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Youssef v. Holder

United States District Court, D. Columbia

January 28, 2014

BASSEM YOUSSEF, Plaintiff,
v.
ERIC H. HOLDER, JR., United States Attorney General, Defendant

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[Copyrighted Material Omitted]

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For BASSEM YOUSSEF, Plaintiff: Stephen M. Kohn, LEAD ATTORNEY, KOHN, KOHN & COLAPINTO, LLP, Washington, DC.

For ERIC H. HOLDER, JR., Honorable, United States Attorney General, Defendant: Javier M. Guzman, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Washington, DC.

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MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

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" ).[1] Youssef, an Egyptian-born American citizen, asserts two 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. Presently before the Court is the Defendant's [41] Motion for Summary Judgment. The Court finds that Youssef has failed to demonstrate that a genuine issue of material fact exists concerning his claim of national origin 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,

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upon careful consideration of the pleadings,[2] the relevant legal authorities, and the record as a whole, the Court GRANTS IN PART and DENIES IN PART the Defendant's [41] Motion for Summary Judgment for the reasons that follow.

I. BACKGROUND

A. The Scope of this Action

On September 18, 2009, the FBI announced a vacancy for the Assistant Section Chief of the Counterterrorism Division's Communications Exploitation Section. Def.'s Stmt. ¶ 17.[3] Youssef applied for the position, but, at the end of November 2009, he was informed that he had not been selected. Id. ¶ 50. Youssef commenced this Title VII action on July 25, 2011, claiming that his non-selection was discriminatory based on his Egyptian-national origin and was retaliatory due to his participation in prior Equal Employment Opportunity (" EEO" ) activity. See Compl., ECF No. [3], ¶ ¶ 65-72. Youssef's prior EEO activity involved a separate lawsuit brought in this Court in 2003. See generally Youssef v. F.B.I., 541 F.Supp.2d 121 (D.D.C. 2008).

B. FBI Method for Selecting Mid-Level Supervisors

The FBI selects mid-level supervisors through a process involving a Local Career Board (" LCB" ), which is composed of a non-voting chairperson and three voting members, all of whom are career supervisory special agents. Def.'s Stmt. ¶ 1. The FBI component with the vacancy selects the preferred qualifications, known as competencies, for the position. Id. ¶ 3. The competencies are divided into primary and secondary competencies; four primary competencies are selected from a list of eight core management competencies developed by the Employee Development and Selection Program (" EDSP" ) and up to three secondary competencies are selected from a separate list of specialized skill competencies. Id. The primary competencies are accorded greater weight than the secondary competencies in rating the candidates for a position. Id. ¶ 4. Candidates interested in a job vacancy apply by submitting a Candidate Qualification Form, which contains the applicant's personal data, education level, and work history. Id. ¶ 6. As part of the form, the candidate also submits two examples of achievements demonstrating his or her experience and ability with regard to each required competency. Id. The competency

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examples are rated on a five-tier scale: Exemplary, Skilled, Competent, Marginal, and Ineffective. Id. ¶ 7. According to the LCB Chairperson Training presentation, " [i]f correctly applied, 'Competent' characterizes [the] majority of examples; 'Exemplary' and 'Ineffective' are rare." Def.'s Ex. 4 (LCB Chairperson Training Presentation), at FBI 3417. The FBI has published detailed criteria to be used by the LCB in rating candidates' examples. Def.'s Stmt. ¶ 7.

After the job posting has closed, the EDSP determines which candidates meet the position's minimum qualifications and sends their application forms to the LCB chair, who distributes them to the voting members of the LCB at least three days before the LCB convenes to rank the candidates. Id. ¶ 12. The voting members independently review and rate each candidate's competency examples on separate scoring forms prior to the LCB meeting. Id. The competency examples are rated based on their written content.[4] Id. ¶ 9. The LCB chair or voting members may introduce personal knowledge into the LCB proceedings only when the information is first-hand knowledge and it is directly related to a specific competency example or work assignment cited by the candidate. Def.'s Ex. 4 (LCB Chairperson Training Presentation), at FBI 3425. Voting members cannot take into account a candidate's performance appraisals or any factor not included under the qualifications in the job posting. Def.'s Ex. 5 (ASAPP Training Guide), at FBI 2748.

