Massey v. Kerry , 246 F. Supp. 3d 92 ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LoUBNA s\ALAGH MASSEY, )
Plaintiff, §
v. § Civil Action No. 12-1383 (RJL)
REX W. TILLERsoN,l § F 1 L E D
Defendant. § MAR 3 l 2017
MEMo§:NDUM oPINloN C"§zr§m<`iiic§r?yisé'§§tr§nd
(March §§_, 2017) [Dkt. # 641
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,v and retaliated against her for engaging in protected activity,
all in violation of Title Vll ofthe 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.
' lPursuant to Federal Rule of Civil Procedure 25(d), if a public officer named as a party to an action in his
official capacity ceases to hold office, the court Will automatically substitute that officer’s successor.
Accordingly, the Court substitutes Secretary of State Rex. W. Tillerson for former Secretary of State John
F. Kerry.
BACKGROUND
Plaintiff Loubna Massey Was born and raised in Morocco, but moved to the United
States in 2003. Def.’s Statement of Facts (“SOF”) 11 l [Dkt. # 64-1]; Pl.’s Statement of
Facts (“S()F”) ‘l[ l [67-1]; Massey Dep. at l3:ll-l6 [Dl477 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, lnc., 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. Ia’. 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). lnstead, the Court must
accept as true the evidence of the non-moving party, and draw “all justifiable inferences”
in favor of that party. Ana’erson, 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, Ana'erson, 477 U.S.
at 252, and the Court will not accept “conclusory allegations lacking any factual basis in
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the record.” Dist. Intown Props. Lta’. P’ship v. Distrz'ct. 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-Boykz`n v. George Washington Univ., 132 F.3d 77, 79 (D.C. Cir. 1998)
(quoting Anderson, 477 U.S. at 252).
ANALYSIS
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.”
42 U.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, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing under
this subchapter.” Id. § 42 U.S.C. § 2000e-3.
Discrimination and retaliation claims are subject to the three-step framework set by
the Supreme Court in McDonnell Douglas Corp. v. Green, 4ll U.S. 792, 802_03 (l973).
Under this burden-shifting framework, the plaintiff must first establish a prima facie case
of discriminatory/retaliatory conduct For discrimination claims, a plaintiff must show
“she is part of a protected class under Title VII, she suffered a cognizable adverse
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employment action, and the action gives rise to an inference of discrimination.” Walker v.
Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). For retaliation claims, the plaintiff must
establish that “she engaged in activity protected by Title VII, the employer took adverse
action against her, and the employer took that action because of the employee's
protected conduct.” Id. at 1091-92.
Once a plaintiff establishes a prima facie case, the employer must provide a
legitimate non-discriminatory or non-retaliatory reason for its adverse action or the
employee is entitled to judgment McDonnell-Douglas, 411 U.S. at 802; Allen v. Johnson,
795 F.3d 34, 39 (D.C. Cir. 2015). However, once the employer provides evidence of a
non-discriminatory/non-retaliatory reason for the challenged action, then the burden-
shifting framework disappears and the court’s inquiry narrows. Brady v. Ojj‘ice of the
Sergeant at Arms, U.S. House ofRepresentati\/es, 520 F.3d 490, 493 (D.C. Cir. 2008);
Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). At this stage, the only relevant
inquiry is whether the employee has put forth sufficient evidence for a reasonable jury to
find that the employer’s proffered explanation is a mere pretext and the employer
intentionally discriminated or retaliated against the employee. Brady, 520 F.3d at 287;
Allen v. Johnson, 795 F.3d at 39. Furthermore, in the context of a retaliation claim, the
plaintiff must show that “the desire to retaliate was the but-for cause of the challenged
employment action.” Univ. ofTex. Sw. Mea’. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
Massey also brings a claim that the defendant through her FSI supervisors,
subjected her to a hostile workplace environment in violation of Title VII. She alleges that
her supervisors subjected her to severe and pervasive harassment because of her North
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African origin, her agnostic and/or Christian religion, and her “complaints about
discrimination at FSI.” Am. Compl. 11 96_97. As result, she appears to be claiming that
she was subject to a discriminatory and retaliatory hostile work environment Our Circuit
has held that a hostile work environment can amount to retaliation or discrimination under
Title Vll. Bal`rd v. Goz‘baum, 662 F.3d 1246 (D.C. Cir. 2011); Baloch v. Kempthome, 550
F.3d 1191, 1201 (D.C. Cir. 2008). To prevail on a hostile work place claim, plaintiff must
show that the employer subjected her to “discriminatory [or retaliatory] intimidation,
ridicule, and insult” that is “sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Baloch, 550 F.3d at
1201 (quoting Harrz's v. Forkll'ft Sys., Inc., 510 U.S. 17, 21 (1993)).
