United States District Court, District of Columbia
March 8, 2002
DR. NEVILLE GIBBS, PLAINTIFF,
AMERICAN AIRLINES, INC., DEFENDANT.
The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge.
Plaintiff, Dr. Neville Gibbs ("Dr. Gibbs"), brings this action under
42 U.S.C. § 1981 ("Section 1981") alleging that defendant, American
Airlines Corporation ("American Airlines") discriminated against him
based upon his race by removing him from a flight after he had a verbal
altercation with a flight attendant. Before the court is American
Airlines' motion for summary judgment. American Airlines contends that
Dr. Gibbs' claim is barred under the Warsaw Convention*fn1 because the
discrimination took place during an international flight, and in
the alternative that Dr. Gibbs has failed to make out a prima facie case
under Section 1981. Because the Warsaw Convention preempts Dr. Gibbs'
Section 1981 claim and he cannot recover under the Convention itself, the
motion of American Airlines must be granted.
I. FACTUAL BACKGROUND
This action arises from events that transpired before takeoff on an
American Airlines flight from Miami to Trinidad in February, 1999. The
following account of those events is set forth in the light most
favorable to Dr. Gibbs.
On February 6, 1999, Dr. Gibbs, an African American, and two
companions, Pierre Cumbo ("Cumbo") and Dr. Lennox E. Joseph ("Dr.
Joseph"), also African Americans, traveled from Reagan National Airport
in Washington, D.C. to Miami International Airport on an American
Airlines flight. In Miami they transferred to American Airlines flight
#1819 to Picaro, Trinidad. After boarding flight #1819, Dr. Gibbs and
his companions took their seats. Dr. Gibbs sat in the row directly in
front of Cumbo and Dr. Joseph.
After the plane then taxied onto the runway and was in a holding
pattern, an announcement was made that landing immigration cards would be
distributed while the plane was awaiting takeoff. A flight attendant,
later identified as Jerri Bell ("Bell"), came down the aisle distributing
the cards. Dr. Gibbs and his companions noticed that Bell seemed upset
and angry. When Dr. Joseph greeted Bell and asked her how things were
going, Bell replied that it had been a "rough day." She then leaned over
to Dr. Joseph and commented in an allegedly "derogatory" tone of voice
that the "black people" on the plane were misbehaving, and that her white
colleagues were asking her why the "black people" were behaving that
way. Bell also stated that the behavior of the "black people" on the
plane was embarrassing to her as a black person.*fn2
Dr. Gibbs, seated in the row in front of Cumbo and Dr. Joseph, could
not hear what Bell said but observed her speaking with his companions and
leaned back to ask what they were discussing. In response, Bell
allegedly became "very confrontational" and snapped, "That's exactly what
I'm talking about!" She then approached Dr. Gibbs, leaned in close to
his face, and shook her finger at him while loudly repeating, "That is
none of your business." Dr. Gibbs told Bell she was being rude, to which
she allegedly responded in a heated voice, "I could put you off this
Bell then departed and returned a few minutes later with James Morello
("Morello"), the aircraft's purser. Morello handed Dr. Gibbs an official
warning card containing language based upon 14 C.F.R. § 91.11
(stating that "[n]o person may assault, threaten, intimidate, or
interfere with a crewmember in the performance of the crewmember's duties
aboard an aircraft being operated"). Dr. Gibbs refused to accept the
warning and requested that Morello question surrounding passengers to
verify what had transpired between him and Bell. Dr. Gibbs alleges that
two passengers verified his version of events, but were ignored by
Morello, and that other passengers protested the way he was being treated
by Morello and Bell.
Morello and Bell departed, and a few minutes later the plane returned
to the gate. A man dressed in a uniform and two police officers from the
Dade County Police Department then came down the aisle toward Dr. Gibbs.
According to a police
report, Bell had told them that Dr. Gibbs was an
"unruly passenger" who had been involved in a "verbal altercation" with
her. The officers told Dr. Gibbs that the Captain had ordered his
removal from the plane.*fn3 Dr. Gibbs complied. Thereafter he was
escorted by the police into the terminal. He was accompanied by his two
companions, who decided to leave the plane with him.*fn4
Dr. Gibbs was detained by the police in the terminal and questioned
about his conduct on the plane. After Dr. Gibbs explained his version of
the incident, the police decided that no criminal activity had occurred
and released him. American Airlines facilitated his accommodations in
Miami that night and his flight to Trinidad the next day. Upon arriving
in Trinidad, Dr. Gibbs learned that many persons traveling there had
heard about the events on flight # 1819.
Dr. Gibbs claims that he did not scream at Bell or use any language
that could be deemed to threaten or harass her. He alleges that as a
result of the actions taken by American Airlines personnel he has
suffered "significant public embarrassment and humiliation, loss of self
esteem, mental anguish and severe emotional trauma resulting in periods
of sleeplessness, headaches, frequent gastrointestinal discomfort and
loss of appetite."
In his complaint, Dr. Gibbs alleged common law tort and contract
claims, as well as statutory discrimination claims under Section 1981 and
the Federal Aviation Act, 49 U.S.C. § 41310 ("Section 41310"). Dr.
