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Youssef v. Lynch

United States District Court, D. Columbia

November 13, 2015

BASSEM YOUSSEF, Plaintiff,
v.
LORETTA E. LYNCH., United States Attorney General, Defendant

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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.

         Plaintiff Bassem Youssef (" Plaintiff" or " Youssef" ), a former employee of the Federal Bureau of Investigation (" the FBI" ), brings this action against the United States Attorney General (" Defendant" ) under Title VII of the Civil Rights Act of 1964 (" Title VII" ). On July 25, 2011, Youssef, an Egyptian-born American citizen, filed suit, asserting 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. On March 1, 2013, Defendant filed a [41] Motion for Summary Judgment. On January 28, 2014, the Court granted Defendant's Motion for Summary Judgment as to Plaintiff's national origin discrimination claim, but denied Defendant's Motion as to Plaintiff's retaliation claim. Presently before the Court are the parties' objections in their Joint Pretrial Statement, Plaintiff's Motion in Limine, and Defendant's Motion in Limine. On June 30, 2015 and August 14, 2015, the Court held pretrial conferences in this matter and made oral findings, which the Court INCORPORATES herein. After each pretrial conference, the Court issued Orders indicating the Court's findings on various issues raised in the parties' motions in limine and ordering the parties to submit supplemental briefing on certain issues that remained unresolved. See Order dated July 2, 2015, ECF No. [86] and Order dated August 14, 2015, ECF No. [92]. The Court has scheduled a third pretrial conference for November 13, 2015. A trial date has not been set.

         The parties have completed all briefing relating to their motions in limine, and the motions are ripe for adjudication. Upon consideration of the pleadings,[1] the

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relevant legal authorities, and the record as a whole, the Court shall GRANT-IN-PART, DENY-IN-PART Defendant's [79] Motion in Limine and GRANT-IN-PART, DENY-IN-PART Plaintiff's [80] Motion in Limine, and GRANT-IN-PART, DENY-IN-PART the objections made by the parties to their Joint Pretrial Statement. As described in the Court's opinion, the Court also leaves certain objections in the Joint Pretrial Statement for resolution at a later time. In resolving the parties' motions in limine and the parties' objections in their Joint Pretrial Statement, the Court makes the following findings[2]:

         A. Defendant's Motion in Limine

         

o Plaintiff may introduce testimony and evidence relating to Youssef's work experience and qualifications beyond the information included in Youssef's FD-954 only where Plaintiff first establishes a factual predicate as to why the LCB member in question would have known that specific information and should have, or did in fact, consider that information in the selection process.

o Curran may testify as to Youssef's known accomplishments only to the extent that the testimony provides information regarding the relative importance that the counterterrorism community would have given to the accomplishments listed on Youssef's FD-954.

o Curran may testify as to Youssef's qualifications relative to those of Powers only to the extent that these qualifications were listed on the FD-954s or were necessarily known by the LCB members.

o Curran may not testify as to the baseline of Youssef's reputation and to the impact of Youssef's non-selection on his reputation within the FBI.

o Curran may not testify as to the impact of Youssef's non-selection on Youssef's post-retirement employment prospects.

o Curran may not testify as to the practices and procedures relating to LCBs, including the frequency with which LCBs conducted interviews or the appropriateness of outside conversations with candidates.

o Youssef may testify as to the qualifications in his FD-954 as compared with those of Powers, to the extent that no other witness testifies on behalf of Plaintiff regarding this issue.

o Youssef may also testify on the matter of LCB procedures in place at the time of Youssef's non-selection.

o Plaintiff may not offer at trial Plaintiff's Exhibit 1, Exhibit 15, and Demonstrative Aids No. 1-6.

o The Court shall limit testimony and evidence about Youssef's prior EEO

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activities to a neutral statement that he was engaging in such activities at the time of his nonselection for the ASC position, and that the FBI is not permitted to take retaliatory action in response to those activities.

