Youssef v. Federal Bureau of Investigation , 19 F. Supp. 3d 167 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BASSEM YOUSSEF
Plaintiff,
v. Civil Action No. 11-1362 (CKK)
ERIC H. HOLDER, JR., United States
Attorney General,
Defendant.
MEMORANDUM OPINION
(January 28, 2014)
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
1
Originally, Youssef also brought suit against three other federal actors, but he later
voluntarily dismissed those defendants from the case. See Stipulation, ECF No. [11].
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.
I. BACKGROUND
A. The Scope of this Action
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).
2
While the Court bases its decision on the record as a whole, its consideration has
focused on the following documents: Def.’s Mem. in Supp. of Summ. J. (“Def.’s Mot.”), ECF
No. [41]; Def.’s Stmt. of Material Facts Not in Genuine Dispute (“Def.’s Stmt.”), ECF No. [41];
Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. (“Pl.’s Opp’n.”), ECF No. [47]; Pl.’s Opp’n. to
Def.’s Stmt. Of Material Facts Not in Genuine Dispute and Pl.’s Stmt. Of Material Facts in
Dispute (“Pl.’s Resp. Stmt.”), ECF No. [47-1]; Def.’s Reply in Supp. of Mot. for Summ. J.
(“Def.’s Reply”), ECF No. [51]; Def.’s Resp. to Pl.’s Stmt. Of Material Facts in Dispute,
(“Def.’s Reply Stmt.”), ECF No. [51-1]. The motion is fully briefed and ripe for adjudication.
In an exercise of its discretion, the Court finds that holding oral argument would not be of
assistance in rendering a decision. See LCvR 7(f).
3
The Court shall refer to Defendant’s Statement of Material Facts not in Genuine
Dispute (“Def.’s Stmt.”), ECF No. [41], or directly to the record, unless a statement is
contradicted by the opposing party, in which case the Court may cite to Plaintiff’s Opposition to
the Defendant’s Statement of Material Facts (“Pl.’s Resp. Stmt.”), ECF No. [47-1], or to the
Defendant’s Response to the Plaintiff’s Statement of Material Facts (“Def.’s Resp. Stmt.”), ECF
No. [51-1], where appropriate.
2
B. FBI Method for Selecting Mid-Level Supervisors
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
3
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
4
Youssef claims to dispute this fact in his Opposition to Defendant’s Statement of
Material Facts. See Pl.’s Resp. Stmt. ¶ 9. However, the Court finds that Youssef’s opposition
does not create a genuine dispute as to this fact. In his opposition, Youssef states that there is no
method available to ensure that LCB members rely only on the written content provided in the
application. Id. However, Youssef does not dispute that the LCB is instructed to rely on the
written competency examples. Youssef further notes that the LCB guidelines allow LCB
members to consider first hand personal knowledge directly related to competency examples and
does not prohibit LCB members from using information obtained in informal conversations,
formal interviews, or their own subjective knowledge of a candidate when determining their
rankings. Id. The FBI also avers to this. See Def.’s Stmt. ¶ 9. The fact that an LCB member can
rely on their personal knowledge related to the competency example does not contradict the
FBI’s statement that the LCB member is to rely on the content the applicant has provided in the
example and not any outside research or contact with the candidate.
4
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.
C. Events Preceding Selection of Assistant Section Chief of the Communications
Exploitation Section
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.
5
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:
6
Issue: drop of performance level from 08  09.
Distractors:
Legal Matter
OIG Report
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, 22. As an example of the impact of Youssef’s
absences from the office, both Zarone and Fernandez specifically noted Youssef’s supposed
failure to timely renew a telecommunications contract, which they alleged nearly resulted in the
loss of the contract. See Zarone Decl. ¶ 12-14; Fernandez Decl. ¶ 5; Fernandez Dep. 23-26.
Youssef’s 2009 PAR was signed by Zarone on October 22, 2009, one day before the
LCB—of which Zarone was a member—met to select the new ASC of CXS. Def.’s Reply Stmt.
¶ 86. In early November 2009, Youssef contacted the FBI’s EEO Office requesting counseling.
Def.’s Stmt. ¶ 51; Pl.’s Ex. 1 (Letter to EEO Office). Youssef also requested of the EEO Office
and of the Assistant Director of the FBI’s Counterterrorism Division, Michael Heimbach, that his
evaluation be corrected on the basis that his “participation in a Title VII proceeding was a
motivating factor in the downgrade.” Pl.’s Ex. 1 (Letter to EEO Office); Pl.’s Ex. 2 (Letter to
Michael Heimbach). On November 20, 2009, Assistant Director Heimbach responded by
increasing Youssef’s rating in “Organizing, Planning, and Coordinating,” and “Acquiring,
Applying, and Sharing Job Knowledge” from “Excellent” to “Outstanding.” Pl.’s Ex. 5
(Heimbach Response to PAR Grievance). In adjusting these two ratings, Assistant Director
Heimbach stated that he reviewed Zarone’s comments and recommendations along with
Youssef’s appeal comments and “only considered [Youssef’s] actual work performance when
7
making [his] decision.” Id. Assistant Director Heimbach found that Youssef demonstrated
outstanding skills in these two areas by his “efforts and dedication to the [redacted] initiative,
[Youssef’s] coordination with the telecommunication carriers, and participation in the [redacted].
Id. Assistant Director Heimbach, however, concluded that Youssef had not provided the Office
enough detail regarding the remaining critical elements in which he had been downgraded to
support a rating of “Outstanding” and that he had provided insufficient evidence “to make a
decision other than to sustain [Youssef’s] ratings on these Critical Elements.” Id. Youssef does
not presently challenge his 2009 PAR as discriminatory or retaliatory, but presents it as evidence
that his non-selection as ASC violated Title VII.
D. Selection of Assistant Section Chief of the Communications Exploitation Section
On September 18, 2009, CXS published a job posting for an ASC position. Def.’s Stmt.
¶ 17. CXS is responsible for leading and supporting law enforcement and intelligence efforts to
target terrorist communications. Id. ¶ 16. CXS was hiring an ASC to replace Zarone who was
taking an ASC position in the Critical Incident Response Group. Def.’s Stmt. ¶ 18; Zarone Decl.
¶ 55. The job posting listed four primary competencies which were weighted equally—
Leadership, Problem solving/judgment, Interpersonal ability, and Initiative—and three secondary
competencies, weighted in descending order—Liaison, Counterterrorism-complex CT, and
Communication. Def.’s Stmt. ¶ 20. The minimum qualifications for the position were three
years’ FBI investigative experience, one year relief supervisory experience, and a current
minimum performance appraisal of “Successful.” Id. ¶ 19.
The Section Chief of CXS, Armando Fernandez, was designated as the LCB chair for the
position. Id. ¶ 23. Fernandez, a Hispanic man of Mexican national origin, was Youssef’s
second-line supervisor at the time of the LCB. Id. ¶¶ 21, 26. Prior to Fernandez selecting the
8
LCB members and receiving the candidates’ applications, three individuals, Richard Davidson,
Matthew Desmond, and Daniel Powers, contacted Fernandez to let him know that they would be
applying for the position. Id. The same day that Powers introduced himself to Fernandez, he
also introduced himself to Zarone and indicated that he would be applying for the ASC position.
Id. ¶ 29. Shortly prior to becoming aware of the applicants for the position, Fernandez asked
Hipolito Castro, Jr., Erkan Chase, and Arthur Zarone to serve as LCB voting members. Id. ¶ 24.
Castro, a Hispanic man of Puerto Rican national origin, was ASC of the Terrorist Financing
Operations Section in the Counterterrorism Division at the time of the LCB. Id. ¶¶ 24, 26.
Chase, an African American man of Turkish national origin, was an ASC, Technical, of CXS
from 2008 through the time of the LCB, but did not supervise Youssef. Id.; Chase Decl., ¶ 1, 8.
Zarone, a Caucasian man of European national origin, served as an ASC of CXS from April
2008 through October 2009, and, as noted before, was the direct supervisor and rating official for
Youssef during that period. Def.’s Stmt. ¶ 18; Zarone Signed Sworn Stmt. at 2. Importantly, the
LCB voting members deny knowing at the time of the LCB that Youssef was involved in an
EEO-related lawsuit. Youssef, however, adamantly disputes their testimony and presents
evidence, which he contends shows that, at the time of the LCB, each voting member was aware
that he was engaged in EEO activity.
After designating the voting members, Fernandez received from EDSP the applications of
four candidates: Youssef, Davidson, Desmond, and Powers, the eventual selectee. Def.’s Stmt. ¶
27. Fernandez then distributed the applications to the LCB voting members and each voting
member independently rated the competency examples for each candidate.5 Id. ¶ 28. On
5
Youssef claims to dispute the fact that each voting member independently rated the
competency examples and did not discuss the examples amongst themselves or with Fernandez.
9
October 23, 2009, the LCB members convened to report their independent ratings of each
candidate’s competency examples. Id. ¶¶ 47-48. Chase rated Powers as Skilled in eight of his
competency examples and as Competent in six examples. Id. ¶ 30. He rated Youssef as Skilled
in one competency example and as Competent in thirteen examples. Id. Castro rated Powers as
Skilled in eight of his competency examples and as Competent in six examples. Id. ¶ 39. He
rated Youssef as Skilled in three competency examples and as Competent in eleven examples.
Id. Finally, Zarone rated Powers as Skilled in six competency examples and as Competent in
eight examples. Id. ¶ 42. He rated Youssef as Skilled in three competency examples and as
Competent in eleven examples. Id. There was no other discussion of the candidates. Id. ¶ 48;
see also Def.’s Ex. 11 (Oct. 23, 2009 LCB Transcript). Based on the individual ratings,
Fernandez then determined the overall competency ratings for each of the applicants. Id.
Overall, Powers was rated Skilled in one primary competency (Problem Solving/Judgment) and
in one secondary competency (Counterterrorism), and Competent in the five remaining
competencies placing him first amongst the four candidates. Id. Youssef was rated Competent
in all seven competencies and thus ranked last among the candidates.6 Id. The LCB voting
members rated Davidson similarly, though slightly higher, than Youssef and Desmond similarly
See Pl.’s Resp. Stmt. ¶ 28. In disputing this fact, Youssef states only that “Zarone and Fernandez
had numerous conversations about and discussed Mr. Youssef amongst themselves” and points
to Fernandez and Zarone’s testimony that they spoke to each other prior to the appointment of
the LCB about Youssef’s absences from his unit. See id. ¶¶ 28, 100, 101. This evidence does
not contradict the FBI’s contention that none of the LCB members discussed the competency
examples or their rankings with each other prior to or during the LCB.
6
Fernandez initially wrote on his Chairperson LCB Matrix that Youssef was the third-
ranked candidate. However, Fernandez was subsequently informed by the EDSP that he had
miscalculated the scores of the third and fourth ranked applicants, and that Youssef’s ranking
had been changed to fourth because he had lower individual scores than the next closest ranked
candidate, Davidson. See Fernandez Decl. ¶ 16.
10
to Powers although slightly lower. See Def.’s Ex. 8 (LCB Scoring Matrices). Based on these
overall competency ratings, the LCB declared Powers the top-ranked candidate and Youssef the
last-ranked candidate. See Def.’s Ex. 12 (LCB Memorandum to SAMMS Board), at 9.
Fernandez then opened the envelope containing the Division Head Recommendations. Def.’s
Ex. 11 (Oct. 23, 2009 LCB Transcript), at 12-13. The Division Heads recommended all
candidates for the vacancy. Id. at 13.
