UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) DAVID NAKHID, ) ) Plaintiff, ) ) v. ) Case No. 19-cv-3268 (APM) ) AMERICAN UNIVERSITY, ) ) Defendant. ) _________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION

In the fall of 2018, Defendant American University’s Athletic Department undertook a

search for a new men’s soccer coach. Plaintiff David Nakhid—who identifies as a Black man and

is not a U.S. citizen—submitted his application from Lebanon, where he lived at the time, but he

did not receive an interview. Defendant instead selected Zach Samol, a white man, to fill the role.

Plaintiff alleges that the university failed to hire him because of his race, ethnicity, and national

origin in violation of Title VII of the Civil Rights Act of 1964 and

. Defendant

has moved for summary judgment, arguing that (1) Plaintiff’s Title VII and section 1981 claims

fail as a matter of law because these statutes do not reach him as a noncitizen applicant who was

not present in the United States at the time of the relevant events, and (2) Plaintiff has not

established evidence from which a reasonable jury could conclude that Defendant discriminated

against him on the basis of race, ethnicity, or national origin in deciding not to hire him for the

head coach position. For the reasons that follow, Defendant’s motion for summary judgment is

granted in full as to both claims. II. BACKGROUND

A. Factual Background

1. The Coaching Search

Defendant American University is a private university located in Washington, D.C. Def.’s

Mot. for Summ. J., ECF No. 29 [hereinafter Def.’s Mot.], Statement of Undisputed Facts, ECF

No. 29-2 [hereinafter Def.’s SOF], ¶ 1. Its men’s soccer team competes at the National Collegiate

Athletic Association (“NCAA”) Division 1 level.

¶¶ 2–3. In the fall of 2018, the Athletic

Department, which oversees the men’s soccer team, decided not to renew the employment contract

of the team’s then–head coach.

. Shortly after Thanksgiving, the Department made that

decision public and initiated its search for a replacement, with the goal of filling the position by

January 2019, just a few months later.

¶¶ 9–10. At the helm of the hiring process was Andrew

Smith, the Associate Athletic Director for Compliance and Internal Operations, who supervised

the men’s soccer team.

¶¶ 6–7, 10. The remaining members of the committee to select the new

hire were Dr. William Walker, the Athletic Director; Josephine Harrington, the Deputy Director

of Athletics; and David Bierwirth, the Associate Director of Athletics for External Affairs.

.

The process went as follows: Smith and the University’s human resources department

prepared to post, and eventually posted, the position on both internal and external websites.

. Amidst those preparations, members of the Athletic Department reached out to several

potential candidates about the position, though they did not offer any of them the role before the

official interviewing process began.

¶¶ 14–17. Around 100 people applied to the position.

. Smith conducted an initial review of the applications.

. The members of the selection

committee met to discuss which of the applicants would be selected for preliminary screening

2 interviews in early December, and they chose eight applicants.

¶¶ 20–21. After conducting

the eight initial screening interviews, members of the committee conducted follow-up interviews

with five candidates via Skype.

. Next, the committee invited two of those five applicants,

along with the then–assistant coach for the soccer team, to participate in an on-campus final-round

interview involving various stakeholders in mid-December.

, 32–33. Finally, the

committee met to discuss the finalists and ultimately decided to hire Zach Samol.

¶¶ 34–35.

Each of the applicants selected for the various interview stages—phone, Skype, and on

campus—had previous collegiate coaching experience.

. Defendant asserts that this was

not by coincidence: members of the selection committee uniformly testified that the “relevant

experience” they sought in their job postings was collegiate coaching experience. Def.’s Mot., Ex.

2, ECF No. 29-6 [hereinafter Smith Decl.], ¶¶ 9, 39; Def.’s Mot., Ex. 6, ECF No. 29-10 [hereinafter

Smith Dep.], at 24–25; Def.’s Mot., Ex. 1, ECF No. 29-5 [hereinafter Walker Decl.], ¶ 14; Def.’s

Mot., Ex. 8, ECF No. 29-12 [hereinafter Harrington Decl.], ¶ 7; Def.’s Mot., Ex. 9, ECF No. 29-

13 [hereinafter Bierwirth Decl.], ¶ 6. More specifically, they state that they sought collegiate

coaching experience with a proven track record of success at a school like American: a private

postsecondary institution “with a good academic program.” Smith Decl. ¶ 11.

2. Plaintiff Applies but Is Not Selected

Plaintiff is one of the nearly 99 unsuccessful applicants for the coaching position. He

identifies as “Black or of the African diaspora.” Compl., ECF No. 1 [hereinafter Compl.], ¶ 7. He

learned of the open position and, on December 4, 2018, wrote to Dr. Walker and Smith to express

his interest. Def.’s SOF ¶ 37. He was directed to the online application and completed it around

December 12, 2018.

