After a four day bench trial, Hon. William F. Kuntz, II, of the Eastern District of New York directed that judgment be entered in favor of Saudi Arabian Airlines (“Saudia”) on plaintiffs’ claims for race discrimination under federal and New York laws, breach of contract as well as breach of the covenant of good faith and fair dealing, arising out of their transportation in June and July 2008 from JFK to Khartoum, Sudan and return. See Aboeid v. Saudi Arabian Airlines Corp., No. 10-cv-2518, slip. op. (E.D.N.Y. August 9, 2013).
Plaintiffs, a family of nine including an infant, are residents of North Carolina and purchased non-refundable, non-transferable and non- endorsable tickets to travel in the summer of 2008 to Sudan, their home country. They were scheduled to depart from JFK at 2 p.m. on June 7, 2008 for transportation to Khartoum, Sudan via Riyadh, Jeddah. They drove in a rental van from North Carolina to New York the day before their departure.
On their return, they travelled from Khartoum, Sudan to Jeddah, Saudi Arabia on July 21, 2004, where they spent a three-day layover, before their scheduled onward transportation back to New York.
Plaintiffs’ claims arose out of a series of events beginning with their alleged discriminatory treatment during the check-in and boarding process at JFK. Plaintiffs claimed that they arrived at JFK to check in for their flight around noon and were fourth or fifth in line. (At trial, plaintiffs contradicted their sworn deposition testimony as to their noon arrival, claiming that they had actually arrived around 10:30 a.m.;
Judge Kuntz accepted their deposition testimony.) Plaintiffs alleged that upon reaching the check-in counter and presenting their travel documents, a Saudia agent asked them to step aside and wait for some period of time while the agent continued to check in other passengers. Because Saudia assigns seats on a first-come first-served basis, plaintiffs claimed that they were denied the seats of their choice because of the delay. The crux of plaintiffs’ case as it related to the events at JFK was that the Saudia agents intentionally delayed their check-in and boarding because they are Black.
At trial, however, Saudia witnesses testified that plaintiffs’ could not have been delayed very long because they were not prepared to check in until sometime after approximately 12:30 p.m., as evidenced by the rental van return receipt, and the close-out of the flight was one hour prior to scheduled departure – in this case, 1 p.m. Additionally, Saudia witnesses testified that any delay in plaintiffs’ check-in process would have been due to the weighing of their 18 pieces of checked baggage as well as additional TSA security clearance procedures. Finally, Saudia witnesses testified that 8 of the 9 plaintiffs actually sat in the same row and were free to move about the cabin to occupy the nearly 100 empty seats as they wished.
The remainder of plaintiffs’ transportation was uneventful until they arrived at King Abdulaziz International Airport (“JED”) in Jeddah, Saudi Arabia for their return transportation to JFK scheduled to depart at 2:20 a.m. Plaintiffs testified that they arrived at JED at approximately midnight but had difficulty locating the correct area to check in for their flight. Plaintiffs allege that they sought assistance from several Saudia agents as to the correct location, all of whom refused to assist the plaintiffs – again, allegedly because of their race.
Eventually, plaintiffs arrived at the correct line, with several passengers ahead of them,
sometime between 1:20 and 1:40 a.m. and were advised that they would not be accommodated on the flight, as check-in for the flight had closed at 1:20 a.m. Nonetheless, the Saudia agent accommodated two individual passengers travelling alone. Additionally, that flight departed with only three empty economy seats.
Plaintiffs claimed that Saudia refused to accommodate them on the flight not because of their late arrival but rather because there were not enough seats to accommodate the family of nine. Plaintiffs argued that Saudia thus breached the contracts of carriage and should have provided plaintiffs with Denied Boarding Compensation and related benefits.
Despite plaintiffs’ tickets being non-refundable and non-endorsable, Saudia offered to transport plaintiffs the following day (at no additional cost) to London or Paris, where plaintiffs would then be responsible for securing onward transportation to JFK. Plaintiffs declined Saudia’s offer and instead remained in Jeddah for nine additional days awaiting availability to travel on a Saudia flight together to JFK. Saudia operates only two flights per week to JFK and the summer of 2008 is the peak travel season, so plaintiffs could not be so accommodated. Plaintiffs ultimately purchased replacement tickets on another carrier and returned to New York on August 3, 2008.
Saudia witnesses testified that all passengers are advised to arrive at the airport four hours prior to departure and that check-in closes one hour prior to departure, although Saudia agents may continue to accommodate late-arriving passengers if doing so does not jeopardize the timely departure of the flight. Additionally, timely arrival for check-in is a condition of carriage and a pre-requisite to qualify for Denied Boarding Compensation. Finally, plaintiffs originally scheduled flight from JED to JFK departed with 3 empty seats, after having accommodated 32 non-revenue passengers, which included standby passengers travelling on a space-available basis.
Judge Kuntz held that plaintiffs did not show by a preponderance of the evidence that they performed their contractual obligations: because plaintiffs did not arrive timely at JED to check in for their flight to New York, Saudia did not breach the contracts of carriage by refusing to
transport them. Furthermore, a cause of action for breach of the implied covenant of good faith and fair dealing fails as a matter of law when, as here, it is predicated on the same facts as the breach of contract cause of action.
As for the claims regarding race discrimination, Judge Kuntz’s words are better recited than restated:
Counsel for Defendant [Saudia] also made a historical allusion that deserves comment from the Court. Describing racism as “difficult to define,” defense counsel said “we know it when we see it,” a not-so-subtle reference to Justice Stewart’s famous concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), regarding the definition of hard-core pornography. . . . Having reviewed with care the facts and law in this case, this Court adopts the wisdom of Justice Stewart, who addressing the definition of racism might have put it this way: “I shall not today attempt further to define the kinds of material I understand to be embraced within the shorthand description of racism, and perhaps I could never succeed in intelligibly doing so.ButIknowitwhenIseeit,andthe behavior involved in this case is not that.”
Like Justice Stewart, this Court can truly say of racism: “I know it when I see it.” This Court did not see it in this case.