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Massey v. Tillerson

United States District Court, District of Columbia

March 31, 2017

REX W. TILLERSON, [1] Defendant.

          MEMORANDUM OPINION [Dkt. # 64]

          RICHARD J. LEON United States District Judge

         Loubna Salagh Massey ("plaintiff or "Massey") brings this civil action against the Secretary of State ("defendant"). Massey, who was employed as an Arabic Language and Culture Instructor and Developer at the Department of State's Foreign Service Institute ("FSI"), alleges that the defendant, through the actions of her supervisors at the FSI, subjected her to a hostile work environment, discriminated against her on the basis of her religion and national origin, and retaliated against her for engaging in protected activity, all in violation of Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e. Currently before the Court is defendant's Motion for Summary Judgment [Dkt. # 64]. Upon consideration of the pleadings, the entire record in this case, and relevant law, the Court GRANTS summary judgment in favor of defendant.


         Plaintiff Loubna Massey was born and raised in Morocco, but moved to the United States in 2003. Def.'s Statement of Facts ("SOF") ¶ 1 [Dkt. # 64-1]; Pl.'s Statement of Facts ("SOF") ¶ 1 [67-1]; Massey Dep. at 13:11-16 [Dkt. # 67-3]. Massey was born into a Muslim family, but converted to Christianity in 2004. Def.'s SOF ¶¶ 1, 6; Pl.'s SOF ¶ 4; Massey Dep. at 10:8-12.

         In 2008, Massey began work as a contract Arabic Language and Culture Instructor at the State Department's Foreign Service Institute. Def.'s SOF ¶ 9; Pl.'s SOF ¶ 5; Massey Dep. at 17:24-25. During that time, Dr. James Bernhardt ("Bernhardt") was the division director of the Near East, Central, and South Asian Languages division. As a result, he oversaw FSI's Arabic Section and was Massey's second-line supervisor. Def.'s SOF 10; Pl.'s SOF ¶ 7; Bernhardt Dep. at 10:16-11:5. During her tenure at FSI, Massey was directly supervised by Dr. Tagelsir Elrayah ("Elrayah"), a Language Training Supervisor in the Arabic Section. Def.'s SOF ¶ 12; Pl.'s SOF ¶ 10; ElrayahDep. at 12:3-12:15; 18:14-20 [Dkt. # 64-3]. Beginning in March 2010, Massey was also directly supervised by Maha Bohsali, another FSI Language Training Supervisor. Bohsali Dep. at 11:5-8; 17:11-18:10 [Dkt. # 67-3]

         As an FSI Arabic instructor, Massey was assigned "a tour of duty, " or schedule that she was expected to adhere to. FSI Instructors' Guide at 2137 ("No matter which tour of duty you work, you are expected to be present for the entire period. . . .") [Dkt. # 64-4]. Massey's tour of duty was from 8:45 AM to 5:30 PM. Massey Dep. at 36:5-14. During the period at issue, language instructors were required to physically sign in and out and record their arrival and departure times. Bernhardt Dep. at 59:19-60:19. In September 2010, Mohamed Sheriff, an FSI assistant, told Bohsali that Massey arrived to work late and recorded an incorrect time on her sign-in sheet. Bohsali Dep. at 76:4-16. Bohsali consulted with Elrayah and Bernhardt, and they decided draw a line on the sign-in sheet at 9:00 AM on September 10, so that they would know if anyone signed in after 9:00 AM. Bohsali Dep. at 77:8-14 [Dkt. 65-4]. On that day, Massey signed in below the line. 09/10/10 Sign-In Sheet [Dkt. # 64-5]. As a result, Bohsali asked the IT department to determine when she signed in to her computer, and learned that Massey did not log in until 10:06 AM. Bohsali Dep. at 78:20-79:1. Bohsali also discovered that the sign-in times listed on Massey's invoices did not match her arrival times on her sign-in sheets. See, e.g., 07/07/10 Sign-In Time (9:00 AM) and Invoice (8:45 AM); 07/16/10 Sign-In Time (9:00 AM) and Invoice (8:45 AM) and Invoice (8:45 AM); 07/21/10 Sign-In Time (8:56 AM) and Invoice (8:45 AM) [Dkt. # 64-5].