He was not selected for an initial screening interview or any subsequent

interview.

.

3 Plaintiff’s career in and around soccer is extensive. In the 1980s, he played on the

American University men’s soccer team and was, by all accounts, a standout player. Pl.’s Mem.

of Law in Opp’n to Def.’s Mot. for Summ. J., ECF No. 31 [hereinafter Pl.’s Opp’n], Pl.’s Statement

of Material Facts [hereinafter Pl.’s SOMF], ¶ 2; Def.’s Reply in Supp. of Def.’s Mot. for Summ.

J., ECF No. 32 [hereinafter Def.’s Reply], Def.’s Reply Statement of Undisputed Facts & Resp. to

Pl.’s Statement of Material Facts, ECF No. 32-1 [hereinafter Def.’s Reply SOF], 19 ¶ 2. After

that, he played professionally, both in the United States and internationally, including on teams in

Switzerland, Belgium, and Lebanon. Pl.’s SOMF ¶ 3. He also played on the national team for

Trinidad and Tobago.

After retiring from professional play, he transitioned to coaching.

¶¶ 4–5. He coached professional teams in Lebanon, was an assistant coach to a Trinidadian

national team in the World Cup, and eventually established his own soccer academy, where he

developed young players for professional and collegiate play.

But he has never worked as a

coach for a collegiate soccer team in the United States. Def.’s SOF ¶ 38. When he applied for the

head coach position at American, Plaintiff, a citizen of Trinidad and Tobago, was living and

working in Lebanon. Id.; Def.’s SOF ¶¶ 45–46 (citing Def.’s Mot., Ex. 16, ECF No. 29-20

[hereinafter Nakhid Dep.], at 8:18–9:5, 9:9–10:17).

B. Procedural Background

Plaintiff filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on April 26, 2019. Compl. ¶ 5. The EEOC issued a Notice of Rights to

Plaintiff on August 2, 2019, after which he timely filed this action, bringing claims under Title VII

of the Civil Rights Act of 1964 and

.

. Defendant moved to

dismiss, arguing that Plaintiff had not alleged any facts rendering it plausible that discrimination

motivated Defendant’s failure to hire him. Def.’s Mot. to Dismiss, ECF No. 7, at 1. This court

4 denied that motion, holding that Plaintiff had “readily satisfie[d] the [Federal Rule of Civil

Procedure] 8(a) standard.” Nakhid v. Am. Univ., No. 19-cv-03268 (APM),

, at

*1 (D.D.C. Mar. 23, 2020). After that, Defendant answered the Complaint. Answer to Compl.,

ECF No. 11. Following discovery, Defendant filed this motion for summary judgment.

III. LEGAL STANDARD

Summary judgment is appropriate “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the

substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return

a verdict for the nonmoving party.” Elzeneiny v. District of Columbia,

(D.D.C. 2015).

In assessing a motion for summary judgment, the court looks at the facts in the light most

favorable to the nonmoving party and draws all justifiable inferences in that party’s favor.

Anderson v. Liberty Lobby, Inc.,

(1986). To defeat a motion for summary

judgment, the nonmoving party must put forward “more than mere unsupported allegations or

denials”; its opposition must be “supported by affidavits, declarations, or other competent

evidence, setting forth specific facts showing that there is a genuine issue for trial” and that a

reasonable jury could find in its favor. Elzeneiny,

(citing Fed. R. Civ.

P. 56(e)); Celotex Corp. v. Catrett,

(1986).

IV. DISCUSSION

A. Section 1981 Claim

The court begins with Plaintiff’s claim under

. Plaintiff alleges that

Defendant failed to hire him based on his race, ethnicity, and national origin, thwarting his contract

5 opportunities and equal enjoyment of the rights, privileges, and benefits enjoyed by white citizens

in violation of section 1981. Compl. ¶¶ 25–28. Defendant seeks judgment as a matter of law as

to that claim on the ground that Plaintiff, an individual at all relevant times physically outside the

United States, cannot avail himself of section 1981’s protections. Def.’s Mot., Br. in Supp. of

Def.’s Mot. for Summ. J., ECF No. 29-1 [hereinafter Def.’s Br.], at 6. A straightforward

application of the statute’s plain language resolves this question in favor of Defendant.

Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall

have the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all

laws . . . as is enjoyed by white citizens.”

(a). By its terms, section 1981 does

not protect those who are not “within the jurisdiction of the United States.”

