August 11, 2011 - A federal court in Brooklyn, New York, ruled that Caucasian flight engineers, based at John F. Kennedy International Airport (“JFK”), can pursue their employment discrimination claims in New York, against a Japanese air cargo carrier.  

In Bakeer v. Nippon Cargo Airlines, 09-CV-3374 (RRM), four former flight engineers sued for discrimination, based on national origin, race, and age, when they were fired, while their younger, Japanese counterparts were offered new opportunities when Nippon Cargo Airlines (“NCA”) changed its equipment.  

Defendants, NCA, and plaintiffs’ alleged joint employers, PARC U.S., Parc Aviation Limited (Ireland), and Hawaii Aviation Contract Services (“HACS”), moved to dismiss the complaints on forum non conveniens grounds and for failure to state a claim.

In a 94-page Report and Recommendation (the “Report”), Magistrate Judge Cheryl Pollak recommended that the District Court deny the defendants’ motion to dismiss on forum non conveniens grounds, and further recommended that the District Court deny defendants’ motion to dismiss the substance of the flight engineers’ discrimination claims. 

Among several reasons why the court reasoned that the discrimination case should stay in New York, is that three of the plaintiffs had New York choice of law provisions in their written employment agreements with defendants. 

Although none of the flight engineers reside in New York, each was based at NCA’s hub at JFK. While NCA argued that the flight engineers spent more time flying than working on the ground, the Court reasoned: “Surely, defendants cannot be suggesting that plaintiffs’ primary place of employment, where they ‘spent most of their working hours’ is in the air, and that therefore, there is no physical location that can serve as a proper forum for the litigation of plaintiffs’ employment discrimination claims.”  

Plaintiffs include: Hakeem Bakeer, who is a U.S. citizen, who resides in Springfield, Virginia; David Michaud, who died after the lawsuit began, was a U.S. citizen, who resided in Sacramento, California; Mark Weaver, who is a U.S. citizen, who resides in Ypsilanti, Michigan; and Douglas Frith, who is an Australian citizen and resident.

Each of the flight engineers had flown 747-Cargo planes for at least seven years before each was fired. Each plaintiff has sued under federal, state and city anti-discrimination laws, including: Title VII The Age Discrimination in Employment Act (“ADEA”) Section 1981 New York State Human Rights Law New York City Human Rights Law. 

In addition, they have asserted various claims asserting the Family Medical Leave Act and retaliation, which the court has recommended be re-pleaded to add additional detail. Defendants have 14 days to appeal the Magistrate Judge’s Report. Nippon Cargo Airlines Company, Limited or NCA, is a cargo airline based in the Onarimon Yusen Building in Minato, Tokyo, Japan. It operates scheduled cargo services in Asia and to Europe and the North America. Its main base is Narita International Airport outside Tokyo.