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Rattigan v. Gonzales

May 31, 2007

WILFRED SAMUEL RATTIGAN, PLAINTIFF,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

Plaintiff Wilfred Rattigan, an attorney, has been employed in various positions within the Federal Bureau of Investigation ("FBI") since 1987. (2d Am. Compl. ¶¶ 9, 11.) The crux of this case, however, relates to his tenure as an assistant legal attaché ("ALAT") and then as legal attaché ("LEGAT") at the FBI's office in Riyadh, Saudi Arabia from 1999 to 2003. (See id. ¶¶ 15, 19, 37.) Plaintiff contends that his employer discriminated against him and subjected him to a hostile work environment because of his race, religion, and/or national origin and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, codified as amended at 42 U.S.C. § 2000e et seq. Before the Court is defendant's motion to dismiss, or in the alternative, for summary judgment. For the reasons set forth below, defendant's motion to dismiss will be granted in part and denied in part, and the motion for summary judgment will be denied without prejudice.

BACKGROUND

I. Factual History

Plaintiff is an African American of Jamaican descent. (2d Am. Compl. ¶ 9.) He converted to Islam in December 2001 while working as the LEGAT in Riyadh. (Id. ¶¶ 21(bb), 32.) At the time, the Riyadh legal attaché office had a permanent staff of three -- a LEGAT, an ALAT, and an office assistant -- but other FBI personnel were assigned to Riyadh on temporary duty from time to time. (See id. ¶¶ 15, 21(j), 21(k).) The office is responsible for interfacing with law enforcement and security agencies on the Arabian peninsula to facilitate an exchange of information between the FBI and the foreign agencies and to pursue the FBI's international investigations. (Id. ¶¶ 14, 16.) By all accounts, plaintiff's relationship with his supervisors while he was in Riyadh was contentious, though he was promoted from ALAT to LEGAT during his time there. (Id. ¶¶ 15, 19.) Ultimately, plaintiff's request for an extension of duty in Riyadh was denied in December 2002, and in July 2003, he began working as a supervisor in the FBI's New York Field Office, where he is employed today. (Id. ¶¶ 21(ff), 25, 37.)

As noted, plaintiff's complaint relates to his tenure in Saudi Arabia. He began his career there as the ALAT at the FBI's legal attaché office at the U.S. embassy in Riyadh. (Id. ¶ 13.) His immediate supervisor in Riyadh was Bassem Youssef, who served as the LEGAT in Saudi Arabia at the time. (Id.) Plaintiff claims that from his arrival in February 1999 until the time that Youssef left the Riyadh office in June 1999, Youssef and others discriminated against him based on his race and/or national origin. (Id. ¶ 17.) Specifically, plaintiff alleges that Youssef failed to inform him about "key events and developments," failed to involve him in "significant meetings," and did not permit him to attend Arabic language classes on his own time, and that supervisory personnel at FBI headquarters failed to respond to plaintiff's complaints about Youssef's conduct toward him. (Id.) Plaintiff also alleges that he was discriminated against by the initiation of an "unauthorized" review of his files conducted by Supervisory Special Agent Alfred Finch, which he claims "led to a false and misleading performance report being submitted to the Inspection Division of the FBI." (Id. ¶¶ 17, 41.) According to plaintiff, the discriminatory nature of these actions is demonstrated by the fact that white FBI agents in plaintiff's position, including plaintiff's predecessor in Riyadh, "were not treated in the same manner." (Id. ¶ 18.) Plaintiff claims that Youssef's conduct toward him caused him severe embarrassment and created a perception in the U.S. embassy community that plaintiff was incompetent. (Id.) Notwithstanding these events, however, plaintiff was promoted to the position of LEGAT Riyadh in July 2000, a position that he held until his move to New York in 2003. (Id. ¶¶ 19, 37.)

Plaintiff continued to have a troubled relationship with his FBI supervisors after his promotion to LEGAT for Riyadh. He claims that he was denied support and resources that white LEGATs in other offices in other parts of the world were receiving post-9/11, that he was subjected to multiple "bad faith" investigations and falsely accused of misconduct and disloyalty, and that his authority as LEGAT Riyadh was undermined because he was excluded from various FBI activities on the Arabian peninsula. (Id. ¶ 22.) Plaintiff alleges that the FBI failed to provide him with adequate resources -- including permanent and temporary staff and translators -- to handle the increased workload in the Riyadh office and provided him with fewer resources than white LEGATs "were typically provided with." (Id. ¶¶ 21(a), (b), (f), (h), (p), (q).) He claims that though he had requested these additional resources throughout his time in Riyadh, only after his move to the New York office did the FBI reduce the size of the territory that the Riyadh office was responsible for and increase the permanent staff in the office. (Id. ¶ 21(hh).) Plaintiff also alleges that he was the target of various internal investigations, and that these investigations were initiated in bad faith in an attempt to undermine his leadership and cast doubt on his loyalty to the FBI. Specifically, in October 2001, Unit Chief Cary Gleicher conducted an investigation of the Riyadh office; in or around April 2002, the FBI's security division conducted a "loyalty" investigation of plaintiff after learning in January 2002 that he had converted to Islam; in August 2002, Unit Chief Sandy Fowler conducted another investigation of the Riyadh office, during which time the contents of plaintiff's FBI e-mail account were allegedly deleted; and finally in November 2002, a different team of FBI agents conducted yet another investigation. (Id. ¶¶ 21(i), (t), (u), (v), (bb); see Pl.'s Opp'n at 39.) In addition, plaintiff claims that temporary duty personnel returning from Riyadh were interrogated by FBI officials in an attempt to gather derogatory information about plaintiff. (2d Am. Compl. ¶¶ 21(j), (k).) Plaintiff further alleges that he was excluded from certain meetings, that an investigative trip he had planned to the United Arab Emirates ("U.A.E.") was "unilaterally cancelled," that his supervisors decided to cut off direct communication with plaintiff and/or "channeled" all their communications with him through Deputy Assistant Director Leslie Kaciban, and that his supervisors "bypassed" him in conducting certain activities on the Arabian peninsula for which plaintiff should have been responsible. (Id. ¶¶ 41, 21(e), (m), (n), (o), (r), (x), (y).)

