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Bassem Youssef v. Federal Bureau of Investigation

February 2, 2011


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


Plaintiff Bassem Youssef ("Youssef") brought the above-captioned action alleging that his employer, the Federal Bureau of Investigation ("FBI"), discriminated and retaliated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The Court granted-in-part and denied-in-part Defendants' motion for summary judgment, see Youssef v. FBI, 541 F. Supp. 2d 121 (D.D.C. 2008), and proceeded to try Youssef's remaining claim of retaliation before a jury. Following a nine-day jury trial, the Court entered judgment in favor of Defendants. See [247] Judgment. Presently pending before the Court are Plaintiff's [249] Motion for New Trial and to Alter or Amend Judgment*fn1 and Plaintiff's [251] Motion to Review Costs and Alternative Motion to Stay Adjudication of Costs. Defendants have filed oppositions to these motions, and Youssef has filed replies. For the reasons explained below, the Court shall DENY Youssef's [249] Motion for New Trial and GRANT-IN-PART and DENY-IN-PART Youssef's [251] Motion to Review Costs.


At the time of the jury trial, Plaintiff Bassem Youssef was employed by the FBI as a Supervisory Special Agent and Unit Chief within the FBI's Counterterrorism Division. Youssef initially filed this action on July 18, 2003 alleging that his supervisors discriminated against him on the basis of his national origin (Egyptian) and retaliated against him for opposing this discrimination. After extensive discovery and briefing, the Court granted-in-part and denied-in-part Defendants' motion for summary judgment, dismissing all of Youssef's claims except a single claim for retaliation. See Youssef v. FBI, 541 F. Supp. 2d 121 (D.D.C. 2008). To prevail on his retaliation claim under Title VII, Youssef had to establish (1) that he engaged in protected activity, (2) that he was subjected to a materially adverse action after the protected activity took place, and (3) that there was a causal connection between the protected activity and the materially adverse action. See id. at 155.

There was no dispute at trial that Youssef had engaged in protected activity by filing a discrimination complaint in 2002, meeting with Congressman Frank Wolf and FBI Director Robert Mueller in June 2002, leaving work for depositions, and taking the depositions of other FBI employees in late 2004 and early 2005. Youssef claimed at trial that as a result of his engaging in these activities, the FBI denied him permission to participate in inspections of FBI offices. The evidence at trial showed that participation in inspections is a training opportunity that leads to inspection certification, which can be helpful in obtaining future promotions. Youssef claimed he was harmed by a two-year delay in completing his final inspection and obtaining his inspection certification. It was undisputed that Youssef's supervisors had denied two specific requests for Youssef to go on inspections in January and February 2005, but there was a factual dispute about whether Youssef could have gone on other inspections after that time.

At trial, the FBI denied that Youssef's discrimination claim played any part in the denial of his requests to take time away from work to participate in the inspections. Rather, the FBI claimed that it denied Youssef's requests in January and February 2005 because, since Youssef had transferred to a new position as Unit Chief of the FBI's Communications Analysis Unit on October 30, 2004, he had been absent from the office for a significant period of time. The FBI denied that Youssef was precluded from requesting permission to participate in inspections after February 2005.

The jury returned a special verdict finding that Youssef had not proven by a preponderance of the evidence that the denial of permission to participate in inspections of FBI offices was a materially adverse action. Because of this finding, the jury did not reach the question of whether Youssef had proven that the denials were retaliatory. Accordingly, the Court entered judgment for Defendants and ordered that costs be taxed against Youssef.

Prior to trial, the Court ordered that the trial be bifurcated so that legal issues such as liability and compensatory damages would be decided first by the jury before the Court heard evidence relating to Youssef's request for equitable relief, which the Court would decide in its sole discretion during a remedy phase. See [185] Order on Bifurcation (Jan. 21, 2010). The Court bifurcated the trial to avoid the unnecessary presentation to the jury of complicated expert testimony relevant solely to Youssef's request for equitable relief such as back pay and front pay, which was based on theories of possible promotions that Youssef did not apply for but might have received in the future had he become inspection certified in January or February 2005. The Court did not exclude evidence pertaining to the role that inspection certification plays in obtaining promotions in the FBI. However, the Court precluded the parties from presenting evidence about specific promotional opportunities that Youssef claimed he should have received once he obtained his inspection certification.


A. Motion for a New Trial Under Rule 59

Federal Rule of Civil Procedure 59(a) provides that "[t]he court may, on motion, grant a new trial on all or some of the issues . . . for any reason for which a new trial has heretofore been granted in an action at law in federal court." Fed. R. Civ. P. 59(a)(1)(A). The disposition of such a motion is committed to the sound discretion of the trial court. Martinez v. District of Columbia, 503 F. Supp. 2d 353, 354 (D.D.C. 2007). "A trial judge should grant a new trial if the verdict is against the weight of the evidence, damages are excessive, for other reasons the trial was not fair, or substantial errors occurred in the admission or rejection of evidence or the giving or refusal of instructions." Nyman v. FDIC, 967 F. Supp. 1562, 1569 (D.D.C. 1997). "The jury verdict stands unless the evidence and all reasonable inferences that can be drawn therefrom are so one-sided that reasonable men and women could not disagree on the verdict." Czekalski v. LaHood, 589 F.3d 449, 456 (D.C. Cir. 2009) (citation and quotation marks omitted). The court's discretion should be exercised "sparingly and cautiously," and the court should grant a new trial only where the court is convinced that the jury verdict was a "seriously erroneous result" and where denial of the motion will result in a "clear miscarriage of justice." Martinez, 503 F. Supp. 2d at 354 (citations and quotation marks omitted). "Generally, a new trial may only be granted when a manifest error of law or fact is presented." In re Lorazepam & Chlorazepate Antitrust Litig., 467 F. Supp. 2d 74, 87 (D.D.C. 2006).

B. Motion to Review Bill of Costs

Federal Rule of Civil Procedure 54(d)(1) provides that "[u]nless a federal statute, these rules, or a court order provides otherwise, costs-other than attorney's fees-should be allowed to the prevailing party." Fed. R. Civ. P. 54(d)(1). "Though the allowance, disallowance, or appointment of costs is in the sound discretion of the district court, 'the general proposition is that the prevailing party is entitled to costs in the district court as of course.'" Moore v. Nat'l Ass'n of Sec. Dealers, Inc., 762 F.2d 1093, 1107 (D.C. Cir. 1985) (quoting 6 J. Moore, Moore's Federal Practice § 54.70[5] (2d ed. 1985)). "Because costs are usually assessed against the losing party, liability for costs is a normal incident of defeat." Delta Air Lines, Inc. v. August, 450 U.S. 346, 352 (1981). Accordingly, "a court may neither deny nor reduce a prevailing party's request for costs without first articulating some good reason for doing so," and "federal courts have placed on the unsuccessful parties some burden of showing circumstances sufficient to overcome the presumption favoring the prevailing party." Baez v. U.S. Dep't of Justice, 684 F.2d 999, 1004 (D.C. Cir. 1982).


A. Motion for a New Trial

Youssef contends that the Court should order a new trial because the jury's verdict-finding that the FBI took no materially adverse action against him-is against the weight of the evidence. Furthermore, Youssef argues that this Court's pretrial rulings prevented him from establishing that the FBI's actions ...

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