Case 1:19-cv-03268-APM Document 33 Filed 09/14/21 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`DAVID NAKHID,
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`Plaintiff,
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`v.
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`AMERICAN UNIVERSITY,
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`Defendant.
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`_________________________________________ )
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`Case No. 19-cv-3268 (APM)
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`MEMORANDUM OPINION
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`I.
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`INTRODUCTION
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`In the fall of 2018, Defendant American University’s Athletic Department undertook a
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`search for a new men’s soccer coach. Plaintiff David Nakhid—who identifies as a Black man and
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`is not a U.S. citizen—submitted his application from Lebanon, where he lived at the time, but he
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`did not receive an interview. Defendant instead selected Zach Samol, a white man, to fill the role.
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`Plaintiff alleges that the university failed to hire him because of his race, ethnicity, and national
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`origin in violation of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Defendant
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`has moved for summary judgment, arguing that (1) Plaintiff’s Title VII and section 1981 claims
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`fail as a matter of law because these statutes do not reach him as a noncitizen applicant who was
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`not present in the United States at the time of the relevant events, and (2) Plaintiff has not
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`established evidence from which a reasonable jury could conclude that Defendant discriminated
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`against him on the basis of race, ethnicity, or national origin in deciding not to hire him for the
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`head coach position. For the reasons that follow, Defendant’s motion for summary judgment is
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`granted in full as to both claims.
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`Case 1:19-cv-03268-APM Document 33 Filed 09/14/21 Page 2 of 20
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`II.
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`BACKGROUND
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`A.
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`Factual Background
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`1.
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`The Coaching Search
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`Defendant American University is a private university located in Washington, D.C. Def.’s
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`Mot. for Summ. J., ECF No. 29 [hereinafter Def.’s Mot.], Statement of Undisputed Facts, ECF
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`No. 29-2 [hereinafter Def.’s SOF], ¶ 1. Its men’s soccer team competes at the National Collegiate
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`Athletic Association (“NCAA”) Division 1 level. Id. ¶¶ 2–3. In the fall of 2018, the Athletic
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`Department, which oversees the men’s soccer team, decided not to renew the employment contract
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`of the team’s then–head coach. Id. ¶ 8. Shortly after Thanksgiving, the Department made that
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`decision public and initiated its search for a replacement, with the goal of filling the position by
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`January 2019, just a few months later. Id. ¶¶ 9–10. At the helm of the hiring process was Andrew
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`Smith, the Associate Athletic Director for Compliance and Internal Operations, who supervised
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`the men’s soccer team. Id. ¶¶ 6–7, 10. The remaining members of the committee to select the new
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`hire were Dr. William Walker, the Athletic Director; Josephine Harrington, the Deputy Director
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`of Athletics; and David Bierwirth, the Associate Director of Athletics for External Affairs. Id.
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`¶¶ 4, 20.
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`The process went as follows: Smith and the University’s human resources department
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`prepared to post, and eventually posted, the position on both internal and external websites. Id.
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`¶ 11. Amidst those preparations, members of the Athletic Department reached out to several
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`potential candidates about the position, though they did not offer any of them the role before the
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`official interviewing process began. Id. ¶¶ 14–17. Around 100 people applied to the position. Id.
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`¶ 18. Smith conducted an initial review of the applications. Id. ¶ 19. The members of the selection
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`committee met to discuss which of the applicants would be selected for preliminary screening
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`interviews in early December, and they chose eight applicants. Id. ¶¶ 20–21. After conducting
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`the eight initial screening interviews, members of the committee conducted follow-up interviews
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`with five candidates via Skype. Id. ¶ 23. Next, the committee invited two of those five applicants,
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`along with the then–assistant coach for the soccer team, to participate in an on-campus final-round
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`interview involving various stakeholders in mid-December. Id. ¶¶ 25, 32–33. Finally, the
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`committee met to discuss the finalists and ultimately decided to hire Zach Samol. Id. ¶¶ 34–35.
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`Each of the applicants selected for the various interview stages—phone, Skype, and on
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`campus—had previous collegiate coaching experience. Id. ¶ 22. Defendant asserts that this was
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`not by coincidence: members of the selection committee uniformly testified that the “relevant
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`experience” they sought in their job postings was collegiate coaching experience. Def.’s Mot., Ex.