On November 19, 2009, the SAMMS Board, consistent with the competency ratings of
the LCB voting members, selected Powers for the ASC position. Def.’s Stmt. ¶ 50. In the
period between Zarone stepping down as ASC of CXS in November 2009 and Powers assuming
the position in March 2010, Youssef was designated by Fernandez to serve as the acting ASC of
CXS. Id. ¶ 61. Youssef had previously served as Acting Section Chief of CXS. See Def.’s Ex.
10 (Youssef’s Candidate Qualification Form), at FBI 331.
E. Procedural Background
Shortly after learning of his non-selection for the ASC position, Youssef contacted an
FBI EEO counselor and explained that he believed that his non-selection had been “in retaliation
due to his prior EEO activity.” Def.’s Stmt. ¶ 51. At the conclusion of EEO counseling, Youssef
filed a formal EEO complaint, alleging that he had been discriminated against based on his
national origin and retaliated against for his participation in prior EEO activity. See Def.’s Ex.
16 (Feb. 16, 2010 EEO Compl.), at 1. On May 19, 2010, the EEO Office informed Youssef’s
counsel that it would commence an investigation into Youssef’s allegations. Pl.’s Resp. Stmt.,
Ex. 1 (May 19, 2010 Ltr.), ECF No. [24-1], at BY 00038. It is not clear whether the FBI ever
conducted an investigation into Youssef’s administrative complaint. It is clear, however, that the
FBI never issued a final decision resolving Youssef’s complaint even though a year and a half
11
elapsed between the filing of Youssef’s administrative complaint and the commencement of this
action.
Youssef initiated this lawsuit on July 25, 2011, claiming that his non-selection was
discriminatory based on his Egyptian-national origin and retaliatory due to his participation in
EEO activity related to his 2003 lawsuit against the FBI. See Compl., ECF No. [3], ¶¶ 65-72.
On December 23, 2011, the Defendant filed a Motion for Judgment on the Pleadings or,
Alternatively Summary Judgment, contending that Youssef could not pursue his non-selection
claims because he failed to exhaust his administrative remedies. The Court disagreed and by
Order dated August 7, 2012, denied the Defendant’s Motion. See Youssef v. Holder, 881 F.
Supp. 2d 93 (D.D.C. 2012). The Defendant subsequently filed the present Motion for Summary
Judgment. See Def.’s Mot., ECF No. [41]. In short, the Defendant now argues that Youssef’s
claims must fail because he cannot show that the FBI’s legitimate, non-discriminatory reason for
selecting Powers was pretextual or otherwise offer any evidence of discriminatory motive and
because he cannot show a causal link between his protected activity and his non-selection.
II. LEGAL STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and [that he] . . . is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). The mere existence of some factual dispute is insufficient on its own to bar
summary judgment; the dispute must pertain to a “material” fact. Id. Accordingly, “[o]nly
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to
12
the relevant facts; the dispute must be “genuine,” meaning that there must be sufficient
admissible evidence for a reasonable trier of fact to find for the non-movant. Id.
In order to establish that a fact is or cannot be genuinely disputed, a party must (a) cite to
specific parts of the record—including deposition testimony, documentary evidence, affidavits or
declarations, or other competent evidence—in support of his position, or (b) demonstrate that the
materials relied upon by the opposing party do not actually establish the absence or presence of a
genuine dispute. Fed. R. Civ. P. 56(c)(1). Conclusory assertions offered without any factual
basis in the record cannot create a genuine dispute sufficient to survive summary judgment.
Ass’n of Flight Attendants-CWA, AFL-CIO v. U.S. Dep’t of Transp., 564 F.3d 462, 465-66 (D.C.
Cir. 2009). Moreover, where “a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact,” the district court may “consider the fact
undisputed for purposes of the motion.” Fed. R. Civ. P. 56(e).
When faced with a motion for summary judgment, the district court may not make
credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the
light most favorable to the non-movant, with all justifiable inferences drawn in his favor. Liberty
Lobby, 477 U.S. at 255. If material facts are genuinely in dispute, or undisputed facts are
susceptible to divergent yet justifiable inferences, summary judgment is inappropriate. Moore v.
Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009). In the end, the district court’s task is to determine
“whether the evidence presents a sufficient disagreement to require submission to [the trier of
fact] or whether it is so one-sided that one party must prevail as a matter of law.” Liberty Lobby,
477 U.S. at 251-52. In this regard, the non-movant must “do more than simply show that there is
some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986); “[i]f the evidence is merely colorable, or is not
13
sufficiently probative, summary judgment may be granted.” Liberty Lobby, 477 U.S. at 249-50
(citations omitted).
Importantly, “[w]hile summary judgment must be approached with specific caution in
discrimination cases, a plaintiff is not relieved of his obligation to support his allegations by
affidavits or other competent evidence showing that there is a genuine issue for trial.” Morgan v.
Fed. Home Loan Mortgage Corp., 172 F. Supp. 2d 98, 104 (D.D.C. 2001), aff’d, 328 F.3d 647
(D.C. Cir. 2003); see also Marshall v. James, 276 F. Supp. 2d 41, 47 (D.D.C. 2003) (special
caution “does not eliminate the use of summary judgment in discrimination cases”) (citing
cases). Accordingly, the Court reviews the Defendant’s Motion for Summary Judgment under a
“heightened standard” that reflects “special caution.” Aka v. Washington Hosp. Ctr., 116 F.3d
876, 879 (D.C. Cir. 1997) (internal quotations omitted), overturned on other grounds, 156 F.3d
1284 (D.C. Cir. 1998) (en banc). Nonetheless, while this special standard is more exacting, it is
not inherently preclusive. Although more circumspect, the Court shall grant a motion for
summary judgment where the nonmoving party has failed to submit evidence that creates a
genuine factual dispute and the moving party is entitled to a judgment as a matter of law.
III. DISCUSSION
A. National Origin Discrimination Claim
Pursuant to Title VII, 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 prove a violation of Title VII, a plaintiff must
demonstrate by a preponderance of the evidence that the actions taken by the employer were
“more likely than not based on the consideration of impermissible factors” such as race,
ethnicity, or national origin. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981)
14
(internal quotation marks and citation omitted). Furthermore, “the plaintiff may prove his claim
with direct evidence, and absent direct evidence, he may indirectly prove discrimination” under
the burden-shifting analysis created by McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Brady v. Livingood, 456 F. Supp. 2d 1, 6 (D.D.C. 2006) (quoting Kalekiristos v. CTF
Hotel Mgmt. Corp., 958 F. Supp. 641, 665 (D.D.C. 1997)). Where, as here, the record contains
no direct evidence of discrimination, it is necessary to employ the McDonnell Douglas tripartite
burden-shifting framework. Cones v. Shalala, 199 F.3d 512, 516 (D.C. Cir. 2000) (citing
McDonnell Douglas v. Green, 411 U.S. 792, 802 (1973)).
Under the McDonnell Douglas paradigm, Youssef has the initial burden of proving by a
preponderance of the evidence a “prima facie ” case of discrimination. McDonnell Douglas, 411
U.S. at 802. If he succeeds, the burden shifts to the FBI to articulate some legitimate,
nondiscriminatory reason as to why Youssef was not selected for the ASC position, and to
produce credible evidence supporting its claim. Id. The FBI's burden is only one of production,
and it “need not persuade the court that it was actually motivated by the proffered reasons.”
Burdine, 450 U.S. at 254; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993)
(“[T]he determination that a defendant has met its burden of production (and has thus rebutted
any legal presumption of intentional discrimination) can involve no credibility assessment.”). As
such, “the McDonnell Douglas framework shifts intermediate evidentiary burdens between the
parties, [t]he ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Morgan v. Fed. Home
Loan Mortgage Corp., 328 F.3d 647, 651 (D.C. Cir. 2003) (internal quotations and citation
omitted), cert. denied, 540 U.S. 881 (2003); see also Burdine, 450 U.S. at 253. If the FBI is
successful, the burden then shifts back to Youssef to prove that the FBI’s proffered motive was
15
“not its true reason, but was a pretext for discrimination.” Barnette v. Chertoff, 453 F.3d 513,
516 (D.C. Cir. 2006) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143
(2000)).
At the summary judgment stage, however, the D.C. Circuit has instructed that, once an
employer provides a legitimate, non-discriminatory basis for its decision, “the district court need
not—and should not—decide whether the plaintiff actually made out a prima facie case under
McDonnell Douglas.” Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008)
(emphasis in original). Rather, the central question for the Court to resolve is whether “the
employee produced sufficient evidence for a reasonable jury to find that the employer's asserted
non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against the employee on the basis of race, color, religion, sex, or national origin.”
Id. Effectively, “[t]his boils down to two inquiries: could a reasonable jury infer that the
employer's given explanation was pretextual, and, if so, could the jury infer that this pretext
shielded discriminatory motives?” Murray v. Gilmore, 406 F.3d 708, 713 (D.C. Cir. 2005).
Still, the Supreme Court has taken care to instruct trial courts that “the trier of fact may
still consider the evidence establishing the plaintiff's prima facie case ‘and inferences properly
drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.’” Reeves,
530 U.S. at 143 (quoting Burdine, 450 U.S. at 255 n. 10). “[A] plaintiff's prima facie case,
combined with sufficient evidence to find that the employer's justification is false, may permit
the trier of fact to conclude that the employer unlawfully discriminated.” Id. at 148. The Court
of Appeals for the District of Columbia Circuit has distilled this analysis, noting that the fact-
finder can infer discrimination from the combination of:
(1) the plaintiff's prima facie case; (2) any evidence the plaintiff presents to attack
16
the employer's proffered explanation for its actions; and (3) any further evidence
of discrimination that may be available to the plaintiff (such as independent
evidence of discriminatory statements or attitudes on the part of the employer) or
any contrary evidence that may be available to the employer (such as evidence of
a strong record in equal opportunity employment).
Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc). However,
evidence in each of the three categories is not required. Id.
“At this stage, if [the plaintiff] is unable to adduce evidence that could allow a
reasonable trier of fact to conclude that [the defendant's] proffered reason was a pretext for
discrimination, summary judgment must be entered against [plaintiff].” Paquin v. Fed. Nat'l
Mortgage Ass'n, 119 F.3d 23, 27–28 (D.C. Cir. 1997). “[T]he court must consider all the
evidence in its full context in deciding whether the plaintiff has met his burden of showing that a
reasonable [fact-finder] could conclude that he has suffered discrimination.” Aka, 156 F.3d at
1290.
1. The FBI’s Proffered Legitimate, Non-Discriminatory Reasons
The Court must first assess whether the FBI has produced evidence that Youssef was not
selected for the ASC position for one or more legitimate, nondiscriminatory reasons. Reeves,
530 U.S. at 142. The FBI asserts that Youssef was not selected as ASC because he was not the
top-rated candidate based on the strength of his competency examples. To support this
explanation, the FBI has produced the independent score sheets of each LCB voting member
which show that each member independently ranked Powers first based on his competency
examples, as well as the LCB Chairperson’s Scoring Matrix, the transcript of the LCB meeting,
and the LCB’s memorandum to the SAMMS Board, which all show that Powers was ranked first
overall and Youssef fourth overall based on the LCB voting members ratings of the candidates’
competency examples. As these documents only show the rating each LCB voting member gave
17
to each candidate’s competency examples but not the rationale for the rating, the FBI has also
provided declarations and deposition testimony from each LCB voting member explaining the
reasoning behind their ratings.7 As an initial matter, each LCB voting member declared that he
based his ratings on the candidates’ competency examples relying solely on the narrative
provided by the candidate in the application form and did not conduct any independent research
or consult with anyone concerning the candidates’ examples. See Castro Decl. ¶ 19; Chase Decl.
