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Youssef v. Federal Bureau of Investigation

March 30, 2008

BASSEM YOUSSEF, PLAINTIFF,
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Colleen Kollar-kotelly United States District Judge

MEMORANDUM OPINION

Plaintiff Bassem Youssef ("Youssef") brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against the Federal Bureau of Investigation, the United States Department of Justice, the United States Attorney General in his official capacity, and the Director of the Federal Bureau of Investigation in his official capacity (individually and collectively "the FBI"). Youssef is an Egyptian-born American citizen who has been employed by the FBI since 1988. He claims that the FBI discriminated against him following the September 11, 2001 terrorist attacks by excluding him from positions associated with counterterrorism and by retaliating against him after he filed an Equal Employment Opportunity ("EEO") complaint. Currently pending before the Court are Defendant's [85] Motion for Summary Judgment, Plaintiff's [82] Motion for Partial Summary Judgment, Defendant's [109] Second Motion for Summary Judgment, and Plaintiff's [114] Motion to Strike Defendant's Second Motion for Summary Judgment and related exhibits. Although Youssef is clearly disappointed that the FBI has not used his Arabic-speaking abilities and background differently in his assignments following the September 11, 2001 terrorist attacks, the Court finds that Youssef has failed to demonstrate that a genuine issue of material fact exists concerning his claims of discrimination. The Court finds that Youssef has, however, demonstrated the existence of genuine issues of material fact as to whether the FBI retaliated against him in response to his statutorily-protected activities. Accordingly, after a searching review of the Parties' submissions, including the voluminous exhibits attached thereto, applicable case law and statutory authority, the Court shall grant in part and deny in part Defendant's [85] Motion for Summary Judgment, deny Plaintiff's [82] Motion for Partial Summary Judgment, grant Defendant's [109] Second Motion for Summary Judgment, and deny Plaintiff's [114] Motion to Strike, for the reasons that follow.

I. BACKGROUND

Because this case has a complex factual and procedural background, the Court divides this section into five parts: Part A describes Youssef's FBI employment background from 1988 to 2001; Part B describes Youssef's FBI employment after the September 11, 2001 terrorist attacks (hereinafter "9/11 attacks") through July 18, 2003, the date the Complaint was filed in the present action; Part C describes the two acts of alleged discrimination at issue; Part D describes the two acts of alleged retaliation at issue; and Part E describes the procedural posture of this case, including an explanation as to why the FBI took the somewhat unusual step of filing a Second Motion for Summary Judgment.

A. Youssef's Employment Background, 1988-2001

Youssef began working as a GS-10 level Special Agent for the FBI in 1988.*fn1 Defs.' Stmt. ¶ 2. Following new agent training, the FBI assigned Youssef to its St. Louis office, although he also traveled to other locations (including Pakistan) on short-term assignments. Pl.'s Stmt. ¶¶ 7-11. Youssef contends that he participated in terrorism investigations, including advising and assisting with counterterrorism cases, searches, seizures, arrests, and "extract[ing] confessions" during this period. Pl.'s Stmt. ¶¶ 5, 7-12. The FBI maintains that Youssef's counterterrorism assistance was limited to that of a "translator." Defs.' Resp. Stmt. ¶ 6-12. The Parties do not dispute that Youssef received various assignments utilizing his Arabic speaking capabilities during this period.*fn2 See, e.g., Pl.'s Stmt. ¶ 17; Defs.' Resp. Stmt. ¶ 17.

The FBI transferred Youssef from its St. Louis office to Los Angeles in 1992 to "fill the need for an Arabic speaking agent." Pl.'s Stmt. ¶ 21. Youssef was assigned to the International Terrorism Squad, part of the Los Angeles Task Force on Terrorism. Id. ¶ 24. In that capacity, Youssef coordinated one or more FBI "Islamic Group cases," which were part of a counterterrorism program that investigated certain crimes and collected criminal intelligence. Id. ¶ 25; Defs.' Resp. Stmt. ¶ 25. Youssef was also a case agent on one or more counterterrorism investigations.*fn3 Pl.'s Stmt. ¶ 26. In October 1994, the Polygraph Unit at FBIHQ selected Youssef to become a Bureau-certified Polygraph examiner. Id. ¶ 36-37. Youssef believes that he is the FBI's first and only polygraph examiner trained to conduct exams and debriefings in Arabic at a native fluency level, id. ¶ 38, although the FBI explains that Youssef's examinations have involved mostly job applicants, and only one examination occurred in the context of a criminal investigation. Defs.' Resp. Stmt. ¶ 38. Youssef also operated with a false name and credentials while assigned to the Los Angeles office, which Mr. Edward Curran, Youssef's supervisor, felt was necessary based on "the type of work [Youssef] was doing." Pl.'s Stmt. ¶¶ 39, 41. Mr. Curran also testified that Youssef was an important part of the Los Angeles counterterrorism program. Id. ¶¶ 43-45.

