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Makhzoomi v. Southwest Airlines Co.

United States District Court, N.D. California

December 19, 2019

SOUTHWEST AIRLINES CO., et al., Defendants.



         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.


         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; (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 Patel[1] 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 credible. Id. at 37; Hoyle Dep. 29.

         Herrick and Hoyle testified that they were concerned about the safety of the airplane and its passengers. Herrick Dep. 32, 75; Hoyle Dep. 136. After speaking with Patel, Herrick directed Hoyle to call for a customer service supervisor. Herrick Dep. 39. Hoyle left the cockpit and spoke with Juron Cherry, the operations agent working the flight. Hoyle Dep. 33; Boyer Dep. 75; Tauaese Dep. 17-18. Cherry requested a customer service supervisor and Elaine Tauaese responded to the call. Tauaese Dep. 18-20. Tauaese learned from Cherry that there was “a passenger issue” and then went to speak with Patel. Id. at 20-21. According to Tauaese, Patel told her that “she overheard passenger Makhzoomi having a cell phone conversation that included words of something to do with being a martyr for his cause.” Id. at 23. Tauaese described Patel as visibly “nervous and scared.” Id. at 23, 110. Tauaese testified that she had the impression that Patel was concerned about the safety of the flight, and Tauaese herself “felt a little nervous and uncomfortable . . . for the safety of the aircraft and the people on the aircraft.” Tauaese Dep. 111. Tauaese then spoke with at least one of the members of the flight crew and learned they “felt a little bit uneasy” about having Makhzoomi on the aircraft. Id. at 33-34.

         Tauaese then called on her radio for a manager. Two customer service managers, Defendant Ahmed and Jeffrey Boyer, came to the gate. Tauaese Dep. 28; Boyer Dep. 15-16. Ahmed, who grew up in Libya and Pakistan, speaks Arabic and is an observant Muslim. Ahmed Dep. 16, 31, 35. Ahmed and Boyer spoke with Patel shortly after they arrived at the gate. Ahmed Dep. 85-86; Boyer Dep. 20, 23. The record is not clear whether Ahmed spoke with Tauaese before speaking with Patel. According to Tauease, she had a brief conversation with Ahmed alone when he arrived at the gate “to let him know what was going on before he could talk to Dr. [Patel].” Tauaese Dep. 30-32. However, Boyer testified that when he and Ahmed arrived at the gate, Tauaese was speaking with Patel, and that he and Ahmed “ask[ed] Dr. Patel . . . what was going on” without speaking with Tauaese first. Boyer Dep. 20, 23. Ahmed testified that when he arrived at the gate, a Southwest employee directed him to Patel, who was standing in the boarding area near where boarding passes are scanned. Ahmed Dep. 85-86. He did not remember Tauaese being present. Id. at 79-80. According to Ahmed, Patel was “hysterical, very frightened, ” and was crying. Ahmed Dep. 83, 85, 86. Boyer described Patel as “visibly shaking and upset and near tears.” Boyer Dep. 20.

         Patel testified that she told Ahmed that she heard a passenger speak the words shahidi, American, and inshallah. Patel Dep. 34. Her recollection differs from Ahmed's; he testified that after introducing himself to her, Patel told him that she overheard a passenger behind her speaking Arabic and using the words “bomb, ” “ISIS, ” “jihad, ” and “martyrdom.” Ahmed Dep. 82-85, 88.

         According to Herrick, after speaking with Patel, Ahmed went to the cockpit to speak with Herrick, who told Ahmed that Patel reported that she overheard a passenger saying “he was either going to be a martyr or martyr himself on this flight.” Herrick Dep. 42, 45-46. Ahmed told Herrick that he was going to speak with the passenger and left the cockpit. Id. at 49. Ahmed testified that “[b]ased on what the customer had told me at that time, we had-we were duty bound to investigate, and we were proceeding as to figure that information out and process that information.” Ahmed Dep. 65. According to Ahmed, “the investigation we performed was talking to Mr. Makhzoomi.” Id. Ahmed asked one of the flight attendants to point out the passenger and went to where Makhzoomi was sitting. Ahmed Dep. 97. According to Makhzoomi, Ahmed told him, “I need you to step outside the aircraft right now.” Makhzoomi Dep. 112. Makhzoomi immediately got up from his seat and went with Ahmed to the jet bridge. Id.

