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Rattigan v. Holder

March 30, 2009

WILFRED SAMUEL RATTIGAN, PLAINTIFF,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL, DEFENDANT.



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

MEMORANDUM OPINION

This matter is here once again on defendant's motion for summary judgment. Plaintiff Wilfred Rattigan, a black male of Jamaican descent who converted to Islam in December 2001, is employed by the Federal Bureau of Investigation ("FBI"). He claimed that his employer discriminated against him on the basis of his race, national origin, and religion; retaliated against him for complaining about that discrimination; and subjected him to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). On August 2, 2006, the Court granted defendant's motion to dismiss certain of plaintiff's claims for failure to exhaust. Rattigan v. Gonzales, No. 04-CV-2009, 2006 WL 4916613, at *1 (D.D.C. Aug. 2, 2006) ("Rattigan I"). On May 31, 2007, the Court granted defendant's motion to dismiss the rest of plaintiff's claims with the exception of four retaliation claims relating to the investigation of plaintiff's work performance. Rattigan v. Gonzales, 503 F. Supp. 2d 56 (D.D.C. 2007) ("Rattigan II"). Defendant has now moved for summary judgment on the four remaining retaliation claims. For the reasons set forth below, defendant's motion will be denied with respect to the events surrounding the investigation of plaintiff by the FBI's Security Division, but granted in all other respects.

BACKGROUND

As this is the third dispositive motion to have arisen from plaintiff's claims of discrimination and retaliation, the Court need not repeat the facts and procedural history which are set forth in Rattigan II, 503 F. Supp. 2d at 62-67, but will limit its discussion to those facts that relate to the four remaining retaliation claims.

The FBI maintains Legal Attache, or "LEGAT," offices in more than 40 different countries. Each LEGAT office is typically staffed with two agents referred to as the Legal Attache ("Legat") and Assistant Legal Attache ("ALAT"). LEGAT Riyadh is the LEGAT office in Riyadh, Saudi Arabia, and is housed in the U.S. Embassy. A primary function of the LEGAT Riyadh office was to transmit investigatory leads from other components of the FBI to the Saudi state security service (the Mabahith) and to similar agencies in the six other Arab countries within the office's territorial jurisdiction, in the hope that these agencies would cooperate by providing the information that the FBI requested.

All LEGAT offices and their personnel report directly to the FBI component now known as the Office of International Operations ("OIO"), located at FBI headquarters ("FBIHQ") in Washington, D.C. At all relevant times, the chain of command within OIO consisted of an assistant director ("AD"), a deputy assistant director ("DAD"), two section chiefs ("SCs"), and five unit chiefs ("UCs") (collectively "OIO management"). Assisted by subordinates, two of the UCs supervised all of the LEGAT offices.

From February 1999 to July 2000, plaintiff was the ALAT in Riyadh; from July 2000 through July 2003, he was the Legat. Plaintiff's request for an extension of duty in Riyadh was denied in December 2002, and in July 2003, he began an assignment in the FBI's New York field office as a supervisor in a new counterterrorism squad. (Def.'s Ex. 2I (EEO Compl., Mar. 16, 2004) at 3; Def.'s Ex. 2J (EEO Counseling Report, Apr. 30, 2004) at 6; Def.'s Ex. 2N (Curtis Electronic Communication ["EC"], Feb. 3, 2003) at 1.) Plaintiff now serves in the FBI's field office in Jackson, Mississippi, as an Assistant Special Agent in Charge. (Pl.'s Mem. of Law in Opp'n to Def.'s Mot. for Summ. J. ["Opp'n"] at 1.)

