RICHARD J. LEON, United States District Judge.
Loubna Salagh Massey ("plaintiff" or "Massey") brings this civil action against the Secretary of State ("defendant"). Massey, who was employed as an Arabic Language and Culture Instructor and Developer at the Department of State's Foreign Service Institute ("FSI"), alleges that the defendant, through the actions of her supervisors at the FSI, subjected her to a hostile work environment, discriminated against her on the basis of her religion and national origin, and retaliated against her
Plaintiff Loubna Massey was born and raised in Morocco, but moved to the United States in 2003. Def.'s Statement of Facts ("SOF") ¶ 1 [Dkt. # 64-1]; Pl.'s Statement of Facts ("SOF") ¶ 1 [67-1]; Massey Dep. at 13:11-16 [Dkt. # 67-3]. Massey was born into a Muslim family, but converted to Christianity in 2004. Def.'s SOF ¶¶ 1, 6; Pl.'s SOF ¶ 4; Massey Dep. at 10:8-12.
In 2008, Massey began work as a contract Arabic Language and Culture Instructor at the State Department's Foreign Service Institute. Def.'s SOF ¶ 9; Pl.'s SOF ¶ 5; Massey Dep. at 17:24-25. During that time, Dr. James Bernhardt ("Bernhardt") was the division director of the Near East, Central, and South Asian Languages division. As a result, he oversaw FSI's Arabic Section and was Massey's second-line supervisor. Def.'s SOF 10; Pl.'s SOF ¶ 7; Bernhardt Dep. at 10:16-11:5. During her tenure at FSI, Massey was directly supervised by Dr. Tagelsir Elrayah ("Elrayah"), a Language Training Supervisor in the Arabic Section. Def.'s SOF ¶ 12; Pl.'s SOF ¶ 10; Elrayah Dep. at 12:3-12:15; 18:14-20 [Dkt. # 64-3]. Beginning in March 2010, Massey was also directly supervised by Maha Bohsali, another FSI Language Training Supervisor. Bohsali Dep. at 11:5-8; 17:11-18:10 [Dkt. # 67-3].
As an FSI Arabic instructor, Massey was assigned "a tour of duty," or schedule that she was expected to adhere to. FSI Instructors' Guide at 2137 ("No matter which tour of duty you work, you are expected to be present for the entire period. . . .") [Dkt. # 64-4]. Massey's tour of duty was from 8:45 AM to 5:30 PM. Massey Dep. at 36:5-14. During the period at issue, language instructors were required to physically sign in and out and record their arrival and departure times. Bernhardt Dep. at 59:19-60:19. In September 2010, Mohamed Sheriff, an FSI assistant, told Bohsali that Massey arrived to work late and recorded an incorrect time on her sign-in sheet. Bohsali Dep. at 76:4-16. Bohsali consulted with Elrayah and Bernhardt, and they decided draw a line on the sign-in sheet at 9:00 AM on September 10, so that they would know if anyone signed in after 9:00 AM. Bohsali Dep. at 77:8-14 [Dkt. 65-4]. On that day, Massey signed in below the line. 09/10/10 Sign-In Sheet [Dkt. # 64-5]. As a result, Bohsali asked the IT department to determine when she signed in to her computer, and learned that Massey did not log in until 10:06 AM. Bohsali Dep. at 78:20-79:1. Bohsali also discovered that the sign-in times listed on Massey's invoices did not match her arrival times on her sign-in sheets. See, e.g., 07/07/10 Sign-In Time (9:00 AM) and Invoice (8:45 AM); 07/16/10 Sign-In Time (9:00 AM) and Invoice (8:45 AM) and Invoice (8:45 AM); 07/21/10 Sign-In Time (8:56 AM) and Invoice (8:45 AM) [Dkt. # 64-5].