In the context of

this statutory provision, being “within the jurisdiction of the United States” means being physically

present within the United States. See, e.g., Ofori-Tenkorang v. Am. Int’l Grp., Inc.,

,

303–04 (2d Cir. 2006) (concluding that the language of section 1981 “only protects persons within

the United States’ territorial jurisdiction”). Plaintiff was not physically present in the United States

at any time relevant to the challenged employment action, see Nakhid Dep. at 8:18–9:5, 9:9–10:17,

and so he cannot assert rights under the statute.

Plaintiff attempts to save his claim by arguing that “[j]urisdiction, within the meaning of

the statute, actually means sufficient contacts with the United States so as to justify the application

of its laws.” Pl.’s Opp’n at 18. Plaintiff’s reading of the statute erroneously conflates the concept

of personal jurisdiction with section 1981’s territorial jurisdiction. Because Plaintiff is not within

section 1981’s reach, the court grants Defendant’s motion for summary judgment with respect to

Plaintiff’s section 1981 claim.

6 B. Title VII Claim

1. Whether Title VII Reaches Plaintiff

The court next considers Plaintiff’s Title VII claim. Plaintiff alleges that when Defendant

failed to select him for the head coach position, it subjected him to discrimination based on his

race and national origin in violation of Title VII of the Civil Rights Act of 1964. Compl. ¶¶ 21–

24. As with Plaintiff’s section 1981 claim, Defendant seeks judgment as a matter of law on this

claim on the basis that Title VII does not reach him. Def.’s Mot. The court must decide whether

Title VII applies to a noncitizen applying for employment in the United States when he is

physically located outside the United States—that is, whether Plaintiff seeks an impermissible

extraterritorial application of Title VII. 1 This question is not so straightforward.

“Courts presume that federal statutes ‘apply only within the territorial jurisdiction of the

United States.’” WesternGeco LLC v. ION Geophysical Corp.,

(2018)

(quoting Foley Bros., Inc. v. Filardo,

(1949)). The Supreme Court has

articulated a “two-step framework for analyzing extraterritoriality issues.” RJR Nabisco, Inc. v.

Eur. Cmty.,

(2016). First, the court must “ask whether the presumption

against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative

indication that it applies extraterritorially.”

The court “must ask this question regardless of

1 The law in this Circuit is unclear whether the question of extraterritoriality is a matter of subject matter jurisdiction or a merits inquiry. Baloun v. Tillerson, No. 16-cv-0111 (KBJ),

, at *1 n.2 (D.D.C. Mar. 30, 2017) (“The D.C. Circuit has not spoken directly to the question of whether a Title VII claim brought by an alien regarding oversees employment is jurisdictionally deficient[] . . . .”); see also United States v. Miranda,

(D.C. Cir. 2015) (“The extraterritorial reach of a statute ordinarily presents a merits question, not a jurisdictional question.”); Alipio v. Winter,

(D.D.C. 2009) (concluding that “an alien to whom Title VII does not apply” has “fail[ed] to state a claim upon which relief can be granted”). But see Shekoyan v. Sibley Int’l Corp.,

(D.D.C. 2002) (finding that “a permanent resident alien, who was employed extraterritorially,” is “outside the scope of the protections of Title VII” and thus the court “lacks subject matter jurisdiction” over his Title VII claim), aff’d,

(D.C. Cir. 2005). The court need not decide this issue for present purposes, as Defendant’s motion is granted in full whether the extraterritoriality inquiry is a merits or subject matter jurisdiction question.

7 whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction.”

If a statute does not apply extraterritorially, at the second step the court must “determine

whether the case involves a domestic application of the statute, and [does] this by looking to the

statute’s ‘focus.’”

“If the conduct relevant to the statute’s focus occurred in the United States,

then the case involves a permissible domestic application even if other conduct occurred abroad.”

However, “if the conduct relevant to the focus occurred in a foreign country, then the case

involves an impermissible extraterritorial application regardless of any other conduct that occurred

in U.S. territory.”

In this case, the answer to the first inquiry—whether the presumption against

extraterritoriality is rebutted—is plainly no. Nothing on the face of Title VII suggests that its

substantive provisions and remedial scheme reach a noncitizen, nonresident applicant for domestic

employment. The substantive provisions of Title VII make it “an unlawful employment practice

for any employer . . . to fail or refuse to hire . . . any individual . . . because of such individual’s

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). The statute contains certain

express provisions regarding its extraterritorial reach: it does “not apply to an employer with

respect to the employment of aliens outside any State,” 42 U.S.C. § 2000e-1(a), but it does apply

to U.S. citizens employed abroad, 42 U.S.C. § 2000e(f). The former provision is known as the

“alien-exemption clause,” and Congress added the latter provision only after the Supreme Court,

gleaning no “contrary intent” from the statute, held that Title VII did not apply extraterritorially to

reach such individuals. EEOC v. Arabian Am. Oil Co. (Aramco),

(1991).