¶ 6; Zarone Decl. ¶ 28; see also Def.’s Ex. 13 (LCB Memorandum to SAMMS Board) (“There
were no undocumented, informal communications between [L]CB members and other
individuals regarding the candidates for this position.”). The LCB voting members all also
declared that the geographic location of an example or the terrorist target involved was less
important to the voting member in evaluating the candidates’ examples than the actual work the
7
At times in his Opposition to the Defendant’s Statement of Material Facts Not in
Genuine Dispute, Youssef dismisses the LCB voting members’ declarations as “self-serving,”
“after-the-fact” statements. See, e.g., Pl.’s Resp. Stmt. ¶¶ 22, 28, 46. The Court notes that the
LCB voting members’ declarations are not improper post-hoc rationalizations of Youssef’s non-
selection. This is not a case where the employer had an opportunity or obligation to provide a
contemporaneous explanation of its adverse employment action, but failed to do so or lost the
documentation regarding that explanation and, only once litigation is well under way, has
provided an explanation or a fuller explanation of its employment decision. Here, it is
undisputed that the LCB members followed the selection and reporting process as they were
required to do by the LCB rules. Each LCB voting member came to the LCB meeting with his
scoring matrix already independently completed. The LCB meeting at which the LCB voting
members shared their independent rankings and at which the overall rankings were calculated
was recorded from start to finish. By providing the Court with the LCB voting members’
individual ranking matrices, the overall group ranking matrix, and the LCB meeting transcript,
the FBI has provided the contemporaneous record in its entirety of its employment decision.
Now, the LCB voting members are offering more detailed explanations of their
contemporaneously recorded ranking decisions, explanations which remain consistent between
their declarations and the excerpts of their depositions provided by the parties. Youssef offers no
evidence to impeach the LCB voting members’ declarations other than his own assessment of his
application, which, not surprisingly, conflicts with the LCB voting members’ evaluation of his
application. Accordingly, the Court shall consider the LCB voting members’ declarations for
their value as further explanation of the contemporaneous records showing why Youssef was not
selected.
18
candidate illustrated in the example. See Castro Decl. ¶ 21; Zarone Decl. ¶ 49; Chase Decl. ¶ 14.
Specifically, Castro explained in his declaration that Youssef could have drafted his
examples more effectively. Castro Decl. ¶ 15. Castro also found that “[i]n several instances,
[Youssef] did not describe his role in the depicted investigation or scenario that he used as an
example, and failed to provide significant, necessary information.” Id. As an example, Castro
explains that in the candidates’ Counterterrorism examples he was “looking for whether the
candidate had served as a case agent on a counterterrorism investigation, as case agents are the
frontline personnel doing the hands-on work in any investigation.” Id. ¶ 16. Castro notes that
one of Youssef’s example indicated that he was the AGAI coordinator, but Castro asserts that he
was not aware of AGAI or of an AGAI “coordinator” and Youssef did not explain the
significance of his coordinator position, nor indicate that he was a case agent. Id. Castro found
that Youssef’s example “illustrat[ed] that he was doing his job effectively, but did not
differentiate his role from what agents throughout the FBI were doing and thus Castro rated it
“Competent.” Id. Castro rated one of Powers’ Counterterrorism examples as “Skilled” because
it “demonstrated that he had effectively headed a Joint Terrorism Task Force (“JTTF”),
responsible for all counterterrorism investigations in his field office, and utilized techniques and
achieved results that demonstrated skilled performance of complex counterterrorism work.” Id. ¶
20.
Similarly, Chase believed that Youssef’s examples were weaker in terms of specificity
and underlying work. Chase Decl. ¶ 11. As an example of his reasoning, Chase explains that he
found Powers’ example of leadership in the FBI’s investigation of the 2008 Mumbai attacks
demonstrated that Powers “led teams of investigators and intelligence officers in difficult and
urgent missions, provided direction and effectively delegated work to them, and directed his
19
teams in meeting the mission objectives.” Id. ¶ 12. On the other hand, Chase found Youssef’s
example describing his service as the first legal attaché to Saudi Arabia “did not indicate that he
was responsible for leading any subordinates or how he had done so.” Id. ¶ 13. As for
Youssef’s Leadership example describing his efforts as the first Unit Chief of the Document
Exploitation Unit, Chase found that “it was expected that he would establish the unit’s goals,
objectives and mission” as “every unit chief, not just the first one, does this.” Id. Furthermore,
Chase felt the fact that the Document Exploitation Unit increased in size during Youssef’s
leadership—a fact emphasized by Youssef in his application—was “true of all units in [the
Counterterrorism Division], as counterterrorism became a top priority for the FBI” during that
period. Id. Chase also found that Youssef’s emphasis on the weekly and sometimes daily
briefings he led within his unit was “exactly what a Unit Chief is expected to do.” Id.
In the area of counterterrorism, Chase was interested “in examples in which the applicant
had a lead role as a case agent in a counterterrorism investigation, and the sophistication of the
techniques employed during the investigation.” Id. ¶ 14. Chase rated Powers’ first
Counterterrorism example as “Skilled” because it established that he had supervised a JTTF and
been responsible for international investigations that involved “several significant and
sophisticated investigative techniques” and for the “initiation of an approach that involved multi-
jurisdictional, interagency, and transnational components.” Id. ¶ 15. He rated Powers’ second
Counterterrorism example as “Skilled” because it demonstrated leadership in investigations,
specifically, that Powers had “instituted weekly JTTF meetings” and that he had “been able to
develop a team approach to complicated international and domestic terrorism investigations” and
thus had “developed a skillful approach to the difficult problem of law enforcement
coordination” in addition to “being substantially responsible for engaging the JTTF.” Id. ¶ 16.
20
Chase rated Youssef’s first Counterterrorism example as “Competent” because “although it
showed him doing his job well, it did not articulate case agent investigation responsibilities or
use of sophisticated techniques.” Id. ¶ 17. Specifically, although Youssef’s example indicated
that he obtained important information from an asset, Youssef “did not indicate that he had
authored any FISA warrants or used other sophisticated techniques” and also “did not indicate
that he was leading a particular investigation.” Id. As for Youssef’s second example explaining
Youssef’s role as the “AGAI coordinator,” Chase rated it as “Competent” because “in [his]
mind” there is “a significant difference between being supervisor of an investigation and the
coordinator for a particular group” with the latter “simply administratively coordinat[ing] the
investigations focusing on a particular group” as opposed to “supervis[ing] the investigation” and
being “involved in the daily decisions of investigating the terrorist cell.” Id. ¶ 18. Moreover,
Chase states he “was not very familiar with AGAI, and was not aware of its role in the 1993
World Trade Center bombing or of any affiliation with Osama bin Laden” and that it was
Youssef’s “responsibility, as the applicant, to provide the contextual information if he believed it
significant to his example.” Id. ¶ 19.
Finally, Zarone found that Youssef’s examples “were not as current and did not involve
field terrorism work when compared to Powers’ experience.” Zarone Decl. ¶ 37. Zarone rated
Youssef’s Leadership example describing his work as the first legal attaché in Saudi Arabia as
“Competent” because it described work that was “part of every [legal attaché’s] job.” Id. ¶ 38.
Moreover, Zarone was aware that “when the FBI opens a [legal attaché] office overseas,
numerous FBI headquarters divisions are involved in the effort, which includes funding,
coordination, security and human resources. No FBI [legal attaché] office is opened by the
singular efforts of any one person.” Id. However, Zarone found this example to be a “Skilled”
21
demonstration of the Liaison competency and rated it as such. Id. ¶ 39. Zarone also rated as
“Competent” Youssef’s Problem Solving/Judgment example in which Youssef describes his
efforts to coordinate a Persian Gulf states visit by the FBI Director on the “Director’s very tight
schedule.” Id. ¶ 40. Based on Zarone’s experience in the same role, he found that the length of
the Director’s visit described by Youssef presented less of a security concern and that the
advance team, not the legal attaché for the region, handled the logistics and security component
of the Director’s travel. Id. Finally, Zarone rated as “Competent” Youssef’s Counterterrorism
example describing the information he obtained from an asset because it “was the type of work
an agent is expected to perform,” and because “the information provided by Mr. Youssef’s
source was but one piece in a tapestry of information . . . that allowed the FBI to make the
necessary legal showing to obtain authority to perform certain intelligence gathering activities.”
Id. ¶ 42.
On the other hand, Zarone rated Powers’ example of Leadership after the 2008 Mumbai
terrorist attacks as “Skilled” because it demonstrated “skilled leadership during a time of crisis”
that was commended by the FBI Director for “furthering the legacy of the FBI throughout the
region.” Id. ¶ 45. Zarone also rated Powers’ Initiative example describing a national
investigative strategy that Powers implemented concerning a major domestic terrorism case as
“Skilled” because it demonstrated that Powers “was able to establish priorities, overcome
adversity, persevere through obstacles, and that his efforts resulted in 70 spin-off domestic
terrorism investigations.” Id. ¶ 46. Similarly, Zarone rated Powers’ first Counterterrorism
example as “Skilled” because “it established that, as the head of a JTTF, Mr. Powers led all
aspects of an international terrorism investigation out of the FBI’s Indianapolis Division that
involved several intelligence community partner agencies, a foreign government, and several
22
FBI headquarters units.” Id. ¶ 48. Zarone found this example important because JTTFs are a
“foundational component of the FBI’s counterterrorism efforts,” and several of the investigators
under Powers’ supervision were nominated for the FBI Director’s award and received pay
increases. Id. Finally, Zarone rated Powers’ first Liaison example as “Skilled” because it
indicated that Powers “successfully obtained information from a previously uncooperative
subject,” “briefed a three-star general and his command staff” about the information, and as a
result of the information, “received authority to plan a mission to identify and locate a terrorist
training camp” with a U.S. Special Forces team. Id. ¶ 47.
As the LCB voting members’ sworn affidavits, their deposition testimony under oath, and
the documentary evidence from the LCB meeting are all admissible evidence, the Court finds
that the FBI has met its burden of production and established a legitimate, non-discriminatory
reason for Youssef’s non-selection. Burdine, 450 U.S. at 255 (to establish a legitimate, non-
discriminatory reason, “the defendant must simply set forth, through the introduction of
admissible evidence, the reasons for the plaintiff’s rejection.”).
2. Evidence of Discrimination, Vel Non
Since the FBI has presented legitimate, non-discriminatory reasons justifying Youssef’s
non-selection, the Court therefore proceeds directly to considering the ultimate question of
“discrimination vel non”—whether Youssef has adduced sufficient evidence for a reasonable
jury to conclude that the FBI’s proffered reason for its decision is pretextual, and that its real
motivation was discrimination based on Youssef’s national origin. Reeves, 530 U.S. at 142–43.