Plaintiff contends that in response to his complaints about workplace discrimination, defendant retaliated by engaging in the following adverse actions relating to the monitoring or investigation of plaintiff and his work performance: (1) the May 2000 file review conducted by Supervisory Special Agent ("SSA") Albert Finch ("Finch review"); (2) the October 2001 on-site review conducted by Unit Chief Cary Gleicher ("Gleicher review"); (3) the debriefing of three temporary duty personnel ("TDYers") returning from Riyadh ("debriefings"); and (4) the investigation of plaintiff by the FBI's Security Division ("security investigation"). See Rattigan II, 503 F. Supp. 2d at 82. The factual background underlying these four claims is as follows:

I. THE FINCH REVIEW

From February 1999 to July 2000, Bassem Youssef was the Legat in Riyadh. Youssef and plaintiff had a "very acrimonious" relationship, seemingly from the moment they met when Youssef told plaintiff that he had supported someone else for the ALAT position. (Def.'s Ex. 4L (Rattigan Dep., Dec. 7, 2007) ["Rattigan Dep."] at 34:1-2, 38:16-39:7.) In January 2000, plaintiff sought Equal Employment Opportunity ("EEO") counseling regarding Youssef's alleged racial discrimination against plaintiff. (Def.'s Ex. G (EEO request, June 13, 2000) ["EEO Request"] at 1.) The matter was referred to the FBI's Employee Assistance Program ("EAP"), which seeks to minimize occupational stress and maximize productive worklife by using counselors to provide FBI employees with confidential assessment, short-term counseling, and referrals. (Pl.'s Statement in Opp'n to Def.'s Statement under LCvR 7(h) and 56.1 and Pl.'s Statement under LCvR 7(h) and 56.1 ["Pl.'s Facts"] at 4-5.) Problems addressed by the EAP include "stress, marital/family problems, mental and/or emotional issues, alcoholism, drug abuse, and financial concerns." (Id. at 5.) In March 2000, an EAP counselor arrived in Riyadh and held meetings with plaintiff, Youssef, and other office personnel to propose changes in various office policies, to which Youssef agreed. (EEO Request at 2.)

In April 2000, plaintiff obtained permission from OIO to take a vacation and requested that OIO assign someone to fill in for him on a temporary duty ("TDY") basis during his month-long absence beginning on May 20. (Pl.'s Facts at 13-14.) SC Tony Knowles asked SSA Finch to fill in, and Finch, an African-American and former ALAT and Legat in Cairo, accepted the assignment. (Id. at 14-15.) Before traveling to Riyadh, Finch reviewed Chief Inspector Henry Ragle's December 1999 inspection report for the office and made a list of outstanding cases and unaddressed leads. (Def.'s Ex. 3Z (Finch Dep., Nov. 27, 2007) ["Finch Dep."] at 29-33; see also Def.'s Ex. 4H (Ragle Inspection Report) at 3.) When Finch reported for duty in Riyadh on May 18, he spent about a week reviewing the office files to determine what leads needed to be investigated. (Finch Dep. at 46:8-17.) On May 24, Finch sent a report, entitled "Riyadh Legal Attache (LEGAT) Inspection Follow Up File Review (ALAT Wilfred Rattigan)," to Chief Inspector Ragle, Legat Youssef, and SC Knowles. (Def.'s Ex. J (Finch EC, May 24, 2000) ["1st Finch Report"] at 1.) The report stated that based on Finch's review of files in cases assigned to plaintiff, plaintiff's "overall performance was found to be less than adequate," in part because Finch found little evidence that plaintiff had followed up on many outstanding leads. (Id. at 1-2.) On May 29, plaintiff learned that Finch had reviewed his files, and on June 7, he returned to Riyadh. (EEO Request at 4.) On June 10, plaintiff had a long meeting with Finch during which they discussed all of plaintiff's cases, and plaintiff explained that some investigatory work had been done but not yet documented and that Youssef was to blame for any problems. (Def.'s Ex. K (Finch EC, June 10, 2000) ["2d Finch Report"] at 1; Finch Dep. at 61:14-17.) That same day, Finch emailed a supplemental report to Ragle, Youssef, and Knowles citing plaintiff's explanations, characterizing plaintiff's performance as "effective and efficient, given the resources assigned to Riyadh," and identifying Youssef as the one responsible for any deficiencies. (See 2d Finch Report at 1-2; Finch Dep. at 77:9-18.) Soon after, Youssef left LEGAT Riyadh. Plaintiff was promoted to Legat and began his tour of duty on July 2, 2000. (Def.'s Ex. L (Gleicher EC, Oct. 31, 2001) ["Gleicher Report"] at 2.) Gamal Abdel-Hafiz began his tour as ALAT in February 2001. (Id.)

