. Lowe's

testimony), 395-98 (Ms. Hall's testimony), 457-59 (Mr. Wlodarczyk's
testimony). Even though Ms. Hall was wrong in telling plaintiff that
he could not carry his bag on board, such a misstatement was
immaterial in light of my finding that plaintiff was not forced to
check his bag after the search concluded.

Also, I find that Mr.

Wlodarczyk's testimony and personal recollection of the search of
plaintiff's bag more credible than plaintiff's assertion that he
never met Mr. Wlodarczyk.

Tr. at 495.

Plaintiff also fails in his attempt to support his theories by
virtue of the fact that the numbers on the baggage tags were not
consecutive.4

Plaintiff offers no explanation why the gap in the tag

numbers would tend to prove that a Delta employee targeted him for
further search.

As Mr. Lowe explained, Delta employees have no

ability to determine the persons as selectees and selectees were
4

During cross-examination, plaintiff implies that the tag
that was printed first had a higher number than the tag that was
printed second. Tr. at 289-90. On re-direct, plaintiff's
counsel emphasized that the numbers on the tags were not
consecutive. Tr. at 327-28.
-13-

picked through a computer system mandated by the FAA for generating
baggage tag numbers on a nationwide basis.
373.

Tr. at 349-52, 354-55,

If any time passed between generation of the first and second

baggage tags, the numbers would most likely not be consecutive.

Tr.

at 354-55.
Plaintiff's baggage tags admitted as Exhibit 2 corroborate the
testimony of defendants' employees.

As indicated by Mr. Lowe, the

tags show white text on a black background and, consistent with Ms.
Hall's testimony regarding the pertinent indicators that a passenger
is a selectee, contain the letters "PPBM."

Tr. at 352-53, 402.

Similarly, plaintiff's Trial Exhibit 3, plaintiff's boarding pass
from Denver to Cincinnati, shows a designation "SELPX," which Ms.
Hall and Mr. Lowe testified indicates that the passenger is a
selectee.

Tr. at 359 (Mr. Lowe), 403 (Ms. Hall).

As Mr. Lowe also

testified, once plaintiff was so designated, Delta employees had no
discretion to decide whether to search hand-search his bags.

Tr. at

356, 360.
Last, plaintiff's testimony about his own conduct does little to
support his version of the facts.

Notwithstanding being subject to

an allegedly lengthy search of his bag in full view of the public and
being forced to check-in his bags, plaintiff inexplicably did not
immediately inspect the bag after he landed or some time before
leaving the bag in a storage locker. Even though plaintiff testified
that the lock he had placed on the bag was intact and the weight felt
correct, Tr. at 250-51, the Court does not find credible that
plaintiff waited until the following morning to open the bag.
-14-

In sum, I find that plaintiff was not required to check in his
bags and was not treated in a discriminatory manner on the basis of
his ethnicity, religion or any other improper ground.
CONCLUSIONS OF LAW
The Court has subject matter jurisdiction over this action
pursuant to 28 U.S.C. § 1332 based on diversity of the parties and
the amount in controversy and 26 U.S.C. §§ 1331, 1343 and 1367 based
on plaintiff's federal claims.

A substantial part of events giving

rise to plaintiff's claim occurred within this district.

Ct. doc.

113 at ¶ 2.
The nature of the claims under which plaintiff proceeded at
trial were not clearly articulated.

However, reading plaintiff’s

Second Amended Complaint and the joint pre-trial order generously,
this Court sees six possible causes of action between these two
submissions: racial discrimination, negligence, respondeat superior,
negligent supervision, bailment and breach of a contract of carriage.
The plaintiff has the burden to prove elements of his claims by a
preponderance of the evidence.
Based on the findings of fact made, this Court concludes that
plaintiff failed to establish that defendants' employees engaged in
any irregular search procedures; that he was, in fact, not forced to
check the suitcase containing his jewelry; and that, to the extent
any of the jewelry was missing when he opened his suitcase the
morning after his flight, the cause for the disappearance of the gems
was not caused by Delta personnel.

To the contrary, I find that (1)

-15-

plaintiff was randomly designated a selectee by an FAA mandated
computer system over which Delta employees had no discretion, (2) FAA
regulations mandated that plaintiff's luggage be searched, (3) the
private search of plaintiff's jewelry bags was conducted in a sterile
area beyond a security checkpoint, behind a privacy curtain in the
presence of Mr. Wlodaczyk, a security supervisor and a screener and
(4) plaintiff was permitted to take his jewelry bag on the plane.
Therefore, his claims must fail regardless of which legal theory he
invokes since he did not lose any jewelry as a result of the conduct
of any Delta employee.
Plaintiff's

claims

for

negligence,

respondeat

superior,

negligent supervision, bailment and breach of contract likewise fail
since liability is dependent on proof that the bag was Delta's
custody after the search.

See ct. doc. 85 at 4-5, 7, 9, 10-15.

Plaintiff simply failed to establish by a preponderance of the
evidence that he was forced to check in his bags or was otherwise
separated from his jewelry bag.
I also note that it is not clear to what extent plaintiff may
assert tort claims for damage to lost or stolen baggage.

Caselaw

pertaining to claims against airlines for lost or damaged baggage
suggests that federal aviation regulations bar common-law actions for
negligence and permit plaintiffs in Mr. Bary’s position to pursue
only claims under the contract that they formed with defendant by
purchasing travel tickets.