Pretext may be established “directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer's proffered explanation
is unworthy of credence.” Burdine, 450 U.S. at 256; see also Reeves, 530 U.S. at 143. “Proof
23
that the defendant's explanation is unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it may be quite persuasive.” Reeves,
530 U.S. at 147 (citing St. Mary's Honor Ctr., 509 U.S. at 517) (“[P]roving the employer's reason
false becomes part of (and often considerably assists) the greater enterprise of proving that the
real reason was intentional discrimination.”); see also Aka, 156 F.3d at 1290 (“[A] plaintiff's
discrediting of an employer's stated reason for its employment decision is entitled to considerable
weight.”). Youssef can also attempt to “avoid summary judgment by presenting other evidence,
direct or circumstantial, that permits an inference of discrimination,” such as “discriminatory
statements by the employer,” “other attitudes suggesting the decision maker harbors
discriminatory animus,” and/or other “data” concerning his protected class(es). Holcomb v.
Powell, 433 F.3d 889, 899 (D.C. Cir. 2006) (internal citations omitted).
As always, Youssef retains the “ultimate burden of persuading the court that [he] has
been the victim of intentional discrimination.” Burdine, 450 U.S. at 256. At this point,
a court reviewing summary judgment looks to whether a reasonable [fact-finder]
could infer intentional discrimination or retaliation from all the evidence,
including (1) the plaintiff's prima facie case; (2) any evidence the plaintiff
presents to attack the employer's proffered explanation for its action; and (3) any
further evidence of discrimination that may be available to the plaintiff (such as
independent evidence of discriminatory statements or attitudes on the part of the
employer).
Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (internal citations and
quotation marks omitted). Accordingly, the Court shall first evaluate the strength of Youssef’s
prima facie case and then address the additional evidence Youssef presents of pretext and
discriminatory motive.
i. Youssef’s Prima Facie Case
Youssef argues that the LCB’s failure to select him as ASC constituted discrimination on
24
the basis of his national origin. See Pl.'s Opp'n. at 15-23. Youssef may establish a prima facie
case of national origin discrimination by showing that: (1) he is a member of a protected class;
(2) he applied for and was qualified for an available position; (3) despite his qualifications, he
was rejected; and (4) either someone filled the position or it remained vacant and the employer
continued to seek applicants. Holcomb, 433 F.3d at 895 (citing Lathram v. Snow, 336 F.3d 1085,
1088 (D.C. Cir. 2003)). Youssef easily establishes a prima facie case and the FBI concedes as
much. Youssef is of Egyptian national origin; he was on the list of qualified candidates for the
ASC position but was not selected; and another individual, Powers, was selected to fill the
position.
ii. Evidence of Pretext
In addition to his prima facie case, Youssef essentially makes two overarching arguments
in an attempt to show that the FBI's proffered legitimate, non-discriminatory reasons for his non-
selection are pretextual and that this pretext shielded discriminatory motives: (1) events
surrounding Youssef’s 2009 Performance Appraisal Report (“PAR”) and the ASC selection
suggest that the LCB members harbored discriminatory bias, and (2) a reasonable jury could
infer discrimination from the fact that the LCB misstated or overstated the qualifications of the
respective candidates and Youssef was the objectively superior candidate. Having examined the
parties' arguments, including Youssef’s voluminous Statement of Material Facts and Response to
the FBI's Statement of Material Facts, in addition to the record, the Court finds that Youssef has
not adduced evidence from which a reasonable trier of fact could infer that the FBI's proffered
justification for his non-selection was pretext for national origin discrimination. The Court
addresses each of Youssef’s arguments in turn.
25
a. Evidence of Discriminatory Bias
Youssef’s first argument is that a trier of fact could reasonably infer that the FBI “is
dissembling to cover up a discriminatory purpose” from the following evidence: (1) Zarone’s
(and other Career Board members’) attempt to deny any knowledge that the legal matters in
which Youssef was engaged were EEO related; (2) Zarone and Fernandez’s “creation” of a
“contrived issue” to justify their “illegal” downgrade of Youssef’s PAR; (3) the Assistant
Director of the FBI’s Counterterrorism Division overturning two performance ratings in
Youssef’s PAR, which Zarone lowered the day before the LCB met; (4) Fernandez and Zarone’s
meeting with Powers prior to the LCB meeting; and (5) Fernandez’s appointment of Youssef as
Acting ASC prior to Powers assuming the position, despite Zarone and Fernandez lowering
Youssef’s performance ratings in five categories. Pl.’s Opp’n. at 17. Youssef argues that each
of these pieces of evidence suggest discriminatory bias on the part of the FBI and, accordingly,
that the FBI’s reason for not selecting Youssef as ASC is pretextual.
Individually and collectively, none of these five pieces of evidence rise to the level of
creating a genuine dispute as to whether the explanation provided by the FBI for Youssef’s non-
selection was pretext for a discriminatory motive. Youssef first argues that the LCB voting
members’ “denial of knowledge that Mr. Youssef’s [prior] legal matter concerned EEO issues,
taken in the light most favorable to Mr. Youssef, creates a jury question on issues related to
credibility, pretext and discriminatory bias.” Pl.’s Opp’n. at 18. First, Youssef “must do more
than merely express an intent to challenge the credibility of the defendant's witnesses on cross
examination. [Youssef] must produce specific facts that raise an inference of discriminatory
motive.” Mulrain v. Donovan, 900 F. Supp. 2d 62, 73 (D.D.C. 2012) (quoting Howell v. Sullivan,
1992 WL 675147, at *5 (D.D.C. 1992)). Even assuming Youssef has established a genuine
26
dispute as to whether the LCB voting members knew Youssef was engaged in an EEO-related
legal matter against the FBI and thus lied in denying their knowledge of the nature of this legal
matter in their depositions and declarations, this evidence suggests that the LCB voting members
are seeking to cover up the fact that the LCB did not select Youssef because he was engaged in
an EEO lawsuit against the FBI, not because he was of Egyptian national origin. In other words,
these facts would at best allow a reasonable trier of fact to infer retaliatory intent in not selecting
Youssef for the ASC position; these facts are insufficient to “raise an inference of discriminatory
motive” based on Youssef’s national origin. Mulrain, 900 F. Supp. 2d at 73. In other words, as it
has been presented by Youssef, this. See Warner v. Vance-Cooks, --- F. Supp. 2d ---, 2013 WL
3835116, * 21 (D.D.C. 2013) (supervisor’s alleged remark that he was going to “let the dogs
out” on plaintiff, which plaintiff argued reflected discriminatory intent, was insufficient to defeat
summary judgment on plaintiff’s sex discrimination claim because “nothing in the statement
suggests that the plaintiff was being targeted based upon her gender.”).
Youssef’s next two arguments also fail to raise an inference of discriminatory motive.
Youssef argues that once Zarone and Fernandez “illegally downgraded [Youssef’s PAR] in
response to Youssef’s protected right to take time off for his EEO claim,” Zarone and Fernandez
falsely alleged that Youssef was “responsible for mishandling contract negotiations concerning
the renewal of services provided by telecommunications companies to the FBI” in order to
justify their downgrade of Youssef’s PAR. Pl.’s Opp’n. at 18. Youssef posits that “if the jury
were to credit Mr. Youssef’s version of events, this incident would constitute further evidence of
motive, pretext and intentional discrimination.” Id. at 19. Similarly, Youssef’s third argument is
that the Assistant Director of Counterterrorism’s decision to upgrade two of the five
competencies in which Zarone had downgraded Youssef’s PAR “is strong evidence that Mr.
27
Zarone and Mr. Fernandez had negative views of Mr. Youssef which could not be objectively
sustained.” Id. at 20. Youssef contends that “Zarone’s admission that these views were
premised on Mr. Youssef’s ‘legal matter,’ in which Mr. Youssef was attempting to resolve a
discrimination concern, undermines the FBI’s argument on this matter.” Id. In other words, the
Assistant Director’s upgrade of two competencies in Youssef’s 2009 PAR is further evidence
that Zarone improperly downgraded Youssef’s PAR based on his involvement in an EEO
lawsuit. In both of these arguments, Youssef’s own presentation of the facts—as evidence that
Zarone and Fernandez were biased against Youssef because of his involvement in protected
activity—at most allows an inference of retaliatory motive, not discriminatory bias against
Youssef’s national origin. Consequently, these arguments are insufficient to raise an issue of
material fact as to whether Youssef’s non-selection was motivated by discriminatory bias.
Youssef’s fourth argument is that the fact that he “was the only applicant [with] whom
Fernandez did not interview or speak [] prior to the Career Board meeting,” and Powers was the
only candidate to have a face-to-face meeting with Zarone, is “clearly suspicious, and
demonstrate[s] evidence of bias and disparate treatment between Youssef and Powers.” Id. at
20-21. Youssef contends that there are factual disputes as to what was discussed during the
meeting between Fernandez and Powers and why Zarone arranged for that meeting. Id. The FBI
responds that the fact that every candidate except for Youssef contacted Fernandez prior to the
LCB in no way suggests discriminatory bias because Fernandez was listed in the job posting as
the point of contact for questions regarding the ASC position and each candidate took it upon
himself to contact Fernandez and Youssef could have done the same. Def.’s Reply at 18. The
FBI also points to Fernandez’s declaration stating that the candidates’ discussions with
Fernandez lasted no more than a minute and “the extent of the discussion was Fernandez wishing
28
the applicants good luck.” Def.’s Reply at 19; Fernandez Decl. ¶ 12. The Court agrees with the
FBI that these brief introductory encounters initiated by the candidates are far from sufficient to
raise any suspicion in the mind of a trier of fact, much less an inference of discriminatory bias.
In his deposition testimony, Fernandez explains that he received an introductory call from
Davidson and Desmond, but that Powers stopped by his office to introduce himself because he
was at FBI Headquarters for a Legal Attaché conference. Fernandez Dep. at 52. Fernandez
explains that Powers “just wanted to stop by, introduce [himself] and tell [Fernandez] that [he]
was applying for the Assistant Section Chief job” to which Fernandez responded, “Oh, okay.
Thank you very much,” and walked away. Id. Fernandez further explains that all of these
encounters happened before the LCB was selected and before Fernandez knew the identity of the
candidates. Id. at 52, 57. Likewise, Zarone states in his declaration that he “briefly met Mr.
Powers shortly before the LCB, when [Powers] had introduced himself and indicated that he was
applying for the ASC position.” Zarone Decl. ¶ 43. Zarone further states that he and Powers did
not discuss Powers’ application. Id. Although Youssef alleges in his pleadings that there are
factual disputes about what was discussed in these meetings and why they occurred, Youssef
cites to no evidence and the Court, in its own review of the record, has found none to dispute the
FBI’s explanation of these meetings as nothing more than brief introductory encounters initiated
by the candidates. The Court finds these meetings to be particularly innocuous given that both
Zarone and Fernandez already knew Youssef, but had not previously met Powers. The Court
also finds the fact that Powers met with Zarone does not raise suspicion as Powers was seeking
the position Zarone was vacating and the encounter happened before the LCB members were
selected. Accordingly, the Court finds that Youssef fails to create a genuine issue of material
fact as to whether a reasonable trier of fact could infer national origin discriminatory bias from
29
these encounters.
