Egyptian FBI Agent May Have Case for Retaliation

WASHINGTON (CN) - The FBI's failure to promote a counterterrorism agent of Egyptian heritage may have stemmed from his prior discrimination complaint, a federal judge ruled.

Bassem Youssef sued Attorney General Eric Holder in 2011, claiming that he was denied an assistant section chief position in the FBI's Counterterrorism Division Communications Exploitation Section because of his race and because of another Equal Employment Opportunity complaint he had filed in 2003.

U.S. District Judge Colleen Kollar-Kotelly spent most of her 53-page ruling exploring the FBI's expansive reasoning as to why its selection of another candidate for the job was not discriminatory, ultimately agreeing with the bureau.

"Although Youssef may believe the [hiring] 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," the judge wrote.

After dismissing Youssef's argument that the FBI discriminated against him on account of national origin, however, the judge left open the possibility that the bureau failed to promote him on account of his previous discrimination complaint.

"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 [local career board] meeting, whether they lied in denying any knowledge of Youssef's protected activity at the time the [local career board] convened, and whether this knowledge affected their selection of the new ASC," Kollar-Kotelly wrote. "Accordingly, judgment as a matter of law cannot be entered against Youssef on his retaliation claim."

The ruling notes that Youssef filed his 2003 lawsuit against the FBI alleging national origin discrimination and retaliation following the terrorist attacks of Sept. 11, 2001, claiming that the bureau excluded him from positions associated with counterterrorism because of his Egyptian heritage.

That case was still active when Youssef was denied the assistant section chief job, but members of the board testified that they didn't know Youssef was involved in such a lawsuit at the time.

"Youssef, however, adamantly disputes their testimony and presents evidence, which he contends shows that, at the time at the LCB each voting member was aware that he was engaged in EEO activity," Kollar-Kotelly wrote.

Ultimately he may have a case because "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,'" she added.

The judge cited D.C. Circuit opinions Hamilton v. Geithner and Jones v. Bernanke in refusing to dismiss Youssef's retaliation claim.

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