II. Defendant Is Entitled to Summary Judgment on the Discrimination and
Retaliation Claims Related to Massey’s September 2010 Contract
Termination.
Massey was terminated as a contract Arabic Instructor on September 14, 2010, and
alleges that she was terminated as a result of religious discrimination, national origin
discrimination, and in retaliation for offering testimony in a co-worker’s EEOC case
against Elrayah. Am. Compl., Cts. 1, II, and III. However, defendant has offered a
legitimate, non-discriminatory reason for her termination-namely, that she repeatedly
failed to adhere to her set work schedule and falsified her time sheets to report incorrect
times when she was at work. In response, Massey fails to present sufficient evidence that
would permit a reasonable jury to conclude that her termination was the result of either
discrimination or retaliation, and thus, defendants are entitled to summary judgment on the
claims related to her September 2010 termination.
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1. Defendant Has Off`ered Legitimate, Nondiscriminatory Reason for
Massey’s Termination.
When defendant decided to terminate Massey, it 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. Defendant has amassed
considerable evidence showing that Massey was in fact not complying with her set work
schedule, and was filling out timesheets and invoices that did not reconcile with one
another.
During her employment at FSI, Massey herself recognizes that she was expected
to work from 8:45A1\/1 to 5:30 PM. Massey Dep. at 167:23_169:45. However, the staff
sign-in sheets show that she arrived late-between 8:56 Al\/I and 9: 10 AM_at least five
times between July and September 2010. See 07/07/ 10 Sign-ln Sheet; 07/16/ 10 Sign-In
Sheet; 07/21/10 Sign-ln Sheet; 08/20/10 Sign-In Sheet; 09/10/10 Sign-ln Sheet
[Dkt. # 67-4]. Furthermore, several of Massey’s co-workers testified that She often arrived
to work late. See, e.g., Zuhour Alsomali Dep. at 63:20-64:4 (“[Loubna] never on time.
Sometimes the students will be in class and Loubna still isn’t in the building. . . . She was
late many times.”) [Dkt. # 64-9]; Najat Cherradi Dep. at 38:10-39:2 (testifying that Massey
was coming to work late and came in a side entrance to avoid being noticed) [Dkt. # 64-6].
In fact, Massey herself repeatedly testified that she arrived after 8:45 AM and left after
5:30 PM. Massey Dep. at 158:6-13, 161:13-162:5, 169:16-25, 173:1-11; 176:10~16;
181:9~182:12.
Furthermore, the record shows that she was recording times on her invoices that
were different from the times she noted on the entrance sign-in sheet See, e.g., 07/07/ 10
Sign-In Time (9:00 AM) and lnvoice (8:45 AM); 07/16/10 Sign-In Time (9:00 AM) and
lnvoice (8:45 AM) and lnvoice (8:45 AM); 07/21/10 Sign-In Time (8:56 AM) and lnvoice
(8:45 AM) [Dkt. # 64-5]. Although Massey makes much of the fact that Bohsali has since
testified upon reviewing the sign-in sheets at issue that Massey worked roughly eight hours
a day on the days at issue, Bohsali Dep. at 125 :9-140:20, it remains undisputed that Massey
submitted invoices that did'not accurately state the times when she arrived and left FSI.
lt is well-established in this District that an employee’s failure to comply with her
employer’s schedule is a legitimate reason to terminate the employee. See, e.g., Wright v.
Waste Mgmt ofMaryland, Inc., 77 F. Supp. 3d 218, 223 (D.D.C. 2015) (holding that
plaintiffs excessive tardiness was a legitimate reason to terminate); Clarke v. Washington
Metro. Area TransitAuth., 904 F. Supp. 2d 11, 16 (D.D.C. 2012) (holding that excessive
tardiness was a legitimate reason to terminate).
2. No Jury Could Reasonably Conclude that Her Termination Was
Actually the Result of Religious Discrimination.