o Defendant may offer testimony by Zarone concerning the OIG Report only as it relates to the narrow issue of Zarone's handwritten comment on Youssef's 2009 PAR. Plaintiff may impeach Zarone's testimony, but may not introduce additional testimony and evidence about the underlying IG investigation.

o Plaintiff may introduce a redacted version of the " Mother Jones " article, with all parts redacted except for the title and the two references to Youssef's discriminat ion lawsuit.

o Plaintiff may introduce testimony about Youssef's EEO activity by non-decisionmakers only to state that Plaintiff was involved in EEO activity and is entitled to protections when he engages in such activity.

o Plaintiff may introduce testimony and evidence regarding the 2009 PAR and the accompanying notes only to the narrow issue of retaliatory animus, and a jury instruction limiting the use of the evidence would be appropriate.

         B. Plaintiff's Motion in Limine

o Defendant may introduce evidence at trial in support of its argument that the denial of Youssef's selection for the ASC position was not an adverse action.

         C. Issues Raised Over the Course of Briefing

o Plaintiff may not introduce evidence that Fernandez, the non-voting chairperson of the LCB, deliberately " stacked" the LCB with voting members whom Fernandez knew were biased against Youssef.
o Plaintiff may not introduce evidence that LCB members should have relied on Plaintiff's " totality of experiences" to prefer him over other candidates who may have had higher competency scores.
o The Court shall not strike the evidence set out in the Parlave declarations, and the Court shall permit Parlave to testify at trial. However, Plaintiff must have an opportunity to depose Parlave on the issues addressed in her declarations.

         The Court makes its findings based on the Court's consideration of the record currently before the Court. The Court observes that various aspects of the parties' trial theories have evolved since the parties filed their Joint Pretrial Statement on March 11, 2015 and their Motions in Limine on March 19, 2015. The Court has provided both parties a number of opportunities to develop their arguments through supplemental briefing and pretrial hearings, and the Court expects that the parties have a thorough understanding of the evidence in this case. The Court therefore will be hesitant to grant additional requests by the parties to introduce at trial new testimony or evidence not already contemplated by the parties in their filings to date. The Court, nevertheless, is mindful that circumstances at trial may open the door to the introduction of additional testimony and evidence, and the Court shall reserve its right to reconsider its findings as the record develops.

         I. BACKGROUND

         The factual allegations and legal claims at issue in the case are set forth fully in the January 28, 2014 Memorandum Opinion granting in part and denying in part

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Defendant's Motion for Summary Judgment. See Youssef v. Holder, 19 F.Supp.3d 167, 171-77 (D.D.C. Jan. 28, 2014). In short, Youssef is a former FBI employee who applied, but was not selected, for the position of Assistant Section Chief (" ASC" ) in the FBI's Counterterrorism Division. See id. at 171. The parties are proceeding to trial on Youssef's claim that his non-selection was retaliatory due to his participation in prior Equal Employment Opportunity (" EEO" ) activity, which 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) (" Youssef I " ).

         II. LEGAL STANDARD

         Although neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly contemplate motions in limine, the practice of allowing such motions has developed over time " pursuant to the district court's inherent authority to manage the course of trials." Luce v. United States, 469 U.S. 38, 41 n.4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Consistent with the historical origins of the practice, motions in limine are " designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions." Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir. 1990). Broadly speaking, the Federal Rules of Evidence permit the admission of " relevant evidence" --that is, evidence that " has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence," Fed.R.Evid. 401--provided it is not otherwise excluded by the Rules, the Constitution of the United States, or an Act of Congress, Fed.R.Evid. 402, and its probative value is not " substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Fed.R.Evid. 403.

         In deference to their familiarity with the details of the case and greater experience in evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value of the proffered evidence and weighing any factors against admissibility. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). The trial judge's discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial. United States v. Valencia, 826 F.2d 169, 172 (2d Cir. 1987); accord Rosemann v. Roto--Die, Inc., 377 F.3d 897, 902 (8th Cir. 2004); United States v. Layton, 720 F.2d 548, 553 (9th Cir. 1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984), and overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008). The trial judge has the " discretion to rule in limine or to await developments at trial before ruling." Stephen A. Saltzburg et al., FEDERAL RULES OF EVIDENCE MANUAL § 103.02 [12] (9th ed. 2006). " [I]n some instances it is best to defer rulings until trial, [when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole." Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill. 2011) (citation omitted).