Youssef asserts that, during this period, he undertook activities such as taking custody of, and debriefing, an FBI fugitive, id. ¶ 48, providing input on Foreign Intelligence Surveillance Act ("FISA") applications and analytical materials, serving on a temporary assignment in Egypt, and managing a bombing investigation. Id. ¶¶ 62-69. The FBI acknowledges some of this activity, such as his participation in the submission of FISA applications, Defs.' Resp. Stmt. ¶ 62, and traveling on an assignment to Egypt, id. ¶ 64, but denies that Youssef played a role beyond that of a translator, id. ¶ 48, or that he led any investigations, id. ¶¶ 66, 69. Nevertheless, Youssef received high praise from his supervisor during this period, and he received an award from the Director of Central Intelligence for the quality of his work. Pl.'s Stmt. ¶ 50, 57; Defs.' Resp. Stmt. ¶ 50.

In 1996, Youssef applied for and was promoted to the position of Legal Attache ("Legat") in Riyadh, Saudi Arabia.*fn4 Pl.'s Stmt. ¶ 71. Youssef's fluency in Arabic and interpersonal skills appear to have played a significant role in his selection as Legat based on comments considered by the Career Board. Id. ¶¶ 73-76. When Youssef arrived in Riyadh to begin his work as Legat, relations between the FBI and the Mabahith (the FBI's counterpart in Saudi Arabia) were strained. Id. ¶ 84. Youssef helped to improve relations between the two organizations. Id. ¶ 88; Pl.'s Mot. for Summ. J., Ex. 10, Tr. 57:19-22 (Deposition of CIA Director Louis Freeh) ("I think [Youssef] was the essential player. I think his -- his very good work there, the high regard that the Saudis had for him advanced that."). According to the FBI Inspection Division Report, Youssef established and maintained effective liaison with law enforcement entities for the purpose of supporting its investigative missions. Pl.'s Stmt. ¶ 90. When Youssef received a copy of his performance evaluation on May 3, 2000, his first and second line supervisors assessed his performance as "exceptional." Id. ¶ 94. Among other words of praise, Ambassador Wyche Fowler remarked that Youssef was "just the right man" for the Legat position. Id. ¶ 95.

There is no question that Youssef achieved various successes in his capacity as the Riyadh Legat. For example, Youssef and the Legat staff established working relationships with representatives from thirty-two different law enforcement entities and American Embassies throughout the Gulf Region. Id. ¶ 100. The Director of Liaison for the Mabahith visited the United States Embassy for the first time on Youssef's invitation. Id. ¶¶ 101, 104. The FBI agrees that Youssef's "efforts helped the FBI accomplish its mission in Saudi Arabia." Defs.' Resp. Stmt. ¶ 112. Nevertheless, the Parties continue to disagree as to the extent to which Youssef's activities during this period can be said to relate to counterterrorism experience as opposed to experiences associated with performing as a translator. Compare Pl.'s Stmt. ¶ 119 ("At the time of [the 9/11 attacks] and thereafter, Mr. Youssef possessed far superior skills and knowledge in dealing with Middle Eastern Counterterrorism than any other FBI Agent") with Defs.' Resp. Stmt. ¶ 119 ([Youssef's] counterterrorism experience is very limited, and mostly involves performing as a translator"). The FBI also points out that a subsequent inspection of the Legat office found certain organizational and administrative deficiencies at the Legat office that were partially attributable to Youssef. See Defs.' Mot. for Summ. J. at 9 & Ex. 30 at 18-24 (Riyadh Legat Inspection Report).

In July 2000, Youssef left his position as Legat in Saudi Arabia and returned to the United States to work as the Chief of the Executive Secretariat Office ("ESO") at the National Counterintelligence Center ("NACIC") of the Central Intelligence Agency ("CIA").*fn5 Pl.'s Stmt. ¶¶ 128-29; Defs.' Stmt. ¶ 13. Although the FBI formally reassigned Youssef from the Legat Office to the Counterintelligence Division of the FBI ("CID"), the NACIC position was a detail to another agency, and consequently, Youssef was not stationed at the FBI's Headquarters ("FBIHQ"). Defs.' Stmt. ¶ 14. Youssef's responsibilities in his NACIC position included coordinating liaison activities with representatives from various agencies in the United States Government associated with counterintelligence issues, and acting as the Executive Secretary for a number of multi-agency groups that developed policy and other initiatives in support of the counterintelligence community at large. Pl.'s Stmt. ¶ 138. Robert Thompson, Youssef's supervisor during this period, considered Youssef's performance in this role "excellent." Id. ¶ 141.

