United States District Court, D. Columbia.
For BASSEM YOUSSEF, Plaintiff: Stephen M. Kohn, LEAD ATTORNEY, David K. Colapinto, KOHN, KOHN & COLAPINTO, LLP, Washington, DC; Aaron Michael Parness, AARON PARNESS, ATTORNEY AT LAW, Washington, DC.
For FEDERAL BUREAU OF INVESTIGATION, UNITED STATES DEPARTMENT OF JUSTICE, JOHN ASHCROFT, Hon., United States Attorney General, ROBERT S. MUELLER, III, Hon., Director, Federal Bureau of Investigation, Defendants: Adam Christopher Siple, LEAD ATTORNEY, United States Department of Justice, Civil Division, Federal Programs Branch, Washington, DC; Carlotta Porter Wells, LEAD ATTORNEY, U.S. Department of Justice, Civil Division, Washington, DC; Justin Michael Sandberg, U.S. DEPARTMENT OF JUSTICE, Civil Division, Washington, DC; Vikas K. Desai, U.S. DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Washington, DC.
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.
Plaintiff Bassem Youssef (" Youssef" ) brought the above-captioned action alleging, among other claims, that his employer, the Federal Bureau of Investigation (" FBI" ), discriminated against him on the basis of his national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq., after the terrorist attacks of September 11, 2001, by not placing him in a substantive position dealing with counterterrorism and instead transferring him to a job for which he was overqualified. Youssef also complained that the FBI retaliated against him when he filed a complaint and spoke to his superiors about his predicament. On March 30, 2008, 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), specifically granting Defendants' request for summary judgment as to Plaintiff's discrimination claim, but denying summary judgment as to Plaintiff's retaliation claim. The Court then proceeded to try Plaintiff's remaining claim of retaliation before a jury. The jury returned a verdict against Plaintiff and the Court denied Plaintiff's motion for a new trial. See Judgment, ECF No. . Plaintiff subsequently appealed to the United States Court of Appeals for the District of Columbia Circuit, which affirmed the Court's refusal to grant a new trial on the retaliation claim, but reversed the Court's judgment against Plaintiff's discrimination claim and remanded the claim for further proceedings. Presently
before the Court is Defendants' Motion for Summary Judgment on Plaintiff's claim that the FBI discriminated against him in transferring him to the Document Exploitation Unit (" DocEx" ). Upon careful consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court finds that while certain evidence and arguments raised by Youssef are either inadmissible or legally flawed, the inferences that a reasonable trier of fact could draw from Youssef's remaining evidence could either support a finding that discrimination occurred or that it did not and, thus, the ultimate question of whether Youssef's transfer to DocEx was motivated by national origin discrimination is best left to a jury. Accordingly, the Court DENIES Defendants' Motion for Summary Judgment.
A. The Scope of this Action
Among the several national origin discrimination claims that this Court dismissed in its March 30, 2008, Memorandum Opinion was Youssef's claim that he was discriminated against when he was assigned to DocEx. The Court found that Youssef had shown only that he was not permitted to " perform the work he desired," which fell short of a claim that the transfer constituted a materially adverse employment action necessary to support a Title VII discrimination claim. Youssef v. FBI, 541 F.Supp.2d at 164. Considering Youssef's claims on appeal, the D.C. Circuit Court of Appeals held that a reasonable juror could find that Youssef, in being transferred to DocEx, " experience[d] an extraordinary reduction in responsibilities" constituting a materially adverse action under Title VII. Youssef, 687 F.3d 397, 402, 402 U.S.App.D.C. 64 (D.C. Cir. 2012). As this Court had not previously had a need to consider whether the FBI's explanation for Youssef's transfer to DocEx was pretextual, the D.C. Circuit remanded this case " for further examination of the FBI's reason for [Youssef's] transfer to [DocEx] " and Youssef's proffered evidence of discriminatory motive. Id. at 402-403 (emphasis added).