         The parties appear to agree that once Ahmed and Makhzoomi reached the jet bridge, Ahmed attempted to say something in Arabic to Makhzoomi. Makhzoomi did not understand him and asked him to speak in English. Makhzoomi Dep. 116-17. What happened next is disputed. Ahmed states that he informed Makhzoomi in English “as to what-why he was brought onto that bridge, and then ‘Somebody has said that you were talking about this-this-these issues, ISIS, bomb'-, ” martyrdom, and jihad. Ahmed Dep. 101-02, 103, 116. Ahmed testified that Makhzoomi told him that “he was coming off a conference, and he was talking to his uncle, ” and that Makhzoomi admitted that he had used the words bomb, martyrdom, ISIS, and jihad, then apologized. Id. at 105, 116.

         Makhzoomi disputes Ahmed's version of events. According to Makhzoomi, Ahmed asked him some questions in English about his phone call, including to whom Makhzoomi was speaking, the language in which he had been speaking, and the subject of his conversation. Id. at 117. Makhzoomi explained that he had been speaking with his uncle in Arabic about the event the night before. According to Makhzoomi, Ahmed responded, “Why do you speak in that language? Don't you know the environment around us? Don't you know the environment around us?” Id. at 117-18. Makhzoomi then apologized, saying “I'm sorry. I did not mean to speak in that language.” Id. at 118. Ahmed then said to Makhzoomi, “Look what you have done. The plane got delayed because of you, ” to which Makhzoomi responded, “No, this-this is not me. This is what Islamophobia got this country into.” Id. at 118, 130. Ahmed then stated, “You know what? You are not getting back into that plane.” Id. at 118, 131. According to Makhzoomi, Ahmed did not tell him that Patel had reported that Makhzoomi had used certain words and did not ask him if he had used any of the words. Id. at 131, 136. Makhzoomi denies that he used the words ISIS, bomb, jihad, or shahid in his conversation with his uncle. Id. at 100, 132.

         At some point in time that is not identified in the record, law enforcement responded to a call regarding a possible breach of security at the gate for Flight 4260. Taylor Dep. 18. It is not clear who contacted law enforcement. Ahmed, Boyer, and Tauaese each denied having done so. Ahmed Dep. 66, 90, 93; Boyer Dep. 39; Tauaese Dep. 41. Both Makhzoomi and Ahmed testified that by the time they reached the jet bridge, law enforcement officers were already on the scene. Makhzoomi Dep. 115; Ahmed Dep. 66. Los Angeles World Airports (“LAWA”) Officer Richard Taylor, who testified that he was the first member of law enforcement to arrive, stated that when he got to the jet bridge he saw Ahmed standing with Makhzoomi while other passengers were boarding the flight. Taylor Dep. 19-21.

         Ahmed testified that he did not need to report his conversation with Makzhoomi to the LAWA officers because they were standing right behind Ahmed and Makhzoomi and heard Makhzoomi admit to using the words bomb, martyrdom, ISIS, and jihad on the airplane. Ahmed Dep. 67, 116, 122. Ahmed testified that at that point, law enforcement “essentially took over.” Id. at 122. According to Ahmed, the LAWA officers then asked Makhzoomi to step off the jet bridge. Ahmed Dep. 109.

         Makhzoomi disputes that LAWA officers acted upon admissions that they heard him make during his interview with Ahmed. As previously noted, Makhzoomi denies using the words that Ahmed claims he admitted to using. According to Makhzoomi, Ahmed spoke with a police officer and the police officer called the FBI. Makhzoomi Dep. 118, 153-54. Taylor's testimony and written report are consistent with this portion of Makhzoomi's account and contradict Ahmed's testimony to some extent. As noted, Ahmed denied speaking with the officers before they escorted Makhzoomi off the jet bridge and back to the gate, because the officers “took over” after directly hearing Makhzoomi's admission. However, Taylor testified that Ahmed told him that a passenger had overheard Makhzoomi “making statements on his cell phone that sounded like ‘martyr' or suicide statements, ” and that the passenger interpreted this as a “terrorist statement.” Taylor Dep. 22, 57-58, 70-71, Ex. 26 (Taylor report). Taylor then called for his supervisor and additional officers, and two officers responded. Taylor Dep. 24. The officers subsequently contacted the FBI and requested a K-9 unit, id. at 26, 30, and directed Makhzoomi to accompany them to the gate area. Makhzoomi Dep. 150-53.