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`2, ECF No. 29-6 [hereinafter Smith Decl.], ¶¶ 9, 39; Def.’s Mot., Ex. 6, ECF No. 29-10 [hereinafter
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`Smith Dep.], at 24–25; Def.’s Mot., Ex. 1, ECF No. 29-5 [hereinafter Walker Decl.], ¶ 14; Def.’s
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`Mot., Ex. 8, ECF No. 29-12 [hereinafter Harrington Decl.], ¶ 7; Def.’s Mot., Ex. 9, ECF No. 29-
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`13 [hereinafter Bierwirth Decl.], ¶ 6. More specifically, they state that they sought collegiate
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`coaching experience with a proven track record of success at a school like American: a private
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`postsecondary institution “with a good academic program.” Smith Decl. ¶ 11.
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`2.
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`Plaintiff Applies but Is Not Selected
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`Plaintiff is one of the nearly 99 unsuccessful applicants for the coaching position. He
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`identifies as “Black or of the African diaspora.” Compl., ECF No. 1 [hereinafter Compl.], ¶ 7. He
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`learned of the open position and, on December 4, 2018, wrote to Dr. Walker and Smith to express
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`his interest. Def.’s SOF ¶ 37. He was directed to the online application and completed it around
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`December 12, 2018. Id. He was not selected for an initial screening interview or any subsequent
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`interview. Id. ¶ 41.
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`Plaintiff’s career in and around soccer is extensive. In the 1980s, he played on the
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`American University men’s soccer team and was, by all accounts, a standout player. Pl.’s Mem.
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`of Law in Opp’n to Def.’s Mot. for Summ. J., ECF No. 31 [hereinafter Pl.’s Opp’n], Pl.’s Statement
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`of Material Facts [hereinafter Pl.’s SOMF], ¶ 2; Def.’s Reply in Supp. of Def.’s Mot. for Summ.
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`J., ECF No. 32 [hereinafter Def.’s Reply], Def.’s Reply Statement of Undisputed Facts & Resp. to
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`Pl.’s Statement of Material Facts, ECF No. 32-1 [hereinafter Def.’s Reply SOF], 19 ¶ 2. After
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`that, he played professionally, both in the United States and internationally, including on teams in
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`Switzerland, Belgium, and Lebanon. Pl.’s SOMF ¶ 3. He also played on the national team for
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`Trinidad and Tobago. Id. After retiring from professional play, he transitioned to coaching. Id.
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`¶¶ 4–5. He coached professional teams in Lebanon, was an assistant coach to a Trinidadian
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`national team in the World Cup, and eventually established his own soccer academy, where he
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`developed young players for professional and collegiate play. Id. But he has never worked as a
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`coach for a collegiate soccer team in the United States. Def.’s SOF ¶ 38. When he applied for the
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`head coach position at American, Plaintiff, a citizen of Trinidad and Tobago, was living and
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`working in Lebanon. Id.; Def.’s SOF ¶¶ 45–46 (citing Def.’s Mot., Ex. 16, ECF No. 29-20
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`[hereinafter Nakhid Dep.], at 8:18–9:5, 9:9–10:17).
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`B.
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`Procedural Background
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`Plaintiff filed a charge of discrimination with the Equal Employment Opportunity
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`Commission (“EEOC”) on April 26, 2019. Compl. ¶ 5. The EEOC issued a Notice of Rights to
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`Plaintiff on August 2, 2019, after which he timely filed this action, bringing claims under Title VII
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`of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Id. ¶¶ 6, 22, 26. Defendant moved to
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`dismiss, arguing that Plaintiff had not alleged any facts rendering it plausible that discrimination
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`motivated Defendant’s failure to hire him. Def.’s Mot. to Dismiss, ECF No. 7, at 1. This court
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`Case 1:19-cv-03268-APM Document 33 Filed 09/14/21 Page 5 of 20
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`denied that motion, holding that Plaintiff had “readily satisfie[d] the [Federal Rule of Civil
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`Procedure] 8(a) standard.” Nakhid v. Am. Univ., No. 19-cv-03268 (APM), 2020 WL 1332000, at
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`*1 (D.D.C. Mar. 23, 2020). After that, Defendant answered the Complaint. Answer to Compl.,
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`ECF No. 11. Following discovery, Defendant filed this motion for summary judgment.