Finally, Youssef argues that discriminatory bias can be inferred from the fact that
Fernandez “suspiciously” appointed Youssef Acting ASC for the period between Zarone leaving
the position and Powers assuming it even though Fernandez believed “Youssef was so
incompetent as to his job.” Pl.’s Opp’n. at 21. Youssef contends that the “PAR downgrade,
combined with Mr. Fernandez’s deposition testimony that was highly critical of Mr. Youssef’s
performance immediately before the [LCB] meeting, simply cannot be squared with Fernandez’s
decision to appoint Mr. Youssef as the acting Assistant Section Chief.” Id. Youssef posits that
“[b]ased on this conflict[,] a strong inference can be made that Zarone and Fernandez lied about
these so-called performance issues [(including the telecommunications contract)] in order to
justify Youssef’s non-selection and the performance downgrade.” Id. at 22. The FBI responds
that Fernandez’s decision to have Youssef act as ASC “is perfectly consistent with the fact that
Youssef’s overall work performance had been rated Excellent” and “cuts against an inference of
retaliatory or discriminatory animus.” Def.’s Reply at 19 n. 7. The Court agrees that this
evidence is insufficient to raise an inference of discriminatory motive. Although Zarone and
Fernandez raised some concerns about Youssef’s performance in their depositions and
declarations and in Zarone’s notes attached to Youssef’s PAR, the FBI has presented evidence
that Youssef’s supervisors still considered him to be doing his job very well, as directly
demonstrated by Youssef’s overall performance rating of “Excellent” in 2009—the same overall
rating he received in 2008. See Def.’s Ex. 15 (Youssef’s 2008 and 2009 PAR). Indeed, Youssef
was recommended for the ASC position by the head of the Counterterrorism Division. See
Def.’s Ex. 11 (Oct. 23, 2009 LCB Transcript), at 13. Furthermore, Youssef’s appointment as
Acting ASC was also consistent with his tenure in the section and the fact that he had served
30
several times as Acting Section Chief of CXS in the past.8 See Def.’s Ex. 10 (Youssef’s
Candidate Qualification Form), at FBI 331. Accordingly, Youssef has failed to establish a
genuine inconsistency between Zarone and Fernandez’s performance reviews and his
appointment as Acting ASC that would allow a reasonable trier of fact to find his appointment as
Acting ASC suspicious and revelatory of Zarone and Fernandez’s discriminatory bias.
b. Failure to Properly Evaluate Youssef and Powers’ Overall
Qualifications and Competency Examples
Youssef’s second overarching argument is that the FBI’s legitimate non-discriminatory
reason is called into question by the fact that Youssef was not selected for the ASC position
despite having starkly superior qualifications and by the fact that the LCB did not stick to the
8
The Court notes that as part of an additional argument in opposition to the Attorney
General’s Motion for Summary Judgment, Youssef briefly discusses submitting an application
for the position of ASC of CXS in response to an FBI job posting at a time prior to the ASC
selection currently at issue. See Pl.’s Opp’n. at 31. Youssef alleges in his Opposition that after
he submitted his application for the prior ASC posting, the FBI pulled the listing, supposedly to
“increase the candidate pool.” Id. Youssef states that “had Mr. Youssef been the only applicant
for the position, the FBI would have been compelled to grant him that promotion . . . [i]nstead
the FBI pulled the listing.” Id. Likewise, in his Opposition to Defendant’s Statement of Material
Facts Not in Genuine Dispute, Youssef states that “the pulling of the job posting after Mr.
Youssef applied for it indicates that the FBI had no intention of promoting him because this
means there were no other applicants” and Youssef would have had to be offered the position.
Pl.’s Resp. Stmt. at ¶ 151. However, Youssef never actually argues in his pleadings that the
FBI’s cancellation of the prior ASC position is evidence of discriminatory motive. Instead,
Youssef simply alleges these facts as part of his argument refuting the Government’s
characterization of his application for the ASC position currently at issue as “simply
resubmit[ting] a prior unsuccessful FD-954, which [Youssef] ‘may have tweaked here and there’
for present purposes.” Def.’s Mot. at 14. Youssef argues that since the prior ASC position was
for the same job as the ASC position currently at issue his old application already “contained
most of the information he need[ed] to fully set forth his competencies” and the Government’s
accusation that he was “being lazy” is without merit. Pl.’s Opp’n. at 31. In any event, Youssef’s
characterization of the cancelled position is incorrect. In 2007, the FBI posted an ASC position
for the CXS which listed different required competencies. Def.’s Reply Ex. 5 (Job Posting), at 1-
4. More importantly, Youssef was actually one of three candidates for the position. Id. at 6.
Thus, even if the Court were to generously read Youssef’s passing mention of the cancellation of
this prior position as an actual argument that this evidence demonstrates discriminatory motive,
the inference Youssef seeks to draw cannot factually be drawn.
31
“four corners” approach in rating the competency examples of the candidates. Specifically,
Youssef argues that the LCB voting members considered outside information regarding Powers’
examples and “presumed or aggrandized [Powers’] statements in a manner that made his
application appear stronger than written,” while “cavalierly brush[ing] off” Youssef’s
accomplishments, “which are well known throughout the FBI and which are matters of public
record.” Pl.’s Opp’n. at 22-23.
Although the D.C. Circuit has stated that a court must not “serve as a ‘super-personnel
department that reexamines an entity's business decisions,’” Holcomb, 433 F.3d at 897 (quoting
Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir. 1999)), a factfinder may infer
discrimination if the evidence shows a reasonable employer would have found the plaintiff
“significantly” better qualified for the job but nevertheless failed to offer the job to the plaintiff.
Aka, 156 F.3d at 1294. In order to justify an inference of discrimination, the plaintiff must
demonstrate a “qualifications gap . . . great enough to be inherently indicative of discrimination.”
Holcomb, 433 F.3d at 897; see also Stewart v. Ashcroft, 352 F.3d 422, 429–30 (D.C. Cir. 2003)
(examining record for evidence of a “stark superiority of credentials” and concluding that “fine
distinctions” were insufficient to raise a jury question).
Youssef offers the following as “objective evidence” that his qualifications for the ASC
position were starkly superior to Powers’: (1) At the time Youssef was a “highly experienced
FBI case agent, with responsibility as the coordinator for the investigation into the Blind Sheik’s
organization, Mr. Powers was still working as a highway patrolman in Juniper, Florida”; (2)
Youssef served as a Legal Attaché in the Middle East (“an area of particular import for
combating Middle Eastern terrorism”) for 41 months, while Powers only served as an Attaché
for 15 months in India, “a country not as directly involved in international terrorism as Saudi
32
Arabia and the other Gulf nations served by Youssef”; (3) Youssef served “on numerous
occasions” as the Acting Section Chief of CXS—a position higher than Assistant Section
Chief—while Powers never served in that capacity; and (4) Youssef served in two Unit Chief
positions in CXS while Powers never held a position in CXS. Pl.’s Opp’n. at 30. Essentially,
Youssef claims that a reasonable trier of fact could infer discrimination from the FBI
“ignor[ing]” this “radical difference[] in experience and seniority between [him] and Powers.”
Id.
It is well established that courts “must defer to the employer’s decision as to which
qualities required by the job . . . it weighs more heavily.” Barnette, 453 F.3d at 517. However,
in making the argument above, Youssef asks the Court to do precisely the contrary—to discount
the LCB voting members’ views in favor of his own beliefs as to what qualifications are most
important to the ASC position. In concluding that he is substantially more qualified for the ASC
position than Powers, Youssef emphasizes factors, notably length of tenure and experience
within CXS, that were not listed as qualifications, competencies, or even preferences for the
ASC position. See Def.’s Ex. 7 (Job Posting). Indeed, Douglas Price, Section Chief of the
EDSP, explained in his declaration that the voting members of an LCB are not to take into
account a candidate’s length of tenure.9 Price Decl. ¶ 11. Moreover, the LCB process and
9
Youssef does not directly contest this fact in his Opposition to Defendant’s Statement of
Material Facts Not in Genuine Dispute, but does generally point to the LCB Chairperson
Training presentation which states that “Totality of Experience may also be used when the
ratings of the top ranked candidates’ are close, and a review of the candidates’ [application
forms] indicate a candidate with lower scores may be more suitable for the position.” Pl.’s Ex. 15
(LCB Chairperson Training Presentation), at FBI 3440. In other words, the LCB need not rely
only on the LCB members’ ratings of the specific experiences detailed in the candidates’
competency examples, but may consider the totality of a candidate’s experience in certain
circumstances. The LCB must provide justification if it takes a “totality of experience”
approach. See id. The fact that an LCB may employ a “totality of experience” approach does
33
accompanying application form are structured to identify individuals “with demonstrated
leadership and management abilities, and not necessarily subject matter experts.” Id. ¶ 2. This
was especially true in the LCB at issue as the job posting listed only one specialized
competency—Counterterrorism experience—for which a candidate’s specific investigate and
subject matter experience would be relevant. This competency was weighted second to last
amongst the seven required competencies. Thus, Youssef’s experience within CXS is by no
means dispositive. Furthermore, Youssef now emphasizes his service as Acting Section Chief
for CXS, yet he provided no example from his experience as Acting Section Chief for any of his
competency examples. As the LCB process is structured to rate candidates first and foremost on
their competency examples, the LCB voting members cannot now be faulted for giving little
weight to Youssef’s Acting Section Chief experience. Finally, Youssef emphasizes his service
in the Middle East as compared to Powers’ service in India, a country Youssef characterizes as
less directly involved in international terrorism. However, in their depositions and declarations,
the LCB voting members made clear that what they considered most heavily in evaluating the
candidates was the work and results illustrated in the example, not the geographic location of the
example or the terrorist target involved. See Castro Decl. ¶ 21; Zarone Decl. ¶ 49; Chase Decl. ¶
14; Pl.’s Ex. 21 (Chase Dep.), at 77. Youssef points to no evidence that would call into question
the propriety of this evaluative approach or the veracity of the LCB voting members’ claim to
not contradict Price’s statement that the length of a candidate’s duty is not to be taken into
account. Although the “totality of experience” approach allows the LCB to consider the total
package of experiences a candidate would bring to a position, instead of just the rankings given
to the experiences the candidates used to illustrate the competency examples, it does not
necessarily permit the LCB to consider the length of duty of an applicant. Moreover, it would
appear that a “totality of experience” approach would not have applied to Youssef in the instant
case since he was rated last of the four candidates and thus was not a “top ranked candidate”
eligible to benefit from such an approach.
34
have taken such an approach. Ultimately, although Youssef had served at the FBI longer than
Powers and had served in CXS, the Court finds that both candidates were able to point to
comparable experiences from their respective tenures at the FBI that effectively demonstrated
their abilities within each required competency. Consequently, the Court finds that the evidence
Youssef offers of his “objectively” superior qualifications fails to undermine the legitimacy of
the LCB voting members’ reasons for his non-selection.
In the same vein, Youssef argues that his competency examples were also objectively
superior to Powers’ and that the LCB improperly interpreted and weighed the candidates’
examples in coming to the opposite conclusion. As an example, Youssef points to Chase and
Zarone’s declarations explaining that Powers’ Leadership example describing his service as
Legal Attaché in Mumbai during the 2008 terrorist attack showed “skilled leadership,” while
Youssef’s two leadership examples “simply showed Youssef performing tasks that would be
expected of any Unit Chief or Legal Attaché.” Pl.’s Opp’n. at 32. Youssef argues that the FBI’s
explanation is defective because Powers’ example “merely sets forth performance items that
would be expected from any Legal Attaché.” Id. Youssef contends that he, on the other hand,
listed “numerous items that are unique and demonstrate strong leadership;” for example, Youssef
was named the first Chief of a CXS Unit and was thus “responsible for building the unit from the
bottom up.” Id. at 33. Youssef argues that “this is not simply the work of any Unit Chief, as
most Unit Chiefs do not have to build out the unit they are to manage, and do not show the type
of skilled leadership to create a successful program working with foreign intelligence agencies.”
Id. Moreover, Youssef notes, the leadership demonstrated in this example related directly to the
35
work being performed within the CXS.10 Id.