The LCB chair then convenes an LCB meeting, which is audio recorded. Def.'s Stmt. ¶ 13. The voting members bring their scoring forms and state their ratings. Id. The LCB chair documents the ratings and calculates the candidates' overall rating for each competency. Id. A majority vote determines the overall rating for a particular competency example; for example, if two voting members rate a particular competency as Competent and the third voting member rates it as Skilled, that example receives an overall rating of Competent. Id. For each competency, if a candidate receives an overall rating of Competent for Example 1 and an overall rating of Skilled for Example 2 of that same competency, the overall rating is determined by rounding down, meaning the candidate receives an overall rating of Competent for that particular competency. Id. The individual ratings are only discussed if two voting members deviate by two tiers in their ratings of a competency example. Id. ¶ 14. Once the overall competency ratings are determined, the LCB Chair ranks the applicants based on their overall competency ratings, taking into consideration the weight of the competencies. Def.'s Ex. 4 (LCB Chairperson Training Presentation), at FBI 3435. The

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selecting component then informs EDSP and the Special Agent Mid-Level Management Selection System (SAMMS) Board of the LCB competency example ratings and applicant rankings. Def.'s Stmt. ¶ 15. The SAMMS Board then selects the candidate for the position. Id.

C. Events Preceding Selection of Assistant Section Chief of the Communications Exploitation Section

Youssef began working for the FBI in June 1988. See Def.'s Ex. 10 (Youssef's Candidate Qualification Form), at FBI 331-332. Over the next fifteen years, Youssef held numerous high-level counterterrorism and counterintelligence assignments throughout the United States and across the globe. Id. From January 2003 through December 2004, Youssef served as the Unit Chief for the Document Exploitation Unit within the Communications Exploitation Section (" CXS" ). Id. at FBI 332. In December 2004, Youssef was transferred into his current position as the Unit Chief of the Communications Analysis Unit within CXS. Id. at FBI 331. While working as Unit Chief within CXS, Youssef would from time to time serve as the Acting Section Chief for CXS. Id.

On July 18, 2003, Youssef filed a lawsuit against the FBI alleging national origin discrimination and retaliation. See generally Youssef v. F.B.I., 541 F.Supp.2d 121 (D.D.C. 2008). Youssef alleged 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 EEO complaint. None of the individuals who were involved in the alleged discriminatory and retaliatory action at issue in the present case--Youssef's non-selection as ASC of CXS--were identified as alleged discriminating officials in this prior 2003 action. However, the 2003 action was ongoing at the time of Youssef's 2009 application for the ASC position. Indeed, at the end of 2009, Youssef was preparing to go to trial for his retaliation claim, which was held before a jury in the fall of 2010. Youssef thus took leave throughout 2009 in order to participate in EEO-related proceedings. See Pl.'s Resp. Stmt. ¶ 91-93.

In October 2009, Youssef's first-line supervisor, Arthur Zarone, an ASC of CXS, completed Youssef's 2009 Performance Appraisal Report (" PAR" ). Although Zarone gave Youssef an overall " Excellent" rating in 2008 and 2009, the two years Zarone supervised Youssef, in his 2009 PAR, Zarone rated Youssef one step lower in five " critical elements" than he had been rated the year prior. See Def.'s Ex. 15 (Youssef's 2008 and 2009 Performance Appraisal Reports). In Youssef's 2008 PAR, Zarone had rated Youssef " excellent" at " maintaining high professional standards" and " achieving results," but he rated Youssef " successful" in both categories in 2009. Id. In addition, Zarone rated Youssef as " Outstanding" in " Organizing, Planning, and Coordinating," " Acquiring, Applying, and Sharing Job Knowledge," and " Communicating Orally and in Writing" in 2008, but lowered his rating to " Excellent" in these three categories in 2009. Id. Included with Youssef's 2009 PAR were Zarone's notes of his impressions of Youssef's performance in 2009. See Def.'s Ex. 18 (Zarone Handwritten Notes). These notes stated:

Issue: drop of performance level from 08 -> 09.
Distractors:
Legal Matter
OIG Report

See id. In their declarations and deposition testimony prepared for the present case, both Zarone and Fernandez attributed the decline in Youssef's 2009 performance

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to his " excessive absences from the office [due to his legal matter]." Zarone Decl. ¶ 2; see also Zarone Dep. 82-83; Fernandez Decl. ¶ 4; Fernandez Dep. 19-20, 22. As an example of the impact of Youssef's absences from the office, both Zarone and Fernandez specifically noted Youssef's supposed failure to timely renew a telecommunications contract, which they alleged nearly resulted in the loss of the contract. See Zarone Decl. ¶ 12-14; Fernandez Decl. ¶ 5; Fernandez Dep. 23-26.