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`III. LEGAL STANDARD
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`Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
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`to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
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`P. 56(a). A “genuine dispute” of a “material fact” exists when the fact is “capable of affecting the
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`substantive outcome of the litigation” and “the evidence is such that a reasonable jury could return
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`a verdict for the nonmoving party.” Elzeneiny v. District of Columbia, 125 F. Supp. 3d 18, 28
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`(D.D.C. 2015).
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`In assessing a motion for summary judgment, the court looks at the facts in the light most
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`favorable to the nonmoving party and draws all justifiable inferences in that party’s favor.
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`Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). To defeat a motion for summary
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`judgment, the nonmoving party must put forward “more than mere unsupported allegations or
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`denials”; its opposition must be “supported by affidavits, declarations, or other competent
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`evidence, setting forth specific facts showing that there is a genuine issue for trial” and that a
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`reasonable jury could find in its favor. Elzeneiny, 125 F. Supp. 3d at 28 (citing Fed. R. Civ.
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`P. 56(e)); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
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`IV. DISCUSSION
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`A.
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`Section 1981 Claim
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`The court begins with Plaintiff’s claim under 42 U.S.C. § 1981. Plaintiff alleges that
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`Defendant failed to hire him based on his race, ethnicity, and national origin, thwarting his contract
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`opportunities and equal enjoyment of the rights, privileges, and benefits enjoyed by white citizens
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`in violation of section 1981. Compl. ¶¶ 25–28. Defendant seeks judgment as a matter of law as
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`to that claim on the ground that Plaintiff, an individual at all relevant times physically outside the
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`United States, cannot avail himself of section 1981’s protections. Def.’s Mot., Br. in Supp. of
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`Def.’s Mot. for Summ. J., ECF No. 29-1 [hereinafter Def.’s Br.], at 6. A straightforward
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`application of the statute’s plain language resolves this question in favor of Defendant.
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`Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall
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`have the same right . . . to make and enforce contracts . . . and to the full and equal benefit of all
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`laws . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). By its terms, section 1981 does
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`not protect those who are not “within the jurisdiction of the United States.” Id. In the context of
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`this statutory provision, being “within the jurisdiction of the United States” means being physically
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`present within the United States. See, e.g., Ofori-Tenkorang v. Am. Int’l Grp., Inc., 460 F.3d 296,
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`303–04 (2d Cir. 2006) (concluding that the language of section 1981 “only protects persons within
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`the United States’ territorial jurisdiction”). Plaintiff was not physically present in the United States
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`at any time relevant to the challenged employment action, see Nakhid Dep. at 8:18–9:5, 9:9–10:17,
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`and so he cannot assert rights under the statute.
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`Plaintiff attempts to save his claim by arguing that “[j]urisdiction, within the meaning of
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`the statute, actually means sufficient contacts with the United States so as to justify the application
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`of its laws.” Pl.’s Opp’n at 18. Plaintiff’s reading of the statute erroneously conflates the concept
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`of personal jurisdiction with section 1981’s territorial jurisdiction. Because Plaintiff is not within
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`section 1981’s reach, the court grants Defendant’s motion for summary judgment with respect to
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`Plaintiff’s section 1981 claim.
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`B.
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`Title VII Claim
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`1. Whether Title VII Reaches Plaintiff
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`The court next considers Plaintiff’s Title VII claim. Plaintiff alleges that when Defendant
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`failed to select him for the head coach position, it subjected him to discrimination based on his
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`race and national origin in violation of Title VII of the Civil Rights Act of 1964. Compl. ¶¶ 21–
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`24. As with Plaintiff’s section 1981 claim, Defendant seeks judgment as a matter of law on this
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`claim on the basis that Title VII does not reach him. Def.’s Mot. The court must decide whether
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`Title VII applies to a noncitizen applying for employment in the United States when he is
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`physically located outside the United States—that is, whether Plaintiff seeks an impermissible
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`extraterritorial application of Title VII.1 This question is not so straightforward.
