                           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
                                   (August 1, 2014)

          Plaintiff Bassem Youssef (“Youssef”), an employee of the Federal Bureau of

Investigation (the “FBI”), brought this action against the United States Attorney General (the

“Attorney General”) alleging national origin discrimination and retaliation in his non-selection

for an Assistant Section Chief (“ASC”) position in the FBI’s Counterterrorism Communications

Exploitation Section.   On March, 1, 2013, Defendant filed a [41] Motion for Summary

Judgment. The Court granted Defendant’s Motion for Summary Judgment as to Plaintiff’s

national origin discrimination claim, but denied Defendant’s Motion as to Plaintiff’s retaliation

claim. Presently before the Court is Defendant’s [54] Motion for Partial Reconsideration. Upon

consideration of the pleadings,1 the relevant legal authorities, and the record as a whole, the

Court shall DENY Defendant’s [54] Motion for Partial Reconsideration for the reasons that

follow.



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           Defendant’s Motion for Partial Reconsideration (“Def’s Mot.”), ECF No. [54];
Plaintiff’s Opposition to Defendant’s Motion for Partial Reconsideration (“Pl.’s Opp’n.”), ECF
No. [58]; Defendant’s Reply to Plaintiff’s Opposition (“Def.’s Reply”), ECF No. [60].
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                                   I.         LEGAL STANDARD

        Defendant moves the Court pursuant to Federal Rule of Civil Procedure 54(b) to

reconsider its denial of summary judgment for Defendant on Plaintiff’s retaliation claim. Federal

Rule of Civil Procedure 54(b) provides that “any order . . . that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties . . . may be revised at any time

before the entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.”   A motion to reconsider brought under Rule 54(b) may be granted “as justice

requires.” Singh v. George Washington Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005) (quoting

Cobell v. Norton, 224 F.R.D. 266, 272 (D.D.C. 2004)). Considerations a court may take into

account under this standard include whether the court “patently” misunderstood a party, made a

decision beyond the adversarial issues presented to the court, made an error in failing to consider

controlling decisions or data, or whether a controlling or significant change in the law or facts

has occurred since the submission of the issue to the Court. See id. (quoting Cobell, 224 F.R.D.

at 272). The party moving the court to reconsider its decision carries the burden of proving that

some harm would accompany a denial of the motion to reconsider: “In order for justice to require

reconsideration, logically, it must be the case that, some sort of ‘injustice’ will result if

reconsideration is refused. That is, the movant must demonstrate that some harm, legal or at

least tangible, would flow from a denial of reconsideration.” Cobell v. Norton, 355 F.Supp.2d

531, 540 (D.D.C. 2005). Finally, “even if the appropriate legal standard does not indicate that

reconsideration is warranted, the Court may nevertheless elect to grant a motion for

reconsideration if there are other good reasons for doing so.” Id.

                                        II.     DISCUSSION

        In his Motion for Partial Reconsideration, Defendant effectively argues that the Court



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made an error in failing to consider controlling decisions and misunderstood the evidence

presented by the parties. Defendant argues that because the Court, in disposing of Plaintiff’s

national origin claim, found that Plaintiff “failed to show any irregularities in the selection

process for the Assistant Section Chief position in question or that he was significantly more

qualified than the candidate selected for the position, [Plaintiff] cannot show that his EEO

activity was the but-for cause for his non-selection as required by the Supreme Court’s decision

in University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (2013).” Def.’s

Mot. at 1. Alternatively, Defendant argues that, contrary to the Court’s conclusion, the evidence

proffered by Youssef fails to establish temporal proximity so as to raise an inference of

causation. Id. While the Court acknowledges this is a close case, the Court rejects Defendant’s

arguments for the reasons set forth below.

       Defendant effectively argues that by finding, in the context of Plaintiff’s national origin

discrimination claim, that Plaintiff “failed to proffer evidence that genuinely called into question

the FBI’s legitimate, non-discriminatory reason for Plaintiff’s non-selection,” the Court credited

Defendant’s reason for not selecting Plaintiff and is thus precluded from finding that Plaintiff

raised a triable retaliation claim because, per Nassar, retaliation must be the but-for cause of

Plaintiff’s non-selection. Id. at 2. The Court applied Nassar in evaluating Defendant’s Motion

for Summary Judgment and has again applied Nassar in assessing Defendant’s Motion for

Partial Reconsideration. The Court disagrees with Defendant’s application of Nassar to the facts

and claims in this case. Although based on the same factual events, Plaintiff’s national origin

discrimination and retaliation claims are two separate claims for which Plaintiff presented

distinct sets of evidence. With respect to Plaintiff’s national origin discrimination claim, the

Court found that Plaintiff offered no evidence, such as discriminatory remarks or actions, to



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create a genuine dispute as to whether the members of the selection committee had

discriminatory motive based on national origin. Nor was the evidence presented by Plaintiff as

to his alleged starkly superior qualifications and irregularities in the selection process sufficient

for a reasonable trier of fact to infer that Defendant’s reasons for Plaintiff’s non-selection were

pretext for national origin discrimination.