Youssef also uses the Counterterrorism competency examples as an illustration of his
clearly superior skills and competency examples. Youssef states that he “is without question an
international star” in the area of counterterrorism and that “the FBI’s attempt to demonstrate that
Mr. Powers’ had stronger counterterrorism competencies than Mr. Youssef flunks any
reasonable or non-biased analysis.” Pl.’s Opp’n. at 37. Youssef contends that Chase’s assertion
that Youssef failed to demonstrate his use of “sophisticated techniques” in his counterterrorism
examples is entirely fallacious because all of the techniques Youssef used were among the most
sophisticated counterterrorism and counterintelligence techniques and Powers, in his examples,
did not state that he used most of these techniques and instead primarily listed techniques that
were easier to execute. Id. at 39-40. Youssef further contends that Chase’s claim that Youssef
10
Likewise, Youssef argues that his example describing his experience as the first Legal
Attaché in Saudi Arabia demonstrated more skilled leadership than Powers’ example of his
Legal Attaché work because Powers did not establish the Legal Attaché office in Mumbai. Pl.’s
Opp’n. at 34. Moreover, Youssef asserts that his example was stronger because “he did not
simply chair a meeting, he built a strong network in order to enable the FBI to liaise with
intelligence agencies throughout a region of the world that plays a fundamental role in the
number one priority of the FBI: combating Middle Eastern terrorism that directly threatens
Americans.” Id. Youssef further argues that “[i]t is well known that the principle role of an FBI
[Legal Attaché] is to effectively liaise with foreign governments,” and Youssef’s example shows
how he “provided the leadership necessary to help solve the strained relations between the
United States/FBI and a key partner in the War on Terror.” Id. at 35. By contrast, Powers’
Leadership example did not indicate any strained relations in India that Powers had to go
“beyond his expected performance levels” to overcome. Id. As with Youssef’s evaluation of his
other competency examples, the Court finds this argument insufficient to establish that Youssef’s
examples or experiences were clearly superior to Powers’. Moreover, Youssef argues that this
Leadership example was starkly superior to Powers’ Leadership examples in large part because
of Youssef’s demonstrated success in liaising under difficult conditions. The Court notes that
Youssef used the same experience for his Liaison competency example and that every LCB
voting member rated this experience as an example of “Skilled” liaison abilities. The Court thus
has great difficulty accepting Youssef’s argument that the LCB ignored his superior
qualifications in evaluating this competency example.
36
“failed to articulate any case agent investigation responsibilities” is also completely fallacious.
Id. at 41. Youssef explains that his examples outlined tasks that a case agent would undertake
and used the possessive pronoun in discussing “[his] investigation” and “[his] targets” something
only a case agent would do when referring to targets and investigations. Id.
Finally, Youssef notes that his first Counterterrorism example concerned “the most
important counterterrorism operation conducted by the FBI in the 1990s—the investigation into
the First World Trade Center bombing—while Powers’ examples “concerned [an investigation
of] a person who was not even arrested by any law enforcement agency, and was permitted to
voluntarily leave the country.” Id. Youssef also notes that his second counterterrorism example
demonstrated that the intelligence he obtained “was singular in nature, highly valuable, not just
to the FBI, but to other members of the Intelligence Community,” “used against the most
dangerous Middle Eastern terrorist organization operating in the United States,” resulted in
“several operations and cell members [being] disrupted,” and led to Youssef being awarded the
highly prestigious Director of Intelligence Award. Id. at 44. By contrast, Powers only stated that
his intelligence was “significant” and helped the FBI’s “collection efforts” and “domain
awareness.” Id. at 43. Youssef concludes that a jury could “reasonably find that [his]
competency in this area far and away exceeded that of Mr. Powers” and that the LCB
demonstrated significant bias against Youssef in finding otherwise. Id.
Although Youssef may believe the Board should have been more impressed with his
credentials, the Board was entitled to form its own opinions concerning the relative value of his
experiences. See Fischbach v. District of Columbia Dep’t of Corrections, 86 F.3d 1180, 1183
(D.C. Cir. 1996) (“It is not enough for the plaintiff to show that a reason given for a job action is
not just, or fair, or sensible, he must show that the explanation given is a phony reason.”)
37
(quoting Pignato v. American Trans Air, Inc., 14 F.3d 342, 349 (7th Cir. 1994)). Much of
Youssef’s analysis of his credentials as compared to Powers’ is based on his personal assessment
of the relative value of their experiences and unsubstantiated opinions about what constitutes a
sophisticated investigation technique or what performance items are “merely” “expected” from a
position. But Youssef's subjective opinion concerning his credentials does not weigh heavily in
this calculus. See Perry v. Shinseki, 783 F. Supp. 2d 125, 137 (D.D.C. 2011), aff’d 466 Fed.
Appx. 11 (D.C. Cir. 2012) (“Perry's ‘own self-perception of her credentials’ are ‘irrelevant for
purposes of establishing discriminatory . . . conduct.’” (quoting Talavera v. Fore, 648 F. Supp. 2d
118, 136 (D.D.C. 2009), rev'd in part on other grounds by Talavera v. Shah, 638 F.3d 303, 312–
13)); Waterhouse v. District of Columbia, 124 F. Supp. 2d 1, 7 (D.D.C. 2000) (“[P]laintiff's
perception of herself, and of her work performance, is not relevant. It is the perception of the
decisionmaker which is relevant.”) (internal citation and quotation marks omitted), aff'd, 298
F.3d 989 (D.C. Cir. 2002). Although a reasonable trier of fact might at times disagree with an
LCB voting members’ evaluation of a specific example, Youssef has not—and cannot—point to
a competency example that demonstrates such starkly superior skill or experience or an
evaluation that is so unreasonable as to allow a reasonable trier of fact to infer discrimination.
See Aka, 156 F.3d at 1294 (“we must assume that a reasonable juror who might disagree with the
employer’s decision, but would find the question close, would not usually infer discrimination on
the basis of a comparison of qualifications alone. In a close case, a reasonable juror would
usually assume that the employer is more capable of assessing the significance of small
differences in the qualifications of the candidates, or that the employer simply made a judgment
call.”).
Moreover, in re-evaluating the relative strength of their examples, Youssef again
38
emphasizes aspects of his competency examples to which the LCB by its structure or the voting
members by their choice did not give great weight. Specifically, Youssef emphasizes his work
within CXS and the location and target of his counterterrorism work which were given less
weight in the LCB process. In addition, in emphasizing the significance of his counterterrorism
work and the results he obtained, Youssef now provides substantially more context to his
examples than he provided in his application. While Youssef may want to elaborate on his
experiences in this proceeding, the Court is neither required nor permitted to reevaluate his
credentials with this additional information. See Fischbach, 86 F.3d at 1183 (a court must
“beware of using 20/20 hindsight [and] must respect the employer’s unfettered discretion to
choose among qualified candidates”). This is especially true given that Youssef does not dispute
that it was his responsibility to provide sufficient context at the time he submitted his application,
especially when submitting examples of experiences from well over a decade earlier. See
Kundra v. Abraham, 2007 WL 1821264, at *1 (D.D.C. Jun. 25, 2007) (“When an excellent
statistician relies on his supervisor's supposed knowledge of his career, but does not fully
describe his credentials in his application package for promotion, can he complain of
discrimination when the supervisor relies on the written word and selects another excellent, but
junior, statistician for the job? The answer to this question is no.”).
In any event, counterterrorism was second-to-last in overall weight. Thus, even if
Youssef had received a unanimous Skilled rating on both Counterterrorism examples, he still
would not have outranked Powers. See Def.’s Ex. 8 (LCB Matrix), at FBI 736. In sum, as it is
not “clear ‘on its face’ that [Powers’] responses were inferior to [Youssef’s] . . . ‘it is not the
Court’s place to second-guess [the LCB voting members’] preference for one response over the
other.” Perry, 783 F. Supp. 2d at 143 (quoting Chavers v. Shinseki, 667 F. Supp. 2d 116, 131
39
n.10 (D.D.C. 2009)). Accordingly, Youssef has failed to come close to showing the sort of
“wide and inexplicable gulf” in qualifications required for the Court to infer discrimination. See
Lathram v. Snow, 336 F.3d 1085, 1091 (D.C. Cir. 2003).
Youssef’s next argument is that the falsity of the FBI’s legitimate, non-discriminatory
reason for his non-selection can be inferred from the fact that the LCB voting members’ did not
evaluate the candidates purely on the written content of their competency examples as they
averred they did in their declarations and as was required by FBI LCB rules for selecting mid-
level management.11 Youssef’s primary argument in this regard is that the LCB voting members
were willing to make inferences and conduct outside research about Powers’ competency
examples in order to aggrandize his qualifications, but made no effort to understand or draw
11
Youssef also argues that since the FBI’s promotional process was focused on “highly
subjective criteria,” such as “leadership,” “judgment,” and “interpersonal ability,” “the ability of
the FBI to rely on the Board members’ subjective opinions of Youssef and Powers is
compromised.” Pl.’s Opp’n. at 23-24. In other words, Youssef contends that the FBI’s heavy use
of subjective criteria should be interpreted as masking bias, discrimination, and retaliation. Pl.’s
Opp’n. at 24. However, Youssef misunderstands this Circuit’s case law concerning an
employer’s use of subjective criteria. In cases where courts have found an employer’s use of
subjective criteria to raise an inference of discrimination, the employer has simply cited an
employee’s “temperament” or “presentation of self” or “enthusiasm” as its legitimate, non-
discriminatory reason for taking an adverse employment action against the employee. See, e.g.,
Hamilton v. Geithner, 666 F.3d 1344,1356-1357 (D.C. Cir. 2012); Aka, 156 F.3d at 1298. Here,
by contrast, although the FBI is evaluating subjective qualities like “leadership” and
“interpersonal ability,” it is doing so through the objective process of comparing candidate
experiences under each competency. See Perry, 783 F. Supp. 2d at 137 (“Here, in addition to
subjective justifications such as “management style” and “temperament,” Lenox presented more
objective reasons for selecting Murphy, such as the high ranking he received from the subject
matter expert, his unique experience, and his history of military service.”) (emphasis added).
Thus, the FBI did not select a candidate based on subjective feelings about the candidates, but
based on an objective comparison of the candidates’ experiences demonstrating certain required
skills. Indeed, Youssef himself appears to admit that the FBI’s ASC selection process was based
on objective criteria when he states that his and Powers’ competency examples can be compared
based on objective criteria because “[b]oth Powers and Youssef responded to questions
concerning their experience in counterterrorism” and both “relied upon their experiences as
Legal Attaches in responding to questions concerning ‘leadership.’” Pl.’s Opp’n. at 24.
Accordingly, the Court finds Youssef’s argument unavailing.
40
inferences for Youssef’s competency examples. Pl.’s Opp’n. at 22-23; Pl.’s Resp. Stmt. ¶ 31.
This disparate treatment, Youssef argues, “demonstrates bias against Mr. Youssef.” Id. As an
initial matter, several of the inferences Youssef claims the voting members improperly drew in
favor of Powers are actually taken from the FBI’s Statement of Material Facts Not in Genuine
Dispute in which the FBI summarizes the LCB voting members’ declarations, and, in so doing,
at times slightly overstates the LCB voting members’ conclusions. However, the Court has
restricted its evaluation of the FBI’s legitimate, non-discriminatory reasons for Youssef’s non-
selection to the reasons set forth in the sworn declarations and deposition testimony provided by
each LCB voting member. As such, many of Youssef’s improper inference arguments which are
based only on the FBI’s Statement of Facts in Genuine Dispute carry no weight.