When presented with this information and a request to terminate her contract, Steve Rogers, FSI's Director of Acquisitions and Contracting Officer, confronted Massey about the issues regarding the sign-in sheets and invoices and terminated her contract. Rogers Decl. ¶¶ 10-13 [Dkt. #64-9]. Massey received a termination letter that offered two reasons for her termination: "falsifying [her] timesheet[s] [and] invoice submission[s]" and "not adhering
During this same period, Massey applied for two
In July 2009, prior to the events in this case, Massey provided an affidavit in connection with the investigation of an EEO complaint brought against Elrayah by another instructor, in which she stated that another employee told her about misconduct by Elrayah, but that she had not personally witnessed any wrongdoing. See Massey Bashrawi EEO Decl. [Dkt. # 64-8].
Massey filed this action in 2012, alleging that the State Department, acting through her supervisors at FSI, discriminated against her on the basis of her religion and national origin, retaliated against her for testifying in an EEO investigation, and subjected her to a hostile work place environment.
Summary judgment should be granted when "there is no genuine dispute as to any material fact and the movant is entitled to summary judgment as a matter of law." FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine dispute of material fact exists only where "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The party moving for summary judgment has the burden of showing that there is no dispute of fact, but the non-moving party "may not rest upon mere allegations or denials of his pleading, but must [instead] set forth specific facts showing that there is a genuine issue for trial. Id. at 256, 106 S.Ct. 2505.
When ruling on a motion for summary judgment, the court does not make credibility determinations or weigh the evidence, as that is properly the province of the factfinder at trial. Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007). Instead, the Court must accept as true the evidence of the non-moving party, and draw "all justifiable inferences in favor of that party. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, to the extent that the nonmoving party will bear the burden of proving facts at trial, those facts must be supported by competent evidence, and the absence of that evidence forms the basis for summary judgment. See Celotex, 477 U.S. at 322-24,
Massey brings discrimination, retaliation, and hostile workplace claims under Title VII. With respect to discrimination, Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2. For retaliation claims, Title VII prohibits employers from discriminating "against any individual . . . because [she] has opposed any practice made an unlawful employment practice by [Title VII], or because [she] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." Id. § 42 U.S.C. § 2000e-3.
Discrimination and retaliation claims are subject to the three-step framework set by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this burden-shifting framework, the plaintiff must first establish a prima facie case of discriminatory/retaliatory conduct. For discrimination claims, a plaintiff must show "she is part of a protected class under Title VII, she suffered a cognizable adverse employment action, and the action gives rise to an inference of discrimination." Walker v. Johnson, 798 F.3d 1085, 1091 (D.C. Cir. 2015). For retaliation claims, the plaintiff must establish that "she engaged in activity protected by Title VII, the employer took adverse action against her, and the employer took that action because of the employee's protected conduct." Id. at 1091-92.
Once a plaintiff establishes a prima facie case, the employer must provide a legitimate non-discriminatory or non-retaliatory reason for its adverse action or the employee is entitled to judgment. McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. 1817; Allen v. Johnson, 795 F.3d 34, 39 (D.C. Cir. 2015). However, once the employer provides evidence of a non-discriminatory/non-retaliatory reason for the challenged action, then the burden-shifting framework disappears and the court's inquiry narrows. Brady v. Office of the Sergeant at Arms, U.S. House of Representatives, 520 F.3d 490, 493 (D.C. Cir. 2008); Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). At this stage, the only relevant inquiry is whether the employee has put forth sufficient evidence for a reasonable jury to find that the employer's proffered explanation is a mere pretext and the employer intentionally discriminated or retaliated against the employee. Brady, 520 F.3d at 494; Allen v. Johnson, 795 F.3d at 39. Furthermore, in the context of a retaliation claim, the plaintiff must show that "the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013).