         III. DISCUSSION

         The Court shall first address Defendant's motion and thereafter turn to Plaintiff's motion. Because of the number and substantive variation of both parties' requests, the Court shall discuss the factual background relevant to each separate request

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within the context of its analysis of that request. Further, because of the significant overlap between certain matters raised in the parties' respective motions, the Court shall occasionally, in discussing one party's motion, refer to briefing submitted in connection with the opposing party's motion.

         The Court shall also discuss the parties' objections in their Joint Pretrial Statement where doing so would be relevant to the Court's analysis of the parties' motions.

         A. Defendant's Motion in Limine

         Defendant's Motion in Limine requests that the Court grant the following relief: (1) exclude testimony and evidence relating to Youssef's work experience and qualifications beyond the information that Youssef included in his FD-954; (2) exclude testimony and evidence of any alleged prior discriminatory or retaliatory acts, including the basis for the Youssef I retaliation claim; and (3) limit and segregate testimony and evidence relating to the alleged downgrade in Plaintiff's 2009 Performance Appraisal Report (" PAR" ). The Court shall address each request in turn.

         1. Testimony and Evidence Relating to Youssef's Work Experience and Qualifications beyond the Information Included in Youssef's Form FD-954

         Defendant objects to Plaintiff's presentation of testimony and evidence relating to his work experience and qualifications beyond the information included in Youssef's form FD-954.[3] Specifically, Defendant requests that the Court (1) exclude the testimony of Edward Curran; (2) appropriately limit Plaintiff's testimony; and (3) exclude exhibits and demonstrative aids relating to Plaintiff's qualifications that exceed the contents of the FD-954. Before addressing these three requests, the Court shall first consider the issues stemming from Defendant's broader request, that the Court exclude testimony and evidence relating to Youssef's work experience and qualifications beyond the information that Youssef included in his FD-954.

a) Plaintiff may introduce testimony and evidence relating to Youssef's work experience and qualifications beyond the information included in Youssef's FD-954 only where Plaintiff first establishes a factual predicate as to why the LCB member in question would have known that specific information and should have considered, or did in fact consider, that information in the selection process.

         As a preliminary matter, there is no dispute that the Local Career Board (LCB" ) responsible for selecting the new ASC considered information in Youssef's FD-954. The question, therefore, is what evidence and testimony, if any, may be admitted relating to Youssef's work experience and qualifications that go beyond the information that Youssef included in his FD-954.

         Defendant argues that applications for the ASC position consisted entirely of FBI forms FD-954, and that members of the LCB were not allowed to consider information beyond what was included in the FD-954. See Def. Mot. at 5. Therefore, according to Defendant, the only evidence relevant to the LCB's evaluation of Youssef's experience and qualifications vis-à-vis the other applicants are the FD-954s

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themselves. Id. Defendant believes that additional information regarding Youssef's experience and qualifications would be " patently irrelevant and highly prejudicial" and that Plaintiff seeks to introduce " vast swathes (sic)" of such evidence as a means to suggest that Youssef was more qualified for the ASC position than the agent ultimately selected, Daniel Powers. Id.

         Plaintiff maintains that the LCB, which consisted of three voting members--Hipolito Castro, Erkan Chase, and Arthur Zarone--and one non-voting chairperson--Armando Fernandez--in fact considered information beyond what was before them when making a determination to deny Plaintiff's application. See Pl.'s Opp'n at 1. Plaintiff argues that LCB members may have considered information outside Plaintiff's FD-954 because they had personal knowledge of Plaintiff, which they were allowed to consider when evaluating his application. Id. at 3. Plaintiff, however, cites no evidence that any LCB member--all of whom were deposed by Plaintiff--actually drew upon any specific personal knowledge of Plaintiff, instead conjecturing that the LCB members' personal knowledge of Plaintiff " naturally leads one to question the extent to which these Board members considered their own subjective personal knowledge of the Plaintiff during their evaluation of his candidacy for promotion." Id. at 4.

