Hany Choulagh v. Eric Holder, Jr.

528 F. App'x 432
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 22, 2013
Docket12-1957
StatusUnpublished
Cited by11 cases

This text of 528 F. App'x 432 (Hany Choulagh v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hany Choulagh v. Eric Holder, Jr., 528 F. App'x 432 (6th Cir. 2013).

Opinion

MERRITT, Circuit Judge.

This Title VII case involves a language analyst of Iraqi origin and allegations of discrimination and retaliation against the Federal Bureau of Investigation. Although Hany Choulagh’s career with the FBI is riddled with disciplinary incidents, we find nothing in the record indicating that the discipline was either discriminatory or retaliatory in any way. For the foregoing reasons, we affirm the district court’s grant of summary judgment to the defendant employer, the FBI.

I. Background

A. Testimony in EEO case

Hany Choulagh, a language analyst at the Federal Bureau of Investigation’s Detroit Division, is of Iraqi national origin. In December 2008, Michael Boyden, a white American, became Choulagh’s super *434 visor. Prior to Boyden’s arrival at the Detroit division, another FBI employee, also of Iraqi national origin, filed an Equal Employment Opportunity complaint against a different supervisor. Choulagh received an email on March 24, 2009, indicating that he was approved to testify on behalf of the former employee.

Choulagh told Boyden he would be testifying on the morning of April 9, 2009, the date he actually testified. When asked in depositions whether he told Boyden that he was going to testify before April 9, Choulagh responded that he could not remember, but that Boyden “must have known.” Choulagh also stated that he and Boyden never discussed the nature of his testimony at any time.

B. Choulagh’s Work History

With that background in mind, we turn now to the events that took place after Boyden’s arrival at the Detroit division. As illustrated below, Boyden’s relationship with Choulagh got off to a rocky start, beginning first with a sleeping incident. Although the incidents are numerous and detailed, we will only briefly recite the facts relevant to the legal analysis.

On March 30, 2009, Boyden saw Cho-ulagh sleeping at his desk. Another language analyst witnessed this incident as well. Boyden then called Choulagh on the telephone at his desk, but Choulagh did not answer. Boyden then asked another analyst to call Choulagh on his cell phone. After approximately 10 rings, Choulagh awoke to answer the phone.

On April 1, 2009, Choulagh was out sick ■with bronchitis. On that same day, Boy-den sent Choulagh an email about the sleeping incident. The email stated that Boyden witnessed Choulagh sleeping at his desk, but that the incident was minor unless it became a pattern. The email further stated, “If you are having some difficulty (medical or personal), that you would like some time off to resolve or if there is anything else I can do, please let me know.”

On April 2, 2009, Choulagh returned to work and read the email. Acting Supervisor Jean Younes and Boyden stated that upon reading the email, Choulagh became irate and demanded an apology. They stated that Choulagh said that medication may have made him drowsy, but he was not sleeping.

During this time period, Boyden received complaints from other language analysts about Choulagh’s disruptive behavior and excessive telephone use. Also in early April, Boyden noticed that Choulagh began to look “unshaven, unkempt, and disheveled” and appeared stressed. Boy-den discussed this physical change with his supervisor, who agreed with the observation and recommended that Boyden refer Choulagh to the Employee Assistance Program (“EAP”). 1

On April 9, 2009, after Choulagh returned from another few days of sick leave for his bronchitis, Boyden emailed him about the EAP. The email stated that its purpose was to “express my personal concern for your welfare, and to address your recent irritability, agitated demeanor and trouble with sleep.” In the email, Boyden stated that he had issues with Choulagh’s ability to get along with others and his complaining openly to employees regarding his interactions with Boyden. Boyden recommended that Choulagh seek counseling through EAP. On April 10, 2009, Boy-den gave Choulagh a memo formally refer *435 ring him to EAP, but Choulagh refused to sign the memo acknowledging receipt. Choulagh did go to EAP, but the coordinator concluded that he would not benefit from joining the program.

On May 18, 2009, Boyden claims that he again observed Choulagh sleeping at his desk. Boyden met with other supervisors and they decided that Choulagh’s desk should be moved closer to Boyden’s office so that he could be monitored more closely. Choulagh claims that the placement of the desk near Boyden’s office is distracting because it is near a common work area where other employees congregate to talk. He complains that when he is trying to translate, Boyden often throws and bounces a rubber ball near his desk.

On May 20, 2009, Boyden told Choulagh that he was limiting him to on-site duties due to his “inappropriate and disruptive behavior and his insubordination.” In late May, Boyden also sent a memo to FBI headquarters requesting approval to place Choulagh on a Performance Improvement Plan (“PIP”).

Around this same time period, FBI headquarters sent an email to all language analysts regarding a one-year Temporary Duty Assignment (“TDY”) to a foreign country. Choulagh sought Boyden’s approval to apply for a TDY, but Boyden denied the request because of Choulagh’s recent on-site restrictions.

In June, FBI headquarters approved the PIP request and Choulagh was placed on the PIP. As part of the PIP, Choulagh had to account for his daily activities and had restricted telephone use. These limitations stemmed from Boyden’s observations and other complaints from language analysts of Choulagh’s excessive, loud, often foul-mouthed, and disruptive telephone use, as well as extended periods of time away from his desk, unrelated to work activities.

In mid-June, Boyden heard that Cho-ulagh had repeatedly asked another language analyst to remove a picture from his work station. The language analyst had a picture of an Egyptian soccer player named Hany Sham’un celebrating after a win, as well as a separate, unrelated picture of a monkey. Choulagh thought that the two pictures were related and referred to him. In his complaint, Choulagh alleges that he wanted the picture as evidence for his EEO complaint. Boyden and Younes met with Choulagh to discuss the issue and later emailed Choulagh stating that he was “not to remove, borrow, damage, or move” anything from another employee’s desk without their permission.

In August 2009, Choulagh filed an EEO complaint alleging discrimination due to his national origin and his previous testimony for the former employee. In October 2009, an FBI quality control reviewer, in a double-blind process, rated Choulagh’s translation as “Not Satisfactory.” This was Choulagh’s second such rating. The report stated that the translation had numerous grammatical errors, spelling mistakes, and mistranslations of significant words. In November, per FBI policy, Boyden notified Choulagh in a memo that because he had received two “not satisfactory” ratings, further quality issues might lead to the issuance of a warning performance-appraisal report.

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