Congress thus plainly knew how to both limit and apply Title VII’s territorial reach. It is therefore

notable that the statute does not contain any explicit language extending its protections to

noncitizens living abroad. See

(“Congress’ awareness of the need to make a clear

8 statement that a statute applies overseas is amply demonstrated by the numerous occasions on

which it has expressly legislated the extraterritorial application of a statute.”).

In Aramco, the Court held that “the statute’s definitions of jurisdictional terms” and the

alien-exemption clause, 42 U.S.C. § 2000e-1, without more, “fall[] short of demonstrating the

affirmative congressional intent required to extend the protections of Title VII beyond our

territorial borders.” 2 499 U.S. at 248–49; contra Pl.’s Opp’n at 15. The same is true here.

Although Congress later amended Title VII to expand its reach to U.S. citizens employed abroad

by U.S. employers, see 42 U.S.C. § 2000e(f), the statute continues to contain no affirmative

expression of extraterritorial application to those in Plaintiff’s circumstances—a noncitizen,

nonresident who applies for domestic employment from abroad. Ultimately, “[t]he question is not

whether [a court] think[s] ‘Congress would have wanted’ a statute to apply to foreign conduct ‘if

it had thought of the situation before the court,’ but whether Congress has affirmatively and

unmistakably instructed that the statute will do so.” RJR Nabisco,

(emphasis

added). It did not here. The court therefore must find that Title VII does not have extraterritorial

application with respect to individuals in Plaintiff’s position. See Morrison v. Nat’l Austl. Bank

Ltd.,

(2010) (“When a statute gives no clear indication of an extraterritorial

application, it has none.”).

Having found that the statute does not rebut the presumption against extraterritoriality, the

court proceeds to step two of the RJR Nabisco framework. At this point, the court’s task is to

“determine whether the case involves a domestic application of the statute[] . . . by looking to the

2 Plaintiff argues that “Defendant’s reliance on [Aramco] is misplaced because . . . [it] was expressly overruled by legislative action,” and that “[t]he subsequent amendment by Congress actually supports the view that Congress intended to broaden the scope and applicability of Title VII.” Pl.’s Opp’n at 16. But Plaintiff fails to recognize that the Supreme Court has continued to cite Aramco, with approval, for its treatment of the presumption against extraterritoriality. E.g., Bond v. United States,

(2014); Hernandez v. Mesa,

(2020). The court is unwilling to disregard Aramco as extant guiding precedent.

9 statute’s ‘focus.’” RJR Nabisco,

(emphasis added). “The focus of a statute is

‘the object of its solicitude,’ which can include the conduct it ‘seeks to regulate,’ as well as the

parties and interests it ‘seeks to protect’ or vindicate.” WesternGeco LLC,

(cleaned up) (quoting Morrison,

). Once the court has determined the statute’s

focus, it measures the conduct underlying this action against that statutory focus. “If the conduct

relevant to the statute’s focus occurred . . . in a foreign country, then the case involves an

impermissible extraterritorial application . . . .” RJR Nabisco,

.

Aramco provides a useful starting point for the focus inquiry in this case. In Aramco, the

plaintiff had been hired in the United States, and he was a U.S. citizen, but the employment at issue

was in Saudi Arabia.

. The version of the statute under which the plaintiff brought

his claim contained no express provision for extraterritorial application to U.S. citizens working

abroad. The Court “concluded . . . that neither [the] territorial event [of hiring] nor [the

citizenship] relationship was the ‘focus’ of congressional concern, but rather domestic

employment.” Morrison,

(citation omitted) (discussing Aramco); see also

Aramco,

(noting that “elements in the statute suggest[] a purely domestic focus”).

The employment practice the Aramco plaintiff challenged occurred while he was working for the

defendant,

, and so the “conduct relevant to the statute’s focus,” RJR Nabisco,

, was his employment in Saudi Arabia. Of course, Congress responded to Aramco

by explicitly amending the statute to reach U.S. citizens employed abroad, and U.S. citizens

employed abroad can now claim Title VII’s protections. 42 U.S.C. §2000e(f). But the thrust of

Aramco remains viable precedent.

Against that backdrop, the court turns to Plaintiff’s assertion of Title VII’s protections.

