Discrimination Claim after Reassignment

Wednesday, November 21, 2012

In a recent decision, the U.S. Court of Appeals for the D.C. Circuit found that FBI's reassignment of an employee of Egyptian national origin, to a position for which he was overqualified, could constitute an adverse action, constituting national origin discrimination. In Youssef v. Dept. of Justice, 112 LRP 38310 (July 20, 2012), the D.C. Circuit ruled that a lower court erred when it ruled for the agency without allowing the case to proceed to a jury trial. Ultimately, the D.C. Circuit found that a reasonable juror could conclude that an "extraordinary reduction in responsibilities" as a result of a reassignment could constitute a materially adverse action.

Youssef emigrated from Egypt to the U.S. in 1972, when he was thirteen years old, eventually becoming a naturalized U.S. citizen. He had worked at the FBI since 1988, and was considered a valuable asset to the agency due to his fluency in Arabic. Youssef flourished at the FBI throughout the 1990s, working in a variety of counterterrorism capacities, and garnering the high praises of his supervisors. By 1996, he had been promoted to a special liaison role in the FBI, working with the FBI's counterpart intelligence agency in Saudi Arabia, to help develop better relations between the two (2) agencies. Youssef later worked in the National Counterintelligence Executive, a new FBI subagency created by President Bush in February 2001. Throughout his entire tenure at the FBI, Youssef received excellent performance appraisals.

After 9/11, in March 2002, Youssef was reassigned to a position in a unit called DocEx, which was charged with processing written materials recovered in Afghanistan and Pakistan. As Youssef described his duties in his complaint of discrimination, he had to "tag" evidence at an offsite basement facility. Almost all of the written materials that Youssef reviewed as part of his new position had no intelligence value. Moreover, in this new reassignment, Youssef's language and counterterrorism skills were not utilized. Furthermore, Youssef's new supervisors were below him in grade-level.

Youssef contends that he was reassigned due in part to rumors after 9/11 that he had failed to follow orders in Saudi Arabia due to his Muslim faith, and because he had worn "traditional Arabic head-gear." Youssef contended that the rumors were false, that he was a Coptic Christian, and that the story of the "head-gear," was about a different FBI agent with a similar-sounding name.

In its original decision, the district court had concluded that a ruling on summary judgment in favor of the agency was appropriate, finding that Youssef was not a victim of a materially adverse action, but rather was simply unhappy because he could not do the type of work he wanted to do. However, the D.C. Circuit found otherwise, ruling that a "reassignment with significantly different responsibilities...generally indicates an adverse action," and cited a previous D.C. Circuit case, Holcomb v. Powell, 433 F.3d 889, 902 (D.C. Cir. 2006) for this legal principle. Thus, the D.C. Circuit sent Youssef v. Dept. of Justice back to the district court for further examination of the FBI's reasons for Youssef's transfer to the DocEx unit, and ultimately for the district court to determine whether the transfer constituted discrimination based upon Youssef's national origin.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to https://www.passmanandkaplan.com.