Plaintiff further alleges that he was the subject of several discriminatory comments or threats. In January 2001, Kaciban allegedly told plaintiff, "If I catch you doing something . . . I promise you I'll cut your balls off." (Id. ¶ 21(c).) Plaintiff argues that this "threat to castrate" him carried a racially "charged" meaning. (Pl.'s Opp'n at 24, 28.) Then, on September 30, 2001, at a meeting in Washington, at which plaintiff was not present, where the role of the Riyadh office in the investigation of the terrorist attacks of September 11 was discussed, Kaciban allegedly stated: "Let's see how much [plaintiff's] Arab brothers are going to help him on this one." (2d Am. Compl. ¶ 21(g).) Finally, in January 2003, Supervisory Special Agent Robert Jones allegedly wrote e-mails stating that the FBI should not expect any assistance from plaintiff because he was working for the Saudi government. (Id. ¶ 21(z).) Plaintiff also alleges that he was denied the right "to engage in religious practices" when permission for his planned trip to Mecca in February 2003 for the Hajj, a Muslim religious ceremony, was denied at the last minute by his supervisors. (Id. ¶¶ 22, 21(cc).)

In December 2002, plaintiff's request for an extension of his tour as LEGAT for Riyadh was denied. (Id. ¶ 21(ff).) Plaintiff subsequently assumed his current position as a supervisor in the New York field office, but he claims that he was "threatened" by Unit Chief Susan Curtis that if he did not select a position from several alternatives that were presented to him, he would end up in a lower-grade position. (Id. ¶¶ 21(jj), 21(gg), 25.) He left Riyadh and began his new assignment in July 2003. (See Pl.'s Opp'n at 32.) He alleges that he was replaced as LEGAT in Riyadh by a white male agent with "no terrorism experience, no overseas experience, and no LEGAT experience prior to his selection." (2d Am. Compl. ¶ 21(ii).) Plaintiff does not allege that his new position in New York was at a lower pay grade than his Riyadh position, but he characterizes the reassignment as a demotion because after he left Riyadh, the FBI "upgraded" the LEGAT Riyadh position to a "Senior Executive Service position." (Id. at 21(hh); Pl.'s Opp'n at 16-17.)

Plaintiff claims that throughout his tenure as LEGAT in Riyadh, a "set of management personnel" -- including FBI Director Robert Mueller, Deputy Assistant Director Kaciban, Special Agent in Charge Roderick Beverly, Section Chief Michael Pyszczymuka, Unit Chief Gleicher, Unit Chief Curtis, Unit Chief Fowler, and Executive Assistant Director Pasquale D'Amuro -- undertook various discrete acts of discrimination and subjected him to a hostile work environment "based on his race, national origin and religion," and that they retaliated against him for reporting this discrimination. (Id. ¶ 20.) Plaintiff's complaint lists a litany of thirty-six acts, including those discussed above, that he claims constituted a hostile work environment. Plaintiff also contends that he was subject to twelve discrete acts of discrimination and eleven discrete acts of retaliation. His complaint identifies the following as discrete acts of discrimination:*fn1

1. The failure of LEGAT Youssef to include him in meetings;

2. Youssef's refusal to permit him to continue to study Arabic;

3. The file review conducted by Finch;

4. The "repeated and persistent failures" of the FBI to respond to his requests for assistance after September 11, 2001;

5. The on-site review conducted by Gleicher in October 2001;

6. The "repeated and persistent" debriefing of personnel returning from Riyadh "in order to develop derogatory information" about plaintiff and to "undermine" his authority;

7. The denial of permission for plaintiff to travel to the U.A.E.;

8. The "channeling" of all oral communications from the plaintiff to his supervisors through Kaciban;

9. "Unauthorized travel" of personnel to the Arabian peninsula;*fn2

10. The lack of notice given to plaintiff about the trip of Gamal Abdel-Hafiz to FBI Headquarters;*fn3

11. The "bad faith" investigation of plaintiff conducted by the FBI's security division "because of ...


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