By Jeff Birren, Senior Writer
Law school civil procedure classes endeavor to teach students what motions can be properly filed and what motions cannot be filed, but they cannot adequately teach what motions should not be filed. American University (“AU”) may have just learned that lesson.
The school had an opening for the men’s head soccer coach in 2018. AU alumni and AU Hall of Fame player David Nakhid applied for the job, but he was passed over, and the school instead hired a white applicant. Nakhid then sued AU, alleging “employment discrimination based on race, ethnicity, and national origin” (Nakhid v. American University, U.S. District Court for the District of Columbia, Case No. 19-cv-03268 (APM), Court Document #1, (March 23, 2020)). AU responded by filing a motion to dismiss. It took District Court Judge Amit P. Mehta less than a page and a half to reject the motion.
Background
Nakhid was born in Trinidad and identifies as Black (TheEagleOnLine, Cataudella & Papscun, “Hall of Fame soccer player sues AU for race-based discrimination” (October 31, 2019)) (‘The EagleOnLine”). He played soccer at AU from 1983 to 1986 and was inducted into the school’s hall of fame in 2005 (Id.). He went on to play professionally in Belgium, Switzerland, Greece, Lebanon, Trinidad and Tobago, where he was twice Caribbean and Trinidad and Tobago Player of the Year (wired868.com/author.david-nakhid/), as well as the U.S. (New England Revolution), and the United Arab Emirates. He played for the Trinidad and Tobago national team between 1992 and 2005. In 2004 he was an assistant coach for his national team. After he retired, he opened the David Nakhid International Football Academy in Lebanon (TheEagleOnLine).
In 2018 AU fired its soccer coach. Nakhid reached out to the school and was told to fill out the online application (Id.). However, Nakhid was not interviewed for the position and the school hired a white head coach, Zach Samol (Id.). That treatment led to Nakhid’s lawsuit. Nakhid filed his complaint on Oct. 30, 2019 (Nakhid, Court Document #1). AU received an extension of time to respond and filed a motion to dismiss on Jan. 6, 2020 (Nakhid Court Document #7). Nakhid filed his opposition on Jan. 21, 2020 (Nakhid CourtDocument #8). AU filed its reply on Jan. 28, 2020, (Nakhid, Court Document #9.) AU’s motion to dismiss was one that should have stayed buried in the law firm’s computer.
The Court Began Its Analysis by Stating the Pleading Standard
AU’s motion was heard by District Court Judge Amit P. Mehta, a 2014 appointment to the court. Judge Mehta began his analysis by stating a civil plaintiff’s pleading standard for a discrimination claim. A plaintiff “need only allege facts that ‘give[ ] the defendant fair notice of the basis for [the plaintiff’s] claims’” (Id. at 3) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)). Swierkiewicz stated that the complaint satisfied the notice pleading requirement when it “detailed the events leading to his termination, provided relevant dates, and include the ages and nationalities of at least some of the relevant persons involved with his termination” (Id.). Furthermore, “courts in this Circuit have consistently recognized the ease with which a plaintiff claiming employment discrimination can survive motion to dismiss” (Id.) (citation omitted.).
The Court found that Nakhid “readily” satisfied the Swierkiewicz standard.He did so by asserting that AU discriminated against him by hiring Samol, a white candidate with inferior qualifications, and by listing “his success as an international professional player, his prior international head coaching experience, and his European-class licensing” (Id.). He further alleged that the white candidate who was hired did not have those qualifications. Moreover, AU also passed over another African American candidate who also had greater qualifications that the white candidate. Nakhid further alleged that the “entire administrative staff” of the athletic department “is comprised of white individuals” (Id.), “and that the entire university as a whole has faced challenges in diversifying its student body, faculty, and staff” (Id.). “These allegations, taken as true, provide the kind of detailed events “that give rise to plausible claims of discrimination under Swierkiewicz” (Id.).