         Upon consideration of these arguments, the Court issued a finding at the first pretrial conference on June 30, 2015 that Plaintiff may introduce testimony and evidence relating to Youssef's work experience and qualifications beyond the information included in Youssef's FD-954 only where Plaintiff establishes a factual predicate as to why the LCB member in question would have known that specific information and should have considered, or did in fact consider, that information in the selection process. Where Plaintiff is unable to establish such a factual predicate, Plaintiff will not be allowed to introduce testimony and evidence relating to Youssef's work experience and qualifications, because such evidence would not be relevant to the issues before the jury. See Fed.R.Evid. 401.[4] This finding sets out the scope of admissible evidence and testimony concerning Youssef's work experience and qualifications beyond the information included in Youssef's FD-954. The Court notes, however, that since the Court issued this finding at the first pretrial conference, Plaintiff has not identified, through his supplemental briefs, such a factual predicate with regard to much of the testimony and evidence that he seeks to introduce on this issue.

         b) Plaintiff may introduce testimony by Ed Curran on limited issues.

         Defendant objects to Plaintiff's presentation of testimony by Edward Curran, whom Plaintiff seeks to call as a lay opinion witness and as a qualified expert to testify as to (1) the importance of Youssef's accomplishments that would have been known to reasonable persons working in the counter-terrorism field; (2) Youssef's qualifications relative to those of Powers, the applicant selected for the ASC position; (3) Youssef's reputation within the FBI and the damages caused to that reputation by his non-selection for the ASC position; (4) the impact of Youssef's non-selection on Youssef's post-retirement job prospects outside of the FBI; and (5) the LCB interview procedures in place at the FBI, including the frequency with which LCBs conducted interviews or the appropriateness of outside conversations with candidates. See Pl.'s Witness Report, ECF No. [74], at 4-7.

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         i. Curran may testify as to Youssef's known accomplishments only to the extent that the testimony provides information regarding the relative importance that the counterterrorism community would have given to the accomplishments listed on Youssef's FD-954.

         Plaintiff seeks to call Curran as a lay opinion witness and as a qualified expert in the field of counterterrorism to testify on the issue of whether a reasonable person working in the field of counterterrorism would have been aware of the significance of the achievements Plaintiff listed on his FD-954. See Pl.'s Witness Report, ECF No. [74], at 4-5. Curran, now retired, worked 52 years in the areas of counterintelligence and intelligence for various state and federal agencies, including the FBI. Id. at Exhibit 1. Curran worked for the FBI for 38 years, from 1962 to 2000, and served as Youssef's supervisor for a period of time before his retirement with the FBI. Id. at 3. Curran would testify that several of the achievements that Plaintiff listed on his FD-954, such as winning the Director of Central Intelligence Award, should have been recognized as significant accomplishments by LCB members, who deny knowledge of the accomplishments' significance. Id. at 4-5.; Pl.'s Opp'n at 6-7. Curran would also testify that Plaintiff's explanation of the awards on his FD-954 was reasonable in light of their significance. Pl.'s Witness Report, ECF No. [74], at 4-5.

         Defendant argues that Curran's testimony amounts to a mere restatement that Youssef was " fully qualified" for the ASC position, a fact that Defendant concedes. Def.'s Mot. at 7. Defendant also argues that Curran's knowledge is not relevant to any issue in the case, is not probative of the LCB's evaluation of the ASC applications, and would confuse the jury and unfairly prejudice Defendant. Id. Defendant further argues that Curran's testimony is not admissible because expert opinions based on subjective beliefs fail to meet the reliability requirement necessary for the admission of expert testimony. Id.