       While the Court found that Plaintiff failed to meet his burden and present sufficient

evidence to create a genuine dispute as to whether the selection committee was actually

motivated by discriminatory animus, the Court found that Plaintiff did meet that burden as to his

independent retaliation claim. In contrast to Plaintiff’s national origin discrimination claim,

Plaintiff was able to present more evidence of a potentially retaliatory motive such that a

reasonable trier of fact could find that Defendant’s legitimate, non-discriminatory reason was

pretext for retaliation.   Specifically, Plaintiff provided evidence that one day before the

committee met to select the new ASC, Plaintiff’s supervisor, Arthur Zarone—who was also a

member of the selection committee—submitted Plaintiff’s 2009 Performance Appraisal Report

(“PAR”), in which he had lowered Plaintiff’s ratings in several categories citing a “legal matter”

as a reason for the drop in ratings. In addition, it is undisputed that Plaintiff’s protected

activity—his first EEO lawsuit—was ongoing at the time Zarone submitted the PAR and at the

time the selection committee met to select the new ASC. See 42 U.S.C. § 2000e-3(a) (“It shall

be an unlawful employment practice for an employer to discriminate against any of his

employees . . . because [the employee] has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under this subchapter.” (emphasis

added)); von Muhlenbrock v. Billington, 579 F.Supp.2d 39, 44 (D.D.C. 2008) (finding that

plaintiff’s protected activity “concluded” when her earlier lawsuit against the defendant was



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settled); Vance v. Chao, 496 F.Supp.2d 182, 187 (D.D.C. 2007) (finding that plaintiff alleged a

protected activity in the “filing of an EEO complaint against [d]efendant and the drawn-out

settlement process in that action.”). As a result, a reasonable trier of fact could draw the

inference that the committee members were driven by retaliatory motive.

       Defendant argues that this “proffered evidence does not support [Plaintiff’s] assertion

that the [committee] members knew that he was participating in his EEO lawsuit in or around

October 2009, when the ASC selection was made.” Def.’s Mot. at 6. However, the D.C. Circuit

has held that “[t]o survive summary judgment . . . [a plaintiff] needn’t provide direct evidence

that his supervisors knew of his protected activity; he need only offer circumstantial evidence

that could reasonably support an inference that they did.” Jones v. Bernanke, 557 F.3d 670, 679

(D.C. Cir. 2009). Evidence that “the employer had knowledge of the employee’s protected

activity, and the adverse personnel action took place shortly after that activity”—is “adequate to

permit an inference of retaliatory motive.” Holcomb v. Powell, 433 F.3d 889, 903 (D.C. Cir.

2006) (internal quotation marks and alteration omitted, emphasis added).          Here, Plaintiff

presented evidence that he participated in depositions and other legal activities related to his

EEO lawsuit against his employer, the FBI, during 2009, see Pl.’s Opp’n. Ex. 20 at 49:1-14, and

that the lawsuit—for which he was the named and only Plaintiff—was ongoing at the time the

selection committee met. “[I]f such evidence can support an inference of actual retaliatory

motive, it necessarily can support an inference of mere knowledge.” Jones, 557 F.3d at 679.

       Although it was a close case, the Court found that this evidence taken together was

sufficient to create a genuine dispute as to whether the committee’s ratings may have been

infected by retaliatory animus and that this animus—and not the FBI’s proffered non-

discriminatory reason—was the but-for cause of Plaintiff’s non-selection. Accordingly, the



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Court rejects Defendant’s argument that the Court’s findings with respect to Plaintiff’s national

origin discrimination claim preclude Plaintiff from showing that retaliation was the but-for-cause

of his non-selection.

                                      III.    CONCLUSION

       For the reasons set forth above, the Court DENIES Defendant’s [54] Motion for Partial

Reconsideration.



                                                               /s/
                                                    COLLEEN KOLLAR-KOTELLY
                                                    UNITED STATES DISTRICT JUDGE




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