Abdelhamid v. Sec'y of the Navy

525 F.Supp.3d 671

Adel M. ABDELHAMID, Plaintiff,

v.SECRETARY OF THE NAVY, et al., Defendants.

1:20-cv-408 (LMB/TCB)

United States District Court, E.D. Virginia, Alexandria Division.

Signed March 12, 2021

Adel M. Abdelhamid, Stafford, VA, pro se.

Dennis Carl Barghaan, Jr., United States Attorney's Office, Alexandria, VA, for Defendants.

MEMORANDUM OPINION

Leonie M. Brinkema, United States District Judge

Before the Court is a Motion to Dismiss and for Summary Judgment ("Motion") filed by defendants Thomas W. Harker, in his official capacity as the Acting Secretary of the Navy ("the Secretary"), the U.S. Department of the Navy, the Naval Criminal Investigative Service ("NCIS"), and Special Agent Omar Lopez, in his official capacity as the Director of NCIS ("defendants"). [Dkt. No. 9]. The Motion, which pro se plaintiff Adel M. Abdelhamid ("Abdelhamid" or "plaintiff") opposes, has been fully briefed. Finding that oral argument would not assist the decisional process, the Motion will be resolved on the materials filed by the parties. Those materials include the approximately 850 pages of attachments plaintiff included with the Complaint, most of which are taken from the report of investigation prepared by NCIS in response to plaintiff's EEO Complaint. Defendants also attached dozens of additional pages of the administrative record to their Motion. For the reasons that follow, defendants' Motion will be granted.

I. BACKGROUND

A. Factual Background

Plaintiff, who identifies as an "Egyptian-Arab/American" of the Muslim faith, was hired by NCIS on December 11, 2009 for the position of Intelligence Operations Specialist. [Dkt. No. 1] at 2; [Dkt. No. 1-5] at 2. NCIS is a civil law enforcement agency which, among other activities, is responsible for investigating felonies committed on Navy and Marine Corps bases. NCIS is headquartered in Quantico, Virginia, but maintains field offices around the world. When plaintiff was hired, he was assigned to the Criminal Investigations unit in the Middle East Field Office, which is located in the Kingdom of Bahrain. [Dkt. No. 1-5] at 2. Between October 2017 and October 2018, his first level supervisor was Supervisory Special Agent Sharon Justice ("Justice") and his second level supervisor was Senior Intelligence Officer Joshua Verbout ("Verbout"). After Justice was reassigned in October of 2018, Verbout served as plaintiff's first level supervisor in an acting capacity. [Dkt. No. 1-5] at 51. The Criminal Investigations unit was under the general supervision of Assistant Special Agent in Charge Chad Slagle ("Slagle"); however, Slagle was not directly in plaintiff's chain of command. [Dkt. No. 1] at 11. The entire Middle East Field Office was overseen by the Special Agent in Charge, a position which was occupied by Suzann Gallagher from 2017 until August of 2018, and by Bradley Duckworth ("Duckworth") between August 2018 and the end of 2019. [Dkt. No. 1-3] at 84-96.

1. Issues related to plaintiff's supervisors

Plaintiff alleges that beginning in October of 2017, Slagle began to "target" certain members of the Criminal Investigations unit, including plaintiff, by placing increased scrutiny on their work performance and lobbying Justice to discipline them in spite of the targeted employees not being in Slagle's direct chain of command. [Dkt. No. 1] at 7-8; [Dkt. No. 1-3] at 31; [Dkt. No. 1-4] at 12. Both Verbout and Justice confirmed this allegation during the administrative proceeding. For example, Verbout recalled that in April and May of 2018, Slagle pushed him to discipline plaintiff for providing inaccurate information to a Navy lawyer in an email and for misusing his NCIS vehicle. Verbout did not think either issue merited discipline and supported the decision of Justice—plaintiff's first-line supervisor—only to counsel plaintiff on each incident informally. [Dkt. No. 1-3] at 53. Justice reported additional instances in which Slagle pressured her to discipline plaintiff, for, among other acts, not developing certain contacts with the local police to Slagle's satisfaction and for not fully supporting "the criminal investigations squad during duty calls." [Dkt. No. 1-3] at 31. Justice believed that by repeatedly asking her to discipline plaintiff, Slagle was "tr[ying] to manipulate" her "to start a paper trail to develop a picture that [plaintiff] was not capable of doing his job."¹ [Dkt. No. 1-3] at 32. In spite of Slagle's efforts, Justice "did not discipline [plaintiff] while [she] worked as his first-line supervisor." Id. at 32. There is also no indication in the record that Verbout disciplined plaintiff while he acted as plaintiff's first-line supervisor after Justice's departure.

