MEMORANDUM & ORDER
Pro se Plaintiff Aleda James filed this action seeking nominal damages and in-junctive relief based on alleged racial discrimination against her by Defendant American Airlines, Inc. (“American”) while she was a passenger on an airplane operated by American. James, a black woman, alleges that she was the subject of racial discrimination when, in response to an altercation between James and another passenger on the flight, an American flight attendant admonished James and threatened to remove her from the plane if she continued cursing. James asserts claims against American under 42 U.S.C. § 1981 (“Section 1981”), 42 U.S.C. § 2000a, 42 U.S.C. § 2000d, 49 U.S.C. § 40127(a), and N.Y.S. Executive Law, Article 15 (Human Rights) (“NYHRL”).
I. Background
A. Facts
On August 17, 2015, Plaintiff Aleeia James, a black woman, took an American Airlines flight from Las Vegas to New York. (Dkt. 15-1 at 3; Dkt. 24 ¶ 4.) A few minutes after James boarded the plane, a white woman sitting in the seat behind James began violently banging and pounding the back of James’s seat. (Dkt. 24 ¶ 4.) James asked the woman to stop, but the woman continued to bang and pound on the back of James’s seat. (Id. ¶¶ 4-5.) James pleaded with the passenger to stop, but she did not, which “led to words being exchanged.” (Id. ¶ 5.)
No flight attendants were present to observe this interaction between James and the other passenger. (Id. ¶ 6.) A few minutes later, as a flight attendant was passing James’s seat, James told the flight attendant that she (James) was being “antagonized and attacked” by the passenger behind her. (Id. ¶ 7.) James requested a new seat, and the flight attendant complied, reassigning James to a new seat in a different aisle. (Id.)
After James had been seated in her new seat for about ten minutes, two flight attendants came over. (Id. ¶ 8.) In a voice loud enough for other passengers to hear, one of the flight attendants told James that she would be removed from the flight “if [she] continued cursing.” (Id.) Thq flight attendant told James that this mes* sage was coming from the pilot of the plane. (Id.) Neither the pilot, nor any flight attendant or any other American employee, admonished in any way the white woman who had banged and pounded on James’s seat. (Id. ¶ 10.)
James was perplexed by how American had treated her. (Id. ¶ 9.) She did not understand why she had been singled out for public humiliation and a threat of removal from the plane, when James had not cursed at anyone around her in the new seat. (Id.) Other passengers also expressed their surprise and confusion about how American had singled James out. (Id.) Bereft of any other explanation, James concluded that American had publicly admonished her and threatened to remove her from the plane because she was black. (Id. ¶ 11.)
B. Procedural History
Four days after the incident, on August 21, 2015, James filed a verified complaint with the NYSDHR charging American with an unlawful discriminatory practice relating to public accommodation because of race or color in violation of New York Executive Law, Article 15 (Human Rights Law). After an investigation by the NYSDHR, which included written submissions to the NYSDHR and at least one conference, the NYSDHR issued its Determination, dated December 30, 2015, in which the Division held that “there is no probable cause to believe that [American] has engaged in or is engaging in the unlawful discriminatory practice complained of,” and dismissed the complaint on that basis. (Dkt. 20-2.)
On February 5, 2016, plaintiff commenced this action. (Dkt. 1.) The original complaint asserted a claim under 42 U.S.C. § 2000a based on the circumstances described above. (Dkt. 1-1 at 2.) Following a motion to dismiss by American, James filed an amended complaint (Dkt. 15-1), which is now the operative complaint in this action. In her amended complaint, James asserts claims of race discrimination under 42 U.S.C. § 1981 (Section 1981), 42 U.S.C. § 2000a (“Title II”), 42 U.S.C. § 2000d (“Title VI”), 49 U.S.C. § 40127(a), and N.Y.S. Executive Law, Article 15 (Human Rights Law) (NYSHRL). James does not allege any damages, but instead requests “[d]eelaratory and injunctive relief as the court sees fit,” “sanetion[s] for [American’s] discriminatory practices,” and indemnification for her filing and litigation costs. (Dkt. 15-1 at 5.) American moves under Fed. R Civ. P. 12(b)(6) to dismiss the amended complaint in its entirety for failure to state a claim.
II. Legal Standard
To withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must plead facts sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
III. Analysis
A. Res Judicata
As a threshold matter, American contends that all of James’s claims are barred by the doctrine of res judicata. (Def.’s Br. 22.) American argues- that the NYSDHR’s finding of “no probable cause” in James’s administrative proceeding against American (Dkt. 20-2) precludes James from pursuing discrimination claims in this Court based on the same facts that served as the basis for her administrative proceeding. (Def.’s Br. 22.)