Title VII confers a right not to be discriminated against in employment, and it effectuates that right

10 by prohibiting employer conduct that violates it. The statute’s substantive guarantees are aimed

toward stamping out discriminatory employer conduct. See 42 U.S.C. § 2000e-2 (proscribing

discriminatory “employment practice[s]”); McDonnell Douglas Corp. v. Green,

(1973) (“The language of Title VII makes plain the purpose of Congress to assure equality of

employment opportunities and to eliminate those discriminatory practices and devices which have

fostered racially stratified job environments to the disadvantage of minority citizens.”). But that

does not mean that the “relevant conduct” for extraterritoriality purposes is necessarily the

employer’s allegedly discriminatory conduct. As an illustration, in RJR Nabisco, the Supreme

Court noted that it had previously “rejected [the] view” that “the presumption [against

extraterritoriality] is primarily concerned with the question of what conduct falls within a statute’s

purview.”

. Accordingly, in that case the Court analyzed RICO’s private right

of action separately from its “substantive prohibitions.” RJR Nabisco,

. It

reached the conclusion that the former, unlike the latter, did not apply extraterritorially, reasoning

that “[t]he creation of a private right of action raises issues beyond the mere consideration whether

underlying primary conduct should be allowed or not.”

(internal quotation marks omitted)

(quoting Sosa v. Alvarez-Machain,

(2001)).

The D.C. Circuit took a similar approach in Spanski Enterprises, Inc. v. Telewizja Polska,

S.A.,

(D.C. Cir. 2018), a case involving the Copyright Act. There, the court framed

the inquiry as “asking what components of an otherwise actionable statutory violation must occur

within the United States to bring it within the Act’s domestic sweep.”

. The court began

by identifying “precisely what it is that the Act regulates,” but it did not end there. “[T]he Act

grants copyright holders several ‘exclusive rights’ . . . and effectuates those rights by prohibiting

‘infringement,’ or the ‘violat[ion] of those ‘exclusive rights.’”

(second alteration in original).

11 The court determined that “[t]he Copyright Act ‘focuses[]’ . . . on policing infringement or, put

another way, on protecting the exclusivity of the rights it guarantees.”

Critically, merely

inquiring about whether and where substantively prohibited conduct occurred, as the defendant

urged, was inadequate in terms of this focus—“[u]nder [defendant’s] reading, a broadcaster would

commit an infringing performance merely by transmitting a copyrighted work into the void,

regardless of whether those transmissions ever result in the work’s images being shown to even a

single viewer.”

(cleaned up). The court concluded that an actionable Copyright Act

claim instead requires that the “infringing performances—and consequent violation of [the

complainant’s] copyrights—occur[] . . . in the United States.”

.

Thus, the focus of a statute “can include the conduct it ‘seeks to regulate,” but it can also

include “the parties and interests it ‘seeks to protect or vindicate.’” WesternGeco,

; see also

(“When determining the focus of a [particular] statute, [courts] do not analyze

the provision at issue in a vacuum. If the statutory provision at issue works in tandem with other

provisions, it must be assessed in concert with those other provisions.” (citation omitted)). Title

VII is clear as to whose interests it seeks to protect or vindicate. It protects all employees working

domestically for covered employers. 42 U.S.C. § 2000e(f); see, e.g., Iweala v. Operational Techs.

Servs., Inc.,

(D.D.C. 2009). It now also provides relief for U.S. citizens

working abroad for covered U.S. employers. See 42 U.S.C. § 2000e(f) (“With respect to

employment in a foreign country, [the] term [employee] includes an individual who is a citizen of

the United States.”). But Title VII expressly excludes from its protections noncitizens working

abroad for U.S. employers, see id. § 2000e-1(a), and exempts from its coverage “the foreign

operations of an employer that is a foreign person not controlled by an American employer,” id.

§ 2000e-1(c)(2). The scope of these protections makes clear that the private right of action in Title

12 VII is, at heart, concerned with “vindicat[ing] domestic interests.” WesternGeco, 138 U.S. at 2138

(emphasis added); see also Aramco,

(emphasizing Title VII’s “domestic focus”).

That is, the statute’s private right of action seeks to protect only the interests of U.S. citizens and

U.S. residents. Its “focus” does not include the interests of a noncitizen, nonresident who submits

his application from abroad. Here, Plaintiff applied for, and was not selected for, the head coach

position while he was a citizen of Trinidad and Tobago living in Lebanon. Def.’s SOF ¶¶ 45–46.

He therefore cannot assert a permissible domestic application of Title VII.

Holding otherwise would yield an incoherent interpretation of Title VII. The statute would

protect foreign nationals who merely submit an application for a job in the United States from

abroad even as it excludes foreign nationals who are actually employed by U.S. employers abroad.

42 U.S.C. § 2000e-1; id. § 2000e(f). Moreover, such a holding would effect a massive expansion

of Title VII’s protections. Cf. Reyes-Gaona v. N.C. Growers Ass’n,

(4th Cir.