II. THE GLEICHER REVIEW

Immediately following the terrorist attacks of September 11, 2001, UC Gleicher reached out to the Legats under his supervision, including plaintiff, to apprise them of the day's events and to offer assistance. (Def.'s Ex. P (Gleicher EEO Aff., June 30, 2003) ["Gleicher Aff."] at 3.) Plaintiff initially indicated that LEGAT Riyadh did not need any TDYers, but later advised Gleicher on September 13 that he did need assistance and specifically requested Special Agent ("SA") Beth Babyak, who had previously worked in LEGAT Riyadh as a TDYer. (Id. at 3-4; Def.'s Ex. 4J (Babyak EEO Aff., Apr. 9, 2003) ["Babyak Aff."] at 2.) Gleicher went through his chain of command to request Babyak's deployment, but was instructed by Section Chief Mike Pyszczymuka and Deputy Assistant Director Leslie Kaciban not to send her.*fn1 (Gleicher Aff. at 3.) Gleicher sent Babyak anyway, and Kaciban was angry at Gleicher for his insubordination. (Id. at 4; Def.'s Ex. 4B (Gleicher Dep., Jan. 31, 2008) ["Gleicher Dep."] at 143:8-12.) Babyak began work in Riyadh on September 21. (See Gleicher Report at 1.) SA Matthew Taylor followed on September 23, as did SSA Judson Ray of the Investigative Services Division on October 1 and SA Ammar Barghouty, a native Arabic speaker, on October 4. (See id.) On September 26, plaintiff emailed Gleicher to extend his "sincere thanks" for dispatching the TDYers and to ask for additional personnel. (Def.'s Ex. 4V (Rattigan EC, Sept. 26, 2001) at 1-2.) On October 3, plaintiff emailed Gleicher, SC Pyszczymuka, and DAD Kaciban with an expanded request for personnel and weapons given plaintiff's heightened security concerns in anticipation of the U.S. invasion of Afghanistan. (Def.'s Ex. S (Rattigan EC, Oct. 3, 2001).)

Since OIO was unable to satisfy the need of every LEGAT Office for additional assistance, it had to determine how best to allocate its limited personnel and resources. (Pl.'s Facts at 39-40.) In mid-October 2001, Kaciban and Pyszczymuka sent Gleicher to conduct on-site reviews of four Middle Eastern LEGAT offices that fell under Gleicher's supervision: Riyadh, Amman, Tel Aviv, and Abu Dhabi. (Gleicher Report at 1.) On October 15, Gleicher's first full day at LEGAT Riyadh, plaintiff confronted Gleicher privately and accused him (as well as Kaciban and Pyszczymuka) of not granting his October 3 weapons requests because of his race. (Gleicher Aff. at 9; Pl.'s Facts at 42.) Later that day, during a meeting of all office personnel, plaintiff publicly accused Gleicher of ignoring plaintiff's requests for weapons in a manner that Gleicher, Babyak, and Taylor viewed as "unprofessional" and "confrontational." (Gleicher Aff. at 9; Babyak Aff. at 7; Def.'s Ex. 5B (Taylor EEO Aff., July 7, 2003) ["Taylor Aff."] at 2.) Gleicher later met individually with all office personnel and spent considerable time with Babyak in particular to assess the office's workload, organizational structure, and administrative system for processing and documenting investigatory leads. (Gleicher Report at 4-8; Babyak Aff. at 6-7; Pl.'s Facts at 43.)

