United States District Court, N.D. California
ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
RE: DKT. NO. 81
M. RYU, UNITED STATES MAGISTRATE JUDGE
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.
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.
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;
visited Nov. 6, 2019).
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.
Anaisha Patel 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.
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.
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.
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
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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
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.
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.
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, ...