         When presented with this information and a request to terminate her contract, Steve Rogers, FSI's Director of Acquisitions and Contracting Officer, confronted Massey about the issues regarding the sign-in sheets and invoices and terminated her contract. Rogers Decl.¶¶ 10-13 [Dkt. #64-9]. Massey received a termination letter that offered two reasons for her termination: "falsifying [her] timesheet[s] [and] invoice submission[s]" and "not adhering to her set work schedule." 09/14/10 Termination Letter [Dkt. # 67-5]

         During this same period, Massey applied for two[2] direct-hire positions at the FSI, but was not selected for either position. In August 2010, Massey applied for a direct hire position as an Arabic Instructor at a GG-11 level. VA 418 Job Posting [Dkt. # 64-6]. Massey was included on the certificate of eligible candidates for the position. VA 418 Certificate of Eligibles [Dkt. # 64-6]. However, Dr. Bernhardt, with recommendations from Elrayah and Bohsali, decided to hire six other candidates for the position. Bernhardt Dep. at 16:2-19:10; 25:2-13, 29:1-33:17; 32:9-33:7. In December 2010, Massey applied for another direct-hire position as a Supervisory Language Training Specialist at a GG-13 level. VA 015 Job Posting [Dkt. # 64-7]. Massey was invited to interview for the position, but she ultimately declined to attend her interview and was not selected. 12/10/10 Email to L. Massey [Dkt. 64-7]; 12/16/10 Email to Bernhardt [Dkt. # 64-7]

         In July 2009, prior to the events in this case, Massey provided an affidavit in connection with the investigation of an EEO complaint brought against Elrayah by another instructor, in which she stated that another employee told her about misconduct by Elrayah, but that she had not personally witnessed any wrongdoing. See Massey Bashrawi EEO Decl. [Dkt. # 64-8].

         Massey filed this action in 2012, alleging that the State Department, acting through her supervisors at FSI, discriminated against her on the basis of her religion and national origin, retaliated against her for testifying in an EEO investigation, and subjected her to a hostile work place environment.


         Summary judgment should be granted when "there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law." Fed. R.. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine dispute of material fact exists only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the burden of showing that there is no dispute of fact, but the non-moving party "may not rest upon mere allegations or denials of his pleading, but must [instead] set forth specific facts showing that there is a genuine issue for trial. Id. at 256.

         When ruling on a motion for summary judgment, the court does not make credibility determinations or weigh the evidence, as that is properly the province of the factfinder at trial. Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). Instead, the Court must accept as true the evidence of the non-moving party, and draw "all justifiable inferences" in favor of that party. Anderson, 477 U.S. at 255. However, to the extent that the non-moving party will bear the burden of proving facts at trial, those facts must be supported by competent evidence, and the absence of that evidence forms the basis for summary judgment. See Celotex, 477 U.S. at 322-24. The non-moving party must establish more than "the existence of a scintilla of evidence" in support of its position, Anderson, 477 U.S. at 252, and the Court will not accept "conclusory allegations lacking any factual basis in the record." Dist. Mown Props. Ltd. P'ship v. District, of Columbia, 198 F.3d 874, 878 (D.C. Cir. 1999). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50. Thus, the Court must decide "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented." Hunter-Boykin v. George Washington Univ., 132 F.3d 77, 79 (D.C. Cir. 1998) (quoting Anderson, 477 U.S. at 252).


         I. Legal Standard

         Massey brings discrimination, retaliation, and hostile workplace claims under Title VII. With respect to discrimination, Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42U.S.C. § 2000e-2. For retaliation claims, Title VII prohibits employers from discriminating "against any individual.. . because [she] has opposed any practice made an unlawful employment practice by [Title VII], or because [she] has made a charge, ...

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