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Bassem Youssef v. Federal Bureau of Investigation

July 20, 2012

BASSEM YOUSSEF,
APPELLANT
v.
FEDERAL BUREAU OF INVESTIGATION, ET AL.,
APPELLEES



Appeal from the United States District Court for the District of Columbia (No. 1:03-cv-01551)

The opinion of the court was delivered by: Griffith, Circuit Judge:

Argued December 9, 2011

Before: GRIFFITH, Circuit Judge, and WILLIAMS and RANDOLPH, Senior Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

Bassem Youssef, an Egyptian- born American citizen, claims that his employer, the Federal Bureau of Investigation, discriminated against him on the basis of his national origin after the terrorist attacks of September 11, 2001, by not placing him in a substantive position dealing with counterterrorism and instead transferring him to a job for which he was dramatically overqualified. He also claims that the FBI retaliated against him when he filed a complaint and spoke to his superiors about his predicament. The district court granted summary judgment against his discrimination claim, but allowed his retaliation claim to be tried by a jury. The jury returned a verdict against Youssef, and the district court denied his motion for a new trial. We affirm the district court's refusal to grant a new trial, but reverse its judgment against Youssef's discrimination claim and remand for further proceedings.

I

This case has a complex factual and procedural background; we recount only the details necessary to our decision. See Youssef v. FBI, 541 F. Supp. 2d 121, 128 (D.D.C. 2008). Youssef was born in Egypt and immigrated to the United States in 1972, when he was thirteen years old. A native Arabic speaker, Youssef has worked for the FBI since 1988. In the first eight years of his career, Youssef worked on a variety of counterterrorism investigations and received high praise from his supervisors. In 1996, he was promoted to the position of Legal Attache in Riyadh, Saudi Arabia, where he served as a liaison to local law enforcement authorities and helped improve relations between the FBI and its Saudi counterpart, the Mahabith. As he had before, Youssef once again received excellent performance reviews. In July 2000, he returned to the United States and was detailed by the FBI to the National Counterintelligence Center of the CIA (NACIC), where, as Chief of the Executive Secretariat Office, he coordinated the activities of a number of multi-agency groups supporting the counterintelligence community.

In February 2001, President George W. Bush dismantled the NACIC and created a new organization to take its place: the National Counterintelligence Executive (NCIX). Because Youssef's position at the NACIC no longer existed, the FBI detailed him to a temporary position at the NCIX where he was responsible for assessing how disclosure of national security information harmed the government's counterintelligence capacity. Youssef remained at the NCIX until March 2002, when he was transferred to a temporary position in DocEx, a new program within the Counterterrorism Division of the FBI charged with the processing and review of written materials recovered in Afghanistan and Pakistan.

Youssef asserts his work in DocEx primarily required him to "'bag and tag' evidence at an offsite facility," and his "responsibilities were limited to sitting at a desk sifting through piles of potentially worthless paper in the hope that some intelligence value could be gleaned." Appellant's Br. 58; see also Pl.'s Stmt. ¶ 184 (describing one of Youssef's main tasks at DocEx as "cataloging [documents], i.e. as [in] putting an identifying number or serial number on a document before storing the document as original evidence"). The FBI disputes that his duties at DocEx consisted of menial responsibilities and describes his work instead as identifying and analyzing information contained in captured documents that related to the threat of future terrorist attacks against the United States. Appellee's Br. 36.

Youssef believes that in the aftermath of the attacks of September 11th the FBI should have put his experience and language skills to use in a critical counterterrorism position. Instead, he was moved to his position at DocEx based on rumors that he had refused to carry out orders while in Saudi Arabia because of his Muslim faith and that he had worn "traditional Arabic head-gear." Youssef, 541 F. Supp. 2d at 131-32. If such rumors circulated, which the FBI disputes, they were untrue: Youssef is a Coptic Christian and the story of the garb was about a different FBI agent with a "similar- sounding" name. Id.

On June 28, 2002, Youssef met with his Member of Congress, Frank Wolf, and FBI Director Robert Mueller in the congressman's office. Youssef explained that he was "uniquely qualified" to help the FBI, but that he was being kept from more important responsibilities at the Bureau because of his national origin. Id. at 133. On July 10, 2002, Youssef filed a complaint with the Equal Employment Opportunity Commission (EEOC). Id. In August 2002, he applied for and received a promotion to be the Unit Chief of DocEx, where he remained until he made a lateral move in November 2004 to become the Unit Chief of the Communications Analysis Unit, a sister unit of DocEx that focuses on electronic records.*fn1 Id. On January 9, 2003, the

EEOC sent Youssef a letter stating that it would investigate his complaint further. Id. On July 18, 2003, having received no final decision on his complaint from the EEOC, Youssef sued in federal district court, see 42 U.S.C. § 2000e-5(f), alleging that the FBI had discriminated against him by failing to give him substantive counterterrorism work and instead assigning him for seven months to a job in DocEx that was well below his expertise and grade level. Pl.'s Compl. ¶¶ 94- 98.

While in the Communications Analysis Unit, Youssef twice asked permission to take several weeks leave to participate in inspections of FBI offices. The inspections are performed by senior FBI special agents who "monitor [the office's] compliance with the Bureau's policies, procedures, and administrative requirements." Youssef, 541 F. Supp. 2d at 135. Participating in these exercises is required to become "inspection certified," which can be helpful in "obtaining future promotions." Youssef v. FBI, 762 F. Supp. 2d 76, 78-80 (D.D.C. 2011). Youssef's requests were denied. Youssef amended his complaint to allege that these denials were retaliation for his EEO filing, taking his grievances to Director Mueller, and other protected activity such as attending witness depositions in his discrimination case. Id. at 79.

In 2008, the district court entered summary judgment against his discrimination claim, concluding that Youssef had shown only that he was not permitted to "perform the work he desired," which falls short of a claim that he suffered materially adverse action at work.*fn2 Youssef, 541 F. Supp. 2d at 164. His retaliation claim was tried to a jury. Youssef, 762 F. Supp. 2d at 78. On September 27, 2010, the jury returned a special verdict, finding that Youssef had failed to show that the FBI's denial of leave to participate in the inspections was a materially adverse action. The district court later denied Youssef's motion for a new trial. Id. at 79. ...


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