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`“Courts presume that federal statutes ‘apply only within the territorial jurisdiction of the
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`United States.’” WesternGeco LLC v. ION Geophysical Corp., 138 S. Ct. 2129, 2136 (2018)
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`(quoting Foley Bros., Inc. v. Filardo, 336 U.S. 281, 285 (1949)). The Supreme Court has
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`articulated a “two-step framework for analyzing extraterritoriality issues.” RJR Nabisco, Inc. v.
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`Eur. Cmty., 136 S. Ct. 2090, 2101 (2016). First, the court must “ask whether the presumption
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`against extraterritoriality has been rebutted—that is, whether the statute gives a clear, affirmative
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`indication that it applies extraterritorially.” Id. The court “must ask this question regardless of
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`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), 2017 WL 6271267, 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, 780 F.3d 1185, 1191
`(D.C. Cir. 2015) (“The extraterritorial reach of a statute ordinarily presents a merits question, not a jurisdictional
`question.”); Alipio v. Winter, 631 F. Supp. 2d 29, 29 (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.,
`217 F. Supp. 2d 59, 68 (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, 409 F.3d 414 (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.
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`whether the statute in question regulates conduct, affords relief, or merely confers jurisdiction.”
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`Id. If a statute does not apply extraterritorially, at the second step the court must “determine
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`whether the case involves a domestic application of the statute, and [does] this by looking to the
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`statute’s ‘focus.’” Id. “If the conduct relevant to the statute’s focus occurred in the United States,
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`then the case involves a permissible domestic application even if other conduct occurred abroad.”
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`Id. However, “if the conduct relevant to the focus occurred in a foreign country, then the case
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`involves an impermissible extraterritorial application regardless of any other conduct that occurred
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`in U.S. territory.” Id.
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`In this case, the answer to the first inquiry—whether the presumption against
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`extraterritoriality is rebutted—is plainly no. Nothing on the face of Title VII suggests that its
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`substantive provisions and remedial scheme reach a noncitizen, nonresident applicant for domestic
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`employment. The substantive provisions of Title VII make it “an unlawful employment practice
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`for any employer . . . to fail or refuse to hire . . . any individual . . . because of such individual’s
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`race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). The statute contains certain
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`express provisions regarding its extraterritorial reach: it does “not apply to an employer with
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`respect to the employment of aliens outside any State,” 42 U.S.C. § 2000e-1(a), but it does apply
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`to U.S. citizens employed abroad, 42 U.S.C. § 2000e(f). The former provision is known as the
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`“alien-exemption clause,” and Congress added the latter provision only after the Supreme Court,
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`gleaning no “contrary intent” from the statute, held that Title VII did not apply extraterritorially to
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`reach such individuals. EEOC v. Arabian Am. Oil Co. (Aramco), 499 U.S. 244, 259 (1991).
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`Congress thus plainly knew how to both limit and apply Title VII’s territorial reach. It is therefore
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`notable that the statute does not contain any explicit language extending its protections to
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`noncitizens living abroad. See id. at 258 (“Congress’ awareness of the need to make a clear
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`statement that a statute applies overseas is amply demonstrated by the numerous occasions on
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`which it has expressly legislated the extraterritorial application of a statute.”).
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`In Aramco, the Court held that “the statute’s definitions of jurisdictional terms” and the
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`alien-exemption clause, 42 U.S.C. § 2000e-1, without more, “fall[] short of demonstrating the
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`affirmative congressional intent required to extend the protections of Title VII beyond our
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`territorial borders.”2 499 U.S. at 248–49; contra Pl.’s Opp’n at 15. The same is true here.
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`Although Congress later amended Title VII to expand its reach to U.S. citizens employed abroad
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`by U.S. employers, see 42 U.S.C. § 2000e(f), the statute continues to contain no affirmative
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`expression of extraterritorial application to those in Plaintiff’s circumstances—a noncitizen,
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`nonresident who applies for domestic employment from abroad. Ultimately, “[t]he question is not
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`whether [a court] think[s] ‘Congress would have wanted’ a statute to apply to foreign conduct ‘if
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`it had thought of the situation before the court,’ but whether Congress has affirmatively and
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`unmistakably instructed that the statute will do so.” RJR Nabisco, 136 S. Ct. at 2100 (emphasis
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`added). It did not here. The court therefore must find that Title VII does not have extraterritorial
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`application with respect to individuals in Plaintiff’s position. See Morrison v. Nat’l Austl. Bank
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`Ltd., 561 U.S. 247, 255 (2010) (“When a statute gives no clear indication of an extraterritorial
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`application, it has none.”).
