Makhzoomi v. Sw. Airlines Co.

• Decision Date: 19 December 2019
• Docket Number: Case No. 18-cv-00924-DMR
• Citation: 419 F.Supp.3d 1136
• Parties: Khairuldeen MAKHZOOMI, Plaintiff, v. SOUTHWEST AIRLINES CO., et al., Defendants.
• Court: U.S. District Court — Northern District of California

419 F.Supp.3d 1136

Khairuldeen MAKHZOOMI, Plaintiff,

v.SOUTHWEST AIRLINES CO., et al., Defendants.

Case No. 18-cv-00924-DMR

United States District Court, N.D. California.

Filed December 19, 2019

Brittney Rezaei, Zahra Aslam Billoo, CAIR SFBA, Santa Clara, CA, Jasleen Singh, Khaldoun A. Baghdadi, Walkup Melodia Kelly and Schoenberger, San Francisco, CA, for Plaintiff.

Jonathan M. Stern, Pro Hac Vice, Schnader Harrison Segal & Lewis LLP, Washington, DC, William Daniel Janicki, Leo J. Murphy, Schnader Harrison Segal & Lewis LLP, San Francisco, CA, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Re: Dkt. No. 81

Donna M. Ryu, United States Magistrate Judge

Plaintiff Khairuldeen Makhzoomi filed a complaint against Southwest Airlines Co. ("Southwest") and Shoaib Ahmed, a Southwest employee, alleging Defendants wrongfully removed him from a Southwest flight prior to takeoff in April 2016 for speaking on his phone in Arabic. He alleges claims for discrimination under 42 U.S.C. § 1981 and related tort claims under California law. Both Defendants now move for summary judgment. [Docket No. 81.] The court held a hearing on November 14, 2019. For the following reasons, the motion is granted in part and denied in part.

I. BACKGROUND

A. Factual Background

The following facts are undisputed, unless otherwise noted. Makhzoomi is an American citizen of Iraqi descent. He received asylum and moved to the United States from Iraq in 2010. He is Muslim and his native language is Iraqi Arabic. Makhzoomi Dep. 16, 17-18, 22, 87. On April 6, 2016, the date of the incident at issue in this lawsuit, Makhzoomi was a 26-year-old student enrolled at the University of California, Berkeley. Id. at 16, 18.

On that day, Makhzoomi boarded Southwest Flight 4260 from Los Angeles International Airport to Oakland. The night before the flight, Makhzoomi had attended a dinner at which the Secretary General of the United Nations was the keynote speaker. Makhzoomi was selected to ask a question of the Secretary General; in his question, he asked about "the liberation of Mosul" in Iraq and twice mentioned the Islamic State. Id. at 88; https://www.youtube.com/watch?v=vyMt4gzsBrA (last visited Nov. 6, 2019).

Makhzoomi sat in the middle or window seat in the second or third row on the right side of the plane. Makhzoomi Dep. 84. Shortly after he sat down, he called his uncle in Iraq to tell him about the dinner the night before. They spoke in Iraqi Arabic. Id. at 10, 87. Makhzoomi was "happy and excited" about the event and told his uncle that he had asked the Secretary General about "the liberation of Mosul." They also discussed Makhzoomi's upcoming graduation and Makhzoomi told him, "[y]ou come to me and you visit me," to which his uncle responded, "inshallah," which means "God willing." Id. at 10, 88-89. According to Makhzoomi, he said inshallah "many times" during his call with his uncle. Id. at 104.

Dr. Anaisha Patel¹ was seated in the window seat directly in front of Makhzoomi. Patel Dep. 21, 23. Her first language is Hindi, and she also speaks several other languages, including Urdu. Patel does not speak or understand Arabic but testified that she believes that Urdu has words in common with Arabic. Id. at 10-12. While she was seated, Patel overheard Makhzoomi speaking in the row behind her. She heard the word "shahidi" which she testified was "concerning to [her]." Id. at 21-23. According to Patel, "shahidi" in Urdu and Hindi means "martyrdom"; "shahid" means "martyr." Id. at 25. Patel testified that after hearing "shahidi," she "sort of paid attention"; she explained that "[i]t's like if somebody said in English ‘suicide’ when I'm sitting and behind me, I would sort of have the same response." Id. at 22, 25. She then heard two more words, "American" and "inshallah." Id. at 22. She understood the word "inshallah" to mean "God willing" and testified "that's something I say to my friends, too." Id. at 22. When asked whether there was anything else about the conversation that was "concerning," apart from the word shahidi, Patel stated, "I would say the fact that ‘American’ was said next to it, and I'm on a plane, I wasn't sure what to make of it." Id. at 25.

Patel then turned around in her seat to look at Makhzoomi. She looked at him "for a length of time" but did not say anything. Id. at 26. Patel did not recall whether Makhzoomi "return[ed] the look in any way," but testified that he did not acknowledge her. Id. at 29. According to Patel, after she looked at him, Makhzoomi turned his phone off. Id. at 26.