Youssef's detail to the NACIC was expected to last two years, but in February 2001, the President issued a Presidential Decision Directive that dismantled the NACIC and created a new organization in its place called the National Counterintelligence Executive ("NCIX"). Defs.' Stmt. ¶ 15. Youssef's position was abolished during this reorganization. Pl.'s Stmt. ¶ 144; Defs.' Stmt. ¶ 17. Employees (including Youssef) whose details to the NACIC had not yet expired were assigned to other positions within the organization. Defs.' Stmt. ¶ 16. Youssef was reassigned to a position in the NCIX where he was responsible for assessing damage to the nation's counterintelligence interests as a result of the disclosure of national security information.*fn6 Id. ¶ 18. Youssef was permitted to remain in this position until his term expired or until he found a new position in the FBI. Id.

After Youssef received his reassignment within the NCIX, he applied for two Unit Chief positions at FBIHQ. Defs.' Stmt. ¶ 19. Youssef applied for, but did not receive, the position of Chief of the Undercover Safeguards Unit, Operational Support Section, Criminal Division.*fn7 Id. Youssef also applied for Unit Chief of the Strategic Information and Operations Center ("SIOC"), Intelligence Operations Support Center, Investigative Services Division. Id. ¶ 20. The FBI did not select Youssef for this position either, and as described in greater detail below, Youssef argues that the FBI's denial of his application for the SIOC position was discriminatory.

B. Youssef's Employment, Post- 9/11 Attacks

Youssef was employed at the NCIX (with his application for the SIOC position pending) when the 9/11 attacks occurred. The attacks galvanized the FBI to divert a significant number of resources and personnel to counterterrorism. Pl.'s Stmt. ¶ 147. Youssef believes that the FBI should have immediately moved him into a critical role related to the 9/11 attacks, including one that would allow him to use his Arabic-speaking skills. Pl.'s Stmt. ¶¶ 146, 148. In seeking out such a position for himself, Youssef called or left messages for several FBI managers to offer assistance following the attacks. See Defs.' Mot. for Summ. J., Ex. 8, Tr. 121:17 - 124:19 (Deposition of Bassem Youssef). It is undisputed that Youssef did not apply for any of the available positions at FBIHQ that were posted in its computer database. Id.,Tr. 244:4 - 245:22.

Youssef believes that one reason he had difficulty obtaining his desired placement is that there were derogatory rumors circulating about Youssef within the FBI at this time. Pl.'s Stmt. ¶¶ 157, 161. The rumors were that Youssef was a Muslim who wore traditional Arabic headgear while assigned in Saudi Arabia, and that he had refused to participate in an investigation based on his ethnic background. Id. ¶¶ 155, 157, 160. In fact, Youssef is a Coptic Christian, not a Muslim, and the stories concerning the head-gear and investigation were apparently associated with a different FBI agent with a similar-sounding name. Id. ¶¶ 156, 161, 162. The FBI disputes Youssef's description of these rumors based on a lack of evidence adduced by Youssef that the rumors ever existed, and also based on the testimony of various FBI officials who deny ever having heard any rumors or gossip concerning Youssef. Defs.' Resp. ¶¶ 155, 161. Youssef alleges these rumors existed based on the statements of two FBI agents. See Pl.'s Opp'n to Defs.' Mot. for Summ. J., Ex. 84 ¶21 (Affidavit of Paul Vick) (explaining that he heard a rumor from Jim Olsen, a former FBI employee); id., Ex. 22 at 5 (EEO Investigation) (EEO investigator explaining that William Chornyak said he heard a rumor from a third-party). Notwithstanding the fact that the latter statement is clearly hearsay, the former does not support the idea that such rumors, if they existed, were known to those who Youssef believes discriminated or retaliated against him. Moreover, Youssef fails to connect these rumors to any adverse employment action, and fails to present evidence showing that they could, standing alone, constitute an adverse action. See Section III.A (page 46), III.E,(pages 68-69), infra.