AU’s First Flawed Argument
Presumably with a straight face, AU argued that the complaint should be dismissed because Nakhid “has not alleged that he was qualified for the position” based on AU’s published posting (Id.). AU insisted that he was not qualified “because ‘he has not alleged any coaching experience” (Id.). That might have been true if one ignored Nakhid’s “professional-level coaching experience” including serving as the head coach of “several professional clubs internationally.” (Id.). It is hard to imagine that these facts were merely overlooked by an over-eager associate.
If that was not enough, the Court pointed out that “the job posting did not require actual work experience with ‘NCAA and Patriot League regulations’ or male college student-athletes but rather the ability to work within NCAA and Patriot League regulations’ and the ‘[a]bility to work with male college student-athletes’” (Id.) (emphasis in the original). “Plaintiff’s experience in coaching and training young athletes supports such ‘ability’” (Id.). After all, the pled allegations include the fact that Nakhid had founded a youth training camp to prepare soccer players to play collegiate ball in the U.S.
AU’s Second Flawed Argument
AU next insisted that the Complaint should be dismissed because Nakhid had not alleged facts demonstrating that he was “significantly more qualified” for the job. The Court rejected that as well. At this stage the Court must assume the Complaint’s allegations are true, and “drawing all inferences in favor of Plaintiff, he meets this threshold” (Id.). After all, the white coach they actually hired had significantly less qualifications than Nakhid, including the fact that this guy “had no head coaching experience domestically or abroad, had never played professionally, and possessed an inferior license” (Id. at 3/4).
AU also mentioned in the background section of its brief that Nakhid “does not allege that he holds” certain licenses. The Court had little patience with this maneuver. It noted in a footnote that “Defendant did not require either of those licenses for the position” and, in “any event, Plaintiff’s allegation that his European license is superior to Samol’s United States license (bolster’s his claim of discrimination” (Id. at 4, FN 2) (emphasis in the original).
AU’s Last Flawed Argument
AU’s final argument was strange. It claimed that the Complaint should be dismissed because Nakhid did “not even allege that any decisionmaker knew his race” (Id. at 4). The Court swept that aside. After all, “such an allegation, even if required, can easily be inferred from the fact Plaintiff was inducted into the university’s Hall of Fame” and, according to the Complaint, “is widely recognized as one of the most prominent players to have played soccer at the University” (Id.). Thus, “it is not merely plausible, but likely, that the person who declined to hire Plaintiff knew of Plaintiff and his race” (Id.). No kidding.
And Now for Something Different
AU answered the Complaint on April 6, 2020 (Nakhid, Court Document # 11). That same day the Court issued an Order that scheduled an initial judicial conference for May 12, 2020 either by electronic participation or by videoconference. It encouraged the parties to participate. Among other topics to be addressed is discovery, and in particular, “discovery of electronically stored information, preservation of discoverable information, and assertions of privilege or attorney work” (Nakhid, Order For Initial Scheduling Conference, Court Document #12 (4-6-20)).
Discovery will then commence, and AU’s employees will be given the opportunity to explain why they preferred a white candidate with inferior qualifications over an African American with greater qualifications, an AU alumnus and a member of AU’s Hall of Fame to boot. If such depositions were open to the public, attendees would be well advised to bring popcorn and sodas.
Final Thoughts
Future motions will likely include motions for protective orders filed by AU and summary judgment or summary adjudication. Those motions will be heard by the same judge that had to deal with AU’s motion to dismiss, with its flawed and sometimes foolish arguments. Counsel may have been able to bill for that motion, but their client’s interest would likely have been better served by skipping that motion and filing an answer instead. The Discovery Channel has “Shark Week.” AU’s first appearance in this case qualifies for Snark Week. The correct question is not what counsel can do, but what counsel should do, and in this case, it should not have filed the motion.
Birren is the former general counsel of the Oakland Raiders and is an adjunct professor of law at Southwestern. The author would like, once again, to thank David Stern, Esq, a partner at Blaney McMurty LLP, in Toronto.