Makhzoomi testified that after speaking with his uncle about his question to the Secretary General, what he had eaten at the dinner, and his graduation, Patel "looked at me first, but she stared at me, so I didn't do anything. Then she looked at me again and she kept staring, and I thought that there was something wrong, so I looked at her. I want [sic] to see what's wrong, but after that, she left." Makhzoomi Dep. 90. According to Makhzoomi, he "stared at her probably two to three second[s] to see what was wrong" before she got up from her seat. Id. at 109. Makhzoomi ended the phone call at "the moment she left." Id. at 108-09. He denies that he used the word "shahid" during his conversation. Id. at 100.

Patel testified that after she heard the words shahidi, American, and inshallah, she "[did] not know what to think," but that she was trained as a physician "to report if I see a concern ... [s]o as everybody tells you on the airport and in the news, report if you feel that something might be a question." Patel Dep. 39-40. She recognized that it was possible that Makhzoomi "intended harm to the airplane" and contacted a flight attendant. Id. at 29-30, 52. While seated, Patel informed the flight attendant that the person sitting behind her had used the word shahidi, "that [she] understand[s] this word, and ... that it was [her] duty to share it with them." She told the flight attendant that the word "means martyr," and that she had also heard the words American and inshallah. Id. at 31-32. Patel testified that she felt "stressed out" because she recognized that "this was something that was fairly serious." Id. at 36.² However, she denied feeling frightened. She does not remember whether she was "visibly shaking" while she was speaking with any Southwest employees. Id. at 52.

Patel initially testified that she next spoke with a Southwest representative who told her he spoke Arabic and asked her what she'd heard. Id. at 33-34. After telling him that she heard the words shahidi, American, and inshallah, a different flight crewmember crew asked her to leave the plane to speak with someone else. Id. at 34. She deplaned and walked to the terminal where she saw a security officer or policeman and repeated what she had overheard to that person. Id. at 36-37, 52. Patel then returned to her seat. Id. at 38-39. Patel later testified that she also spoke with one of the pilots at the front of the airplane, to whom she repeated the three words she had overheard. Id. at 50-51. Patel testified that it was possible that her initial conversation with the flight attendant took place at the front of the airplane, and that she had deplaned before speaking with the Arabic-speaking Southwest employee. Id. at 49-50.

The record contains transcripts from the depositions of various Southwest employees who interacted with Patel and/or Makhzoomi, as well as brief written descriptions of the incident by the same employees. Only one of the reports appears to have been written on or near the date of the incident, April 6, 2016. See Tauaese Dep. Ex. 23 ("Irregularity Report" dated Apr. 6, 2016). None of the remaining descriptions are contemporaneous. See Ahmed Dep. Ex. 13 (Apr. 14, 2016 email); Boyer Dep. Ex. 25 (Dec. 1, 2016 email); Herrick Dep. Ex. 20 (Dec. 2, 2016 "Statement"); Hoyle Dep. Ex. 18 (Apr. 25, 2016 Incident Report). Ahmed's own written description of the incident is contained in an email dated April 14, 2016, which he wrote in response to a media inquiry to Southwest following the incident. See Ahmed Dep. 171; Apr. 14, 2016 email. The record also contains what appear to be incident reports written by three Southwest flight attendants, in which each claimed to have spoken directly with Patel. These reports were dated April 16, 2016, April 17, 2016, and October 25, 2016. Baghdadi Decl., Sept. 25, 2019, Exs. 15 (Ellis Incident Report, dated Apr. 17, 2016); 16 (Louder Incident Report dated Apr. 16, 2016); 17 (Sabo Incident Report, dated Oct. 25, 2016). All of the witnesses were deposed in 2019, over two and a half years after the incident.

According to First Officer Roderick Hoyle, one of the flight attendants came to the cockpit and informed Captain Scott Herrick and Hoyle about a "passenger problem." Hoyle Dep. 19-20, 22-23. Hoyle testified that he left the cockpit and went to the forward galley, where he saw Patel. He then walked her out into the jet bridge to speak with her. Id. at 22-24. Hoyle testified that Patel was "shaking," "visibly upset," and "obviously agitated." Id. at 24. She explained to Hoyle that she had overheard another passenger use in conversation a word from a different language that "is only used when talking about suicide martyrdom." Id. at 25-26, 28.

Hoyle then returned to the cockpit to brief Herrick. Id. at 29-30. Herrick testified that Hoyle "told me about a male passenger that had said that he was going to martyr or be a martyr or something on our flight." Herrick Dep. 24. Herrick then asked Hoyle to bring Patel to the cockpit. Once in the cockpit, Patel told Herrick and Hoyle that she overheard a passenger say "he was going to martyr himself or be a martyr on this flight," and that "in his dialect ... his words could only mean that." Id. at 27-28. According to Herrick, Patel was "[v]isibly upset, somewhat shaken, and apologetic." Id. at 35. Patel then left the cockpit. The pilots both testified that they agreed that she was sincere and...