Gibbs subsequently conceded that his common law claims were preempted by
the Warsaw Convention and that Section 41310 does not provide a private
cause of action, leaving only his Section 1981 claim in dispute.
A. Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, summary judgment shall be
granted if the pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits show that there is no genuine issue of
material fact in dispute and that the movant is entitled to judgment as a
matter of law. Facts "that might affect the outcome of the suit under
the governing law" are material. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The non-movant's opposition must consist of
more than mere unsupported allegations or denials and must be supported
by affidavits or other competent evidence setting forth specific facts
showing that there is a genuine issue for trial. See Fed.R.Civ.P. 56
(e); Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The non-movant's
evidence must be of a nature "that would permit a reasonable jury to
find" in its favor. Laningham v. Navy, 813 F.2d 1236, 1242 (D.C. Cir.
1987). Evidence that is "merely colorable" or "not significantly
probative," is not sufficient to sustain a grant of summary judgment.
Anderson, 477 U.S. at 249-50.
B. Preemption Under Warsaw Convention
In his remaining claim, Dr. Gibbs contends that American Airlines
violated Section 1981 because it refused to perform its contract to
transport him on flight # 1819
on the basis of his race.*fn5
Airlines argues that Dr. Gibbs is precluded from recovering for this
claim as a matter of law because the Warsaw Convention (the "Convention")
preempts Section 1981 claims and Dr. Gibbs cannot recover under the
Convention itself. Dr. Gibbs concedes that he cannot recover under the
Convention, but argues that the preemptive effect of the Convention does
not extend to discrimination claims.
Before analyzing these arguments, it is helpful to describe the basic
structure of the Convention. The Convention is a comprehensive
international treaty governing air carrier liability for "all
international transportation of persons, baggage, or goods."
49 U.S.C. § 40105 et seq. Article 17, the provision governing
liability for personal injury to passengers, establishes that air
carriers "shall be liable" for death or other "bodily injury" to a
passenger caused by an "accident" that took place "on board the aircraft
or in the course of any of the operations of embarking or disembarking."
49 Stat. 3018. Article 19 provides that air carriers "shall be liable"
for damage caused by "delay in the transportation by air of passengers,
baggage, or goods." Id. at 3019. At the time this action was filed,
Article 24, the provision delineating the preemptive effect of the
Convention, mandated that in cases covered by Articles 17 and 19, "any
action for damages, however founded, can only be brought subject to the
conditions and limits set out in this convention." Id. at 3020 (emphases
added). Those limits include a cap on damages of $75,000 per passenger.
In El Al Airlines, Ltd. v. Tseng, 525 U.S. 155 (1999), the leading
Supreme Court decision on the preemptive scope of the Convention, the
Court held that recovery for "personal injury claims" arising during
international air travel "if not allowed under the Convention, is not
available at all." Id. at 161. The plaintiff in Tseng alleged that she
suffered psychic and psychosomatic injuries due to an invasive security
search prior to boarding an international flight. Id. at 160. Because
her injuries did not constitute "bodily injury" and did not result from
an "accident" as required under Article 17, the plaintiff acknowledged
that she could not recover under the Convention and instead sought to
recover under New York tort law. The Court found that her state tort
claims were preempted under the Convention, even though the Convention
barred her from recovery, and she was thus left without a cause of
Tseng did not involve a federal statutory or civil rights claim, and
neither the Supreme Court nor the federal appeals courts have explicitly
considered such claims in light of the Convention. However, American
Airlines argues based upon the decisions of three federal district courts
that Convention should preempt statutory discrimination claims as well as
common law claims. See Turturro v. Continental Airlines,
128 F. Supp.2d 170 (S.D.N.Y. 2001) (holding that plaintiff's
discrimination claim under the federal Air Carrier Access Act ("ACAA")
was preempted under the Convention); King v. American Airlines, Inc.,
146 F. Supp.2d 159
(N.D.N.Y. 2001) (holding that plaintiffs'
discrimination claim under Section 1981 was preempted under the
Convention); Brandt v. American Airlines, 2000 WL 288393 (N.D.Cal. 2000)
(holding that plaintiffs' discrimination claim under the ACAA was
preempted by the Convention). Dr. Gibbs, while conceding that he did not
suffer the "bodily injury" required to recover under the Convention,
argues that Tseng governs only common law personal injury claims and that
Congress did not intend the Convention to impede civil rights claims
rooted in the Constitution, such as Section 1981 claims. Dr. Gibbs'
argument cannot be sustained.
Although the Supreme Court had only state tort claims before it in
Tseng, the Court rested its holding not on the nature of the claims being
brought, but on the importance of uniformity in the treaty's liability
scheme. "The cardinal purpose of the Warsaw Convention . . . is to
`achiev[e] uniformity of rules governing claims arising from
international air transportation.'" Id. at 169 (quoting Eastern
Airlines, Inc. v. Floyd, 499 U.S. 530, 552 (1991)). Uniformity was
sought by the treaty signatories as a means to balance the need to expand
international air service and the need to compensate injured passengers.