In early 2002, Youssef spoke to William Chornyak, Deputy Assistant Director in the Counterintelligence Division ("CID") at FBIHQ, concerning placement opportunities. Pl.'s Stmt. ¶¶ 153, 154. He explained to Mr. Chornyak that he wanted to terminate his detail at NCIX and return to FBIHQ. See Pl.'s Mot. for Partial Summ. J., Ex. 22, Tr. 22:13-15 (Deposition of William Chornyak). Mr. Chornyak, in turn, sought the assistance of his supervisor, Ellen Knowlton. Id., Ex. 18, Tr. 33:3-7 (Deposition of Ellen Knowlton) ("[Mr. Chornyak] explained to me that [Youssef] was looking to come back to headquarters, and [Mr. Chornyak] spoke very highly of him and was inquiring as to whether we had any openings that he might be interested in"). In February 2002, Mr. Chornyak and Ms. Knowlton informed Youssef that he would be transferred into the CID's Budget Unit. Pl.'s Stmt. ¶ 164. Ms. Knowlton testified in her deposition that the budget position "was open, and based on my confidence in Mr. Chornyak . . . I thought that based on [Youssef's] experiences at NCIX with policy and writing, that . . . he might be a good fit for a key position in our division, the budget officer."*fn8 Pl.'s Mot. for Partial Summ. J., Ex. 18 Tr. 33:10-15 (Deposition of Ellen Knowlton). The work Youssef would have performed in the Budget Unit would have been below his GS-15 level.*fn9 Pl.'s Stmt. ¶ 166. Youssef, a GS-15 level agent at this time, would also have been supervised by a non-agent in the Budget Unit position, which is rare in the FBI. Id. ¶¶ 167-68. Youssef sought to "block" this transfer by speaking with Timothy Caruso, Assistant Director in the Counterterrorism Division ("CTD"), and by initiating a proceeding under Title VII of the Civil Rights Act of 1964. Id. ¶¶ 170-71. On March 14, 2002, Youssef contacted the FBI's EEO office and formally alleged that the FBI was discriminating against him based on his Middle Eastern National Origin. Id. ¶ 171. Youssef complained about his transfer to the CID's Budget Unit, and indicated that he wanted a placement "commensurate with his grade and experience." Id. ¶¶ 172-73.

Mr. Caruso met with Youssef and informed him that he would not be assigned to the Budget Unit, and would instead be temporarily assigned to a new program within CTD involving document exploitation ("DocEx") beginning in March 2002.*fn10 Pl.'s Stmt. ¶ 175; Defs. Mot. for Summ. J., Ex. 8, Tr. 224-26 (Deposition of Bassem Youssef). Youssef was not satisfied with the work he was asked to perform at DocEx. According to Youssef, he was responsible for "cataloging [documents], i.e. as [in] putting an identifying number or serial number on a document before storing the document as original evidence."*fn11 Pl.'s Stmt. ¶ 184. The FBI disputes that Youssef performed this type of "clerical function," and instead characterizes his work as "triage" of documents (apparently a reference to the capturing and disseminating of information in documents, see Defs.' Mot. for Summ. J. at 12). Defs.' Stmt. ¶ 184. Mr. Kinnally testified that Youssef did an excellent job in this position. Pl.'s Stmt. ¶ 185.

On June 28, 2002, Youssef met with United States Congressman, Frank R. Wolf, to discuss his employment situation at the FBI and seek the Congressman's advice. Id. ¶ 195-96, 199. Congressman Wolf arranged a meeting with Youssef and the FBI Director, Robert Mueller.

At this meeting, Youssef explained to Director Mueller that he was uniquely qualified to help with the FBI's counterterrorism efforts since the 9/11 attacks, but that senior management was discriminating against him based on his national origin and, consequently, he was not placed in a position he deemed "most in line with his background and skills." Id. ¶¶ 201-04. Director Mueller indicated that he would look into the matter. Id. ¶ 206.

On July 10, 2002, Youssef filed a formal EEO complaint. Id. ¶ 208. The Complaint alleged the following:

Following the terrorist attacks of September 11, 2001, the priorities of the U.S. government were realigned to make Counterterrorism the most important task of the FBI. Given my Arabic language skills, understanding of Middle Eastern culture, and extensive experience and expertise in the Counterterrorism field, it would have been reasonable to expect that I would play a role in the Bureau's post 9/11 Counterterrorism efforts. However, despite the importance of effective Counterterrorism and protecting America's Homeland Security, I have not been allowed to work in Counterterrorism in any capacity since 9/11.

Pl.'s Opp'n to Defs.' Mot. for Summ. J., Ex. 34 at 5 (EEO Complaint). Youssef submitted a supplemental complaint on October 13, 2002, alleging that the FBI had retaliated against him by providing him with conflicting information concerning whether he was assigned to CTD or CID. Pl.'s Stmt. ¶ 212. The EEO indicated that it would investigate Youssef's alleged exclusion from counterterrorism work and the confusion surrounding whether he was assigned to the CTD or CID. Id. ¶¶ 215-16 (citing EEO Letter dated January 9, 2003).