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`Having found that the statute does not rebut the presumption against extraterritoriality, the
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`court proceeds to step two of the RJR Nabisco framework. At this point, the court’s task is to
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`“determine whether the case involves a domestic application of the statute[] . . . by looking to the
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`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, 572 U.S. 844, 857 (2014); Hernandez v. Mesa, 140 S. Ct. 735, 747
`(2020). The court is unwilling to disregard Aramco as extant guiding precedent.
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`statute’s ‘focus.’” RJR Nabisco, 136 S. Ct. at 2101 (emphasis added). “The focus of a statute is
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`‘the object of its solicitude,’ which can include the conduct it ‘seeks to regulate,’ as well as the
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`parties and interests it ‘seeks to protect’ or vindicate.” WesternGeco LLC, 138 S. Ct. at 2137
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`(cleaned up) (quoting Morrison, 561 U.S. at 267). Once the court has determined the statute’s
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`focus, it measures the conduct underlying this action against that statutory focus. “If the conduct
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`relevant to the statute’s focus occurred . . . in a foreign country, then the case involves an
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`impermissible extraterritorial application . . . .” RJR Nabisco, 136 S. Ct. at 2101.
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`Aramco provides a useful starting point for the focus inquiry in this case. In Aramco, the
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`plaintiff had been hired in the United States, and he was a U.S. citizen, but the employment at issue
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`was in Saudi Arabia. 499 U.S. at 247. The version of the statute under which the plaintiff brought
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`his claim contained no express provision for extraterritorial application to U.S. citizens working
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`abroad. The Court “concluded . . . that neither [the] territorial event [of hiring] nor [the
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`citizenship] relationship was the ‘focus’ of congressional concern, but rather domestic
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`employment.” Morrison, 561 U.S. at 266 (citation omitted) (discussing Aramco); see also
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`Aramco, 499 U.S. at 255 (noting that “elements in the statute suggest[] a purely domestic focus”).
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`The employment practice the Aramco plaintiff challenged occurred while he was working for the
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`defendant, 499 U.S. at 259, and so the “conduct relevant to the statute’s focus,” RJR Nabisco, 136
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`S. Ct. at 2101, was his employment in Saudi Arabia. Of course, Congress responded to Aramco
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`by explicitly amending the statute to reach U.S. citizens employed abroad, and U.S. citizens
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`employed abroad can now claim Title VII’s protections. 42 U.S.C. §2000e(f). But the thrust of
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`Aramco remains viable precedent.
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`Against that backdrop, the court turns to Plaintiff’s assertion of Title VII’s protections.
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`Title VII confers a right not to be discriminated against in employment, and it effectuates that right
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`by prohibiting employer conduct that violates it. The statute’s substantive guarantees are aimed
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`toward stamping out discriminatory employer conduct. See 42 U.S.C. § 2000e-2 (proscribing
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`discriminatory “employment practice[s]”); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800
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`(1973) (“The language of Title VII makes plain the purpose of Congress to assure equality of
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`employment opportunities and to eliminate those discriminatory practices and devices which have
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`fostered racially stratified job environments to the disadvantage of minority citizens.”). But that
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`does not mean that the “relevant conduct” for extraterritoriality purposes is necessarily the
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`employer’s allegedly discriminatory conduct. As an illustration, in RJR Nabisco, the Supreme
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`Court noted that it had previously “rejected [the] view” that “the presumption [against
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`extraterritoriality] is primarily concerned with the question of what conduct falls within a statute’s
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`purview.” 136 S. Ct. at 2106. Accordingly, in that case the Court analyzed RICO’s private right
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`of action separately from its “substantive prohibitions.” RJR Nabisco, 136 S. Ct. at 2106. It
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`reached the conclusion that the former, unlike the latter, did not apply extraterritorially, reasoning
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`that “[t]he creation of a private right of action raises issues beyond the mere consideration whether
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`underlying primary conduct should be allowed or not.” Id. (internal quotation marks omitted)
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`(quoting Sosa v. Alvarez-Machain, 542 U.S. 692, 727 (2001)).
