Youssef v. F.B.I.

• Decision Date: 30 March 2008
• Docket Number: Civil Action No. 03-1551(CKK).
• Parties: Bassem YOUSSEF, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.
• Court: U.S. District Court — District of Columbia

541 F.Supp.2d 121

Bassem YOUSSEF, Plaintiff, v. FEDERAL BUREAU OF INVESTIGATION, et al., Defendants.

Civil Action No. 03-1551(CKK).

United States District Court, District of Columbia.

March 30, 2008.

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Stephen M. Kohn, David K. Colapinto, Kohn, Kohn & Colapinto, LLP, Washington, DC, for Plaintiff.

Carlotta Poter Wells, Justin M. Sandberg, U.S. Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

Plaintiff Bassem Youssef ("Youssef") brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., against the Federal Bureau of Investigation, the United States Department of Justice, the United States Attorney General in his official capacity, and the Director of the Federal Bureau of Investigation in his official capacity (individually and collectively "the FBI"). Youssef is an Egyptian-born American citizen who has been employed by the FBI since 1988. He claims 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 Equal Employment Opportunity ("EEO") complaint. Currently pending before the Court are Defendant's [85] Motion for Summary Judgment, Plaintiff's [82] Motion for Partial Summary Judgment, Defendant's [109] Second Motion for Summary Judgment, and Plaintiffs [114] Motion to Strike Defendant's Second Motion for Summary Judgment and related exhibits. Although Youssef is clearly disappointed that the FBI has not used his Arabic-speaking abilities and background differently in his assignments following the September 11, 2001 terrorist attacks, the Court finds that Youssef has failed to demonstrate that a genuine issue of material fact exists concerning his claims of 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, after a searching review of the Parties' submissions, including the voluminous exhibits attached thereto, applicable case law and statutory authority, the Court shall grant in part and deny in part Defendant's [85] Motion for Summary Judgment, deny Plaintiff's [82] Motion for Partial Summary Judgment, grant Defendant's [109] Second Motion for Summary Judgment, and deny Plaintiff's [114] Motion to Strike, for the reasons that follow.

I. BACKGROUND

Because this case has a complex factual and procedural background, the Court divides this section into five parts: Part A describes Youssef's FBI employment background from 1988 to 2001; Part B describes Youssef's FBI employment after the September 11, 2001 terrorist attacks (hereinafter "9/11 attacks") through July 18, 2003, the date the Complaint was filed in the present action; Part C describes the two acts of alleged discrimination at issue; Part D describes the two acts of alleged retaliation at issue; and Part E describes the procedural posture of this case, including an explanation as to why the FBI took the somewhat unusual step of filing a Second Motion for Summary Judgment.

A. Youssef's Employment Background, 1988-2001

Youssef began working as a GS-10 level Special Agent for the FBI in 1988.¹ Defs.' Stmt. ¶ 2. Following new agent training, the FBI assigned Youssef to its St. Louis office, although he also traveled to other locations (including Pakistan) on short-term assignments. Pl.'s Stmt. ¶¶ 17-11. Youssef contends that he participated in terrorism investigations, including advising and assisting with counterterrorism cases, searches, seizures, arrests, and "extract[ing] confessions" during this period. Pl.'s Stmt. ¶¶ 5, 7-12. The FBI maintains that Youssef's counterterrorism assistance was limited to that of a "translator." Defs.' Resp. Stmt. ¶ 6-12. The Parties do not dispute that Youssef received various assignments utilizing his Arabic speaking capabilities during this period.² See, e.g., Pl.'s Stmt. ¶ 17; Defs.' Resp. Stmt. ¶ 17.

The FBI transferred Youssef from its St. Louis office to Los Angeles in 1992 to "fill the need for an Arabic speaking agent." Pl.'s Stmt. ¶ 21. Youssef was assigned to the International Terrorism Squad, part of the Los Angeles Task Force on Terrorism. Id. ¶ 24. In that capacity, Youssef coordinated one or more FBI "Islamic Group cases," which were part of a counterterrorism program that investigated certain crimes and collected criminal intelligence. Id. ¶ 25; Defs.' Resp. Stmt. ¶ 25. Youssef was also a case agent on one or more counterterrorism investigations.³ Pl.'s Stmt. ¶ 26. In October 1994, the Polygraph Unit at FBIHQ selected Youssef to become a Bureau-certified Polygraph examiner. Id. ¶ 36-37. Youssef believes that he is the FBI's first and only polygraph examiner trained to conduct exams and debriefings in Arabic at a native fluency level, id. ¶ 38, although the FBI explains that Youssef's examinations have involved mostly job applicants, and only one examination occurred in the context of a criminal investigation. Defs.' Resp. Stmt. ¶ 38. Youssef also operated with a false name and credentials while assigned to the Los Angeles office, which Mr. Edward Curran, Youssef's supervisor, felt was necessary based on "the type of work [Youssef] was doing." Pl.'s Stmt. ¶¶ 39, 41. Mr. Curran also testified that Youssef was an important part of the Los Angeles counterterrorism program. Id. ¶¶ 43-45.