Massey was terminated as a contract Arabic Instructor on September 14, 2010, and alleges that she was terminated as a result of religious discrimination, national origin discrimination, and in retaliation for offering testimony in a co-worker's EEOC case against Elrayah. Am. Compl., Cts. I, II, and III. However, defendant has offered a legitimate, non-discriminatory reason for her termination — namely, that she repeatedly failed to adhere to her set work schedule and falsified her time sheets to report incorrect times when she was at work. In response, Massey fails to present sufficient evidence that would permit a reasonable jury to conclude that her termination was the result of either discrimination or retaliation, and thus, defendants are entitled to summary judgment on the claims related to her September 2010 termination.
When defendant decided to terminate Massey, it offered two reasons for her termination: "falsifying [her] timesheet[s] [and] invoice submission[s]" and "not adhering to her set work schedule." 09/14/10 Termination Letter. Defendant has amassed considerable evidence showing that Massey was in fact not complying with her set work schedule, and was filling out timesheets and invoices that did not reconcile with one another.
During her employment at FSI, Massey herself recognizes that she was expected to work from 8:45AM to 5:30 PM. Massey Dep. at 167:23-169:45. However, the staff sign-in sheets show that she arrived late — between 8:56 AM and 9:10 AM at least five times between July and September 2010. See 07/07/10 Sign-In Sheet; 07/16/10 Sign-In Sheet; 07/21/10 Sign-In Sheet; 08/20/10 Sign-In Sheet; 09/10/10 Sign-In Sheet [Dkt. # 67-4]. Furthermore, several of Massey's co-workers testified that she often arrived to work late. See, e.g., Zuhour Alsomali Dep. at 63:20-64:4 ("[Loubna] never on time. Sometimes the students will be in class and Loubna still isn't in the building. . . . She was late many times.") [Dkt. # 64-9]; Najat Cherradi Dep. at 38:10-39:2 (testifying that Massey was coming to work late and came in a side entrance to avoid being noticed) [Dkt. # 64-6]. In fact, Massey herself repeatedly testified that she arrived after 8:45 AM and left after 5:30 PM. Massey Dep. at 158:6-13, 161:13-162:5, 169:16-25, 173:1-11; 176:10-16; 181:9-182:12.
It is well-established in this District that an employee's failure to comply with her employer's schedule is a legitimate reason to terminate the employee. See, e.g., Wright v. Waste Mgmt. of Maryland, Inc., 77 F.Supp.3d 218, 223 (D.D.C. 2015) (holding that plaintiff's excessive tardiness was a legitimate reason to terminate); Clarke v. Washington Metro. Area Transit Auth., 904 F.Supp.2d 11, 16 (D.D.C. 2012) (holding that excessive tardiness was a legitimate reason to terminate).
Massey alleges that her supervisors at FSI-Bernhardt, Bohsali, and Elrayah discriminated against her because she was not a practicing Muslim. Am. Compl. ¶ 24. As a threshold matter, Massey has presented some evidence that would permit a jury to infer that there was inter- and intra-religious tension amongst the FSI staff, both between conservative and moderate Muslims, and between Muslims and Christian employees. See, e.g., Aiman Aziz Dep. at 26:7-27:10 (testifying that there was favoritism towards conservative Muslims) [Dkt. # 67-3.]; Nargess Lakehal-Ayat Dep. at 23:14-24:15, 31:18-20 (testifying that outspokenly conservative Muslim employees were more likely to be preferred, and stating that conservative Muslim employees complained about others' clothes); Bernhardt Dep. at 66:17-67:3, 68:2-8 (testifying that there was conflict and tension surrounding Muslim employees praying in the workplace).
However, evidence of religious tension at the FSI is not enough to show that the reason for Massey's termination was pretextual and was actually the result of religious discrimination, because the evidence shows that her supervisors (as well as her coworkers) did not know her religion.