         Plaintiff responds that he seeks to introduce Curran's testimony not for the purpose of showing that Plaintiff was qualified for the ASC position, but rather that Curran's testimony is pivotal in showing the existence of retaliatory animus on the LCB and for impeaching several of Defendant's key witnesses who have claimed to be unaware of the importance of several of the accomplishments on Youssef's FD-954. Pl.'s Opp'n at 7-8. According to Plaintiff, Curran would testify that it is not credible for a manager at the FBI with any experience in the field of counterterrorism to deny knowledge of the significance of achievements, such as winning the Director of Central Intelligence Award. Id. at 7. Plaintiff further argues that assuming that the LCB members were not aware of the significance of these achievements, Curran's testimony would demonstrate that the fact that all three members did not make any inquiry into the key facts in Youssef's FD-954 is evidence of pretext. Id.

         Upon consideration of the parties' arguments, the Court issued a finding at the first pretrial conference that Curran may testify as to Youssef's known accomplishments only to the extent that that they were listed on the FD-954.[5] In particular, Plaintiff may use Curran's testimony to provide additional information as to the importance of these accomplishments in the context that the counterterrorism community

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would have considered them important. The Court further notes that Defendant is correct in arguing that experts may not " opine on another witness's credibility." See, e.g., Engesser v. Dooley, 457 F.3d 731, 736 (8th Cir. 2006). Therefore, Curran's testimony shall be limited to the topics described above concerning the relative importance that the counterterrorism community would have given to the accomplishments listed on Youssef's FD-954. Finally, as noted by the Court in both pretrial conferences, the issue of whether Curran qualifies as an expert in the field of counterterrorism requires resolution at a Daubert hearing. Accordingly, the Court declines to rule on Curran's qualifications as an expert at this time.

         ii. Curran may testify as to Youssef's qualifications relative to those of Powers only to the extent that these qualifications were listed on the FD-954s or were necessarily known by the LCB members.

         Plaintiff seeks to call Curran as an expert in the field of counterterrorism to testify on the issue of Plaintiff's qualifications relative to those of Powers, the candidate eventually selected by the LCB. See Pl.'s Opp'n at 9. In particular, Curran would testify that no reasonable person with counterterrorism experience at the FBI could have compared Powers' FD-954 to Plaintiff's FD-954 and concluded that Powers was a superior candidate. Id. ; Pl.'s Witness Report, ECF No. [74], at 5-6. According to Plaintiff, this information is highly relevant for the purposes of suggesting retaliatory animus--if the LCB members could not have justified Powers' promotion in any way based on his experience in the field of counterterrorism, this suggests that the reason he was promoted was because he was simply an alternative to Plaintiff. See Pl.'s Opp'n at 9.

         Defendant argues that Curran, who left the FBI in 2000 and has never worked in the FBI's Counterterrorism Division, lacks the necessary expertise to testify about what attributes and experience were important to the Counterterrorism Division in 2009. See Def.'s Mot. at 8. Defendant notes that Curran's departure from the FBI predates the establishment of the Counterterrorism Division and of the ASC position for which Plaintiff applied. Id. Given Curran's lack of expertise in this area, Defendant argues, Curran's opinion that Youssef was more qualified than Powers would amount to nothing more than his own subjective belief. Id. In response, Plaintiff argues that Curran's testimony would not be based on his subjective opinion. Pl.'s Opp'n at 9. Rather, Curran would testify as an expert in the field of counterterrorism, drawing on his professional experiences, developed over 38 years at the FBI, then later at the NYPD's Intelligence Division. Id.

         Upon consideration of the parties' arguments, the Court finds that Curran may testify on the issue of Plaintiff's qualifications relative to those of Powers only to the extent that these qualifications were on the FD-954s or would have necessarily been known by the LCB members. Curran's testimony, as indicated by Plaintiff, shall not be based on Curran's subjective opinion, but rather on his experiences in the field of counterterrorism. As previously stated, the issue of whether Curran qualifies as an expert in the field of counterterrorism requires resolution at a Daubert hearing. Accordingly, the Court declines to rule on Curran's qualifications as an expert at this time.

         iii. Curran may not testify as to the baseline of Youssef's reputation and to the impact of Youssef's non-selection on his reputation within the FBI.

