Youssef v. Lynch

• Decision Date: 13 November 2015
• Docket Number: Civil Action No. 11–1362 (CKK)
• Citation: 144 F.Supp.3d 70
• Parties: Bassem Youssef, Plaintiff, v. Loretta E. Lynch, United States Attorney General, Defendant.
• Court: U.S. District Court — District of Columbia

144 F.Supp.3d 70

Bassem Youssef, Plaintiff,

v.Loretta E. Lynch, United States Attorney General, Defendant.

Civil Action No. 11–1362 (CKK)

United States District Court, District of Columbia.

Signed November 13, 2015

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

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY

, 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 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 findings² :

A. Defendant's Motion in Limine

• 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.

• 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.

• 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.

• 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.

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

• 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.

• 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.

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

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

• The Court shall limit testimony and evidence about Youssef's prior EEO activities to a neutral statement that he was engaging in such activities at the time of his non-selection for the ASC position, and that the FBI is not permitted to take retaliatory action in response to those activities.

• 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.

• 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 discrimination lawsuit.

• 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.

• 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

• 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

• 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.

• 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.

• 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 Defendant's Motion for Summary Judgment. See Youssef v. Holder, 19 F.Supp.3d 167, 171–77 (D.D.C.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...