E-Alert Case Updates

D.C. Court Finds Aggrieved Employee to Have Exhausted All Administrative Remedies

Youssef v. Holder
Civil Action No. 11-01362 (D.D.C. Aug. 7, 2012)
by Natalie Scurto, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In this case, Bassem Youssef (“Youssef”) brought suit against the United States Attorney General (the “Attorney General”) under Title VII of the Civil Rights Act of 1964 (“Title VII”), alleging that he was passed over for an Assistant Section Chief position in the FBI’s Counterterrorism Division Communications Exploitation Section due to race-based discrimination and retaliation. The U.S. District Court of D.C. denied the Attorney General’s Motion for Summary Judgment, holding that the case could go forward as Youssef had exhausted all possible administrative remedies in a timely manner as required by law.

In September of 2009, the FBI announced a vacancy for the Assistant Section Chief in the Counterterrorism Division’s Communications Exploitation Section. Youssef, an Egyptian-born American citizen who was employed with the FBI at the time, applied for the position. He was given notice on November 24, 2009, that he had not been selected. On December 1, 2009, Youssef met with an Equal Employment Opportunity (“EEO”) counselor to discuss his non-selection for the aforementioned position and the performance evaluation downgrade he had received a month earlier. The sessions continued through to early February when the EEO counselor issued Youssef a notice of his right to file a formal administrative complaint, and noted that he had only fifteen (15) days to file.

On February 16, 2009—within the fifteen (15) day window—Youssef filed a formal complaint identifying four acts as the basis for his complaint. He alleged: 1) that his performance appraisal report was lowered due to his Middle Eastern and Arabic race and national origin, and on account of his prior protected EEO activity in which he had participated earlier; 2) that a report issued by the FBI and Department of Justice Office of Inspector General (“OIG”) made findings against Youssef’s reputation; 3) that the FBI and OIG threatened him with hostile investigation; and 4) that from 2007 to the present the FBI and OIG have maintained a hostile work environment. Youssef alleged that each act was discriminatory based on his race and retaliatory due to his prior EEO activity participation. He did not make any mention of his non-selection for the open position.

In March, the EEO office solicited clarification from Youssef. They requested that Youssef explain and give the dates for all of the alleged incidents of harassment dating back to 2007. Also, they informed Youssef that if he wished to include his non-selection in the complaint to add that information as well. Youssef filed an amended complaint giving more detail and asserting a stand-alone claim based on his non-selection. A year and a half later after the FBI had failed to issue a final decision, Youssef brought suit under Title VII.

Under the exhaustion doctrine, federal employees must fully exhaust all of their administrative remedies in a timely manner. The EEO Commission “has established detailed procedures for the administrative resolution of discrimination complaints” raised the federal employees. Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 1997). The procedure requires a federal employee to initiate contact with an EEO counselor within 45 days of the date of the alleged discriminatory action. The purpose of such counseling is to enable the agency and employee to informally resolve the problem, thus the employee must provide sufficient information for the agency to investigate the claim. If the matter is not resolved through counseling, the employee must file a formal written administrative complaint within fifteen (15) days of receiving notice from the EEO counselor.

The Attorney General, in his Motion for Summary Judgment, alleged that Youssef had failed to exhaust all administrative remedies as required by 42 U.S.C. § 2000e-16(c). He argued that Youssef failed to mention his non-selection in the original complaint, thus the complaint was insufficient. Secondly, he argued that the counseling sessions only focused on retaliation as the reason for his non-selection, and not race-based discrimination.

The Court, disagreeing with the Attorney General, held that Youssef did follow the proper procedures as designated by the agency, and therefore, had exhausted all administrative remedies. The Court conceded that while Youssef’s original complaint was ambiguous and overly-vague, his amended complaint was sufficient to put the agency on notice. Judge Kollar-Kotelly, writing for the Court, commended the FBI for requesting further clarification from Youssef and bringing attention to his failure to mention his non-selection. The Judge noted, however, that the exhaustion requirement is practical and pragmatic and should not be construed to place a heavy burden on plaintiffs. The back-and-forth dialogue between the agency and Youssef is exactly what courts should encourage and support.

The Court also rejected the Attorney General’s second argument stating that as long as Youssef alleged the race-based origin as a reason for non-selection in his formal administrative complaint, it did not matter that he did not discuss it as a reason in the counseling sessions. For the above reasons, the Court found that Youssef did exhaust all administrative remedies. Thus, the U.S. District Court of D.C. denied the Attorney General’s Motion for Summary Judgment and allowed the case to proceed forward.