Youssef v. Holder
| Decision Date | 28 January 2014 |
| Docket Number | Civil Action No. 11–1362 CKK |
| Citation | 19 F.Supp.3d 167 |
| Court | U.S. District Court — District of Columbia |
| Parties | Bassem Youssef, Plaintiff, v. Eric H. Holder, Jr., United States Attorney General, Defendant. |
Stephen M. Kohn, Kohn, Kohn & Colapinto, LLP, Washington, DC, for Plaintiff.
Javier M. Guzman, U.S. Attorney's Office, Washington, DC, for Defendant.
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, 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.
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).
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 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 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.
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:
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 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,...
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