The standards for giving preclu-sive effect to an administrative determination are well established. The Supreme Court has held that, “when a state agency acting in a judicial capacity resolves disputed issues of fact- properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agency’s factfinding the same pre-clusive effect to which it would'be entitled in the State’s courts.” Univ. of Tenn. v. Elliott,
There is little question that the NYSDHR is a quasi-judicial agency whose determinations may, in some circumstances, carry preclusive effect. See, e.g., Peguero-Miles v. City Univ. of N.Y., 13 Civ. 1636,
When evaluating whether an unre-viewed decision by the NYSDHR afforded a plaintiff a “full and fair opportunity” to litigate her claims, courts in New York consider “the various elements which make up the realities of litigation,” including
In making this determination, the Court takes guidance from the Second Circuit’s decisions in DeCintio v. Westchester County Medical Center,
Construing the record in the light most favorable to James as a pro se plaintiff, the Court cannot conclude that James had a “full and fair opportunity” to litigate her discrimination claim before the NYSDHR. As in Kosakow, (i) James appeared pro se before the NYSDHR, (ii) the record does not demonstrate the extent of discovery taken before the NYSDHR, (iii) the record does not reflect whether any witnéss interviews were conducted as part of the “investigation” underlying the determination by the NYSDHR, and (iv) the record does not demonstrate whether James had an opportunity to confront witnesses against her before the NYSDHR. These factors distinguish this case from DeCintio and bring it within the ambit of Kosakow. Accordingly, the Court declines to give pre-clusive effect to the NYSDHR’s determination.
B. Section 1981 Claim
To establish a claim under 42 U.S.C. § 1981, a plaintiff “must allege facts supporting the following elements: (1) plaintiff! ] [is a] member! ] of a racial minority; (2) [defendant’s] intent to discriminate on the basis of race; and (3) discrimination concerning one of the statute’s enumerated activities.” Brown v. City of Oneonta,
In challenging James’s Section 1981 claim, American does not dispute that
First, the Court holds that James has plausibly alleged an intent to discriminate against her based on her race. James alleges that she notified an American flight attendant that another passenger, a white woman, was repeatedly and violently banging on the back of James’s seat. James further alleges that no American flight attendant was present to personally observe the interaction and verbal exchange between James and the white passenger. James further alleges that, notwithstanding her report to the flight attendant about the white passenger hitting James’s seat, American chose to publicly admonish James and threaten to remove her from the plane, while not saying anything to the white passenger. James alleges that not only she, but other passengers, were surprised by American’s one-sided handling of the situation. Viewing these allegations in the light most favorable to James, the Court holds that James has adequately alleged that American’s decision to admonish and threaten to remove James was motivated by racial bias. See, e.g., Bary v. Delta Airlines, Inc., No. 02 Civ. 5202,
In an effort to challenge James’s allegations of racial bias, American contends that James has failed to identify any person who was “similarly situated” to James but received different treatment. According to American, the white woman who allegedly pounded on the back of James’s seat was not “similarly situated” to James because she (the white woman) did not curse at James. (Def.’s Br. 5-8.) American further contends that James has “admitted” that she cursed at the white woman. (Def.’s Br. 6-7.) But a basic flaw in this argument is that it rests entirely on materials—namely, the NYSDHR Determination—that cannot be considered for the truth of their factual assertions at this stage of litigation. See supra n.l. Furthermore, American ignores the fact that the conduct James alleges the white passenger engaged in, namely, violently pounding on James’s seat, was arguably more offensive and disruptive than cursing, and thus should have prompted the same, if not harsher, treatment by American than James received. At this stage, the amended complaint controls, and the amended complaint adequately alleges that James and the white woman were situated similarly but treated differently.
Second, the Court finds that American’s threat to remove James from the airplane if she “continued] to curse” affected an “enumerated activity” within the meaning of Section 1981. To be sure, there
Accordingly, American’s motion to dismiss James’s Section 1981 claim is denied.