Youssef does provide several examples of allegedly improper evaluations of the
candidates’ applications drawn directly from the voting members’ declarations. However, the
Court finds none of these examples are so egregious as to cause a reasonable trier of fact to
discredit the FBI’s reason for Youssef’s non-selection. Grosdidier v. Broadcasting Board of
Governors, 709 F.3d 19, 26 (D.C. Cir. 2013) (“[E]vidence of pretext might include ‘an error too
obvious to be unintentional.’” (quoting Fishbach, 86 F.3d at 1183)). For example, Youssef
points to Chase’s statement that Powers’ Leadership example regarding his role as Legal Attaché
in Mumbai during the 2008 terrorist attacks “showed that [Powers] had led teams of investigators
and intelligence officers in difficult and urgent missions, provided direction and effectively
delegated work to them, and directed his teams in meeting the mission’s objective.” Chase Decl.
¶ 12. Youssef argues that Chase could not have adopted this belief based only on the written
content of Powers’ application because “Powers does not explicitly demonstrate his role as the
leader of investigators and intelligence officers, nor does he describe his missions as either
41
urgent or difficult” or ever “explicitly state[] any mission objectives rendering it impossible for
Chase to conclude that such objectives were met.” Pl.’s Resp. Stmt. ¶ 31. Youssef concludes
that Chase drew unfounded inferences or conducted outside research in order to evaluate
Powers’ application as he did.12 Id.
The Court finds Chase’s evaluation of Powers’ Leadership example to be anchored in the
written content of Powers’ example. In his example, Powers writes about ten terrorists attacking
in “multiple locations in Mumbai” resulting in the death of “over 170 people.” See Def.’s Ex. 9
(Powers’ Candidate Application Form). Powers himself references the situation as a “time of
crisis.” Id. From this alone, the LCB voting members could reasonably conclude that the
mission was “difficult” and “urgent.” There is also no indication that Chase conducted outside
research or drew an unfounded inference in order to conclude that Powers had led investigators
and intelligence officers during this mission. In his example, Powers clearly states that he
“successfully tasked investigators and intelligence officers . . . to motivate and lead in a time of
crisis” and explains that he was commended for his leadership. Finally, although Powers does
not explicitly state the mission objectives, it was not “impossible” or unfounded for Chase to
conclude that the mission objectives were met.13 In the example, Powers describes the many
actions he took in response to the terrorist attack and, for many of the actions, specifically states
12
Similarly, Youssef also argues that Zarone’s assertion in his declaration that he rated
Powers’ Mumbai Legal Attaché Leadership example as “Skilled” in part because it showed that
Powers “immediately identified the resources necessary [and] obtained them from FBI
headquarters” shows that Zarone “either infer[ed] that Powers obtained the resources from FBI
headquarters or conduct[ed] an independent investigation into Powers’ involvement in order to
gain such insight.” Pl.’s Resp. Stmt. ¶ 43. As with Chase’s evaluation of Powers’ Leadership
example, the Court finds Zarone’s evaluation does not suggest that he conducted outside research
or drew improper inferences.
13
In fact, Chase only states that Powers “directed his teams in meeting mission
objectives.” Chase Decl. ¶ 12 (emphasis added).
42
that they were done “successfully.” Id. He also references his nomination for an FBI Directors
Award based on this work and his commendation by many high level FBI officials. Id. In other
words, any inferences Chase drew to come to his evaluation of Powers’ Leadership example
were exceedingly slight and well-supported by the text of the example. Accordingly, the Court
finds Chase’s evaluation in no way suggests that Chase inappropriately conducted outside
research or was biased towards Powers and against Youssef, much less biased against Youssef
due to his national origin.
Youssef also points to inferences that the LCB voting members refused to draw in favor
of his application. For example, Youssef highlights Chase’s statement that, in evaluating the
candidates’ counterterrorism examples, he was “particularly interested in instances where the
applicant had taken a lead role as a case agent in a counterterrorist investigation.” Chase Decl.
¶14. Youssef argues, however, that neither Powers nor Youssef ever explicitly describe
themselves as case agents in their counterterrorism examples, yet Chase made that inference for
Powers but found that Youssef had “not articulate[d] case agent investigation responsibilities”
even though Youssef wrote of “his investigation” and “his targets.” Pl.’s Resp. Stmt. ¶ 33, 37;
Pl.’s Opp’n. at 41. Second, Youssef points to Chase’s statement that he did not see any
indication in Youssef’s Leadership example about his Legal Attaché work in Saudi Arabia “that
Youssef had been responsible for actually leading a group of subordinates or how he had done
so.” Chase Decl. ¶ 13. Youssef argues that, since he noted in his example that he was the first
Legal Attaché in Saudi Arabia and “opened and established the operational/administrative
framework of the [Legal Attaché] Office,” “it is logical [for Chase] to infer that Mr. Youssef
certainly led subordinates in order to open the office.” Pl.’s Resp. Stmt. ¶ 32. Youssef argues
that Chase’s failure to make this inference suggests he was influenced by discriminatory bias.
43
Id.
The Court again finds Youssef has not presented evidence that Chase drew—or refused
to draw—any inferences revelatory of discriminatory bias against Youssef. The inferences
Youssef claims Chase improperly refused to draw would have required Chase to make far greater
assumptions about Youssef’s experiences than were required for any of the inferences Youssef
alleges Chase or other LCB voting members improperly drew in Powers’ favor. For example,
Powers clearly states that he was “responsible for all aspects of an international terrorism
investigation” in one Counterterrorism example and in another that he was “responsible for one
of several complex IT investigations involving a homegrown terrorist,” while Youssef’s first
counterterrorism example does not indicate his position in the investigation. See Def.’s Ex. 9
(Powers’ Candidate Qualification Form); Def.’s Ex. 10 (Youssef’s Candidate Qualification
Form). Instead, Youssef argues that the voting members should have inferred his case agent role
because he spoke of “[his] investigation” and “[his] targets” in the example. Moreover, Chase
indicated that he was ultimately interested in a candidate who had served in a “lead role” as a
case agent and Youssef’s Counterterrorism examples offer no indication that he served in a
leadership role. As for Youssef’s Legal Attaché Leadership example, it would be logical for
Chase to infer that Youssef worked and collaborated with many people, but not that he led
anyone, much less subordinates without more context. For all of the competency examples, it
was Youssef’s responsibility to provide sufficient context and detail. Youssef’s examples of the
LCB voting members’ biased unwillingness to draw inferences in Youssef’s favor are actually
more properly viewed as instances in which Youssef failed to provide sufficient context and
detail in his examples, especially as compared to Powers’ application. See Stewart, 352 F.3d at
429 (affirming summary judgment on non-selection claim where plaintiff put less effort and
44
thought into application than selectee who presented the more thoughtful and detailed
application).
As a final example of the LCB’s improper evaluation of the candidates, Youssef points to
his second Counterterrorism example explaining his role as AGAI coordinator and Chase’s
“inference” that a “coordinator of a particular [terrorist] group administratively coordinates the
investigations focusing on a particular group.” Chase Decl. ¶ 18. Youssef argues that his
Counterterrorism example does not state that he administratively coordinated investigations and,
moreover, his example states that he was awarded the Director of Intelligence Award for his
“recruitment efforts and intelligence obtained” as AGAI coordinator. Pl.’s Resp. Stmt. ¶ 38.
Youssef reasons that it was unreasonable for Chase to assume that the Director of Intelligence
Award could be awarded “without Mr. Youssef having played a key role in the overall
investigative effort.” Id.
The Court finds that this example also does not raise an inference of discriminatory
treatment or even an inference that the LCB improperly evaluated the candidates’ applications.
Even though Youssef did not state in his example that he administratively coordinated
investigations, Chase based his conclusion that a “group coordinator” is an administrative
coordinator based on “his experience,” i.e. his personal knowledge, which the LCB rules permit
him to do. See Def.’s Ex. 4 (LCB Chairperson Training Presentation), at FBI 3425 (LCB 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”). The fact that Chase might have been mistaken about
the nature of a group coordinator’s responsibilities is irrelevant as there is no evidence to suggest
that this is not what Chase actually believed. See Herbert v. Architect of the Capitol, 766
45
F. Supp. 2d 59, 81 (D.D.C. 2011) (courts will not find pretext where supervisor’s reason for action
turns out in retrospect to have been mistaken, so long as the supervisor “honestly and reasonably
believed” the action took place). Furthermore, Youssef’s argument that his receipt of the
Director of Intelligence Award makes Chase’s inference that Youssef played less than a key role
illogical is unavailing. First, Chase (along with Castro)14 stated in his deposition testimony that
he was not familiar with the Director of Intelligence Award. Pl.’s Ex. 21 (Chase Dep.), at 69-70.
Second, without more context, the receipt of an award still does not indicate that Youssef was
leading or supervising the investigation, especially when the competency example otherwise
speaks primarily of review and analysis of intelligence. In sum, the Court finds that the alleged
inferences that the LCB voting members drew or failed to draw do not rise to the level of
showing “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable fact finder could
rationally find them unworthy of credence.” Plotke v. White, 405 F.3d 1092, 1102 (10th Cir.
2005).
Finally, Youssef contends that the LCB voting members failed to properly follow the
LCB evaluation process because they did not have sufficient knowledge relevant to Youssef’s
competency examples and failed to seek out knowledge to be able to properly evaluate Youssef’s
examples. Pl.’s Resp. Stmt. ¶¶ 37, 40. Specifically, Youssef argues that several of the voting
members were inexplicably un- or under-informed about the AGAI terrorist group and the Blind
Sheik and their connection to the 1993 World Trade Center Bombing and Osama Bin Laden and
that Castro was not familiar with the significance of Youssef’s AGAI coordinator role. Id. ¶142.
In addition, Youssef notes that several members “did not understand” what the Director of
14
See Pl.’s Ex. 22 (Castro Dep.), at 27, 63.
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Intelligence Award was. Id. Youssef contends that if any voting member was genuinely
uninformed about any of these matters, he should have asked for clarification or to interview the
candidates. Id. ¶¶ 35, 37, 40. Youssef contends that the members’ failure to do so is proof of
discriminatory animus. Id.
First and foremost, the LCB rules make clear that conducting an interview of the
candidates is entirely optional. See Def.’s Ex. 5 (ASAPP Training Guide), at FBI 2748. The
LCB guidelines do not impose any requirement or even suggest that an interview be conducted
under any specific circumstances. Thus, Youssef’s argument that the LCB voting members
failed to properly follow the LCB process is unavailing. Moreover, the LCB voting members’
unfamiliarity with the terrorist organizations and events discussed in Youssef’s Counterterrorism
examples is far from “inexplicable.” For his application, Youssef drew on examples involving
terrorist activities that took place between 1993 and 1996 prior to the time any of the LCB voting
members had begun working in counterterrorism. See Pl.’s Ex. 20 (Zarone Dep.), at 19; Pl.’s Ex.