After visiting the other LEGAT offices, Gleicher returned to FBIHQ and prepared a draft EC to Kaciban, Pyszczymuka, and Assistant SC Walter Smith regarding his visit to LEGAT Riyadh. (Pl.'s Facts at 45.) The report initially cited plaintiff's confrontations with Gleicher and allegations of racism (see Def.'s Ex. 4X (Draft Gleicher Report) at 1-2, 4-5), but Gleicher removed these passages at Kaciban or Smith's instruction so that the final version that was uploaded to the FBI's computerized Automated Cases System ("ACS") would not "jeopardize" plaintiff's career. (Gleicher Dep. at 44:4-9; Gleicher Aff. at 14.) Gleicher's final report was dated October 31, 2001. (See Gleicher Report at 1.) Gleicher never made any effort to have plaintiff disciplined for Gleicher's treatment while in Riyadh. (Pl.'s Facts at 46.)

On November 6, 2001, plaintiff was informed by EC that Gleicher, Pyszczymuka, Kaciban, and Smith had approved his request for a one-year extension of his tour as Legat from July 2002 to July 2003. (Def.'s Ex. 4Z (Conway EC, Nov. 6, 2001) at 1; Pl.'s Facts at 46-47.) On November 9, plaintiff contacted an EEO counselor to complain that OIO management had discriminated against him by, among other things, failing to provide him with adequate support following the September 11 attacks. (Def.'s Ex. 5A (EEO Report, May 23, 2002) ["EEO Report"] at 2-3; Pl.'s Facts at 47.) Around this same time, plaintiff informed Gleicher, Pyszczymuka, and Kaciban of this EEO complaint. (Pl.'s Facts at 47.)

III. THE DEBRIEFINGS

Sometime after SA Taylor departed Riyadh in November 2001, he called UC Gleicher "to tell him that things had gone well during [his] TDY"; to say that "[he] felt badly about the confrontation" he witnessed in Riyadh between plaintiff and Gleicher; and to say that "[he] thought that [Gleicher] had handled the situation well." (Taylor Aff. at 2.) Gleicher "did not want to be in the position of receiving such information, albeit unsolicited," because he anticipated that plaintiff might file an EEO complaint, so he forwarded the call to SC Pyszczymuka, and Taylor repeated his description of the incident. (Gleicher Aff. at 11-12; Taylor Aff. at 2-3.) Pyszczymuka asked Taylor if he would be willing to document the incident, but Taylor demurred in the absence of an official request for such documentation, because he thought well of both plaintiff and Gleicher. (Taylor Aff. at 3.) At Pyszczymuka's instruction, Gleicher later called Taylor and left a voice message repeating Pyszczymuka's documentation request and providing the administrative file number for LEGAT Riyadh, which Taylor could use in the event he chose to file a report, which he did not. (Gleicher Aff. at 12.)

When Babyak returned from Riyadh in November 2001, she was asked to meet with DAD Kaciban and Pyszczymuka, although Kaciban was unable to make that meeting.*fn2 (Babyak Aff. at 8.) Babyak viewed Pyszczymuka's questions as "unfocused and ambiguous," so Babyak asked him if he had specific questions. (Id.) Pyszczymuka told her that he wanted to know what she thought "about the operation of the Riyadh office." (Id.; see also Def.'s Ex. 4W (Pyszczymuka Decl., Apr. 24, 2008) ["Pyszczymuka Decl."] ¶ 7.) Babyak told him that he needed to trust plaintiff's knowledge of the workings of the office and the "unique" problems it faced. (Babyak Aff. at 9.)

When SSA Ray returned from Riyadh on December 10, 2001, he sought out Gleicher and Pyszczymuka to share his unfavorable observations of plaintiff as a "weak administrator." (Def.'s Ex. R (Ray EEO Aff., May 2, 2003) ["Ray Aff."] at 6-7, 13-14.) While in Riyadh, Ray told plaintiff that upon his return to Washington, he would inform OIO management that plaintiff's inattention to administrative details left LEGAT Riyadh in "disarray" and resulted in many unaddressed investigatory leads, and that the amount of information the Saudis were providing "was not commensurate" with the amount of time plaintiff spent doing liaison work with them. (Id. at 6-7.) Although Ray shared his observations with Gleicher, and then with Pyszczymuka at Gleicher's referral, he observed that neither of them expressed much interest in his report. (Id. at 13-14; Def.'s Ex. 5C (Ray Decl., Mar. 28, 2008) ¶ 4.)

