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WASHINGTON—An Egyptian-born FBI agent who claims he was given menial tasks after the 9/11 terrorist attacks on New York and Washington because of his national origin can proceed with his discrimination claim, said a federal appellate court in overturning a lower court's ruling.
According to the decision Friday by the U.S. Court of Appeals for the District of Columbia Circuit in Bassem Youssef vs. Federal Bureau of Investigation, Mr. Youssef, who had been an FBI agent since 1988, was assigned in March 2002 to the DocEx program within the FBI's Counterterrorism Division, where his “responsibilities were limited to sitting at a desk sifting through piles of potentially worthless paper in the hope that intelligence value could be gleaned.”
His previous positions included being assigned to the Central Intelligence Agency's National Counterintelligence Center, where as chief of the Executive Secretariat Office, he coordinated the activities of a number of multiagency groups supporting the counterintelligence community, according to the ruling.
“Youssef believes that in the aftermath of the attacks of September 11th, the FBI should have put his experience and language skills to use in a critical counterterrorism position,” said the ruling.
“Instead, he was moved to his position at DocEx based on rumors he had refused to carry out orders while in Saudi Arabia because of his Muslim faith and that he had worn 'traditional Arabic head-gear,'” said the ruling. In fact, said the decision, Mr. Youssef is a Coptic Christian and the story about the garb was about a different FBI agent with a similar-sounding name.
Mr. Youssef was subsequently promoted to unit chief of DocEx and then moved to unit chief of a sister unit, according to the ruling.
Mr. Youssef filed a discrimination complaint with the Equal Employment Opportunity Commission in July 2002.
He subsequently amended his complaint and charged the FBI with retaliation for failing to permit him to take leave to conduct inspection tours of FBI offices after he had filed his discrimination complaint. Mr. Youssef said the inspection tour would have been helpful in obtaining future promotions.
A district court granted summary judgment dismissing Mr. Youssef's discrimination claim. His retaliation claim was tried, and a jury found against Mr. Youssef, holding the FBI's denial of leave to participate in the inspections was not a materially adverse action. Mr. Youssef appealed dismissal of the discrimination claim, and asked for a new trial on the retaliation claim.
“We conclude that a reasonable juror could find that Youssef 'experienced an extraordinary reduction in responsibilities' constituting material adverse action under Title VII” of the Civil Rights Act of 1964, said the appellate ruling, quoting another decision.
“The FBI argues that placing Youssef at DocEx could not have been materially adverse action because he was subsequently promoted to unit chief…But 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,” said the three-judge panel, in remanding the case.
The appellate court did deny Mr. Youssef another trial on the retaliation claim, concluding, “There is much evidence to support the jury's finding.”