The opinion of the court was delivered by: Debevoise, Senior District Judge
On December 31, 2001, Captain Werner Wolfgang Hamp, a pilot for defendant, Continental Airlines ("Continental"), removed three passengers for security reasons from Flight 1218 departing from Newark International Airport bound for Tampa. The passengers were Saraleesan Nadarajah, PhD, a professor at the University of Southern Florida; Edgardo S. Cureg, a colleague of Dr. Nadarajah at the University of Southern Florida; and Michael Dasrath, who was traveling home to be with his family.
Plaintiff, Mr. Dasrath, filed a complaint against Continental under 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A. 10:5.1, et. seq., alleging that Continental engaged in unlawful discrimination (in violation of all three statutes) when it removed him from the aircraft. In a separate complaint, plaintiff, Edgardo S. Cureg, alleged that Continental violated the same three statutes when it removed him from the flight. The American Arab Anti-Discrimination Committee (the "ADC"), on behalf of its members, joined in Mr. Cureg's suit. Mr. Dasrath's complaint asserted a claim for damages and for declaratory and injunctive relief. Mr. Cureg and the ADC sought only declaratory and injunctive relief.
Continental moved under Fed. R. Civ. P. 12(b)(6) to dismiss all of plaintiffs' claims for failure to state a claim and moved under Rule 12(b)(1) to dismiss certain claims for lack of subject matter jurisdiction. It also moved to dismiss claims for monetary relief on the ground that any remedies should be limited by the terms of the contracts under which Mr. Cureg and Mr. Dasrath traveled. The court denied the motion in all respects. Dasrath v. Continental Airlines, Inc., 228 F. Supp. 2d 531 (D.N.J. 2002).
After considerable discovery had been taken, Continental moved for summary judgment. Mr. Cureg and ADC voluntarily dismissed their complaint with prejudice. The court denied Continental's motion for summary judgment on Mr. Dasrath's claim, except as to his claim for injunctive relief, finding that "viewing the evidence in the light most favorable to Plaintiff, Plaintiff did not engage in any suspicious behavior, and there are no facts that reasonably connect him with Mr. Cureg and Dr. Nadarajah. Capt. Hamp's decision to remove him from the plane could be found to be arbitrary and capricious."
Additional discovery was taken. The court permitted Continental to file another motion for summary judgment. Although certain details of the events of December 31, 2001 are in dispute, the undisputed facts as perceived by Capt. Hamp would preclude a jury from finding that he removed Mr. Dasrath from the aircraft for racial reasons or for any reasons other than concern for the security of the aircraft and its passengers. For the reasons set forth in more detail below, Continental's motion for summary judgment in its favor will be granted, and the complaint will be dismissed with prejudice.
This case implicates two extraordinarily important public policy concerns: i) the right of all persons not to be discriminated against on account of their race or nationality and ii) the need to protect the flying public from sabotage of aircraft in flight. The former interest is embodied in the anti-discrimination laws relied upon in this case, 42 U.S.C. § 1981; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A. 10:5-1, et seq. The latter interest is embodied in, among other laws, 49 U.S.C. § 44902(b) of the Federal Aviation Act.
These two important interests intersected in this case when, on December 31, 2001, three aircraft passengers were removed from Flight 1218 bound from Newark to Tampa. Continental asserts that the removal was on account of security concerns. A refusal to transport a passenger who an air carrier believes might be inimical to safety can give rise to a claim only if the carrier's decision was arbitrary and capricious, Williams v. Trans World Airlines, 509 F.2d 942, 948 (2d Cir. 1975). A decision based on race would be arbitrary and capricious. The assessment of a carrier's decision must take into account all the circumstances surrounding the decision. In the present case, in spite of the brief period of time during which the critical events unfolded, these circumstances involve a multitude of persons and events.
There are inconsistencies in the recitals of various persons, most, if not all, of which obviously are caused by faulty observation or failure of recollection. It is necessary to sort through the testimony and exhibits to determine if there is a core of undisputed material facts that permits summary judgment. In the process it will be necessary initially to set forth two factual scenarios: i) The Travelers' Tale and ii) The Captain's Tale. Because so many persons played a part in these events, it will be useful to identify each participant.
Lee Rogan - one of two gate attendants in the boarding area Patricia Williams - the other of the two gate attendants in the boarding area Captain Werner Wolfgang Hamp - the pilot Robin Sue Gurnick - the flight attendant who greeted passengers as they entered the plane Paula Etling - the flight attendant who was making preparations in the galley during the boarding process John McCoy - the flight attendant who was stationed at the rear of the aircraft Manuel Guillan - the gate supervisor who was called to the boarding area when Capt. Hamp raised security concerns Jeffrey Jackel - a corporate security officer who was also called to the boarding area when Capt. Hamp raised security concerns Patricia Ware - a Continental employee who, after the event, was detailed to investigate the circumstances of Mr. Dasrath's removal
Edgardo Cureg - who entered the plane and sat in first class window seat 2A. Seat 2A is in the first row to right as one heads to the rear of the plane and faces the bulkhead.