         The record contains the testimony of one other witness to Makhzoomi and Ahmed's interaction on the jet bridge. Hoyle testified that he came to stand on the jet bridge at some point during their conversation. Hoyle Dep. 43, 57-58. He did not hear the entire conversation between the two, but testified that he heard Ahmed say, “[t]his is an inappropriate conversation to have on an airplane.” Id. at 58, 61-62.

         The LAWA officers held Makhzoomi in the terminal for approximately 45 minutes while they waited for the FBI to arrive. Makhzoomi Dep. 158-59. While they were in the terminal, the officers ran a wants and warrants check on Makhzoomi. They had a dog sniff Makhzoomi's carry-on bag and searched the bag. Taylor Dep. 31-33; Makhzoomi Dep. 155. One of the officers conducted a pat-down search of Makhzoomi and asked if he had a knife. Id. at 34-35; Makhzoomi Dep. 155.

         Two FBI agents and a detective with a special unit related to terrorist activity at the airport arrived at the gate. Taylor Dep. 27-28. Taylor “reported what had happened” to them and they took Makhzoomi to a private room in the airport for questioning. Taylor Dep. 39; Makhzoomi Dep. 169. Makhzoomi testified that “it was very nice at the beginning, ” and then FBI Agent Rachel Marriott told him that she was going to “speak to the manager.” When she returned, she said, “Khairuldeen, you have to be honest with us and tell us everything you know about martyrdom.” Id. at 170. Makhzoomi explained that he had spoken with his uncle and gave her his phone. Marriott left again, and when she returned, she said, “You know what? You won't be able to fly with South - Southwest again today, and I advise you to apologize for Mr. Shoaib, and next time, buckle your seat belt and do not use your phone.” Id. at 170-71. The agents ultimately released Makhzoomi, saying, “Sorry. There has been misunderstanding, and we have to do our job.” Id. at 175-76.

         In their report of the incident dated May 26, 2016, the FBI agents wrote that Makhzoomi reported that he had been questioned about his telephone conversation with his uncle, and “asked if he had spoken about ISIL, martyrdom, or suicide in America.” Stern Decl., Aug. 29, 2019, Ex. I (FBI report). According to the report, “Makhzoomi told [redacted] he does not believe in jihad, martyrdom, or suicide, ” and “explained that while speaking to his uncle he may have said something about the Islamic State.” Id.

         Makhzoomi's flight departed for Oakland without him while he was being questioned. It is not clear who made the decision to depart without Makhzoomi. According to Ahmed, it was a “team decision” to deny Makhzoomi the right to reboard the plane, made by Ahmed, the flight attendants, the captain, and the first officer. Ahmed Dep. 15. Hoyle testified that “the decision to not allow him to continue on the plane was a collaborative process between [Hoyle], the captain, [and] the customer service supervisor.” Hoyle Dep. 67. Other witnesses testified that Ahmed made the decision himself. Herrick testified that Ahmed “came in to say that the passenger was not going to be joining us on the flight, ” to which Herrick replied, “Okay.” Herrick Dep. 61, 66. Similarly, Tauaese testified that Ahmed “decided that the passenger would have to come off” the airplane. Tauaese Dep. 120.

         During the time the FBI was questioning Makhzoomi, Ahmed stood at the customer service podium and waited for him “to emerge from behind the doors.” Ahmed Dep. 149. After some period of time, two FBI agents approached Ahmed and told him, “He's clear.” Id. at 150. Makhzoomi then requested and received a refund of his ticket from Ahmed. Ahmed Dep. 151; Makhzoomi Dep. 177-78. They had no further interaction. See id. Thereafter, Makhzoomi walked through the airport and “kept asking every airlines [sic] if they ha[d] a ticket.” Makhzoomi Dep. 178-79. When he reached the Terminal 3, he “had an emotional breakdown” and started crying. Id. at 179. He eventually booked a flight home on Delta Airlines. Id. at 179-80.

         B. Procedural History

         Makhzoomi filed this lawsuit on February 13, 2018, alleging the following claims against Defendants: 1) 42 U.S.C. § 1981 claim for discrimination; 2) violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; 3) violation of California's Unruh Civil Rights Act, California Civil Code section 51; 4) negligence; and 5) intentional infliction of emotional distress. On August 14, 2018, the court dismissed Makhzoomi's Title VI claim against Ahmed. Makhzoomi v. Southwest Airlines Co., No. 18-cv-00924-DMR, 2018 WL 3861771, ...

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