In his Opposition, Youssef now appears to bring an additional claim based on the FBI's " failure to utilize his expertise" immediately following the 9/11 attacks and up until early March 2002. Pl.'s Opp'n at 39-40. Youssef explains that during this time period he " was denied a meaningful position within [Counterterrorism] based on the failure of the managers in Counterintelligence to arrange a meaningful placement." Id. at 40. Defendants respond that this claim should be dismissed by the Court because it relates to events that occurred immediately following September 11, 2001, that are time-barred. Defs.' Reply at 22-24. Youssef challenges Defendants' timing argument and also argues that since " the FBI raised no defense [in its Motion] regarding" the failure to assign specifically during the period of January 26, 2002 to early March 2002, " summary judgment on this matter must be denied as
a matter of law." Pl.'s Opp'n at 40. Regardless of the merits of Defendants' timing argument, the Court will not consider Youssef's new " failure to assign" claim for either time period because this is not the claim on which the D.C. Circuit Court of Appeals reversed and remanded this case for further consideration. The claim remanded to this Court is limited to Youssef's transfer to DocEx. See Youssef, 687 F.3d at 402-03. The complaint that was considered by the D.C. Circuit Court of Appeals is still the complaint presently before the Court since Youssef did not seek to amend his complaint following the remand of this case to this Court. As such, the sole claim that this Court will address is whether Youssef's transfer to DocEx was motivated by national origin discrimination. The Court will consider, however, Youssef's evidence about his attempts to find a position in Counterterrorism immediately after the 9/11 attacks to the extent that it has been offered as evidence of pretext for discrimination with respect to Youssef's transfer to DocEx.
B. Youssef's Employment Background
Youssef began working as a GS-10 level Special Agent for the FBI in 1988. Pl.'s Stmt. ¶ 3. Over the next fifteen years, Youssef held numerous counterterrorism and counterintelligence assignments throughout the United States and across the globe. See id. ¶ ¶ 16-215. Youssef received various assignments utilizing his Arabic speaking capabilities during this period and received several awards and high praise for his work. Id. In 1996, Youssef applied for and was promoted to the position of Legal Attache (" Legat" ) in Riyadh, Saudi Arabia. Id. ¶ 106. Youssef helped to improve relations between the FBI and the Mabahith (the FBI's counterpart in Saudi Arabia) and his performance was assessed by his supervisors as " exceptional." Id. ¶ ¶ 162, 179.
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 at the National Counterintelligence Center (" NACIC" ) of the Central Intelligence Agency (" CIA" ). Id. ¶ 137. Although the FBI formally reassigned Youssef from the Legat Office to the Counterintelligence Division of the FBI, the NACIC position was a detail to another agency, and consequently, Youssef was not stationed at the FBI's Headquarters (" FBIHQ" ). Defs.' Stmt. ¶ 35. 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. ¶ 146. Robert Thompson, Youssef's supervisor during this period, considered Youssef's performance in this role " excellent." Id. ¶ 148.
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" ). Id. ¶ 150; Defs.' Stmt. ¶ 36. Youssef's position was abolished during this reorganization. Pl.'s Stmt. ¶ 152. Youssef was reassigned to a position in the NCIX, but began looking for a new position back within FBI headquarters. Id.
C. Youssef's Employment Post-9/11 Attacks
Youssef was employed at the NCIX at a GS-15 level when the 9/11 attacks occurred. Pl.'s Stmt. ¶ ¶ 152, 352. The attacks galvanized the FBI to divert a significant number of resources and personnel to counterterrorism. Id. ¶ 220; Defs.' Stmt. ¶ 3. 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 and be assigned substantive counterterrorism duties. Pl.'s Stmt. ¶ ¶ 216, 240. In seeking out such a position for himself, Youssef called or left messages for several FBI managers to offer assistance following the attacks. See id. ¶ ¶ 241, 246-47.
In or around mid to late February 2002, Youssef spoke to William Chornyak, Deputy Assistant Director in the Counterintelligence Division at FBIHQ, concerning placement opportunities. Id. ¶ 254. Chornyak viewed it as one of his roles to try to assist agents who were working outside of the Bureau to locate positions back in the FBI once their details expired. Id. ¶ 257. Youssef and Chornyak had a meeting during which they discussed various positions within the Counterintelligence Division and Youssef's interest in working in the Counterterrorism Division. Id. ¶ ¶ 259-60. Chornyak agreed to " see or search out" any openings over in the Counterterrorism Division. Id. ¶ 267; Pl.'s Ex. 36 (Chornyak Depo.), at 70. Chornyak made several phone contacts to Assistant Director of the Counterterrorism Division Tim Caruso's office and FBI Deputy Director Dale Watson's office, but " there were no real responses." Pl.'s Stmt. ¶ ¶ 268, 270 (citing Pl.'s Ex. 36 (Chornyak Depo.), at 70). Chornyak did see Watson at a café one day and informed him that Youssef was interested in coming back to the Bureau, that Youssef had an " Arabic background" and " was a former legal attaché ," and that he thought the FBI " ought to pick him up and use him in some capability or his skills."  Id. ¶ 273.
On or about March 1, 2002, Chornyak and Assistant Director for the Counterintelligence Division Ellen Knowlton advised Youssef that he would be placed in the Counterintelligence Division's Budget Office. Id. ¶ ¶ 276, 281. The work Youssef would have performed in the Budget Unit would have been below his GS-15 level.Id. ...