Youssef v. Federal Bureau of Investigation

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

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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.

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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

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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.

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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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