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Bassem Youssef v. Eric H. Holder

August 7, 2012

BASSEM YOUSSEF, PLAINTIFF,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, DEFENDANT.



SYLLABUS BY THE COURT

August 7, 2012

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

MEMORANDUM OPINION AND ORDER

Bassem Youssef ("Youssef"), an employee of the Federal Bureau of Investigation (the "FBI"), brings this action against the United States Attorney General (the "Attorney General") under Title VII of the Civil Rights Act of 1964 ("Title VII").*fn1 Youssef, an Egyptian-born American citizen, asserts two overarching claims-one sounding in discrimination and the second sounding in retaliation-each challenging his non-selection for an Assistant Section Chief position in the FBI's Counterterrorism Division Communications Exploitation Section.

Currently before the Court is the Attorney General's [21] Motion for Judgment on the Pleadings or, Alternatively, Summary Judgment ("Motion for Summary Judgment"). The Attorney General contends that Youssef cannot pursue his non-selection claims in this case because he failed to exhaust his administrative remedies. Upon careful consideration of the parties' submissions, the relevant authorities, and the record as a whole,*fn2 the Court finds that Youssef exhausted his administrative remedies. Therefore, the Attorney General's Motion for Summary Judgment shall be DENIED.

I. BACKGROUND

A. The Scope of this Action

Sometime in September 2009, the FBI announced a vacancy for the Assistant Section Chief in the Counterterrorism Division's Communications Exploitation Section. Def.'s Stmt. ¶ 1; Pl.'s Resp. Stmt. ¶ 1. Youssef applied for the position, but, on November 24, 2009, he was informed that he had not been selected. Def.'s Stmt. ¶ 1; Pl.'s Resp. Stmt. ¶ 1. Youssef commenced this Title VII action on July 25, 2011, claiming that his non-selection was discriminatory based on his Egyptian-national origin and retaliatory due to his participation in prior Equal Employment Opportunity ("EEO") activity. See Compl., ECF No. [3], ¶¶ 65-72. Youssef's prior EEO activity included a separate lawsuit brought in this Court. See generally Youssef v. FBI, __ F.3d __, 2012 WL 2948520 (D.C. Cir. July 20, 2012).

B. Youssef's Counseling Request and Administrative Complaint On October 26, 2009, Youssef received a copy of his 2009 Performance Appraisal Report. Def.'s Stmt., Ex. 1 (Request for Counseling) at 1. On November 12, 2009, he initiated counseling based on his performance downgrade. Id.

On November 24, 2009, Youssef learned that he was not selected for the Assistant Section Chief position in the Communications Exploitation Section. Def.'s Stmt. ¶ 1; Pl.'s Resp. Stmt. ¶ 1. When Youssef met with an EEO counselor on December 1, 2009, the counseling session covered both Youssef's performance downgrade and his non-selection for the Assistant Section Chief position. Def.'s Stmt. ¶ 3 & Ex. 2 (Report of Counseling) at 5-6; Pl.'s Resp. Stmt. ¶ 3. At the time, Youssef asserted that his non-selection was based upon his prior EEO activity. Def.'s Stmt., Ex. 2 (Report of Counseling) at 4, 6.

Subsequent counseling sessions addressing Youssef's performance downgrade and his non-selection were held through February 2010. Id. at 6-8. At the final session on February 2, 2010, Youssef was accompanied by his legal counsel. Id. at 8. As in prior sessions, the discussion touched on both personnel actions challenged by Youssef-i.e., his performance downgrade and his non-selection. Id. Ultimately, however, the participants were unable to resolve Youssef's concerns. Id. Accordingly, at the conclusion of the session, the EEO counselor issued Youssef a notice of his right to file a formal administrative complaint and advised Youssef that he had fifteen days to file. Def.'s Stmt. ¶ 4; Pl.'s Resp. Stmt. ¶ 4. Youssef was warned that "[t]he complaint must be specific and encompass only those matters discussed [during the counseling sessions]." Def.'s Stmt., Ex. 3 (Notice of Right to File Compl.) at 1. The EEO counselor offered Youssef assistance in preparing a formal complaint, but Youssef declined the offer. Def.'s Stmt. ¶ 4; Pl.'s Resp. Stmt. ¶ 4.

Youssef, through counsel, filed a formal administrative complaint on February 16, 2010-within the fifteen-day window. Def.'s Stmt. ¶ 5; Pl.'s Resp. Stmt. ¶ 5. Youssef's complaint identified the following four acts as the bases for his complaint:

1[.] Mr. Youssef's performance appraisal report (PAR) was lowered on October 26, 2009 on account of his Middle Eastern and Arabic race and national origin, and on account of his prior protected EEO activity.

2. On January 20, 2010, [the FBI and the Department of Justice Office of Inspector General ("OIG")] issued an OIG report that made findings against [Youssef's] reputation and threatened him with discipline.

3. On or about January 21, 2010, [the FBI and OIG] threatened Mr. Youssef with hostile investigation and discipline.

4. From 2007 to present, [the FBI and OIG] have maintained a hostile work environment for Mr. Youssef, including but not limited to the FBI-OIG investigation. See Mr. Kohn's October 9, 2007, letter ...


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