         Plaintiff seeks to offer lay opinion testimony by Curran as to the baseline of

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Youssef's reputation, i.e., Youssef's reputation prior to his non-selection, and to the impact of Youssef's non-selection on his reputation within the FBI. See Pl.'s Witness Report, ECF No. [74], at 6. Specifically, Curran would provide lay opinion testimony as to Youssef's reputation as an " excellent performer." [6]

         The parties disagree as to what evidence is relevant to establishing Youssef's reputational baseline. Defendant contends that the only pertinent baseline of reputation is at the time immediately before the 2009 non-selection decision. See Def.'s Mot. at 8. Defendant argues that Curran, who resigned from the FBI in 2000 and has not worked with Youssef since 1996, has no personal knowledge of Youssef's reputation after 2000. Id. Defendant further argues that Youssef's reputation in the 1990s cannot reflect his reputation in 2009 because of intervening events after Curran's departure, which according to Youssef's testimony in his prior trial, negatively impacted his reputation. Id. Therefore, Defendant argues, Plaintiff's reputation as known to Curran is not the relevant baseline reputation at issue, and Curran's testimony should be excluded as irrelevant. Id. In support of this argument, Defendant cites several D.C. Circuit cases, which hold that reputation evidence must be based on observation of the reputation that is close in time to the events at issue, and may not be based in observations made in the distant past. See, e.g., United States v. Whitmore, 359 F.3d 609, 617, 360 U.S.App.D.C. 257 (D.C. Cir. 2004).

         In response, Plaintiff argues that the relevant reputation baseline should date back to the 1990s in order to provide the jury with the full context of Plaintiff's work history. Pl.'s Supp. Pretrial Brief at 7.[7] Plaintiff argues that such evidence would establish Plaintiff's credibility and purpose in alleging retaliation, two prerequisites for establishing a baseline reputation. Id. In support of this argument, Plaintiff cites several employment discrimination cases, where courts admitted evidence of plaintiffs' work histories to establish that there could have been discriminatory animus behind the defendants' actions. See, e.g., Watson v. Nationwide Ins. Co., 823 F.2d 360 (9th Cir. 1987). However, the cases cited by Plaintiff do not discuss whether to allow reputational evidence at trial, and are not instructive to the Court's analysis in this case.

         Upon review of these arguments, the Court finds that the relevant reputation baseline must be close in time to the events at issue in 2009, and cannot date back to the 1990s. See Whitmore, 359 F.3d at 609. Plaintiff's reputation in the 1990s does not accurately reflect Plaintiff's reputation in 2009, because his reputation changed over that time. Plaintiff's own testimony in Youssef I supports this conclusion. In Youssef I, Plaintiff testified that his reputation was injured in 2005 when he was denied permission to attend inspections. See Def.'s Supp. Pretrial Brief, ECF No. [89], at 5 (citing Tr. Of Jury Trial, Day 3, AM Session, 98:6-21, 125:1-5). Furthermore, the parties do not

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dispute Youssef's reputation in 2009 when he applied for the ASC position. Defendant acknowledges that Youssef met the eligibility requirements for the position, and that he was " fully qualified." See Def.'s Mot. at 7. Therefore, the probative value of evidence establishing Youssef's reputation baseline, no less a baseline dating back to the 1990s, is marginal.