In response, Massey points to her own testimony alleging that Maha Bohsali made critical statements to her about being a non-practicing Muslim — telling her to learn from those who were fasting when she ate during Ramadan, chastising her for not dressing conservatively, and telling her to "pray and get back in the right path" when she complained about having to leave her office while others prayed. Massey Decl. ¶ 40 [Dkt. # 67-5]; Massey Dep. at 45:15-18. As courts of this District have repeatedly noted, "[s]ummary judgment for a defendant is most likely when a plaintiff's claim is supported by the plaintiff's own self-serving, conclusory statements." Bonieskie v. Mukasey, 540 F.Supp.2d 190, 195 (D.D.C. 2008). See also Fields v. Ofc. of Eddie Bernice Johnson, 520 F.Supp.2d 101, 105 (D.D.C. 2015) ("Self-serving testimony does not create genuine issues of material fact, especially where that very testimony suggests that corroborating evidence should be readily available.") Here, Massey offers self-serving testimony that Bohsali disparaged and criticized her for being a non-practicing Muslim, which conflicts with her own testimony that she was not public about her religious beliefs, and runs contrary to the evidence that Bohsali and her co-workers did not know her religion. These self-serving allegations, standing alone, amount to a "mere scintilla of evidence" that does not create a genuine dispute of material fact, and no jury could reasonably conclude, based on this evidence, that her termination was actually the result of her religious beliefs.
Similarly, Massey fails to provide sufficient evidence for a jury to reasonably conclude that she was terminated because of her North African/Moroccan origin.
As an initial matter, Massey alleges that the Arabic Section was rife with tension between instructors of various national origins, but she does not present evidence supporting that assertion. Although she points to a 2013 report by the State Department OIG stating that staff in the Near East, Central, and South Asian Languages division that "described . . . pervasive perceptions of favoritism," that report makes no mention of favoritism based on national origin. [Dkt. # 67-3]. She also points to testimony by an instructor that "favoritism" in the FSI "could be" a result of individuals' national origin. However, the employee was making a speculative, non-specific statement that the favoritism could "be [caused by] origin, it could be religion, it could be things in common, likes and dislikes. We've seen it all." Lakehal-Ayat Dep. at 76:17-77:6 [Dkt. # 67-3]. In addition, defendant points to record evidence showing that the Arabic Section hired a substantial number of direct-hire employees who hailed from North African countries including Morocco, further undercutting the allegation that there was widespread animus at the Arabic Section against employees from North Africa. See Def.'s Mem. in Supp. of Summ. J at 19 n. 7 [Dkt. # 64-2].
Furthermore, and more importantly, Massey fails to connect her termination in September 2010 to her national origin, rebutting FSI's proffered legitimate reason. As defendant points out, although Massey alleged that other instructors failed to comply with their duty schedule and were not terminated or disciplined, she has not provided evidence establishing that those individuals were similarly situated such that a reasonable jury could draw a comparison and infer discrimination. See Def.'s Mem. in Supp. of Mot. for Summ. J at 17.
On June 11, 2009, Massey provided an affidavit in the EEO investigation of a complaint brought by her coworker Iman Bashrawi against Elrayah. 06/11/09 Massey Decl. [Dkt. # 64-8]. She alleges that her termination in 2010 was a result of her 2009 EEO declaration. However, Massey presents no competent evidence that would allow a jury to reasonably conclude that she was terminated in retaliation for engaging in protected activity. As an initial matter, the 14-month time lapse between her testimony and termination precludes a jury from relying on the temporal proximity between the two events to conclude that there was a causal link between the two events. Our Circuit and the judges of this District have repeatedly held that time lapses of much shorter periods than this were too long to support an inference of retaliation based on temporal proximity. See, e.g., Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015) (holding that three-month time lapse was too long to support inference of retaliation); Greer v. Bd. of Trustees of Univ. of Dist. of Columbia, 113 F.Supp.3d 297, 311 (D.D.C. 2015) ("When relying on temporal proximity alone to demonstrate causation, there is no bright-line rule, although three months is perceived as approaching the outer limit.").
