Youssef v. Federal Bureau of Investigation

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 9, 2011 Decided July 20, 2012
No. 11-5069
BASSEM YOUSSEF,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:03-cv-01551)
Stephen M. Kohn argued the cause for appellant. With
him on the briefs were David K. Colapinto and Richard R.
Renner.
Stephanie R. Marcus, Attorney, U.S. Department of
Justice, argued the cause for appellees. With her on the brief
were Tony West, Assistant Attorney General, Ronald C.
Machen Jr., U.S. Attorney, and Marleigh D. Dover, Attorney.
Robert M. Loeb, Attorney, entered an appearance.
Before: GRIFFITH, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: Bassem Youssef, an Egyptian-
born American citizen, claims that his employer, the Federal
Bureau of Investigation, discriminated against him on the
basis of his national origin after the terrorist attacks of
September 11, 2001, by not placing him in a substantive
position dealing with counterterrorism and instead
transferring him to a job for which he was dramatically
overqualified. He also claims that the FBI retaliated against
him when he filed a complaint and spoke to his superiors
about his predicament. The district court granted summary
judgment against his discrimination claim, but allowed his
retaliation claim to be tried by a jury. The jury returned a
verdict against Youssef, and the district court denied his
motion for a new trial. We affirm the district court’s refusal to
grant a new trial, but reverse its judgment against Youssef’s
discrimination claim and remand for further proceedings.
I
This case has a complex factual and procedural
background; we recount only the details necessary to our
decision. See Youssef v. FBI, 541 F. Supp. 2d 121, 128
(D.D.C. 2008). Youssef was born in Egypt and immigrated to
the United States in 1972, when he was thirteen years old. A
native Arabic speaker, Youssef has worked for the FBI since
1988. In the first eight years of his career, Youssef worked on
a variety of counterterrorism investigations and received high
praise from his supervisors. In 1996, he was promoted to the
position of Legal Attaché in Riyadh, Saudi Arabia, where he
served as a liaison to local law enforcement authorities and
helped improve relations between the FBI and its Saudi
counterpart, the Mahabith. As he had before, Youssef once
again received excellent performance reviews. In July 2000,
he returned to the United States and was detailed by the FBI
to the National Counterintelligence Center of the CIA
3
(NACIC), where, as Chief of the Executive Secretariat Office,
he coordinated the activities of a number of multi-agency
groups supporting the counterintelligence community.
In February 2001, President George W. Bush dismantled
the NACIC and created a new organization to take its place:
the National Counterintelligence Executive (NCIX). Because
Youssef’s position at the NACIC no longer existed, the FBI
detailed him to a temporary position at the NCIX where he
was responsible for assessing how disclosure of national
security information harmed the government’s
counterintelligence capacity. Youssef remained at the NCIX
until March 2002, when he was transferred to a temporary
position in DocEx, a new program within the
Counterterrorism Division of the FBI charged with the
processing and review of written materials recovered in
Afghanistan and Pakistan.
Youssef asserts his work in DocEx primarily required
him to “‘bag and tag’ evidence at an offsite facility,” and his
“responsibilities were limited to sitting at a desk sifting
through piles of potentially worthless paper in the hope that
some intelligence value could be gleaned.” Appellant’s Br.
58; see also Pl.’s Stmt. ¶ 184 (describing one of Youssef’s
main tasks at DocEx as “cataloging [documents], i.e. as [in]
putting an identifying number or serial number on a document
before storing the document as original evidence”). The FBI
disputes that his duties at DocEx consisted of menial
responsibilities and describes his work instead as identifying
and analyzing information contained in captured documents
that related to the threat of future terrorist attacks against the
United States. Appellee’s Br. 36.
Youssef believes that in the aftermath of the attacks of
September 11th the FBI should have put his experience and
4
language skills to use in a critical counterterrorism position.
Instead, he was moved to his position at DocEx based on
rumors that he had refused to carry out orders while in Saudi
Arabia because of his Muslim faith and that he had worn
“traditional Arabic head-gear.” Youssef, 541 F. Supp. 2d at
131-32. If such rumors circulated, which the FBI disputes,
they were untrue: Youssef is a Coptic Christian and the story
of the garb was about a different FBI agent with a “similar-
sounding” name. Id.On June 28, 2002, Youssef met with his Member of
Congress, Frank Wolf, and FBI Director Robert Mueller in
the congressman’s office. Youssef explained that he was
“uniquely qualified” to help the FBI, but that he was being
kept from more important responsibilities at the Bureau
because of his national origin. Id. at 133. On July 10, 2002,
Youssef filed a complaint with the Equal Employment
Opportunity Commission (EEOC). Id. In August 2002, he
applied for and received a promotion to be the Unit Chief of
DocEx, where he remained until he made a lateral move in
November 2004 to become the Unit Chief of the
Communications Analysis Unit, a sister unit of DocEx that
focuses on electronic records. 1 Id. On January 9, 2003, the
EEOC sent Youssef a letter stating that it would investigate
his complaint further. Id. On July 18, 2003, having received
no final decision on his complaint from the EEOC, Youssef
sued in federal district court, see 42 U.S.C. § 2000e-5(f),
alleging that the FBI had discriminated against him by failing
to give him substantive counterterrorism work and instead
assigning him for seven months to a job in DocEx that was
1
We received no briefing on Youssef’s duties as Unit Chief of
the Communications Analysis Unit because he did not argue that
his transfer there was discriminatory or retaliatory. See Youssef, 541
F. Supp. 2d at 133 n.12.
5
well below his expertise and grade level. Pl.’s Compl. ¶¶ 94-
98.