Youssef asserts that, during this period, he undertook activities such as taking custody of, and debriefing, an FBI fugitive, id. ¶ 48, providing input on Foreign Intelligence Surveillance Act ("FISA") applications and analytical materials, serving on a temporary assignment in Egypt, and managing a bombing investigation. Id. ¶¶ 62-69. The FBI acknowledges some of this activity, such as his participation in the submission of FISA applications, Defs.' Resp. Stmt. ¶ 62, and traveling on an assignment to Egypt, id. ¶ 64, but denies that Youssef played a role beyond that of a translator, id. ¶ 48, or that he led any investigations, id. ¶¶ 66, 69. Nevertheless, Youssef received high praise from his supervisor during this period, and he received an award from the Director of Central Intelligence for the quality of his work. Pl.'s Stmt. ¶ 50, 57; Defs.' Resp. Stmt. ¶ 50.

In 1996, Youssef applied for and was promoted to the position of Legal Attache ("Legat") in Riyadh, Saudi Arabia.⁴ Pl.'s Stmt. ¶ 7 1. Youssef's fluency in. Arabic and interpersonal skills appear to have played a significant role in his selection as Legat based on comments considered by the Career Board. Id. ¶¶ 73-76. When Youssef arrived in Riyadh to begin his work as Legat, relations between the FBI and the Mabahith (the FBI's counterpart in Saudi Arabia) were strained. Id. ¶ 84. Youssef helped to improve relations between the two organizations. Id. ¶ 88; Pl.'s Mot. for Summ. J., Ex. 10, Tr. 57:19-22 (Deposition of CIA Director Louis Freeh) ("I think [Youssef] was the essential player. I think his — his very good work there, the high regard that the Saudis had for him advanced that."). According to the FBI Inspection Division Report, Youssef established and maintained effective liaison with law enforcement entities for the purpose of supporting its investigative missions. Pl.'s Stmt. ¶ 90. When Youssef received a copy of his performance evaluation on May 3, 2000, his first and second line supervisors assessed his performance as "exceptional." Id. ¶ 94. Among other words of praise, Ambassador Wyche Fowler remarked that Youssef was "just the right man" for the Legat position. Id. ¶ 95.

There is no question that Youssef achieved various successes in his capacity as the Riyadh Legat. For example, Youssef and the Legat staff established working relationships with representatives from thirty-two different law enforcement entities and American Embassies throughout the Gulf Region. Id. ¶ 100. The Director of Liaison for the Mabahith visited the United States Embassy for the first time on Youssef's invitation. Id. ¶¶ 101, 104. The FBI agrees that Youssef's "efforts helped the FBI accomplish its mission in Saudi Arabia." Defs.' Resp. Stmt. ¶ 112. Nevertheless, the Parties continue to disagree as to the extent to which Youssef's activities during this period can be said to relate to counterterrorism experience as opposed to experiences associated with performing as a translator. Compare Pl.'s Stmt. ¶ 119 ("At the time of [the 9/11 attacks] and thereafter, Mr. Youssef possessed far superior skills and knowledge in dealing with Middle Eastern Counterterrorism than any other FBI Agent") with Defs.' Resp. Stmt. ¶ 119 ("[Youssef's] counterterrorism experience is very limited, and mostly involves performing as a translator"). The FBI also points out that a subsequent inspection of the Legat office found certain organizational and administrative deficiencies at the Legat office that were partially attributable to Youssef. See Defs.' Mot. for Summ. J; at 9 & Ex. 30 at 18-24 (Riyadh Legat Inspection Report).

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 ("ESO") at the National Counterintelligence Center ("NACIC") of the Central Intelligence Agency ("CIA").⁵ Pl.'s Stmt. ¶¶ 128-29; Defs.' Stmt. ¶ 13. Although the FBI formally reassigned Youssef from the Legat Office to the Counterintelligence Division of the FBI ("CID"), the NACIC position was a detail to another agency, and consequently, Youssef was not stationed at the FBI's Headquarters ("FBIHQ"). Defs.' Stmt. ¶ 14. Youssef's responsibilities in his NACIC position included coordinating liaison activities with representatives from various...