Michael Dasrath - who entered the plane and sat in first class window seat 3A Camille Brooks - who entered the plane and proceeded to her seat in the rear of the plane Dr. Saraleesen Nadarajah - who entered the plane and, after talking briefly with Mr. Cureg, passed Mr. Dasrath and proceeded to his seat in row 27 at the rear of the plane. He later returned to the first class area to sit next to Mr. Cureg.
Anthony DiForti - who sat in the rear of the plane behind the wing Todd Lee Colbert - who sat in the rear of the plane Ella Jane Baker - who observed Dr. Nadarajah and Mr. Edgardo Cureg in the gate area and sat in the rear of the plane Timothy Donegan - who was originally assigned to economy class but was moved up to first class.
A series of events brought Dr. Nadarajah, Mr. Cureg, and Mr. Dasrath together on Flight 1218 from Newark to Tampa on the afternoon of December 31, 2001, events which culminated in their being ejected from the flight for security reasons, when in fact they presented no security risk at all and were simply traveling home to spend the New Year with their families.
Mr. Dasrath's parents are from Guiana, and he was born there. They are commonly characterized as West Indians. Mr. Dasrath is a United States citizen and married in 1996. On December 31, 2001, he departed from his work at JP Morgan Chase in midtown Manhattan, heading for Tampa, Florida, which was his home at the time and the place where his wife and children were living.
His wife had obtained a job with Continental in Tampa within the last year, and, therefore, Mr. Dasrath commuted back and forth on weekends as a non-revenue passenger. His travel plans brought him to the Newark Airport in the late afternoon of December 31, 2001.
Earlier in the day, Dr. Nadarajah and Mr. Cureg were on the same flight from Gatwick to Newark. Mr. Cureg has a Master's Degree in mathematics from the University of South Florida and was in the process of obtaining a doctorate in the same subject from the same University. Dr. Nadarajah was a professor at the University of South Florida. Mr. Cureg, the smaller of the two men, was of Philippine ancestry and Dr. Nadarajah, a large man, was of Indian background.
The two men met in the Gatwick boarding area just before boarding, and each was in the coach class on the plane to Newark. They did not talk during the flight. While on the flight, Mr. Cureg engaged in a cellphone call with a Filipino friend, and during the course of their conversation, the friend learned that Dr. Nadarajah was on the flight with Mr. Cureg. The friend, Rolito Eballe, asked Mr. Cureg to ask Dr. Nadarajah when he next saw him to call Eballe back.
When Mr. Cureg encountered Dr. Nadarajah in the Newark boarding area for Flight 1218, they conversed for 15 or 20 minutes, and Mr. Cureg informed him of Eballe's request. He offered Dr. Nadarajah his cell phone so that he could make the call. While Dr. Nadarajah was making the call, the announcement for first class passengers to board came through. Mr. Cureg told Dr. Nadarajah he could keep the cell phone and return it to him when he boarded with the economy class passengers.
At that point, Mr. Cureg boarded the plane and sat in seat 2A in the first class cabin. He does not know whether Mr. Dasrath had preceded him, but, just before or after Mr. Cureg boarded, Mr. Dasrath sat in the seat behind him, 3A.
Mr. Cureg was seated when Dr. Nadarajah boarded the flight. Dr. Nadarajah returned the cell phone to Mr. Cureg, handed it to him, thanked him, and proceeded back to his seat in the rear. Mr. Cureg testified that Dr. Nadarajah did not, when boarding, bend over and look under a row of seats.
Mr. Dasrath, who did not know or speak to Mr. Cureg or Dr. Nadarajah, was in his seat during this time and observed the return of the cell phone and heard the few words spoken: "Thank you" and "You're welcome." He was also seated there when coach passenger Camille Brooks boarded. She was carrying a poodle and was unknown to Mr. Dasrath. She walked past him towards the coach area. She returned to the first class area and walked past him, turned around, and disappeared back in the coach area. Later, she returned a second time and walked toward the cockpit, looking down. She stood in front of the area where Mr. Dasrath was sitting and turned back towards the coach without speaking to anyone. Mr. Dasrath did not lose sight of her.
Capt. Hamp, having left the plane briefly, returned to it, and Ms. Brooks signaled him towards her. The Captain walked back past Mr. Dasrath to Ms. Brooks. Mr. Dasrath was able to hear their conversation, which took place about a foot behind him. He testified:
Q: And what did you hear?
A: She just basically said, those brown skin men are behaving suspiciously.
Q: This is where you now hear the brown skin . . .
Q: I cut you off. I apologize.
Q: What exactly do you claim you heard her say, exact words?
A: Those brown skin men are behaving suspiciously.
Q: Is that all you ever heard from her?
Q: You couldn't hear any of the other parts of the conversation?
A: She didn't say anything else.
Q: Okay. Could you hear Captain Hamp's response?
Q: There was no response, no words, like, jeez, I'm sorry, I'll check it out?
Q: Okay. Is that the last time you saw the poodle lady?
A: That is the last time I saw her, yes.
Q: She returned to coach?
Q: All right. At that point did you speak to Mr. Cureg or Dr. Nadarajah?
Q: Did you speak to anybody about what you had just heard?
Q: Did you assume that she was speaking about you?
A: I would say that would be a fair assumption because I saw ...