Massey alleges that her supervisors at FSI_Bernhardt, Bohsali, and Elrayah_
discriminated against her because she was not a practicing Muslim. Am. Compl. 11 24. As
a threshold matter, Massey has presented some evidence that would permit a jury to infer
that there was inter- and intra-religious tension amongst the FSI staff, both between
conservative and moderate Muslims, and between Muslims and Christian employees. See,
e.g., Aiman Aziz Dep. at 26:7-27:10 (testifying that there was favoritism towards
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conservative Muslims) [Dkt. # 67-3.]; Nargess Lakehal-Ayat Dep. at 23:14-24:15, 31:18-
20 (testifying that outspokenly conservative Muslim employees were more likely to be
preferred, and stating that conservative Muslim employees complained about others’
clothes); Bernhardt Dep. at 66:17_67:3, 68:2_8 (testifying that there was conflict and
tension surrounding Muslim employees praying in the workplace).
However, evidence of religious tension at the FSI is not enough to show that the
reason for Massey’s termination was pretextual and was actually the result of religious
discrimination, because the evidence shows that her supervisors (as well as her coworkers)
did not know her religion.3 J ames Bernhardt and Maha Bohsali both testified that they did
not know Massey’s religion, and Taj Elrayah testified that he assumed she was Muslim.
Bernhardt Dep. at 15:18-19 (“Q: Do you know her religion? A: I do not.”); Bohsali Decl.
at 11 6 (“l do not know Loubna’s religion.”); Elrayah Dep. at 2013-8 (Q: “And do you know
Ms. Massey’s religion?” A: l thought lslam.”). Massey’s co-workers testified that they did
not know her religion or assumed she was Muslim. Aiman Aziz Dep. at 11:22 (“She’s
Muslim.”); Najat Cherradi Dep. at 23:20 (“She’s Muslim.”); Mangia Dambowic Dep. at
14:22 (“[She’s] Muslim.”). Furthermore, Massey herself testified that she kept her
religious beliefs close and did not tell people what her religion was unless she knew them
and they asked. Massey Dep. at 11:6, 13:1-10.
3 Massey’s religion is not particularly clear even at this point. In her Amended Complaint, she represents that she is
“agnostic and/or Christian.” She represented in March 2011 that she was agnostic. Massey Decl. 11 4[Dkt. # 64-8].
She now represents that she is a Mormon Christian. Massey Dep. at 10:6-14. Her actual religious affiliation is
ultimately irrelevant, as she alleges that the religious discrimination stems from the fact that she was not a Muslim.
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ln response, Massey points to her own testimony alleging that Maha Bohsali made
critical statements to her about being a non-practicing Muslim_telling her to learn from
those who were fasting when she ate during Ramadan, chastising her for not dressing
conservatively, and telling her to “pray and get back in the right path” when she complained
about having to leave her office while others prayed. Massey Decl. 11 40 [Dkt. # 67-5];
Massey Dep. at 45:15-18. As courts of this District have repeatedly noted, “[s]ummary
judgment for a defendant is most likely when a plaintiff" s claim is supported by the
plaintiff’ s own self-serving, conclusory statements.” Bonieskie v. Mukasey, 540 F. Supp.
2d 190, 195 (D.D.C. 2008). See also Fiela's v. Ofc. ofEa’a’l'e Berm'ce Johnson, 520 F. Supp.
2d 101, 105 (D.D.C. 2015) (“Self-serving testimony does not create genuine issues of
material fact, especially where that very testimony suggests that corroborating evidence
should be readily available.”) Here, Massey offers self-serving testimony that Bohsali
disparaged and criticized her for being a non-practicing Muslim, which conflicts with her
own testimony that she was not public about her religious beliefs, and runs contrary to the
evidence that Bohsali and her co-workers did not know her religion. These self-serving
allegations, standing alone, amount to a “mere scintilla of evidence” that does not create a
genuine dispute of material fact, and no jury could reasonably conclude, based on this
evidence, that her termination was actually the result of her religious beliefs.
3. N0 Jury Could Reasonably Conclude that Her Termination Was
Actually the Result of National Origin Discrimination.
Similarly, Massey fails to provide sufficient evidence for a jury to reasonably
conclude that she was terminated because of her North African/Moroccan origin,
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As an initial matter, Massey alleges that the Arabic Section was rife with tension
between instructors of various national origins, but she does not present evidence
supporting that assertion. Although she points to a 2013 report by the State Department
OIG stating that staff in the Near East, Central, and South Asian Languages division that
“described . . . pervasive perceptions of favoritism, ” that report makes no mention of
favoritism based on national origin, [Dkt. # 67-3]. She also points to testimony by an
instructor that “favoritism” in the FSI “could be” a result of individuals’ national origin.