While in the Communications Analysis Unit, Youssef
twice asked permission to take several weeks leave to
participate in inspections of FBI offices. The inspections are
performed by senior FBI special agents who “monitor [the
office’s] compliance with the Bureau’s policies, procedures,
and administrative requirements.” Youssef, 541 F. Supp. 2d at
135. Participating in these exercises is required to become
“inspection certified,” which can be helpful in “obtaining
future promotions.” Youssef v. FBI, 762 F. Supp. 2d 76, 78-80
(D.D.C. 2011). Youssef’s requests were denied. Youssef
amended his complaint to allege that these denials were
retaliation for his EEO filing, taking his grievances to
Director Mueller, and other protected activity such as
attending witness depositions in his discrimination case. Id. at
79.
In 2008, the district court entered summary judgment
against his discrimination claim, concluding that Youssef had
shown only that he was not permitted to “perform the work he
desired,” which falls short of a claim that he suffered
materially adverse action at work. 2 Youssef, 541 F. Supp. 2d
at 164. His retaliation claim was tried to a jury. Youssef, 762
F. Supp. 2d at 78. On September 27, 2010, the jury returned a
special verdict, finding that Youssef had failed to show that
the FBI’s denial of leave to participate in the inspections was
a materially adverse action. The district court later denied
Youssef’s motion for a new trial. Id. at 79. Youssef now
appeals the summary judgment against his discrimination
2
The district court also entered summary judgment against
Youssef on other discrimination claims, which are not relevant to
this appeal. Youssef, 541 F. Supp. 2d at 133-35.
6
claim and the denial of his motion for a new trial. We take
jurisdiction under 28 U.S.C. § 1291.
II
Title VII provides, in relevant part, that all personnel
actions affecting employees of the federal government “shall
be made free from any discrimination based on race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). To
allege a prima facie case, a plaintiff must show that he “is a
member of a protected class,” that he “suffered an adverse
employment action,” and that “the unfavorable action gives
rise to an inference of discrimination.” Stella v. Mineta, 284
F.3d 135, 145 (D.C. Cir. 2002) (quoting Brown v. Brody, 199
F.3d 446, 452 (D.C. Cir. 1999)) (internal quotation marks
omitted). There is no dispute that as an Egyptian-born
American citizen, Youssef is a member of a protected class.
The controversy is whether he suffered a materially adverse
employment action from which discrimination can reasonably
be inferred. We review the district court’s grant of summary
judgment de novo, viewing the evidence in the light most
favorable to Youssef. See McCready v. Nicholson, 465 F.3d 1,
7 (D.C. Cir. 2006).
When a Title VII plaintiff rests a claim of materially
adverse action on a transfer that does not involve loss of pay
or benefits, a court must determine if there were “materially
adverse consequences affecting the terms, conditions, or
privileges of her employment or her future employment
opportunities such that a reasonable trier of fact could
conclude that the plaintiff has suffered objectively tangible
harm.” Brown, 199 F.3d at 457. We have previously
held that “reassignment with significantly different
responsibilities . . . generally indicates an adverse action,”
Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006)
7
(quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C. Cir.
2002)) (internal quotation marks omitted), and Youssef
alleged that such a reassignment occurred. In his complaint,
Youssef alleged that his position in DocEx “[did] not utilize
[his] skills and expertise” and that “his primary duty was to
tag and process evidence at an offsite facility” located in the
basement of a Virginia warehouse, Pl.’s First Am.
Compl. ¶ 98; Defs.’ Mot. Summ. J. Ex. 8, at 18. He also
claimed that one of his co-workers at DocEx was a Grade
Level 11 non-agent (four levels below his), Pl.’s Aff. ¶ 118,
May 12, 2006, and that his supervisors were grade levels
below him, “a situation [he] had never encountered
throughout [his] entire Bureau career,” id. Unlike the two
positions he held prior to his transfer, at DocEx he supervised
no one. Appellant’s Reply Br. 14. We conclude that a
reasonable juror could find that Youssef “experience[d] an
extraordinary reduction in responsibilities” constituting
materially adverse action under Title VII. Holcomb, 433 F.3d
at 902. 3
The FBI argues that placing Youssef at DocEx could not
have been a materially adverse action because he was
3
The FBI and Youssef disagree over whether the relevant
baseline for comparison was his detail to the NACIC or his
temporary position at the NCIX. We need not resolve that issue
because a reasonable trier of fact could conclude that Youssef’s
transfer from NCIX to DocEx constituted materially adverse action.