In August 2002, Youssef applied for and received a permanent position as Unit Chief of DocEx. Defs.' Stmt. ¶ 33. Youssef was employed in that position on July 18, 2003, when he filed this present action. The FBI subsequently transferred Youssef to a new position as Unit Chief of the Communications Analysis Unit ("CAU") in November 2004.*fn12

C. Alleged Discriminatory Acts

Youssef's First Amended Complaint*fn13 and the Parties' Summary Judgment briefing address two claims of alleged discrimination.

1. Non-Selection for SIOC Position

In August 2001, Youssef applied for the position of Unit Chief of SIOC in the Investigative Services Division of the FBI. Defs.' Stmt. ¶ 20. The SIOC "serves as the focal point for information flowing into FBIHQ and . . . accommodates special event monitoring as well as crisis action teams activated in response to specific situations." Defs.' Mot. for Summ. J., Ex. 14 at 1 (Vacancy Announcement). The SIOC is responsible for, among other things, monitoring global events, "identifying and reacting to those of strategic importance to the FBI, and providing first responder assistance to FBIHQ, field offices, and Legats . . . ." Id. The SIOC also "represents FBIHQ and the Director" during non-business hours. Id. The Unit Chief of the SIOC is responsible for administering and managing a staff of forty-four persons, including ten special agents and thirty-four professional support employees. Id.

The Vacancy Announcement for the SIOC Unit Chief position stated that there were preferred, but not mandatory, qualifications that would be taken into consideration by the reviewing Career Board. Defs.' Stmt. ¶ 21. These preferred qualifications included "in-depth management experience in a broad range of FBI operational & investigative matters to include counter terrorism, crisis management experience, strong organizational & administrative skills, strong liaison and interpersonal skills, strong communication skills, familiarity with communication and computer information systems and the ability to assimilate and apply new technologies." Id.

Youssef was one of six employees who applied for the SIOC position, although one person withdrew from consideration. Defs.' Stmt. ¶ 22. The Career Board consisted of Steven McGraw, Cassandra Chandler, Virginia Bollinger, Patrick Patterson (the presenter), and Randy Sayles (the minority non-voting member). Id. ¶ 23. After deliberating, the Career Board ranked the top three candidates; Youssef was not ranked in the top three. See Defs.' Mot. for Summ. J., Ex. 16 at 2 (Career Board Memorandum). The top-ranked candidate*fn14 was offered, and apparently accepted, the SIOC position.*fn15 Defs.' Reply at 22 n.20. Youssef claims that the Career Board's failure to select him as the top-ranked candidate was discriminatory, and the Career Board's explanation for its decision was pretextual. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 27-32.

2. Selection for SES Position

At FBIHQ, the senior executive management hierarchy extends down from the Director of the FBI to a Deputy Director, four Executive Assistant Directors, Assistant Directors, Deputy Assistant Directors, and Section Chiefs. See Defs.' Mot. for Summ. J., Ex. 1 ¶ 3 (Declaration of Michael B. Ward). All of these personnel, except for the Director, hold Senior Executive Service ("SES") positions. Id. The entry level SES positions are generally Section Chiefs at FBIHQ. Defs.' Stmt. ¶ 1. All entry level SES vacancies are advertised Bureau-wide, see Defs.' Mot. for Summ. J., Ex. 1.c (Manual of Administrative Operations and Procedures ["MAOP"] 3-11.1), although Youssef argues that "many SES positions are created and applicants for the position[s] are often 'pre-selected' prior to any advertisement of the position[s]," Pl.'s Resp. Stmt. ¶ 1. To apply for entry-level SES positions, candidates must submit a two-page resume for consideration by the SES Board, Defs.' Stmt. ¶¶ 1-2, although Youssef argues that Career Board members often rely on "personal knowledge" so that the two-page resumes do not "stand alone." Pl.'s Resp. Stmt. ¶¶ 1-2.

Youssef did not apply for an SES position. Defs.' Stmt. ¶¶ 33, 36. Youssef argues that he demonstrated his desire to be promoted into an SES position by enrolling in the inspection certification process, see Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 33, a process that is required for advancement into the SES, id., Ex.63, Tr. 93:9 - 94:1 (Deposition of Robert S. Mueller). According to Youssef, the FBI's failure to promote him to an SES position was discriminatory. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 33-38.