Youssef's 2009 PAR was signed by Zarone on October 22, 2009, one day before the LCB--of which Zarone was a member--met to select the new ASC of CXS. Def.'s Reply Stmt. ¶ 86. In early November 2009, Youssef contacted the FBI's EEO Office requesting counseling. Def.'s Stmt. ¶ 51; Pl.'s Ex. 1 (Letter to EEO Office). Youssef also requested of the EEO Office and of the Assistant Director of the FBI's Counterterrorism Division, Michael Heimbach, that his evaluation be corrected on the basis that his " participation in a Title VII proceeding was a motivating factor in the downgrade." Pl.'s Ex. 1 (Letter to EEO Office); Pl.'s Ex. 2 (Letter to Michael Heimbach). On November 20, 2009, Assistant Director Heimbach responded by increasing Youssef's rating in " Organizing, Planning, and Coordinating," and " Acquiring, Applying, and Sharing Job Knowledge" from " Excellent" to " Outstanding." Pl.'s Ex. 5 (Heimbach Response to PAR Grievance). In adjusting these two ratings, Assistant Director Heimbach stated that he reviewed Zarone's comments and recommendations along with Youssef's appeal comments and " only considered [Youssef's] actual work performance when making [his] decision." Id. Assistant Director Heimbach found that Youssef demonstrated outstanding skills in these two areas by his " efforts and dedication to the [redacted] initiative, [Youssef's] coordination with the telecommunication carriers, and participation in the [redacted]. Id. Assistant Director Heimbach, however, concluded that Youssef had not provided the Office enough detail regarding the remaining critical elements in which he had been downgraded to support a rating of " Outstanding" and that he had provided insufficient evidence " to make a decision other than to sustain [Youssef's] ratings on these Critical Elements." Id. Youssef does not presently challenge his 2009 PAR as discriminatory or retaliatory, but presents it as evidence that his non-selection as ASC violated Title VII.

D. Selection of Assistant Section Chief of the Communications Exploitation Section

On September 18, 2009, CXS published a job posting for an ASC position. Def.'s Stmt. ¶ 17. CXS is responsible for leading and supporting law enforcement and intelligence efforts to target terrorist communications. Id. ¶ 16. CXS was hiring an ASC to replace Zarone who was taking an ASC position in the Critical Incident Response Group. Def.'s Stmt. ¶ 18; Zarone Decl. ¶ 55. The job posting listed four primary competencies which were weighted equally--Leadership, Problem solving/judgment, Interpersonal ability, and Initiative--and three secondary competencies, weighted in descending order--Liaison, Counterterrorism-complex CT, and Communication. Def.'s Stmt. ¶ 20. The minimum qualifications for the position were three years' FBI investigative experience, one year relief supervisory experience, and a current minimum performance appraisal of " Successful." Id. ¶ 19.

The Section Chief of CXS, Armando Fernandez, was designated as the LCB chair for the position. Id. ¶ 23. Fernandez, a Hispanic man of Mexican national origin, was Youssef's second-line supervisor

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at the time of the LCB. Id. ¶ ¶ 21, 26. Prior to Fernandez selecting the LCB members and receiving the candidates' applications, three individuals, Richard Davidson, Matthew Desmond, and Daniel Powers, contacted Fernandez to let him know that they would be applying for the position. Id. The same day that Powers introduced himself to Fernandez, he also introduced himself to Zarone and indicated that he would be applying for the ASC position. Id. ¶ 29. Shortly prior to becoming aware of the applicants for the position, Fernandez asked Hipolito Castro, Jr., Erkan Chase, and Arthur Zarone to serve as LCB voting members. Id. ¶ 24. Castro, a Hispanic man of Puerto Rican national origin, was ASC of the Terrorist Financing Operations Section in the Counterterrorism Division at the time of the LCB. Id. ¶ ¶ 24, 26. Chase, an African American man of Turkish national origin, was an ASC, Technical, of CXS from 2008 through the time of the LCB, but did not supervise Youssef. Id.; Chase Decl., ¶ 1, 8. Zarone, a Caucasian man of European national origin, served as an ASC of CXS from April 2008 through October 2009, and, as noted before, was the direct supervisor and rating official for Youssef during that period. Def.'s Stmt. ¶ 18; Zarone Signed Sworn Stmt. at 2. Importantly, the LCB voting members deny knowing at the time of the LCB that Youssef was involved in an EEO-related lawsuit. Youssef, however, adamantly disputes their testimony and presents evidence, which he contends shows that, at the time of the LCB, each voting member was aware that he was engaged in EEO activity.