21 (Chase Dep.), at 9; Pl.’s Ex. 22 (Castro Dep.), at 8. In his pleadings, Youssef now elucidates
the connection between the Blind Sheik, AGAI, and the first World Trade Center bombing, but it
was Youssef’s responsibility to provide sufficient context and detail in his application to make
the import of his examples evident, especially given their age. See Kundra, 2007 WL 1821264,
at *1 (finding that an employee cannot complain of discrimination when he “relies on his
supervisor's supposed knowledge of his career, but does not fully describe his credentials in his
application package for promotion,” and the supervisor relies on the applicants’ “written word”
in selecting another applicant). In any event, the information that Youssef finds the LCB voting
members were improperly lacking was not fundamental to the evaluation of Youssef’s
application. As was explained above, the LCB voting members focused on the candidates’
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leadership in counterterrorism investigations, or the type of counterterrorism techniques used,
not the significance of the specific terrorist operation to the FBI or the world. As for the Director
of Intelligence Award, the award’s main relevance—that Youssef was awarded for his
counterterrorism work—was clearly communicated to the LCB by the title of the award. See
Pl.’s Ex. 21 (Chase Dep.), at 70.
c. Conclusion
In sum, Youssef has failed to proffer evidence supporting an inference that the FBI’s
reasons for his non-selection were pretext for national origin discrimination. Youssef’s evidence
that the LCB members were motivated by discriminatory bias fails to raise an inference of
discriminatory bias based on national origin and, for some of the evidence, an inference of any
bias against Youssef. Youssef’s arguments that his starkly superior qualifications and the LCB’s
improper evaluation of the candidates reveal the FBI’s reason for his non-selection as pretext are
equally unavailing. Youssef’s qualification argument “may show, at best, that the rating and
ranking panel could have given [Youssef] a score somewhat higher than the score [he] received .
. . [but] [t]hat is not enough to show that the [FBI’s] proffered non-discriminatory reason was
pretext, particularly with no further evidence of bias such as discriminatory statements or
attitudes by agency officials.” Fields v. Geithner, 840 F. Supp. 2d 128, 137 (D.D.C. 2012), aff’d,
2012 WL 3059585 (Jul. 11, 2012). Moreover, none of the supposed “irregularities” Youssef
points to in the LCB’s evaluation of the candidates—the inferences drawn or not drawn, the lack
of an interview—could rise to the level of even a colorable claim of irregularity.
Youssef would effectively have this Court conclude that his non-selection was
discriminatory based on his prima facie case, without a proffer of additional evidence supporting
an inference that the FBI’s reasons for his non-selection were pretext for national origin
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discrimination. As a result, and based on the totality of the admissible evidence before the
Court, a jury could not reasonably conclude that Youssef’s non-selection constituted
impermissible national origin discrimination. Accordingly, the Court shall grant the FBI’s
Motion for Summary Judgment on this claim.
B. Retaliation Claim
“Like claims of discrimination, claims of retaliation are governed by the McDonnell
Douglas burden-shifting scheme.” Carney v. Am. Univ., 151 F.3d 1090, 1094 (D.C. Cir. 1998)
(citing McKenna v. Weinberger, 729 F.2d 783, 790 (D.C. Cir. 1984)). As Youssef proffers no
direct evidence that the FBI retaliated against him for filing an EEO complaint, the McDonnell
Douglas framework applies here. Under the McDonnell Douglas paradigm, Youssef has the
initial burden of proving by a preponderance of the evidence a prima facie case of retaliation.
McDonnell Douglas, 411 U.S. at 802. To prove unlawful retaliation, a plaintiff must show that
(1) he engaged in statutorily protected activity; (2) his employer took an adverse personnel action
against him; and (3) a causal connection exists between the two. Wiley v. Glassman, 511 F.3d
151, 155 (D.C. Cir. 2007). If Youssef succeeds in establishing a prima facie case, the burden
then shifts to the FBI to articulate some legitimate, non-retaliatory reason for its actions, and to
produce credible evidence supporting its claim. McDonnell Douglas, 411 U.S. at 802 (quoting
Burdine, 450 U.S. at 253). If the FBI is successful, then “’the burden-shifting framework
disappears, and a court reviewing summary judgment looks to whether a reasonable jury could
infer . . . retaliation from all the evidence,’ which includes not only the prima facie case but also
the evidence the plaintiff offers to ‘attack the employer’s proffered explanation for its action’ and
other evidence of retaliation.” Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (quoting
Carter, 387 F.3d at 878) (internal quotation marks omitted).
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As with discrimination claims, if the employer produces a legitimate non-discriminatory
reason for its actions at the summary judgment stage, “the district court need not—and should
not—decide whether the plaintiff actually made out a prima facie case under McDonnell
Douglas,” “the only question is whether the employee's evidence creates a material dispute on
the ultimate issue of retaliation.” Jones, 557 F.3d at 678 (quoting Brady, 520 F.3d at 494)
(internal quotation marks omitted). As the FBI has asserted a legitimate, non-retaliatory
explanation for Youssef’s non-selection as ASC—that he was not the top-rated candidate based
on the strength of his competency examples—the only question for the Court to address is
“whether the employee’s evidence creates a material dispute on the ultimate issue of retaliation.”
Id. Thus, the Court must review “each of the three relevant categories of evidence—prima facie,
pretext, and any other—to determine whether they ‘either separately or in combination’ provide
sufficient evidence for a reasonable jury to infer retaliation.” Id. at 679 (quoting Waterhouse v.
District of Columbia, 298 F.3d 989, 996 (D.C. Cir. 2002)).
Youssef easily meets the first two prongs of a prima facie case of retaliation and the FBI
concedes as much. “An activity is ‘protected’ for the purposes of a retaliation claim ‘if it
involves opposing alleged discriminatory treatment by the employer or participating in legal
efforts against the alleged treatment.’” Lemmons v. Georgetown Univ. Hosp., 431 F. Supp. 2d
76, 91 (D.D.C. 2006). Youssef’s filing of an EEO complaint, initiating a lawsuit claiming that
he had suffered national origin-based employment discrimination in violation of Title VII, and
participating in legal efforts related to that lawsuit constitutes “protected” activity under Title
VII. See 42 U.S.C. § 2000e–3(a) (prohibiting discrimination against an employee because he
“opposed any practice made an unlawful employment practice by this title or because he has
made a charge, testified, assisted, or participated in any manner in an investigation, proceeding,
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or hearing under this title”). An action is “adverse” if the employer's actions are likely to have
“dissuaded a reasonable worker from making or supporting a charge of discrimination.”
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438
F.3d 1211, 1219 (D.C. Cir. 2006)). Thus, Youssef also meets the second prong of his prima
facie case by showing that he suffered an adverse action when the FBI did not select him for the
ASC position. See Cones, 199 F.3d at 521 (explaining that denial of a promotion may constitute
a materially adverse action).
The FBI argues, however, that Youssef’s case “runs aground” at the third element—
causation. Def.’s Mot. at 22. Youssef seeks to establish an inference that his protected activity
was the reason for his non-selection as ASC by presenting evidence that each member of the
LCB knew that he was involved in a Title VII lawsuit against the FBI and that preparations for
his lawsuit were still ongoing at the time the LCB convened, thus leaving no gap in time between
his protected activity and the adverse employment action. Youssef contends that causation is
further established by the timing of Zarone’s demonstration of animus towards Youssef’s
protected activity in Youssef’s PAR, which Zarone signed one day before participating in the
adverse employment action. The FBI contends that the LCB voting members15 were only aware
15
The FBI concedes that the LCB Chair, Fernandez, was aware that Youssef had a
pending EEO matter. However, Fernandez did not rate the candidates himself and played no
other role in the LCB and its deliberations other than to tally and calculate the voting members
overall ratings of the candidates. See Butler v. Ashcroft, 293 F. Supp. 2d 74, 79 (D.D.C. 2003)
(“[Plaintiff’s] allegations that . . . a supervisor ‘whom plaintiff has heard and known to engage in
racial, sexist and otherwise inappropriate comments, was a member of each of the career boards
in this case,’ is unavailing because [the supervisor] was a nonvoting member of the board and
even encouraged [Plaintiff] to apply for the second position.”). Moreover, Youssef does not
allege that Fernandez in any way influenced the LCB’s rankings of the candidates. The only
impact Youssef alleges Fernandez had on the LCB deliberations is through Fernandez’s selection
of Zarone to serve as a voting member of the LCB despite the fact that Zarone and Fernandez
had had numerous conversations about Youssef’s performance prior to the LCB convening. See
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that Youssef had a pending legal matter, not that the legal matter involved allegations of
discrimination or retaliation by the FBI, and thus Youssef has failed to show that the LCB
members had knowledge of his protected activity. The FBI further argues that even if the Court
were to accept Youssef’s contention that all members of the LCB were aware that Youssef was
engaged in protected EEO activity, each LCB member learned about Youssef’s protected activity
many months or even years before Youssef’s non-selection as ASC and thus the temporal
distance between when the LCB members learned of the lawsuit and when the adverse personnel
action was taken is too great to allow an inference of causation.
Youssef has provided uncontroverted evidence that he was participating in depositions
and other protected legal activities related to his EEO lawsuit against the FBI at the end of 2009,
a very short temporal distance from his non-selection as ASC. See Pl.’s Resp. Stmt. ¶ 91-93. At
the prima facie stage this evidence is sufficient to raise an inference of causation. Courts in the
D.C. Circuit have repeatedly held that “an adverse action following closely on the heels of
protected activity may in appropriate cases support an inference of retaliation even when
occurring years after the initial filing of charges.” Jones, 557 F.3d at 680. Moreover, a plaintiff
need only offer evidence that “the employer had knowledge of the employee’s protected activity,
and the adverse personnel action took place shortly after that activity.” Id. at 679 (emphasis
added); see also Hamilton v. Geithner, 666 F.3d 1344, 1358 (D.C. Cir. 2012) (finding the fact
Pl.’s Resp. Stmt. ¶ 28. However, there is uncontroverted evidence that Fernandez selected the
LCB voting members prior to learning who the applicants for the position were. See Fernandez
Decl. ¶ 11. Consequently, a reasonable trier of fact would not infer from this evidence that
Fernandez sought to taint the LCB by selecting an LCB voting member whom he knew had
concerns about Youssef’s performance. Moreover, such an inference is further undermined by
the fact that Zarone held the position for which the LCB had been convened to fill and thus was
an obvious and useful choice for the LCB. See id. ¶ 9. In addition, Fernandez’s conversations
with Zarone about Youssef’s performance all occurred before Fernandez selected the LCB
voting members. See id. ¶ 13.
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that plaintiff submitted an EEO complaint to the agency under three months from the adverse
employment action sufficient to establish causation at the prima facie stage, even if plaintiff does
not directly show individuals who took the adverse employment action knew of the protected
activity).
Of course, our Circuit has explained that “positive evidence beyond mere proximity is
required to defeat the presumption that [an employer's] explanations are genuine.” Woodruff v.
Peters, 482 F.3d 521, 530 (D.C. Cir. 2007). The Court finds, however, that Youssef has adduced
sufficient evidence to establish a genuine issue of material fact as to whether the LCB voting
members knew that Youssef was engaged in protected EEO activity close to the time of the LCB
meeting, whether they lied in denying any knowledge of Youssef’s protected activity at the time
the LCB convened, and whether this knowledge affected their selection of the new ASC.
Accordingly, judgment as a matter of law cannot be entered against Youssef on his retaliation
claim. In coming to this conclusion, the Court’s decision is informed by the D.C. Circuit’s
opinions in Hamilton v. Geithner, 666 F.3d 1344 (D.C. Cir. 2012) and Jones v. Bernanke, 557
F.3d 670 (D.C. Cir. 2009).
IV. CONCLUSION
For the reasons set forth above, the Court shall GRANT IN PART and DENY IN PART the
Defendant’s [41] Motion for Summary Judgment. An appropriate Order accompanies this
memorandum opinion.
SO ORDERED.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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