At NCIX he supervised an agent and – unlike DocEx – did not
report to agents whose grade levels were below his. See Appellant’s
Reply Br. 26. There is also no evidence that he did the same work
as a GS-11 non-agent at NCIX; indeed, the FBI described
Youssef’s position there as “high profile,” Def.’s Mot. For Summ.
J. ¶ 18. And Youssef claims that, as a result of his placement in
DocEx, he could not successfully compete for positions outside the
Unit. See Appellant’s Reply Br. 26.
8
subsequently promoted to Unit Chief. Appellees’ Br. 35, 39.
But making the best of a bad situation should not be held
against a claimant, and seeking a promotion within DocEx
does not mean that Youssef forfeited his Title VII claim. Even
if the position of Unit Chief was a match for Youssef’s skill
and experience, on which we express no opinion, his
promotion cannot retroactively immunize his transfer to
substandard work for seven months. 4
We next consider whether Youssef’s showing “gives rise
to an inference of discrimination.” Stella, 284 F.3d at 145. In
making this determination, we use the McDonnell Douglas
factors. McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). Once a plaintiff makes out a prima facie case of
discrimination, the burden shifts to the defendant to prove that
“the adverse employment actions were taken for a legitimate,
nondiscriminatory reason.” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 507 (1993) (quoting Tax Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 254 (1981)) (internal quotation
marks omitted). Before the district court and us, the FBI has
trained its argument on the nature of the position to which
Youssef was transferred, not the reason for which he was
transferred. Although the FBI mentioned a potential
justification for the move, see Defs.’ Mot. Summ. J. 12-14
(stating that DocEx’s supervisor “had identified a need for an
agent with CT experience who could not only read a
4
Much of the briefing concerned whether the FBI’s failure to
place Youssef in a suitable counterterrorism position after
September 11, 2001, by itself qualified as materially adverse action.
However, because we conclude that Youssef has credibly alleged
that his placement in DocEx constituted materially adverse action,
we need not consider whether the FBI’s failure to place him
elsewhere (including, as he argues, failure to promote him in the
intelligence build-up following September 11), if taken alone, did
so as well.
9
document before its translation, but also understand the
potential investigative significance of the information
contained therein”), the district court had no need to consider
whether the explanation was pretextual, having already
concluded that the transfer was not materially adverse, see
Youssef, 541 F. Supp. 2d at 164-65, and so it did not examine
Youssef’s proffered evidence of discriminatory motive. See
Appellant’s Br. 22-25 (discussing false rumors about
Youssef’s disloyalty “arising from [his] national origin” that
allegedly led to his placement in DocEx). Because the district
court did not reach this fact-intensive issue, and the parties
did not fully brief it to us, we remand for further examination
of the FBI’s reason for the transfer.
III
The jury entered a special verdict finding that Youssef
“had not proven by a preponderance of the evidence that the
denial of permission to participate in inspections of FBI
offices was a materially adverse action.” Youssef, 762 F.
Supp. 2d at 79. In other words, the jury found that the FBI’s
refusal to give Youssef time off had not hampered his career
even though he claimed that participating in these inspections
was needed for future promotions. Youssef argues that the
district court abused its discretion by entering the jury’s
verdict and denying his motion for a new trial. We disagree.
“The jury verdict stands ‘unless the evidence and all
reasonable inferences that can be drawn therefrom are so one-
sided that reasonable men and women could not disagree on
the verdict.’” Czekalski v. LaHood, 589 F.3d 449, 456 (D.C.
Cir. 2009) (quoting Curry v. District of Columbia, 195 F.3d
654, 658-59 (D.C. Cir. 1999)). Here, there is much evidence
to support the jury’s finding. Witnesses testified that these
inspections typically occur twice a month. Missing two
10
inspections was not a major setback for Youssef because there
were many more he could attend. See Youssef, 762 F. Supp.
2d at 81. The jury also heard testimony that inspection
certification was just one of many prerequisites for
promotion, and Youssef had not completed all of them. A
slight delay in inspection certification would not significantly
diminish his opportunities for promotion. Id. 81-82. The FBI
also introduced evidence that Youssef could have submitted
paperwork that would have required his supervisors to allow
him leave to complete the inspection, but that he had never
pursued that alternative. Id. at 82. Furthermore, “denials of
requests to attend inspections would not harm an agent’s
reputation because a denial was usually due to a conflict with
work schedules.” Id. Lastly, the record showed that “the FBI
planned to arrange for Youssef to go on another inspection
some time after his first requests were denied.” Id. Given this
evidence, a reasonable juror could have found that the denial
of leave was not a materially adverse action.
IV
For the foregoing reasons, the judgment of the district
court denying Youssef’s claim that his transfer to DocEx
violated Title VII is reversed and remanded, and the district
court’s order denying his motion for a new trial is affirmed.
So ordered.