Reassignment with Dramatically Fewer Responsibilities Can Constitute Adverse Action in Title VII Claim, U.S. Court of Appeals for the D.C. Circuit recently holds
Placing an employee in a substandard position involving a significant reduction in job responsibilities generally indicates an adverse action in a Title VII claim, the U.S. Court of Appeals for the D.C. Circuit recently held. Consequently, an experienced and consistently high-performing Egyptian-born employee for the Federal Bureau of Investigation (FBI) who was transferred to a menial position following the attacks of September 11 established that the reassignment was a materially adverse action.
Bassem Youssef, an Egyptian-born American, worked for the FBI since 1988. Throughout his career, Youssef served in a variety of supervisory positions involving counterterrorism investigations, including serving as Chief of the Executive Secretariat Office in the National Counterintelligence Center of the CIA (NACIC).
In early 2001, President George W. Bush dismantled the NACIC and created the new National Counterintelligence Executive (NCIX) to take its place, and the FBI assigned Youssef to a temporary position at NCIX, where he was charged with analyzing how the disclosure of national security information hurt the government’s counterintelligence capacity. In March 2002, Youssef was transferred to another temporary position in DocEx, a new program housed in FBI’s Counterterrorism Division that processed and reviewed written materials recovered in Afghanistan and Pakistan. Youssef asserted that his work at DocEx was limited to “sitting at a desk sifting through piles of potentially worthless paper in the hope that some intelligence value could be gleaned.” Youssef also asserted that the FBI failed to use his experience and skills properly after the attacks of September 11 because of false rumors that he had refused to carry out orders while in Saudi Arabia because of his Muslim faith and that he had worn Arabic head gear.
In June 2002, Youssef met with FBI Director Robert Mueller and Rep. Frank Wolf in Wolf’s office, where Youssef explained that the FBI assigned him to menial tasks because of his national origin. The following month, Youssef filed a complaint with the Equal Employment Opportunity Commission (EEOC).
In August 2002, Youssef received a promotion to Unit Chief of DocEx. After having received no final decision on his complaint from the EEOC, Youssef sued in federal district court, where he alleged that the FBI had discriminated against him when it failed to provide him with more meaningful and substantive work and instead relegated him to a job in DocEx for seven months.
In 2008, the district court entered summary judgment against Youssef’s discrimination claim. The court concluded that Youssef’s claim fell short of a claim that he suffered a materially adverse action at work because he had shown only that he was not able to perform the work he desired. Youssef appealed.
On appeal, the U.S. Court of Appeals for the D.C. Circuit explained that Title VII provides that personnel actions affecting federal employees shall be made without discrimination based on race, color, religion, sex or national origin. To allege a prima facie case under Title VII, a plaintiff must show: 1) that he is a member of a protected class; 2) that he suffered an adverse employment action; and 3) that the action gives rise to an inference of discrimination. Since there was no dispute that Youssef, as an Egyptian-born American citizen, is a member of a protected class, the court proceeded to the issue of whether he suffered a materially adverse employment action from which could lead to an inference of discrimination.
In this case, because Youssef alleged that he suffered a materially adverse action in a situation not involving loss of pay or benefits, the court had to determine whether there were “materially adverse consequences affecting the terms, conditions, or privileges of [his] employment or [his] future employment opportunities such that a reasonable trier of fact could conclude” that Youssef suffered objective, tangible harm. In past cases, the court explained, it found an adverse action occurred in cases where a plaintiff is given a reassignment with significantly different responsibilities. Here, Youssef alleged in his complaint that his DocEx position was below his level of skills and expertise, that his co-workers and supervisors were grade levels below him, and that, unlike his prior positions, he supervised no one at DocEx. Therefore, the court concluded that a reasonable juror could find that Youssef was given a significant reduction in responsibilities, which constituted a materially adverse action.
The court also rejected an argument of the FBI that Youssef did not suffer a materially adverse action because he was ultimately promoted to Unit Chief, explaining that “making the best of a bad situation should not be held against a claimant, and seeking a promotion within DocEx does not mean that Youssef forfeited his Title VII claim,” and that the promotion could not ameliorate his transfer to substandard work for a seven-month period.
Ultimately, the court remanded the case to the district court to answer the question of whether Youssef’s showing gave rise to an inference of discrimination, since the district court did not look at Youssef’s evidence of a discriminatory motive after concluding the transfer was not materially adverse.
The case is Youssef v. Federal Bureau of Investigation and is available here.
Posted in Case Law Update