However, the employee was making a speculative, non-specific statement that the
favoritism could “be [caused by] origin, it could be religion, it could be things in common,
likes and dislikes. We’ve seen it all.” Lakehal-Ayat Dep. at 76:17-77:6 [Dkt. # 67-3]. In
addition, defendant points to record evidence showing that the Arabic Section hired a
substantial number of direct-hire employees who hailed from North African countries
including Morocco, further undercutting the allegation that there was widespread animus
at the Arabic Section against employees from North Africa. See Def.’s Mem. in Supp. of
Summ. J at 19 n. 7 [Dkt. # 64-2].
Furthermore, and more importantly, |Massey fails to connect her termination in
September 2010 to her national origin, rebutting FSI’s proffered legitimate reason. As
defendant points out, although Massey alleged that other instructors failed to comply with
their duty schedule and were not terminated or disciplined, she has not provided evidence
establishing that those individuals were similarly situated such that a reasonable jury could
draw a comparison and infer discrimination See Def.’s Mem. in Supp. of Mot. for Summ.
J at 17. As a result, her national origin discrimination ultimately boils down to her own
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statements alleging that Bohsali made derogatory statements to her about being Moroccan.
Massey Decl. 11 9 (alleging that Bohsali asked why she could speak Lebanese if she was
Moroccan) [Dkt. # 67-5]; id. 11 11 (alleging that Bohsali yelled at her “who do you think
you are Moroccan woman! 1 am your boss.”); ia’. 1111 10, 20 (alleging that Bohsali called her
a “[f]at Moroccan” on the day she was terminated). Ultimately, this uncorroborated, self-
serving testimony from Massey is insufficient for a jury to conclude that her termination
was the result of discrimination as a result of her Moroccan/North African descent
4. No Jury Could Reasonably Conclude that Her Termination Was
Actually the Result of Retaliation for Her Participation in Protected
Activity.
On June 11, 2009, Massey provided an affidavit in the EEO investigation of a
complaint brought by her coworker Iman Bashrawi against Elrayah. 06/11/09 Massey
Decl. [Dkt. # 64-8]. She alleges that her termination in 2010 was a result of her 2009 EEO
declaration. However, Massey presents no competent evidence that would allow a jury to
reasonably conclude that she was terminated in retaliation for engaging in protected
activity. As an initial matter, the 14-month time lapse between her testimony and
termination precludes a jury from relying on the temporal proximity between the two
events to conclude that there was a causal link between the two events. Our Circuit and
the judges of this District have repeatedly held that time lapses of much shorter periods
than this were too long to support an inference of retaliation based on temporal proximity.
See, e.g., Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (holding that three-
month time lapse was too long to support inference of retaliation); Greer v. Bd. of T rustees
ofUniv. ofDist. ofColumbia, 113 F. Supp. 3d 297, 311 (D.D.C. 2015) (“When relying on
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temporal proximity alone to demonstrate causation, there is no bright-line rule, although
three months is perceived as approaching the outer limit”).
Furthermore, a sizable number of other FSI instructors provided testimony in
Bashwari’s EEO investigation, including Salah Abdulaziz, Soubhi Al-Khateeb, lbrahim
Al-Mahdi, Haifa Al-Sharbati, Nazi Daher, and Shahda Rawi, but there is no evidence on
the record that any of them suffered reprisals or retaliation, and the record in fact shows
that all of them were still employed or had voluntarily resigned or retired. Bashrawi EEO
lndex [Dkt. # 64-8]; Deborah Duckett Decl. 1111 1-7 [Dkt. # 64-9].
Massey must present sufficient evidence for a jury to conclude that her supervisors’
“desire to retaliate was the but-for cause” of her termination. Univ. of T ex. Sw. Mea’. Ctr.
v. Nassar, 133 S. Ct. 2517, 2528 (2013). Given the lapse of 14 months, the number of
other EEO witnesses who did not suffer any retaliation, and the record evidence indicating
that State legitimately terminated her because she was not complying with the expectations
for her duty schedule, a jury could not a reasonably conclude that she was terminated from
her position as an Arabic lnstructor in retaliation for her EEO testimony 14 months earlier.
III. Defendant Is Entitled to Summary Judgment on the Discrimination and
Retaliations Claims Related to Massey’s Non-Selection for New Positions.