D. Alleged Retaliatory Acts

Youssef and Congressman Wolf met with FBI Director Mueller on June 28, 2002, Pl.'s Stmt. ¶ 201, and Youssef filed an EEO complaint on July 10, 2002, Pl.'s Stmt. ¶ 208. Youssef also filed his Complaint in the present action on July 18, 2003. Youssef claims that the FBI retaliated against him for undertaking these and other statutorily-protected activities. The two retaliatory acts identified by Youssef in his Complaint and Partial Motion for Summary Judgment include (1) his supervisor's denial of his requests for leave to attend the inspection necessary to become "inspection certified" and (2) the FBI's rescission of an April 30, 2002 memorandum transferring Youssef into the International Terrorism Operations Section ("ITOS") Unit.

1. Inspection Certification

FBI senior special agents with at least a GS-14 level may participate in inspections of FBI offices to monitor their compliance with the Bureau's policies, procedures, and administrative requirements. Pl.'s Resp. Stmt. ¶ 9. Agents must complete six inspections in order to become "inspection certified." Id. Inspections are viewed as training tools for agents and are not required as part of an agent's job, see Defs.' Mot. for Summ. J., Ex. 23, Tr. 146:13-17 (Deposition of John Lewis) (describing the inspection process as "one of the best learning tools out there for us agents"), although inspection certification is required to become eligible for SES-level positions. See Pl.'s Opp'n to Defs.' Mot. for Summ. J., Ex. 63, Tr. 93:9 - 94:1 (Deposition of Robert Mueller); id., Ex. 84 ¶ 9 (Affidavit of Paul W. Vick). Youssef completed his fifth inspection in November 2004, but had not completed his sixth and final inspection as of May 26, 2005, the date on which Youssef added a retaliation claim to his First Amended Complaint based on the FBI's denial of his requests for leave to complete his sixth inspection. According to Youssef, the FBI has "systemically denied [him] permission to conduct his last inspection." Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 35.

In May 2004, John Lewis ("Lewis") became the Deputy Assistant Director in CTD responsible for overseeing the Communications Exploitation Section. Defs.' Stmt. ¶ 37. Laurie Bennet ("Bennet") was appointed as the Section Chief in August 2004.*fn16 Id. After assuming his new position, Lewis learned that staffing levels throughout the CTD were low and the division, including DocEx, was in poor shape. Defs.' Stmt. ¶ 38. Although Youssef argues that any performance problems in DocEx were unrelated to himself, he does not deny that DocEx suffered from various problems. See Pl.'s Resp. Stmt. ¶ 38 (arguing that information related to DocEx should be struck because the FBI refused to produce certain discovery related to DocEx, but not arguing that DocEx had no performance issues). Lewis testified that DocEx suffered from poor communication among its employees and a deterioration of its evidence room:

[The DocEx problems were] the interaction between [Youssef] and his subordinates, that was very poor, of those that I talked to. It was just not a good environment for the people that were there. I was somewhat surprised in taking [sic] the unit at the amount of material that was backlogged and when I arrived, there was no plan that I could find from the person in charge of the unit, Mr. Youssef, on how that was going to be addressed . . . The most alarming thing that I indicated before was the shape of the evidence room. That was [Youssef's] responsibility as a GS-15 . . . It was poor functioning and the FBI agents were supposed to be tuned into that. They get training on that from Day One.

Defs.' Mot. for Summ. J., Ex. 23, Tr. 175:10 - 176:7 (Deposition of John Lewis) (hereinafter "Lewis Depo. Tr.").

Lewis further testified that he and Bennet decided that, because the issues associated with DocEx began prior to receiving their new positions in CTD, they would not treat the DocEx deficiencies as a reflection of Youssef's performance; instead, they decided to laterally transfer Youssef to the position of Unit Chief of the Communications Analysis Unit ("CAU") in November 2004. Id., Tr. 177:1 - 178:22; Defs.' Mot. for Summ. J., Ex. 24, Tr. 161:12-20 (Deposition of Laurie Bennet) (hereinafter "Bennet Depo. Tr."). Lewis and Bennet viewed this transfer as an opportunity for Youssef to get a fresh start in a new position.*fn17 Id. Almost immediately after Youssef's transfer to the CAU, Lewis also allowed Youssef to leave for an inspection of the Cincinnati field office. Defs.' Stmt. ¶ 43. Following that inspection, Youssef had completed five of the six inspections he needed to become "inspection certified." Id.