         Finally, Curran does not have personal knowledge of Youssef's reputation within the FBI around the time of Youssef's non-selection in 2009. Therefore, Curran is not an appropriate witness to testify on this subject. At the second pretrial conference, the Court indicated a willingness to consider the admissibility of testimony by another of Plaintiff's witnesses concerning the issue of Youssef's reputation and the damages caused to his reputation within the FBI by his non-selection for the ASC position. However, Plaintiff failed to indicate in his supplemental briefing dated September 21, 2015 that he has any other evidence relating to Youssef's reputation within the FBI. See Pl.'s Supp. Mem., ECF No. [97]. Specifically, Plaintiff's supplemental briefing did not provide any information indicating " what the relevant community for evaluating Youssef's reputation is, what the quality of Youssef's reputation prior to his nonselection was, and who will testify as to Youssef's reputation," as required by the Court's Order dated August 14, 2015. See Order, ECF No. [92], at 3. Because Plaintiff has not responded to the Court's inquiry above, Plaintiff cannot, at some later date, proffer another witness on this issue not identified at this time. However, the Court also observes that Plaintiff states in the Joint Pretrial Statement that Plaintiff would provide testimony as to the damages to his reputation. See Joint Pretrial Statement, ECF No. [77], at 12; see also Pl.'s Witness Report, ECF No. [74], at 9-11. The Court is reluctant to preclude Plaintiff from testifying on this issue, noting that Defendant did not raise any objections to Plaintiff's proffered testimony in the Joint Pretrial Statement, and that the Court allowed similar testimony concerning reputational damages by Plaintiff in Youssef I. See Pl.'s Witness Report, ECF No. [74], at 9-11; Def.'s Objections, ECF No. [77-6], at 4-6. Accordingly, the Court finds that Youssef, in lieu of Curran, may provide lay opinion testimony as to the baseline of Youssef's reputation and to the impact of Youssef's non-selection on his reputation within the FBI. However, the Court shall allow Youssef's testimony on reputational damages, only after Plaintiff provides further information indicating the relevant community for evaluating Youssef's reputation, as well as the quality of Youssef's reputation prior to his non-selection.

         iv. Curran may not testify as to the impact of Youssef's non-selection on Youssef's post-retirement employment prospects.

         Plaintiff also seeks to call Curran to testify about Youssef's post-retirement reputational damage due to his diminished post-retirement employment prospects. See Pl.'s Supp. Pretrial Brief, ECF No. [88], at 10.[8] Curran would provide expert and lay opinion testimony that Youssef, having left the FBI as Unit Chief and

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having not been selected for the ASC position, was unable to secure certain positions and earn certain compensation in his counterterrorism career beyond the FBI. Id. at 10-11. Plaintiff states in his supplemental briefing after the first pretrial conference that since his retirement from the FBI, he has pursued, without success, consulting positions at firms, including Booz Allen, who are looking for employees with counterterrorism experience. Id. at 10. Plaintiff, however, provided no further information regarding these consulting positions or any evidence whatsoever suggesting that the denial of the ASC position in 2009 caused Plaintiff to lose any of these job opportunities following his retirement in October 2014. The Court raised these concerns at the second pretrial conference and provided Plaintiff an opportunity to supplement its arguments on this issue. See Order dated August 14, 2015, ECF No. [92], at 3. Specifically, the Court ordered Plaintiff to " indicate whether he has tried to find post-retirement employment, what opportunities he has missed, what Curran will testify to, and the factual predicate that would permit Curran to testify as an expert about Youssef's allegedly diminished post-retirement employment prospects." Plaintiff failed entirely to adduce any such evidence in his supplemental brief filed on September 21, 2015. See Pl.'s Supp. Mem., ECF No. [97].

         Accordingly, the Court finds that Plaintiff may not offer testimony by Curran, or by any other witness, as to the impact of Youssef's non-selection on Youssef's post-retirement job prospects outside of the FBI. After several inquiries by the Court, Plaintiff's sole evidence of lost job opportunities remains a single, generalized reference to Plaintiff's pursuit of a consulting position at Booz Allen. Furthermore, when given the opportunity by the Court, Plaintiff failed to proffer any evidence suggesting that Plaintiff was not hired for the consulting position at Booz Allen following his retirement in 2014 because of his non-selection of the ASC position in 2009. The Court therefore agrees with Defendant that Plaintiff has provided no evidence to support a conclusion that any marginal value added by an ASC title would have qualified Plaintiff for jobs that were otherwise out-of-reach for him. Def.'s Supp. Pretrial Brief, ECF No. [89], at 7. As Defendant notes, Plaintiff had a long career at the FBI, during which he rose to the ranks of management and occupied an important GS-15 Unit Chief position at the end of his tenure. Id. The record currently before the court provides no reason to suggest that the denial of the ASC position in 2009 would have caused Plaintiff to lose any job opportunities following his retirement in October 2014. Accordingly, the Court finds that Plaintiff may not offer testimony by Curran, or by any other witness, as to the impact of Youssef's non-selection on Youssef's post-retirement job prospects outside of the FBI.[9]