As discussed above, Massey applied for two separate direct-hire positions in 2010.
ln August 2010, she applied for a “GG-ll Arabic lnstructor” position. ln December 2010,
she again applied for a “GG-13 Language Training Supervisor” position. She was not
selected for either position, and alleges that her non-selection was the result of
discrimination and retaliation. However, defendant has offered as a legitimate reason that
15
it hired other candidates with comparable or superior educational backgrounds and
experience, and Massey has presented no evidence that would permit a jury to conclude
that her non-selection was the result of termination or retaliation.
1. Defendant Has Offered Legitimate, Non-Discriminatory Reasons
for Selecting Individuals Other Than Massey,
Defendant has offered legitimate, non-discriminatory reasons for why it selected
someone other than Massey for both positions. For the August 2010 CG-ll position, FSI
ultimately hired 6 individuals other than Massey, all of whom had experience and
educational backgrounds similar to hers. See Adlan Abdelaziz Resume (master’s degree)
[Dkt. # 64-6]; Afrah Zabarah Resume (bachelor’s degree) [Dkt. # 64-6]; Dalia
Abdelmeguid Resume (bachelor’s degree and masters’ coursework) [Dkt. # 64-6]; Haydar
Elawad Resume (master’s degree and doctoral student) [Dkt. # 64-7]; Walid Abu-Ulbah
Resume (Ph. D. degree) [Dkt. # 64-7]; Leila Maacha Resume (master’s degree)
[Dkt. # 64-7]. With respect to the December 2010 CG-13 position, the record shows that
defendant extended an interview to Massey, but she declined to attend, and FSI therefore
did not select her for the position. 12/16/10 Email to J. Bernhardt [Dkt. # 64-7]. FSI
ultimately hired Walid Abu-Ulbah, who had a Ph. D degree. Abu-Ulbah Resume
[Dkt. # 64-7].
2. No Jury Could Reasonably Conclude that Her Non-Selection Was
the Result of Discrimination or Retaliation.
Massey does not present any evidence that would create a dispute of material fact
that would permit a jury to conclude that her non-selection for either of the three openings
was discriminatory or retaliatory. She cannot show that there was a gap between her
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qualifications and the selectees’ qualifications that was “great enough to be inherently
indicative of discrimination”_in fact, the record shows that all of FSI’s selectees had
comparable credentials and experience to her. Jackson v. Gonzales, 496 F.3d 703, 707
(D.C. Cir. 2007). Although she testified that she did not think that some of the instructors
were good teachers, she cannot rely on her own subjective assessments of the selectees
(and her self-perception of how her qualifications compared to them) to establish
discriminatory and retaliatory conduct Chavers v. Shinseki, 667 F. Supp. 2d 116, 131
(D.D.C. 2009) (holding that plaintiff’ s subjective assessment that she was more qualified
than selectees were irrelevant).
IV. Defendant is Entitled to Summary Judgment on Massey’s Hostile
Workplace Environment Claim.
In order to establish a hostile workplace environment claim at trial, Massey must
show that the defendant_-through her supervisors at the FSl_subjected her to
“discriminatory [or retaliatory] intimidation, ridicule, and insult” that is “sufficiently
severe'or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008)
(quoting Harris v. Forklz`ft Sys., Inc., 510 U.S. 17 (1993)). Her primary evidence in support
of a hostile workplace claim is her own self-serving testimony alleging that Bohsali made
comments that could be construed as disparaging her as a Moroccan and made statements
to her encouraging her to pray with her Muslim colleagues, criticizing her for fasting during
Ramadan, and telling her to dress conservatively. These discrete comments from Bohsali,
accepted as true, do not establish facts that are so severe or pervasive that they would permit
17
a jury to determine that she was in an “abusive working environment.” To bolster her
argument, she also alleges that her work was disrupted by the prayer practices of her
Muslim colleagues, who often prayed in shared workspaces and asked her to leave her
office so that they could pray. Massey Dep. at 69:4-11. These allegations, accepted as
true, would support a finding that her Muslim colleagues’ practices were disruptive or
perhaps inconsiderate, but they would not show that her colleagues were intimidating,
ridiculing, or insulting her because of her religious beliefs. An individual’s practice of his
own religion, even if inconvenient to others, is not religious discrimination against another
individual.
CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is
GRANTED. An Order consistent with this decision accompanies this Memorandum
Opinion.
RICHARD J.lx@
United States District Judge
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