See Nippon Fire & Marine Ins. Co., Ltd.

v. Skyway Freight Sys., Inc., 235 F.3d 53, 60 (2d Cir. 2000) (holding
that a valid limitation of liability clause limits recovery on
-16-

contract as well as tort claims); Feldman v. United Parcel Servs,
2008 WL 2530814, at *1 (S.D.N.Y. 2008) (reconsidering denial of
summary judgment on federal common-law negligence claim for lost mail
shipment because "any recovery . . . premised on federal common law
must rest on a theory that UPS breached its contract of carriage");
see also Ing v. American Airlines, 2007 WL 420249, *4 (N.D.Cal. 2007)
(dismissing plaintiff's negligence claim against defendant airlines
on the ground that "[f]ederal common law dealing with interstate
shipments of cargo preempts tort claims for loss or damage to
goods").
Setting aside whether plaintiff was forced to check a bag that
he had intended to carry on board and that otherwise fit within the
size and weight limitations for carry-on luggage, plaintiff's claim
of

discrimination

also

fails.

He

alleges

that

defendant

discriminated against him in violation of 42 U.S.C. § 1981(b).
Section 1981 prohibits racial discrimination in the making and
enforcement of contracts, which guarantees to all persons the same
"enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship" regardless of race.

42 U.S.C. § 1981(b).

To state a claim under § 1981, a plaintiff must show "(1) that
[he] is a member of a racial minority; (2) an intent to discriminate
on

the

basis

of

race

by

the

defendant;

and

(3)

that

the

discrimination concerned one or more of the activities enumerated in
the statute."
Cir. 2000).
actions

be

Lauture v. Int'l Bus. Mach., 216 F.3d 258, 261 (2d
In other words, the statute requires that defendant's

"intentionally

and

purposefully
-17-

discriminatory"

and

motivated by plaintiff's race.

Poles v. Brooklyn Cmty. Hous. and

Servs., 2011 WL 4963130, *2 (E.D.N.Y. 2011) (internal citations
omitted).
Race, for the purpose of this statute, encompasses ethnicity and
national origin, to the extent that either characteristic can be
interpreted as a "racial" characteristic as that term was intended to
be used by the Reconstruction-Era Congress. Saint Francis College v.
Al-Khazraji, 481 U.S. 604, 608-10 (1987). The parties do not dispute
that plaintiff, who identifies his national origin as Sri Lankan and
his (actual or perceived) ethnicity as South Asian or Sri Lankan, is
a member of a racial minority.
defendant

dispute

that

Ct. doc. 85 at ¶ 9.

plaintiff's

Delta

ticket

Nor does

constituted

a

contract between the parties; the Second Circuit agrees that an
airline ticket functions as a contract of carriage.

See, e.g., King

v. Am. Airlines, Inc., 284 F.3d 352, 355 (2d Cir. 2002); Dennis v.
Delta Air Lines, Inc., 2011 WL 4543487, *2 (E.D.N.Y. Sept. 29, 2011).
As explained by Judge Trager in his opinion on defendant's
motion for summary judgment, a claim of racial discrimination that is
based on circumstantial evidence, as plaintiff’s is here, must be
analyzed

under

the

burden-shifting

test

announced

Douglas Corp. v. Green, 411 U.S. 792 (1973).
Dennis, 2011 WL 4543487 at *4.

in

McDonnell

See ct. doc. 82 at 22;

As plaintiff has no direct evidence

that defendant forced him to check his bag due to a racial animus, he
must first prove that he was "treated less favorably than those of
another race who are similarly situated."

Ct. doc. 82 at 23

(internal citations removed); Dennis, 2011 WL 4543487 at *4.
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If he

succeeds,

defendant

then

bears

the

burden

of

establishing

a

legitimate, non-discriminatory reason for the disparate treatment.
Ct. doc. 82 at 23 (internal citations removed); Dennis, 2011 WL
4543487

at

*4.

The

burden

then

shifts

back

to

plaintiff

to

demonstrate that the reason offered by defendant to explain its
action is pre-textual and that the action in question was motivated
by race.

Ct. doc. 82 at 23-24 (internal citations removed); Dennis,

2011 WL 4543487 at *4.

In discussing this test, the Second Circuit

has noted that "[t]he court must examine the entire record to
determine if plaintiffs meet their ultimate burden of persuading the
fact-finder . . . that defendants intentionally discriminated against
them on the basis of their race."

Lizardo v. Denny’s, Inc., 270 F.3d

94, 103 (2d Cir. 2001).
Plaintiff’s first step is therefore to demonstrate that he was
treated differently from white Delta passengers.

Although plaintiff

testified that he felt discriminated against when Ms. Hall told him
that he was subject to a search of his bags, there is no credible
evidence that his race played any role in his designation as a
selectee, even assuming that he was forced to check in (or otherwise
checked in) his jewelry bag.

Although the parties agree that his

jewelry bag was hand-searched, the testimony of defendant's employees
establishes that FAA regulations required that such a search take
place because plaintiff was designated a selectee.

The evidence

produced by plaintiff in the form of baggage tags and a boarding pass
confirms that these documents contained the pertinent indicators
explained by Ms. Hall and Mr. Lowe.
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Moreover, Delta and its

employees had no discretion in designating plaintiff as a selectee
chosen for further search.
In

short,

at

no

point

during

the

events

in

dispute

did

defendant's employees discriminate against plaintiff. Except for Ms.
Hall's erroneous statement to plaintiff that the bags could not be
carried on board, which had no significant effect on the events of
that day, all actions undertaken by Delta personnel were mandated by
FAA

regulations

procedure.

and

in

accordances

with

defendant's

standard

Similarly, defendant cannot be held liable under any

other legal theory because plaintiff was not forced to check his bag.

CONCLUSION
For the foregoing reasons, I find that the plaintiff has failed
to prove any of his claims against defendant. It is hereby ordered
that plaintiff's claims be dismissed and judgment be entered in favor
of defendant.
SO ORDERED.
Dated:

Brooklyn, New York
March 29, 2013
/s/__________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

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