IV. THE SECURITY INVESTIGATION

Beginning in May 2001, SSA Donovan Leighton, an African-American and former Legat in Bridgetown, Barbados, was assigned to OIO and assisted UC Gleicher in overseeing LEGAT offices in the Middle East. (Def.'s Ex. W (Leighton EEO Aff., May 5, 2003) ["Leighton Aff."] at 2; Pl.'s Facts at 54.) In November 2001, Leighton learned that LEGAT Riyadh needed assistance and volunteered for duty. (Pl.'s Facts at 56.) Leighton deployed to Riyadh on November 26. (Id. at 57.) During his time there, Leighton made observations and heard reports that raised concerns about plaintiff's "behaviors . . . which may pose a possible security risk," and his failure to manage LEGAT Riyadh "in a manner consistent with the immense equities at stake particularly in regards to the War Against Terrorism." (Def.'s Ex. 5E (Leighton EC, Apr. 4, 2002) ["Leighton EC"] at 2.) Shortly after Leighton's deployment ended on December 21, he called Gleicher to propose that they speak about Leighton's concerns when he returned to OIO. (Def.'s Ex. 4F (Leighton Dep., Nov. 28, 2007) ["Leighton Dep."] at 126-28.) Gleicher did not offer any comments or instructions in response. (Id. at 128-30.)

Sometime around January 2002, Leighton began documenting his concerns about plaintiff. (Leighton Dep. at 125:12; Leighton Aff. at 15.) On January 2 through January 7, 2002, plaintiff exchanged emails with Gleicher and Kaciban regarding communication issues between OIO management and LEGAT Riyadh and included his views on how to improve their working relationship. (Pl.'s Ex. 13.) On January 10 and 11, an EEO counselor interviewed Gleicher, Kaciban, and Pyszczymuka about their responses to plaintiff's November 2001 EEO complaint. (EEO Report at 3-4.)

After taking personal leave, Leighton returned to OIO on January 14 and continued to help oversee various LEGAT offices, including Riyadh, as a Desk Officer. (Def.'s Ex. 5D (Leighton EC, Jan. 16, 2002); Pl.'s Facts at 58.) In this capacity, he had further interactions with plaintiff and ALAT Abdel-Hafiz that heightened his concerns, and he documented these incidents as well. (See Leighton EC at 5-18; Pl.'s Facts at 54.) Leighton discussed these issues with Gleicher, who was "guarded" and did not say much in response. (Leighton Dep. at 133:16-18.)

At some point between January and April 2002, Leighton also had a conversation with Pyszczymuka about his concerns.*fn3 (Leighton Dep. at 135:12-18.) Leighton wished to proceed "cautiously" with his "very serious allegation" that plaintiff may pose a security risk, so he spoke to Dr. Dickson Diamond, the FBI psychiatrist "in charge of EAP," to get his perspective on plaintiff's observed and reported behavior. (Id. at 138-141; Leighton Aff. at 14-15.) Dr. Diamond suggested that some of that behavior did bear on an agent's suitability for foreign assignment. (Leighton Aff. at 15.) Leighton then sent a draft of his EC to Gleicher and Pyszczymuka, along with the recommendation that his observations about plaintiff and Abdel-Hafiz be formally referred to the EAP for a "multidisciplinary evaluation." (Leighton Dep. at 188:5-12; Leighton Aff. at 15.) The report included observations relating to:

* plaintiff's occasional wearing of Saudi national garb to work, which others reported that plaintiff had received as gifts from the head of the Mabahith;

* reports by others that plaintiff's Mabahith colleagues were attempting to find a suitable wife for plaintiff;

* reports by others that plaintiff had consorted at "wild parties" with female foreign nationals who may have been prostitutes;

* plaintiff and Abdel-Hafiz's apparent lack of involvement with and inattention to the PENTTBOMB investigation, including an ...


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