Furthermore, a sizable number of other FSI instructors provided testimony in Bashwari's EEO investigation, including Salah Abdulaziz, Soubhi Al-Khateeb, Ibrahim Al-Mahdi, Haifa Al-Sharbati, Nazi Daher, and Shahda Rawi, but there is no evidence on the record that any of them suffered reprisals or retaliation, and the record in fact shows that all of them were still employed or had voluntarily resigned or retired. Bashrawi EEO Index [Dkt. # 64-8]; Deborah Duckett Decl. ¶¶ 1-7 [Dkt. # 64-9].
Massey must present sufficient evidence for a jury to conclude that her supervisors "desire to retaliate was the but-for cause" of her termination. Univ. of Tex. Sw. Med. Ctr. v. Nassar, ___ U.S. ___, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (2013). Given the lapse of 14 months, the number of other EEO witnesses who did not suffer any retaliation, and the record evidence indicating that State legitimately terminated her because she was not complying with the expectations for her duty schedule, a jury could not a reasonably conclude that she was terminated from her position as an Arabic Instructor in retaliation for her EEO testimony 14 months earlier.
As discussed above, Massey applied for two separate direct-hire positions in 2010. In August 2010, she applied for a "GG-11 Arabic Instructor" position. In December 2010, she again applied for a "GG-13 Language Training Supervisor position. She was not selected for either position, and
Defendant has offered legitimate, non-discriminatory reasons for why it selected someone other than Massey for both positions. For the August 2010 CG-11 position, FSI ultimately hired 6 individuals other than Massey, all of whom had experience and educational backgrounds similar to hers. See Adlan Abdelaziz Resume (master's degree) [Dkt. # 64-6]; Afrah Zabarah Resume (bachelor's degree) [Dkt. # 64-6]; Dalia Abdelmeguid Resume (bachelor's degree and masters' coursework) [Dkt. # 64-6]; Haydar Elawad Resume (master's degree and doctoral student) [Dkt. # 64-7]; Walid Abu-Ulbah Resume (Ph. D. degree) [Dkt. # 64-7]; Leila Maacha Resume (master's degree) [Dkt. # 64-7]. With respect to the December 2010 CG-13 position, the record shows that defendant extended an interview to Massey, but she declined to attend, and FSI therefore did not select her for the position. 12/16/10 Email to J. Bernhardt [Dkt. # 64-7]. FSI ultimately hired Walid Abu-Ulbah, who had a Ph. D degree. Abu-Ulbah Resume [Dkt. # 64-7].
Massey does not present any evidence that would create a dispute of material fact that would permit a jury to conclude that her non-selection for either of the three openings was discriminatory or retaliatory. She cannot show that there was a gap between her qualifications and the selectees' qualifications that was "great enough to be inherently indicative of discrimination" — in fact, the record shows that all of FSI's selectees had comparable credentials and experience to her. Jackson v. Gonzales, 496 F.3d 703, 707 (D.C. Cir. 2007). Although she testified that she did not think that some of the instructors were good teachers, she cannot rely on her own subjective assessments of the selectees (and her self-perception of how her qualifications compared to them) to establish discriminatory and retaliatory conduct. Chavers v. Shinseki, 667 F.Supp.2d 116, 131 (D.D.C. 2009) (holding that plaintiff's subjective assessment that she was more qualified than selectees were irrelevant).
In order to establish a hostile workplace environment claim at trial, Massey must show that the defendant — through her supervisors at the FSI — subjected her to "discriminatory [or retaliatory] intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). Her primary evidence in support of a hostile workplace claim is her own self-serving testimony alleging that Bohsali made comments that could be construed as disparaging her as a Moroccan and made statements to her encouraging her to pray with her Muslim colleagues, criticizing her for fasting during Ramadan, and telling her to dress conservatively. These discrete comments from Bohsali, accepted as true, do not establish facts that are so severe or pervasive that
For the foregoing reasons, defendants' motion for summary judgment is GRANTED. An Order consistent with this decision accompanies this Memorandum Opinion.