After returning from the Cincinnati field office inspection, Youssef was out of the office approximately two-thirds of the time from November 2004 until January 2005, largely in connection with his EEO-related activities.*fn18 Id. ¶ 46. In January 2005, the Inspections Division asked Youssef to participate in an inspection of the Los Angeles field office. Id. ¶ 44. Bennett initially approved Youssef's request for three weeks leave to attend this inspection. Id. Bennett subsequently learned that Youssef had also requested leave during one of the weeks leading up to the inspection for family reasons. Id.; Pl.'s Resp. Stmt. ¶ 44 (objecting to this fact only on grounds of materiality). After speaking with Bennet and learning of Youssef's request for approximately four weeks of leave, Lewis reversed Bennet's approval and denied Youssef's request to participate in the Los Angeles office inspection. Defs.' Stmt. ¶ 46; Pl.'s Resp. Stmt. ¶ 40. According to Lewis' testimony:

The thing that struck me as odd when [Youssef] told me about this [Los Angeles inspection request] at lunch was you were just there. Excuse me. You were just out on an inspection. You have a brand new unit, very important . . . He and I both know that he has a learning curve to get down which is fairly complex . . . now he's signing up for a three week inspection, mind you, without discussing this with his immediate supervisors, the assistant section chief and section chief. Lewis Depo. Tr. 146-47.

Not quite one month later, Youssef asked for permission for leave to attend an inspection of the FBI's Washington D.C. office. Bennett Depo. Tr. 79:3-12. Lewis again denied Youssef's request to participate, sending an email to both Youssef and Bennett explaining his reasoning:

Laurie/Bassem: both of you will recall following our conversations that the reason for withdrawing from the LA Inspection had to do with the amount of time [Youssef] has/has not spent in the [Unit Chief] chair. As stated earlier, our first priority is to CTD, to ensure a smooth transition from the old [Unit Chief] to the new [Youssef], and to ensure CAU is receiving consistent and appropriate leadership, oversight, and direction. For that reason I asked that [Youssef] be moved off the LA inspection and we'll find another assignment some where [sic] down the line. In regards to the most recent [inspection request], I do not believe those who made this assignment are aware of the above concerns or for that matter prior conversations I may have had with the Inspection Division . . . [Youssef] can stand down on the [inspection request] in favor of a future Inspection assignment as we have previously discussed.

Pl.'s Opp'n to Defs.' Mot. for Summ. J., Ex. 115 (Lewis Email dated Feb. 16, 2005).*fn19

According to Youssef, Lewis denied his requests for leave to participate in these inspections in retaliation for Youssef's having filed a complaint and having spent time out of the office attending EEO-related activities, not because he was needed in the CAU. Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 37-39.

2. ITOS Transfer Rescission

On April 30, 2002, the CID requested the directed placement of Youssef to ITOS.*fn20 Pl.'s Stmt. ¶ 187. According to the request, based on "Youssef's knowledge relative to overseas operations (previous assignment to a legal attache) coupled with his arabic speaking ability, it's recommended that approval be granted for the directed placement of SSA Youssef from the [CID] to [ITOS] effective immediately." Pl.'s Opp'n to Defs.' Mot. for Summ. J., Ex. 81 (Directed Placement Memorandum dated April 30, 2002) (hereinafter, the "ITOS transfer memorandum"). This directed placement was approved and signed by FBI Director Mueller, Dale Watson, James Caruso, Pasquale D'Amuro, David Szady, and Margaret Buckely. Id. It is undisputed that the transfer of Youssef into ITOS was never implemented. Pl.'s Stmt. ¶ 230.

The circumstances arising after Youssef filed his complaint in this action are particularly relevant to the disposition of Youssef's retaliation claim based on the ITOS transfer memorandum. Youssef claims that he did not see the ITOS transfer memorandum prior to filing his complaint in the present case. Pl.'s Stmt. 191. On April 28, 2004, the FBI provided a copy of the ITOS transfer memorandum to Youssef with its Initial Disclosures. See Defs.'Opp'n to Pl.'s [41] Mot. to Enlarge the Number of Depositions at 3; Pl.'s [52] Reply at 2. Youssef sought, and the Court granted, leave to file a First Amended Complaint on October 25, 2004, which did not include a claim based on the ITOS transfer memorandum. See [20] First Am. Compl. Prior to seeking leave to file another amended complaint on March 8, 2005, Youssef deposed three signatories on the ITOS transfer memorandum, including Dale Watson (December 8, 2004), Pasquale D'Amuro (November 30, 2004), and David Szady (February 3, 2005). See Defs.' Opp'n to Pl.'s [41] Mot. at 4. Of those individuals, Youssef only questioned Mr. Szady about the ITOS transfer memorandum. See Pl.'s [41] Mot., Ex. 5 (Deposition of David Szady). On April 26, 2005, Youssef also deposed FBI Director Mueller and asked him about the ITOS transfer memorandum, which Director Mueller could not recall. See Pl.'s [121] Reply, Ex. 7, Tr. 70:21 -71:3 (Deposition of Robert S. Mueller) ("Q: did anyone ever discuss with you the reasons why Mr. Youssef was not placed into ITOS? A: You're telling me he was not placed in ITOS. I did not know he wasn't placed in ITOS, no").