C. Title II Claim
To plead a claim under Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, a plaintiff must allege intentional discrimination depriving him or her of “the equal enjoyment of the goods, services, facilities, privileges, advantages, [or] accommodations of any place of public accommodation.” 42 U.S.C. § 2000a(a). Title II defines a “place of public accommodation” by setting forth a list of “establishments” that constitute “places of public accommodation” within the meaning of the statute, including “any inn, hotel, motel, ... restaurant, cafeteria, lunchroom, ... motion picture house, theater, concert hall,” and similar establishments. 42 U.S.C. § 2000a(b). Airplanes and other forms of transportation are not among the public accommodations listed in Title II. Furthermore, a private plaintiff cannot obtain money damages on a claim brought under Title II—the only remedy available is prospective relief for the plaintiff or those who are similarly situated. See Newman v. Piggie Park Enter., Inc.,
James’s claim under Title II fails for two independent reasons. First, James’s Title II claim alleges that she was denied equal enjoyment of services while onboard an American airplane, but an aircraft is not a “place of public accommodation” within the meaning of the statute, 42 U.S.C. § 2000a(b). See Kalantar v. Lufthansa German Airlines,
Second, James fails to allege facts sufficient to sustain prospective relief under Title II. Even construed in the light most favorable to James, the complaint alleges that. James was the victim of a single act of discrimination by one or two American employees onboard a specific aircraft under specific circumstances involving an altercation between herself and another passenger. James does not allege any facts suggesting that she plans to take another American flight in the near future, let alone that she is likely to take a flight staffed by the same pilot and crew whom she accuses of acting against her with discriminatory intent. 'James also does not allfege any facts suggesting a policy, practice, or pattern of discrimination onboard American flights such that James could rest her claim to prospective relief on more general allegations of an intent to fly American in the future. Although James claims that “[g]iven [American’s] known history of prejudice towards me, it’s likely that I’ll be discriminated again if I travel aboard their carriers! ],” neither the amended complaint nor her response to the motion,to dismiss provide any factual basis for this speculative and implausible claim. See Twombly,
D. Title VI Claim
To plead a claim under'Title VI of the Civil Rights Act of 1964, a plaintiff must allege that he or she, “on the ground of race, color, or national origin, [was] excluded from participation in, [was] denied the benefits of, or [was] subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d. Here, James does not identify any “program or activity receiving Federal financial assistance” to sustain her claim under Title VI. (See generally Dkt. 15-1; Dkt. 24.) A claim under Title VI cannot proceed without that requisite nexus. See McCrudden v. E-Trade Fin. Corp., 13 Civ. 8837,
James asserts a claim under 49 U.S.C. § 40127(a) (“Section 40127(a)”), which prohibits any “air carrier” from “subjecting] a person in air transportation to discrimination on the basis of race, col- or, national origin, religion, sex, or ancestry.” American argues that this claim should be dismissed because there is no private right of action under Section 40127(a). (Def.’s Br. 22.) The Second Circuit has not ruled on this issue, but the Court finds persuasive guidance from several district courts opinions that have done so, particularly Mutlu v. Jetblue Airways Corp.,
F. State Law Claim
In addition to her federal claims, James asserts a claim of intentional discrimination under New York State Executive Law, Article 15 (Human Rights Law). The pleading requirements for a discrimination claim under the NYHRL are materially the same as those that apply to James’s claim under 42 U.S.C. § 1981. See Holt v. Dynaserv Indus., Inc., 14 Civ. 8299,
In addition to the arguments advanced by American in connection with James’s Section 1981 claim, American offers an alternative ground for dismissal of James’s NYHRL claim. American argues that, regardless of the merits of James’s claim under state law, her NYHRL claim is preempted by two federal statutes that regulate the airline industry: (1) the Airline Deregulation Act of 1978; and (2) the Federal Aviation Act of 1958. (Def.’s Br. 11-21.) The Court declines to address American’s preemption arguments at this time. The Court has already held that James’s Section 1981 claim survives American’s motion to dismiss, which means that, regardless of the Court’s ruling on American’s preemption arguments, James’s assertion of discrimination, which underlies her claims under both Section 1981 and the NYHRL, will proceed to discovery. Thus, as a prudential matter, “it makes little sense to grant a motion to dismiss as to one of [these claims].” Friedman v. N.Y. City Admin., 04 Civ. 3077,
IV. Conclusion
For the foregoing reasons, the Court grants in part and denies in part American’s motion to dismiss. Plaintiffs claims under 42 U.S.C. § 2000a, 42 U.S.C. § 2000d, and 49 U.S.C. § 40127(a) are dismissed. Plaintiffs claims under 42 U.S.C.
SO ORDERED.
Notes
. The facts stated in this section are taken from the amended complaint (Dkt. 15-1) and Plaintiff’s Affirmation in Opposition to Defendant’s Motion to Dismiss (Dkt. 24), the latter of which, in light of James’s pro se status, the Court considers as a supplemental pleading.
American asks the Court to consider factual assertions made in a Determination and Order After Investigation (“Determination”) issued by the New York State Division of Human Rights ("NYSDHR”) in connection with a complaint of discrimination that James filed with the NYSDHR prior to filing this lawsuit. (Def.’s Br. 2 n.l.) American appears to argue that the NYSDHR Determination can be considered on a motion to dismiss because it is "integral” to James’s complaint. (Id.) But, although courts in this Circuit "treat plaintiff’s allegations to administrative bodies in discrimination claims as integral parts of the pleadings,” James v. Enter. Ass’n of Steamfitters, 06 Civ. 680,
. The Court takes judicial notice of the Determination for the limited purpose of establishing the procedural history of James’s litigation against American. See, e.g., Humphries v. City Univ. of N.Y., 13 Civ. 2641,
. American also argues that the amended complaint cannot establish intentional discrimination because “no racial slurs or bias [have] been affirmatively demonstrated.” (Def.’s Br. 6.) The law is clear, however, that direct evidence of racial bias (such as a racial slur) is not required to establish a prima facie case of discrimination. See, e.g., Bary,
. Some courts addressing Title VI claims based on alleged discrimination on an airplane have considered, for purposes of the "financial assistance” element of this claim, whether the Air Transportation Safety and System Stabilization Act of 2001 brings all airplanes within the scope of Title VI. See, e.g., Shotz v. Am. Airlines, Inc.,