2001) (“Expanding the ADEA to cover millions of foreign nationals who file an overseas

application for U.S. employment could exponentially increase the number of suits filed and result

in substantial litigation costs. If such a step is to be taken, it must be taken via a clear and

unambiguous statement from Congress rather than by judicial fiat.”). If Congress had thought that

the statute reached discriminatory-hiring claims brought by noncitizen applicants outside the

United States, it surely would have made that clear. See

Because it has not, Plaintiff cannot

avail himself of Title VII’s protections. The court grants Defendant’s motion with respect to

Plaintiff’s Title VII claim.

2. Whether Plaintiff Has Offered Evidence from Which a Reasonable Jury Could Conclude that Defendant Discriminated Against Him

Even if the court were to conclude Plaintiff had stated a cognizable claim under Title VII,

Defendant raises multiple arguments why, if the court were to reach the merits, summary judgment

13 should be entered in its favor. The court agrees with one: on the record presented, no reasonable

factfinder could find that Plaintiff was not hired for the head coach position on the basis of race,

ethnicity, or national origin. 3

At the outset, Defendant argues that Plaintiff cannot establish a prima facie case of

discriminatory failure to hire for two reasons: (1) he is unqualified as a matter of law because he

did not possess authorization to work in the United States at the time of his application, and (2) he

is unqualified because he “lacked the requisite relevant experience.” Def.’s Br. at 7–8. The court

assumes without deciding that Plaintiff was in fact qualified for the head coach position and so can

establish a prima facie case of discrimination on the basis of race, ethnicity, or national origin. See

Brady v. Office of Sergeant at Arms,

, 493 n.1 (D.C. Cir. 2008) (“In a refusal-to-

hire . . . discrimination case, the McDonnell Douglas prima facie factors are that: (i) the employee

‘belongs to a racial minority’ or other protected class; (ii) the employee ‘applied and was qualified

for a job for which the employer was seeking applicants’; (iii) despite the employee’s

qualifications, the employee ‘was rejected’; and (iv) after the rejection, ‘the position remained

open and the employer continued to seek applicants from persons of complainant’s

qualifications.’” (quoting McDonnell Douglas Corp.,

)).

The burden therefore shifts to Defendant to “articulate some legitimate, nondiscriminatory

reason” for failing to hire Plaintiff. McDonnell Douglas Corp.,

. At the summary

judgment stage, “once the employer asserts a legitimate, non-discriminatory reason, the question

whether the employee actually made out a prima facie case is no longer relevant and thus

disappears and drops out of the picture.” Brady,

(cleaned up). Rather, the “central

3 The same analysis applies to Plaintiff’s section 1981 claim, if he can raise it. See Ladson v. George Wash. Univ.,

, 62–63 (D.D.C. 2016) (“The legal standards applicable to [plaintiff’s Title VII and section 1981] claims are the same . . . .”).

14 question” becomes: “Has the employee produced sufficient evidence for a reasonable jury to find

that the employer’s asserted non-discriminatory reason was not the actual reason and that the

employer intentionally discriminated against the employee on the basis of race, color, religion,

sex, or national origin?”

.

Defendant has come forward with a legitimate, nondiscriminatory reason for failing to hire

Plaintiff. It asserts that “he was not qualified for the Position” because “he had no experience

coaching for any college or university.” Def.’s Br. at 8–9 (emphasis omitted). Defendant argues

that Plaintiff cannot meet his burden of showing that Defendant’s stated reason for failing to hire

him was “a pretext.” Brady,

. Plaintiff’s case of pretext can be distilled as follows:

(1) the head coach job description and job posting do not support Defendant’s stated reason, and

this disjunction shows pretext, Pl.’s Opp’n at 23–24; (2) his qualifications were “far superior” to

those of the ultimate selectee for the head coach role, showing discrimination was the reason for

Defendant’s decision,

at 24–25; and (3) Defendant’s “circumvention” of its internal affirmative

action and recruiting policies and the all-white composition of its Athletic Department leadership

“evince discrimination,” id. at 25. The court will discuss each of these three arguments in turn.

First, while the job descriptions posted online for the head coach position can reasonably

be read not to strictly require collegiate coaching experience, that is not enough to establish pretext.