See id. at 170. As the Court explained in Tseng, "Before [the
Convention], injured passengers could file suits for damages, subject
only to the limitations of the forum's laws. . . This exposure inhibited
the growth of the then-fledgling international airline industry." Id.
Given this background and the Convention's "textual emphasis on
uniformity," the Court found itself "hard put to conclude that the
delegates at Warsaw meant to subject air carriers to the distinct,
nonuniform liability rules of the individual signatory nations." Id.
Because federal discrimination statutes such as Section 1981 are part
of the "distinct liability rules" of the United States as an individual
signatory, American Airlines argues that the need for uniformity dictates
that claims based on these statutes are also preempted under the
Convention. We agree. The negative consequences that the Tseng Court
found would flow from "[c]onstruing the Convention . . . to allow
passengers to pursue claims under local law when the Convention does not
permit recovery" are no less likely with statutory discrimination claims
than with common law claims. Id. at 171. As with the plaintiff's common
law claim in Tseng, if Dr. Gibbs' Section 1981 claim is not preempted,
air carriers would be "exposed to unlimited liability under diverse legal
regimes, but would be prevented, under the treaty, from contracting out
of such liability." Id. Such a reading, the Court found, would
undermine "the predictability that adherence to the treaty has achieved
worldwide." Id. See also Brandt, 2000 WL 288393 at *4 (finding,
following Tseng, that "[a]llowing air carrier exposure to discrimination
claims which do not conform to the requirements of the Convention would
undercut the signatory nations' desire for uniformity"); Turturro,
128 F. Supp.2d at 180.
The emphasis on the need for uniformity in Tseng is not the only
indication that the Court's ruling in that case should govern this one.
The Tseng Court repeatedly contrasts "local law" with the Convention to
denote that the former is preempted by the latter. See, e.g., Tseng, 525
U.S. at 172 (noting that construing the Convention to "allow passengers
to pursue claims under local law when the Convention does not permit
recovery could produce several anomalies") (emphases added). This
language is meant to distinguish the national laws of individual
signatories (not the laws of individual states of
the United States) from
international law. Federal discrimination statutes clearly fall into the
former category. See Turturro, 128 F. Supp.2d at 180 (finding following
Tseng that "`local' law certainly includes federal statutes such as
plaintiff's discrimination claim under the [ACAA]").
Moreover, decisions by the courts of other signatories cited by the
Tseng Court as "corroborat[ing]" its "understanding of the Convention's
preemptive effect," Tseng, 525 U.S. at 675 & n. 16, clearly envision that
all claims under national law, whether common law or statutory, will be
preempted by the Convention. For example, the Tseng Court cites language
from the British House of Lord's decision in Sidhu v. British Airways plc
 1 All E.R. 193, 201, stating that "in all questions relating to
the carrier's liability, it is the provisions of the [C]onvention which
apply and . . . the passenger does not have access to any other remedies,
whether under the common law or otherwise, which may be available within
the particular country where he chooses to raise his action." (emphasis
added) (quoted in Tseng, 525 U.S. at 175). See also Naval-Torres v.
Northwest Airlines, Inc., 159 D.L.R. (4th) 67, 73, 77 (1998) (Sharpe, J.)
(holding by a judge of the Ontario Court (General Division) rejecting
passenger's contention that she was "entitled in law to pursue any common
law or statutory claims which exist apart from any claims she may have
under the Convention") (emphasis added) (quoted in Tseng, 525 U.S. at
175, n. 16).
Dr. Gibbs argues nonetheless that because Tseng involved a personal
injury claim and not a discrimination claim, it is inapplicable to the
present case. The court acknowledges that these two types of claims are
not equivalent in degree or in kind. The former is based upon common law
while the latter is based upon federal statute, and federal civil rights
statutes in particular have been deemed of great public importance in
this country. See Brandt, 2000 WL 288393 at *4 (noting these
differences). However, the rationale for the Court's decision in Tseng
— that the primary purpose of the Convention is to prevent
variations in liability according to local law — does not
distinguish between types of local law, only between local and
international law. See Brandt, 2000 WL 288393 at *4 (finding following
Tseng that differences between statutory discrimination and common law
claims are not cognizable for purposes of preemption under Convention).
This does not mean that discrimination always goes unpunished under the
Convention, however; where discrimination constitutes an "accident"
— which both parties concede it did here — and causes "bodily
injury," recovery may be had under Article 17. The fact that recovery
for discrimination that does not meet these two criteria may be
foreclosed "should not surprise anyone," given that the Convention also
"massively curtails damage awards for victims of horrible acts such as
terrorism." Turturro, 128 F. Supp.2d at 181.
Because the court finds that discrimination statutes are "local laws"
preempted under the Convention in order to achieve uniformity in liability
amongst Convention signatories, and because Dr. Gibbs concedes that he
cannot recover under the Convention itself, the motion of American
Airlines must be granted. An appropriate order accompanies this
For the reasons stated in the court's memorandum opinion docketed this
day, it is this 8th day of March, 2002, hereby
ORDERED that the complaint is DISMISSED.