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`The D.C. Circuit took a similar approach in Spanski Enterprises, Inc. v. Telewizja Polska,
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`S.A., 883 F.3d 904 (D.C. Cir. 2018), a case involving the Copyright Act. There, the court framed
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`the inquiry as “asking what components of an otherwise actionable statutory violation must occur
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`within the United States to bring it within the Act’s domestic sweep.” Id. at 914. The court began
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`by identifying “precisely what it is that the Act regulates,” but it did not end there. “[T]he Act
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`grants copyright holders several ‘exclusive rights’ . . . and effectuates those rights by prohibiting
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`‘infringement,’ or the ‘violat[ion] of those ‘exclusive rights.’” Id. (second alteration in original).
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`The court determined that “[t]he Copyright Act ‘focuses[]’ . . . on policing infringement or, put
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`another way, on protecting the exclusivity of the rights it guarantees.” Id. Critically, merely
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`inquiring about whether and where substantively prohibited conduct occurred, as the defendant
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`urged, was inadequate in terms of this focus—“[u]nder [defendant’s] reading, a broadcaster would
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`commit an infringing performance merely by transmitting a copyrighted work into the void,
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`regardless of whether those transmissions ever result in the work’s images being shown to even a
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`single viewer.” Id. at 915 (cleaned up). The court concluded that an actionable Copyright Act
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`claim instead requires that the “infringing performances—and consequent violation of [the
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`complainant’s] copyrights—occur[] . . . in the United States.” Id. at 914.
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`Thus, the focus of a statute “can include the conduct it ‘seeks to regulate,” but it can also
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`include “the parties and interests it ‘seeks to protect or vindicate.’” WesternGeco, 138 S. Ct. at
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`2137; see also id. (“When determining the focus of a [particular] statute, [courts] do not analyze
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`the provision at issue in a vacuum. If the statutory provision at issue works in tandem with other
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`provisions, it must be assessed in concert with those other provisions.” (citation omitted)). Title
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`VII is clear as to whose interests it seeks to protect or vindicate. It protects all employees working
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`domestically for covered employers. 42 U.S.C. § 2000e(f); see, e.g., Iweala v. Operational Techs.
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`Servs., Inc., 634 F. Supp. 2d 73, 80 (D.D.C. 2009). It now also provides relief for U.S. citizens
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`working abroad for covered U.S. employers. See 42 U.S.C. § 2000e(f) (“With respect to
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`employment in a foreign country, [the] term [employee] includes an individual who is a citizen of
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`the United States.”). But Title VII expressly excludes from its protections noncitizens working
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`abroad for U.S. employers, see id. § 2000e-1(a), and exempts from its coverage “the foreign
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`operations of an employer that is a foreign person not controlled by an American employer,” id.
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`§ 2000e-1(c)(2). The scope of these protections makes clear that the private right of action in Title
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`VII is, at heart, concerned with “vindicat[ing] domestic interests.” WesternGeco, 138 U.S. at 2138
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`(emphasis added); see also Aramco, 499 U.S. at 255 (emphasizing Title VII’s “domestic focus”).
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`That is, the statute’s private right of action seeks to protect only the interests of U.S. citizens and
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`U.S. residents. Its “focus” does not include the interests of a noncitizen, nonresident who submits
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`his application from abroad. Here, Plaintiff applied for, and was not selected for, the head coach
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`position while he was a citizen of Trinidad and Tobago living in Lebanon. Def.’s SOF ¶¶ 45–46.
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`He therefore cannot assert a permissible domestic application of Title VII.
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`Holding otherwise would yield an incoherent interpretation of Title VII. The statute would
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`protect foreign nationals who merely submit an application for a job in the United States from
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`abroad even as it excludes foreign nationals who are actually employed by U.S. employers abroad.
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`42 U.S.C. § 2000e-1; id. § 2000e(f). Moreover, such a holding would effect a massive expansion
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`of Title VII’s protections. Cf. Reyes-Gaona v. N.C. Growers Ass’n, 250 F.3d 861, 866 (4th Cir.