Discovery in this action was set to close on May 18, 2005, after having been extended twice. Nevertheless, Youssef filed a [41] Motion to Enlarge the Number of Depositions on May 10, 2005, and a [42] Motion to Compel Production of Documents and Verified Answers to Interrogatories on May 18, 2005. The first motion explained that Youssef wanted to take additional depositions concerning the ITOS transfer memorandum, which Youssef stated was "[c]entral to [his] claim . . . that the FBI failed to assign him to 'operational' counterterrorism work after the 9/11 attacks." Pl.'s [41] Mot. at 3. Youssef's second Motion clarified that he sought information concerning the ITOS transfer memorandum because it was "relevant to his claims that the FBI excluded him from assignments within his area of expertise and/or failed to promote him on the basis of his national origin." Pl.'s [42] Mot. at 36. On June 7, 2005, Magistrate Judge Alan Kay granted in part and denied in part Youssef's request for additional depositions, allowing Youssef to depose an individual who was not a signatory on the ITOS transfer memorandum, but denying Youssef's request to depose additional signatories on the memorandum because that discovery was deemed cumulative and Youssef had "possession of the FBI memorandum for more than a year and had ample opportunity to explore the reasons for his transfer with other deponents." [53] Mem. Op. at 5 (June 7, 2005). Magistrate Judge Kay's memorandum opinion characterized the discovery concerning the ITOS transfer memorandum as related to Youssef's claim that "the FBI did not assign [Youssef] to [ITOS] because of his Middle Eastern descent." Id. at 1-2.

Youssef moved for leave to file a Second Amended Complaint on March 8, 2005 to add disparate impact discrimination claims as to all "non-white FBI employees" and an additional retaliation claim. See Pl.'s [22] Second Mot. to Amend at 1-9. Magistrate Judge Kay denied Youssef's requests to add the disparate impact discrimination claims because Youssef failed to exhaust his administrative remedies for such claims, Youssef lacked standing to assert them, and the claims were prejudicial to the FBI because Youssef asserted them for the first time at the very end of discovery and more than six months after Youssef had indicated that all amendments to his complaint would have already been proposed. See [47] Mem. Op. at 4-15 (May 26, 2005). Nevertheless, Magistrate Judge Kay did allow Youssef to add an additional retaliation claim (included as Count V of the Second Amended Complaint) which alleged that the FBI retaliated against Youssef by denying his requests to perform his sixth and final inspection needed to become inspection certified. Id. at 15. This Court denied Youssef's Motion for Reconsideration of Magistrate Judge Kay's decision on July 22, 2005. See [67] Order at 1 (July 22, 2005). Youssef did not request leave to add a retaliation claim based on the ITOS transfer memorandum in March 2005, nor did Youssef ask for leave to amend his First Amended Complaint to add such a claim any time thereafter.

On March 13, 2006, Youssef moved for Partial Summary Judgment claiming that the FBI rescinded the ITOS transfer in retaliation for his EEO-related activities. See Pl.'s Mot. for Partial Summ. J. at 15-37. The FBI argues that it never had notice of this claim as it was not included in Youssef's First Amended Complaint and was never previously discussed by Youssef as anything other than evidence related to Youssef's claims of discrimination. See Defs.' [109] Cross- Motion for Summ. J. at 1 n.1. In any event, the FBI argues that the ITOS transfer memorandum was simply intended to transfer Youssef from the "CID to CTD due to his then-current assignment to [DocEx], a program that did not formally exist within the FBI's structure and which primarily served the ITOS." Id. at 1-2.

E. Procedural Background

Youssef commenced this action on July 18, 2003 and filed a First Amended Complaint on October 25, 2004. As noted above, Youssef added an additional retaliation claim with the Court's permission on May 26, 2005. See [47] Mem. Op. at 15 (May 26, 2005). The Parties filed Cross-Motions on March 13, 2006. Youssef's [82] Cross-Motion for Partial Summary Judgment raised a retaliation claim based on the FBI's decision to allegedly rescind Youssef's transfer to the ITOS unit. The FBI's [85] Cross-Motion for Summary Judgment concerned four claims -- two claims of discrimination based on Youssef's non-selection to the SIOC unit and his non-promotion to an SES position, one retaliation claim based on Youssef's allegation that the FBI prevented him from becoming inspection certified, and one claim based on the First Amendment and ...


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