After designating the voting members, Fernandez received from EDSP the applications of four candidates: Youssef, Davidson, Desmond, and Powers, the eventual selectee. Def.'s Stmt. ¶ 27. Fernandez then distributed the applications to the LCB voting members and each voting member independently rated the competency examples for each candidate.[5] Id. ¶ 28. On October 23, 2009, the LCB members convened to report their independent ratings of each candidate's competency examples. Id. ¶ ¶ 47-48. Chase rated Powers as Skilled in eight of his competency examples and as Competent in six examples. Id. ¶ 30. He rated Youssef as Skilled in one competency example and as Competent in thirteen examples. Id. Castro rated Powers as Skilled in eight of his competency examples and as Competent in six examples. Id. ¶ 39. He rated Youssef as Skilled in three competency examples and as Competent in eleven examples. Id. Finally, Zarone rated Powers as Skilled in six competency examples and as Competent in eight examples. Id. ¶ 42. He rated Youssef as Skilled in three competency examples and as Competent in eleven examples. Id. There was no other discussion of the candidates. Id. ¶ 48; see also Def.'s Ex. 11 (Oct. 23, 2009 LCB Transcript). Based on the individual ratings, Fernandez then determined the overall competency ratings for each of the applicants. Id. Overall, Powers was rated Skilled in one primary competency (Problem

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Solving/Judgment) and in one secondary competency (Counterterrorism), and Competent in the five remaining competencies placing him first amongst the four candidates. Id. Youssef was rated Competent in all seven competencies and thus ranked last among the candidates.[6] Id. The LCB voting members rated Davidson similarly, though slightly higher, than Youssef and Desmond similarly to Powers although slightly lower. See Def.'s Ex. 8 (LCB Scoring Matrices). Based on these overall competency ratings, the LCB declared Powers the top-ranked candidate and Youssef the last-ranked candidate. See Def.'s Ex. 12 (LCB Memorandum to SAMMS Board), at 9. Fernandez then opened the envelope containing the Division Head Recommendations. Def.'s Ex. 11 (Oct. 23, 2009 LCB Transcript), at 12-13. The Division Heads recommended all candidates for the vacancy. Id. at 13.

On November 19, 2009, the SAMMS Board, consistent with the competency ratings of the LCB voting members, selected Powers for the ASC position. Def.'s Stmt. ¶ 50. In the period between Zarone stepping down as ASC of CXS in November 2009 and Powers assuming the position in March 2010, Youssef was designated by Fernandez to serve as the acting ASC of CXS. Id. ¶ 61. Youssef had previously served as Acting Section Chief of CXS. See Def.'s Ex. 10 (Youssef's Candidate Qualification Form), at FBI 331.

E. Procedural Background

Shortly after learning of his non-selection for the ASC position, Youssef contacted an FBI EEO counselor and explained that he believed that his non-selection had been " in retaliation due to his prior EEO activity." Def.'s Stmt. ¶ 51. At the conclusion of EEO counseling, Youssef filed a formal EEO complaint, alleging that he had been discriminated against based on his national origin and retaliated against for his participation in prior EEO activity. See Def.'s Ex. 16 (Feb. 16, 2010 EEO Compl.), at 1. On May 19, 2010, the EEO Office informed Youssef's counsel that it would commence an investigation into Youssef's allegations. Pl.'s Resp. Stmt., Ex. 1 (May 19, 2010 Ltr.), ECF No. [24-1], at BY 00038. It is not clear whether the FBI ever conducted an investigation into Youssef's administrative complaint. It is clear, however, that the FBI never issued a final decision resolving Youssef's complaint even though a year and a half elapsed between the filing of Youssef's administrative complaint and the commencement of this action.

Youssef initiated this lawsuit on July 25, 2011, claiming that his non-selection was discriminatory based on his Egyptian-national origin and retaliatory due to his participation in EEO activity related to his 2003 lawsuit against the FBI. See Compl., ECF No. [3], ¶ ¶ 65-72. On December 23, 2011, the Defendant filed a Motion for Judgment on the Pleadings or, Alternatively Summary Judgment, contending that Youssef could not pursue his non-selection claims because he failed to exhaust his administrative remedies. The Court disagreed and by Order dated August 7, 2012, denied the Defendant's Motion. See Youssef v. Holder, 881 F.Supp.2d 93 (D.D.C. 2012). The Defendant subsequently filed the present Motion for Summary Judgment. See Def.'s Mot., ECF No. [41]. In short, the Defendant

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now argues that Youssef's claims must fail because he cannot show that the FBI's legitimate, non-discriminatory reason for selecting Powers was pretextual or otherwise offer any evidence of discriminatory motive and because he cannot show a causal link between his protected activity and his non-selection.

II. LEGAL STANDARD

Summary judgment is appropriate where " the movant shows that there is no genuine dispute as to any material fact and [that he] . . . is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a " material" fact. Id. Accordingly, " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be " genuine," meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to specific parts of the record--including deposition testimony, documentary evidence, affidavits or declarations, or other competent evidence--in support of his position, or (b) demonstrate that the materials relied upon by the opposing party do not actually establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Conclusory assertions offered without any factual basis in the record cannot create a genuine dispute sufficient to survive summary judgment. Ass'n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep't of Transp., 564 F.3d 462, 465-66, 385 U.S.App.D.C. 347 (D.C. Cir. 2009). Moreover, where " a party fails to properly support an assertion ...


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