As Plaintiff notes, the two job descriptions do not contain an explicit requirement of collegiate

coaching experience. Pl.’s Opp’n at 23; see also Def.’s Mot., Ex. 3, ECF No. 29-7 (requiring “5–

8 years of relevant experience,” “[d]emonstrated knowledge and success in coaching at the

collegiate or professional level,” “[t]he ability to work within NCAA and Patriot League

regulations,” and “[t]he ability to work successfully with male college student-athletes” (emphasis

added)); Def.’s Mot., Ex. 4, ECF No. 29-8 (similar). Indeed, the court is skeptical that the job

15 descriptions themselves automatically disqualified any applicant who, for instance, possessed

significant professional coaching experience but no college experience. See Nakhid v. Am. Univ.,

No. 19-cv-03268 (APM),

, at *1 (Mar. 23, 2020) (finding that “the job posting

did not require actual [collegiate coaching] experience”). 4

The salient point for pretext, however, is not whether the asserted nondiscriminatory reason

is accurate but whether it is sincerely held. Fischbach v. D.C. Dep’t of Corr.,

(D.C. Cir. 1996) (“The issue is not the correctness or desirability of the reasons offered but whether

the employer honestly believes in the reason it offers.” (cleaned up)); see also Brady,

(plaintiff must show employer’s asserted reason “was not the actual reason” (emphasis

added)). There is no factual dispute that the decisionmakers involved in the hiring process

understood the position to be one that required collegiate coaching experience and that they made

their decisions with an eye toward that criteria. Smith Decl. ¶¶ 9, 11, 39; Smith Dep. at 24–25;

Walker Decl. ¶ 14; Harrington Decl. ¶ 7; Bierwirth Decl. ¶ 6. That honest belief is corroborated

by the undisputed fact that all eight candidates selected for a screening interview, two of whom

were Black Americans, “had significant experience coaching collegiate soccer.” Def.’s SOF ¶ 22.

Plaintiff has offered no evidence refuting that Smith—who was responsible for the initial review

of applicants—or the other members of the selection committee honestly held the belief that prior

collegiate coaching experience was a job requirement.

Plaintiff cites two unreported, out-of-Circuit district court opinions in support of his

argument that “[d]iversion from the requirements in a job posting or description creates a genuine

issue of fact as to qualification and is sufficient evidence from which to deny summary judgment.”

Pl.’s Opp’n at 23. But these cases do not stand for that proposition. First, the portion of

4 The court doubts that if Pep Guardiola or Zinedine Zidane had applied for the head coach position he would have been deemed not qualified because of a lack of U.S. collegiate coaching experience.

16 Eichelberger v. Champion Aerospace, Inc., No. 8:08-2990,

(D.S.C. Jan. 11,

2010), that Plaintiff cites concerns qualification in the context of the prima facie case, not pretext.

Pl.’s Opp’n at 23 (citing Eichelberger,

, at *6). The defendant’s diversion from

the job description in that case sufficed to establish an issue of material fact as to the plaintiff’s

qualification only as an element of his prima facie case of discrimination. Eichelberger,

, at *6. It did not factor significantly into the pretext analysis.

at *7–8 (emphasizing that

the job posting was “a source of substantial confusion and misdirection” in large part because the

job posting was removed after plaintiff was rejected and then reposted under a different job title).

Here, the court has assumed that Plaintiff was qualified for the head coach role for purposes of

establishing a prima facie case of discriminatory failure to hire, and the other “suspicious”

“irregularities” that led the court in Eichelberger to find that pretext posed a jury question do not

appear here. See

In the second case Plaintiff cites, Ziegler v. Steelton-Highspire School System, the

defendant’s diversion from its job posting created a jury question on pretext because the alleged

job qualification at issue, “computer proficiency,” was not “an inherently obvious requirement for

the position, which involve[d] primarily the handling of student disciplinary issues.” No. 1:04-cv-

0788,

, at *1 (M.D. Pa. Aug. 3, 2005). “Indeed, the other applicants for the job

were not even asked about their computer skills during the interview process.”

That was

certainly not the case here, where even if not explicitly listed in the job description, collegiate

coaching experience is reasonably related to the head coach position, and where every applicant

for the head coach position that was selected for an interview did in fact have “significant

experience coaching collegiate soccer.” Smith Decl. ¶ 20. Plaintiff’s argument about the

disconnect between the qualifications listed in the job postings and Defendant’s stated reason for

17 not selecting him is therefore unavailing; this disconnect, without more, is insufficient to create a

jury question on pretext.

Next, Plaintiff has not established the requisite “wide and inexplicable gulf,” Lathram v.

Snow,

, 1091 (D.C. Cir. 2003), in qualifications between him and Zach Samol (the

successful job applicant) to establish pretext. Plaintiffs in failure-to-hire cases can demonstrate

pretext by comparing their own qualifications with those of the successful applicant. See Aka v.