         v. Curran may not testify as to the practices and procedures relating to LCBs, including the frequency with which LCBs conducted interviews or the appropriateness of outside conversations with candidates.

         Plaintiff also seeks to call Curran to testify as an expert concerning the practices and procedures relating to LCBs. See Pl.'s Witness Report, ECF No. [74], at 4. Specifically, Curran would testify as to the role of LCBs in the FBI promotional process, the role of the Chairman of the LCB, and the procedures used by LCBs.

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Id. This testimony would include discussion as to the right and responsibility of LCB members to interview candidates in order to understand their qualifications, especially if they were not familiar with significant achievements set forth in the FD-954. Id. Curran would also render an opinion that the failure to interview Youssef, combined with the fact that the Chairman of the LCB did talk with other applicants, was inappropriate. Id. Curran would also testify that LCB members should review the complete FD-954, and take into consideration factors such as years of experience, an applicant's employment in the section for which the promotion would occur, and other career milestones reflected in the FD-954. Id.

         As a preliminary matter, the Court observes that Plaintiff has not put forth any evidence to suggest that Curran, who left the FBI in 2000, was knowledgeable of the LCB policies and procedures in place at the time of the Plaintiff's non-selection in 2009. At the second pretrial conference, the Court raised this concern to Plaintiff, stating that it was not clear to the Court what expert testimony Curran would be able to provide about the LCB interview procedures. See Order dated August 14, 2015, ECF No. 92, at 3-4. After the second pretrial conference, the Court provided Plaintiff an opportunity to proffer additional evidence through an additional round of supplement briefing. See id. In his supplemental brief filed in response to the Court's Order, Plaintiff, however, failed to respond to the Court's concerns regarding Curran's lack of knowledge of procedures in effect at the time of Plaintiff's non-selection. See Pl.'s Supp. Mem., ECF No. [97]. Plaintiff also did not indicate whether he still seeks to introduce expert testimony from Curran on the subject of LCB interview procedures. See id.

         Instead, Plaintiff argues that the Court should not consider certain evidence proffered by Defendant in its supplemental briefing concerning the impact of certain policy changes in 2004 on LCB interview procedures. See id. at 2-3. Specifically, Plaintiff contends that Defendant inappropriately relies on a declaration of Valerie Parlave concerning the impact of the 2004 policy changes on interview procedures. See Pl.'s 2nd Supp. Pretrial Brief, ECF No. [90], at 3-4; Pl.'s Supp. Mem., ECF No. [97], at 2-3. The Court addresses, in great detail, Plaintiff's objections to Parlave's testimony and her declaration, including her declaration concerning the impact of the 2004 policy changes on LCB interview procedures, later in this Opinion, in Part III.C.4. As stated in Part III.C.4, the Court concludes that the Court may consider the Parlave declaration concerning the 2004 changes relating to candidate interview procedures, but the Court shall allow Plaintiff the opportunity to depose Parlave. See Part III.C.4

         Defendant relies on the Parlave declaration in support of its argument that the FBI overhauled the career board process in 2004, four years after Curran's departure, and that Curran has " no understanding of the revised process." Def.'s Mot. at 9.[10] The Parlave declaration provides details of the 2004 changes, which included, inter alia, a requirement that applicants

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provide " substantially more information" on the FD-954 in use after 2004, which reduced the likelihood that the LCB would conduct interviews of candidates. Def.'s Supp. Pretrial Brief, ECF No. [89], at 3-4 and Exhibit 1, Declaration of ...


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