As plaintiff's first-line supervisor, Justice was responsible for recommending that he attend meetings or training opportunities, but Slagle was responsible for approving her recommendations. [Dkt. No. 1-3] at 32. According to Justice, Slagle did not allow her to recommend that plaintiff attend a July 15, 2018 meeting ("July 2018 Meeting") to discuss human trafficking with local Bahraini police officials. Instead, Slagle made the decision to send two junior agents.² Justice and plaintiff had attended an earlier meeting with local police on the same subject at which they had "paved the way ... so that [NCIS] would be able to meet with the higher level of police that worked" on human trafficking issues, and Justice had specifically asked Slagle if they could attend the July 2018 Meeting. [Dkt. No. 1-3] at 33-34. According to Justice, Slagle's decision that plaintiff could not attend the July 2018 Meeting was part of a pattern of Slagle "target[ing]" plaintiff, which she believed was "based on his national origin." Id. She came to that conclusion because Slagle had previously told her that plaintiff "always looked dirty" and "could not speak proper English," comments which she did not share with plaintiff at the time. [Dkt. No. 1-3] at 34. There is no evidence in the record that plaintiff's hygiene or ability to speak English were legitimate issues with his work performance. In his Complaint, plaintiff has defended his language skills by pointing out that he was required to take yearly proctored language exams as part of his work requirements. [Dkt. No. 1] at 9.

On November 19, 2018, Verbout sent an email to employees in the Criminal Investigations unit, among others, requesting that they provide at least a week's notice if they intended to request leave. [Dkt. No. 1-6] at 39; [Dkt. No. 1-3] at 60-61. Although plaintiff has alleged that this email "was directly targeting him," [Dkt. No. 1] at 41, it was in fact sent after another employee, Mostafa Karimi, requested leave coinciding with the end of Ramadan only one or two days before the date requested. Karimi explained to Verbout that "Muslim Holidays coincide with the lunar calendar and that the day of the holiday is not known until Ramadan is officially over, marking the observation of the new moon." [Dkt. No. 1-3] at 60; [Dkt. No. 1-4] at 37. Although Verbout granted Karimi's leave request, he followed up with the email to all his supervisees, in which he stated: "I understand there are some very important non-US holidays that are not confirmed until a few days prior. That said, we generally know when they occur year-to-year and you know if you are planning to take off. So, in anticipation of that, please provide me at least a week's notice of your intent to take leave." [Dkt. No. 1-6] at 39. According to plaintiff, after he received Verbout's email, he was discouraged from requesting leave to observe the Muslim holiday. [Dkt. No. 1] at 41; see also [Dkt. No. 1-4] at 38.

On December 30, 2018, plaintiff received his end of year evaluation. The evaluation was reflected on a standardized performance evaluation form and was part of the annual assessment of NCIS employees. After reviewing the form with the employee, the form is entered into the Defense Civilian Intelligence Personnel System ("DCIPS"). Justice was plaintiff's immediate rating official, and Verbout was his senior rating official, with Verbout taking over for Justice as immediate rating official after her departure in October of 2018. [Dkt. No. 1-3] at 61. For the 2018 rating period (which ran from October 1, 2017 through September 30, 2018), plaintiff received an overall score of 3.3, which corresponds to "Successful." [Dkt. No. 10-2]; [Dkt. No. 1-3] at 62. This was a 0.3 drop from plaintiff's 2017 evaluation, on which he received an overall score of 3.6, which corresponds to "Excellent." The same two rating officials were involved in both evaluations. [Dkt. No. 10-3]. Verbout has explained that he gave plaintiff an overall score of 3.3 because although plaintiff "continued to support the criminal investigations team effectively," he had made only "limited efforts to expand his liaison network in Bahrain" and had not made a significant impact outside of his work unit. [Dkt. No. 1-3] at 62. These comments are consistent with Justice's assessment of plaintiff's 2018 performance. As she has explained, during plaintiff's midyear performance review in April of 2018, she and Verbout identified "Liaison and Engagement" as "improvement areas" for plaintiff, and that even after plaintiff had been made aware that he needed to improve in those areas, he failed to "develop contacts and to start frequent visits with any police station outside" of the one with which he was already familiar. [Dkt. No. 1-3] at 39. Because plaintiff had not improved in the areas about which Justice and Verbout had counseled him in his mid-year performance review, Justice "concurred with Mr. Verbout to give [plaintiff] a lower rating [than] his previous year." Id.

Verbout was also the senior rater responsible for plaintiff's 2019 performance evaluation. As part of his April 2019 midyear performance review, plaintiff needed to complete a self-assessment, which Verbout would review before it was submitted into the DCIPS. On April...