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`2001) (“Expanding the ADEA to cover millions of foreign nationals who file an overseas
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`application for U.S. employment could exponentially increase the number of suits filed and result
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`in substantial litigation costs. If such a step is to be taken, it must be taken via a clear and
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`unambiguous statement from Congress rather than by judicial fiat.”). If Congress had thought that
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`the statute reached discriminatory-hiring claims brought by noncitizen applicants outside the
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`United States, it surely would have made that clear. See id. Because it has not, Plaintiff cannot
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`avail himself of Title VII’s protections. The court grants Defendant’s motion with respect to
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`Plaintiff’s Title VII claim.
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`2. Whether Plaintiff Has Offered Evidence from Which a Reasonable Jury Could
`Conclude that Defendant Discriminated Against Him
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`Even if the court were to conclude Plaintiff had stated a cognizable claim under Title VII,
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`Defendant raises multiple arguments why, if the court were to reach the merits, summary judgment
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`Case 1:19-cv-03268-APM Document 33 Filed 09/14/21 Page 14 of 20
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`should be entered in its favor. The court agrees with one: on the record presented, no reasonable
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`factfinder could find that Plaintiff was not hired for the head coach position on the basis of race,
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`ethnicity, or national origin.3
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`At the outset, Defendant argues that Plaintiff cannot establish a prima facie case of
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`discriminatory failure to hire for two reasons: (1) he is unqualified as a matter of law because he
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`did not possess authorization to work in the United States at the time of his application, and (2) he
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`is unqualified because he “lacked the requisite relevant experience.” Def.’s Br. at 7–8. The court
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`assumes without deciding that Plaintiff was in fact qualified for the head coach position and so can
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`establish a prima facie case of discrimination on the basis of race, ethnicity, or national origin. See
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`Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493 n.1 (D.C. Cir. 2008) (“In a refusal-to-
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`hire . . . discrimination case, the McDonnell Douglas prima facie factors are that: (i) the employee
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`‘belongs to a racial minority’ or other protected class; (ii) the employee ‘applied and was qualified
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`for a job for which the employer was seeking applicants’; (iii) despite the employee’s
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`qualifications, the employee ‘was rejected’; and (iv) after the rejection, ‘the position remained
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`open and the employer continued to seek applicants from persons of complainant’s
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`qualifications.’” (quoting McDonnell Douglas Corp., 411 U.S. at 802)).
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`The burden therefore shifts to Defendant to “articulate some legitimate, nondiscriminatory
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`reason” for failing to hire Plaintiff. McDonnell Douglas Corp., 411 U.S. at 802. At the summary
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`judgment stage, “once the employer asserts a legitimate, non-discriminatory reason, the question
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`whether the employee actually made out a prima facie case is no longer relevant and thus
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`disappears and drops out of the picture.” Brady, 520 F.3d at 493 (cleaned up). Rather, the “central
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`3 The same analysis applies to Plaintiff’s section 1981 claim, if he can raise it. See Ladson v. George Wash. Univ.,
`204 F. Supp. 3d 56, 62–63 (D.D.C. 2016) (“The legal standards applicable to [plaintiff’s Title VII and section 1981]
`claims are the same . . . .”).
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`Case 1:19-cv-03268-APM Document 33 Filed 09/14/21 Page 15 of 20
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`question” becomes: “Has the employee produced sufficient evidence for a reasonable jury to find
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`that the employer’s asserted non-discriminatory reason was not the actual reason and that the
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`employer intentionally discriminated against the employee on the basis of race, color, religion,
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`sex, or national origin?” Id. at 494.
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`Defendant has come forward with a legitimate, nondiscriminatory reason for failing to hire
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`Plaintiff. It asserts that “he was not qualified for the Position” because “he had no experience
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`coaching for any college or university.” Def.’s Br. at 8–9 (emphasis omitted). Defendant argues
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`that Plaintiff cannot meet his burden of showing that Defendant’s stated reason for failing to hire
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`him was “a pretext.” Brady, 520 F.3d at 495. Plaintiff’s case of pretext can be distilled as follows:
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`(1) the head coach job description and job