Wash. Hosp. Ctr.,

(D.C. Cir. 1998) (“If a factfinder can conclude that a

reasonable employer would have found the plaintiff to be significantly better qualified for the job,

but this employer did not, the factfinder can legitimately infer that the employer consciously

selected a less-qualified candidate—something that employers do not usually do, unless some

other strong consideration, such as discrimination, enters into the picture.”). But cases in this

Circuit make clear that a plaintiff must be “substantially,” “significantly,” and “markedly more

qualified” than the selectee to raise an inference of pretext. Hamilton v. Geithner,

(D.C. Cir. 2012). For example, one prevailing plaintiff, who was not selected for a pharmacy

technician position, had nineteen years of experience as a hospital assistant and both bachelor’s

and master’s degrees, while the successful applicant’s work experience amounted to one year in

the hospital laundry and two months as a pharmacy volunteer, and he had no college education.

Aka, 156 F.3d at 1295–97.

Here, the relative qualifications are not so glaringly disparate. Both Plaintiff and Samol

possessed a form of professional licensure—while Samol’s was, in Plaintiff’s account, lower than

Plaintiff’s, it was one of the certifications explicitly sought in the job description. Smith Decl.

¶ 36; Pl.’s SOMF ¶ 20. Samol and Plaintiff alike had both collegiate and professional playing

experience. Def.’s Mot., Ex. 10, ECF No. 29-14 [hereinafter Samol Resume], at 3; Pl.’s SOMF

18 ¶¶ 2–3. Plaintiff had, according to his resume, ten years of coaching experience, with both

professional teams and his youth soccer academy, Def.’s Mot., Ex. 15, ECF No. 29-19, at 3; Samol

had eighteen years of collegiate coaching experience at institutions of a similar profile to American

University (Georgetown, Yale, and Boston College), Samol Resume at 2–3. Any “qualifications

gap” that may exist is simply not “great enough to be inherently indicative of discrimination.”

Hamilton,

(internal quotation marks omitted).

Finally, the circumstantial evidence regarding Defendant’s affirmative action hiring

program and the demographics of its staff do not raise an inference of discrimination sufficient to

carry Plaintiff’s burden at summary judgment. Plaintiff argues that “the hiring manager and

committee’s purposeful circumvention” of the affirmative action policy raises an inference of

discriminatory intent. Pl.’s Opp’n at 25. The court assumes for present purposes that an

employer’s violation of its own affirmative action policy could possibly give rise to an inference

of pretext. See Gonzales v. Police Dep’t,

(9th Cir. 1990) (“[E]vidence that the

employer violated its own affirmative action plan may be relevant to the question of discriminatory

intent.”). But Plaintiff has not established a violation here. The only evidence he offers of a

purported deviation from the affirmative action policy is the absence of a close-out form that hiring

managers are meant to sign at the end of the recruitment process; that form “includ[es] a

certification that the hiring manager complied with American’s Affirmative Action and anti-

discrimination policies throughout the process.” Pl.’s SOMF ¶¶ 8, 15. Plaintiff has not offered

any evidence that the mere failure to submit a close-out form constitutes a violation of the

university’s affirmative action policy—certainly, no witness so testified. See Def.’s Reply SOF

¶ 42. Moreover, the evidence of what did occur in the hiring process undercuts Plaintiff’s

argument that the affirmative action policy was flouted to avoid consideration of Black candidates:

19 two of the eight candidates selected for a screening interview were Black, and one of those two

was selected for a follow-up interview. Smith Decl. ¶ 28; Def.’s SOF ¶¶ 22–23.

Plaintiff also points to the demographic make-up of Defendant’s coaching staff. Pl.’s

Opp’n at 25. If in some cases an all-white coaching staff might give rise to an inference of pretext,

it does not do so in this case without more. For instance, there has been no evidence on the length

of coaches’ and Athletic Department members’ tenures, who was involved as decisionmakers in

their hiring, and whether any Black applicants were in the candidate pool for those positions.

Absent such evidence, a reasonable trier of fact could only speculate that race, national origin, or

ethnicity played a role in the decision not to interview or hire Plaintiff.

In sum, none of Plaintiff’s theories for pretext succeed in rebutting Defendant’s legitimate,

nondiscriminatory reason for failing to hire Plaintiff, and so—even if Plaintiff can avail himself of

Title VII’s protections—he has not established sufficient facts from which a reasonable jury could

conclude that Defendant discriminated against him on the basis of race, ethnicity, or national

origin.

V. CONCLUSION

For the foregoing reasons, the court grants Defendant’s motion for summary judgment in

full as to all claims.

A final, appealable Order accompanies this Memorandum Opinion.

Dated: September 14, 2021 Amit P. Mehta United States District Court Judge

20