Wilfred Rattigan v. Eric Holder, Jr.

780 F.3d 413, 599 Fed. Appx. 389, 2015 U.S. App. LEXIS 3936, 98 Empl. Prac. Dec. (CCH) 45,272, 126 Fair Empl. Prac. Cas. (BNA) 637, 2015 WL 1590220, 414 U.S. App. D.C. 295
CourtCourt of Appeals for the D.C. Circuit
DecidedMarch 13, 2015
Docket13-5374
StatusPublished
Cited by11 cases

This text of 780 F.3d 413 (Wilfred Rattigan v. Eric Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilfred Rattigan v. Eric Holder, Jr., 780 F.3d 413, 599 Fed. Appx. 389, 2015 U.S. App. LEXIS 3936, 98 Empl. Prac. Dec. (CCH) 45,272, 126 Fair Empl. Prac. Cas. (BNA) 637, 2015 WL 1590220, 414 U.S. App. D.C. 295 (D.C. Cir. 2015).

Opinion

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

WILLIAMS, Senior Circuit Judge:

Plaintiff Wilfred Rattigan claims that FBI supervisors whom he had formally accused of discrimination retaliated against him by sending the FBI’s Security Division a memo purporting to demonstrate that he posed a security risk. On a previous appeal, we held that Rattigan could prevail only by showing “that agency employees acted with a retaliatory or discriminatory motive in reporting or referring information that they knew to be false.” Rattigan v. Holder (“Rattigan II”), 689 F.3d 764, 771 (D.C.Cir.2012). We remanded to the district court to see whether his evidence could meet that standard.

The central challenge for Rattigan on remand was that the memo had been prepared not by one of the accused supervisors, but by Special Agent Donovan Leigh-ton, who was not charged by Rattigan with discrimination and thus had no apparent reason to retaliate against him. We find that Rattigan is unable to overcome the difficulty and affirm the district court’s entry of summary judgment for the FBI.

Rattigan is a black male of Jamaican descent who worked at the U.S. Embassy in Riyadh, Saudi Arabia as the FBI’s primary liaison to the Saudi intelligence service. In October 2001, he accused Cary Gleicher, Michael Pyszczymuka, and Leslie Kaciban, all supervisors in the FBI’s Office of International Operations, of discriminating against him on the basis of race and national origin. He later pursued charges with the Equal Employment Opportunity Office.

In November 2001, Gleicher sent Special Agent Leighton on a short assignment to Riyadh, where he evidently grew suspicious about Rattigan. On his return, Leighton brought his concerns first to Gleicher and then to Pyszczymuka, and, on Pyszczymuka’s direction, documented them in a memo which Pyszczymuka then referred to the FBI’s Security Division. The Security Division conducted an investigation and concluded that the security risks alleged by Leighton were “unfounded.” Rattigan II, 689 F.3d at 766.

Rattigan filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. *416 §§ 2000e et seq., alleging, among other things, that the decision to refer Leigh-ton’s memo to the Security Division amounted to unlawful retaliation. A jury found for Rattigan, but this court vacated ■the judgment on the ground that the district court’s instructions violated Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), by inviting the jury to second guess the Security Division’s decision to initiate an investigation. Rattigan v. Holder (“Rattigan I”), 643 F.3d 975, 986 (D.C.Cir.2011). We then granted the government’s petition for rehearing and narrowed the realm within which Rattigan’s claim could survive under Egan, imposing the “knowing falsehood” rule quoted above. Rattigan II, 689 F.3d at 771. Our remand ended in the district court’s grant of summary judgment for the government. See Rattigan v. Holder, 982 F.Supp.2d 69 (D.D.C.2013).

Leighton’s memo made six claims: (1) that Rattigan occasionally wore Saudi national clothing that he had received as a gift from the Saudi security service, creating the impression he had “gone native”; (2) that Rattigan’s Saudi colleagues were attempting to find him a “suitable wife”; (3) that Rattigan hosted wild parties attended by other agents and by female “nurses,” a term that might have “be[en] used by ... Rattigan as a euphemism for ‘prostitutes’ ”; (4) that Rattigan and his assistant, Gamal Abdel-Hafiz, were inattentive to the FBI’s investigation of the September 11 attacks; (5) that Rattigan took an extended absence to make a pilgrimage to Mecca along with Abdel-Hafiz and their Saudi counterparts, during which he could be contacted only through the Saudi security service; and (6) that Rattigan refused to allow temporary duty staff to interact directly with the Saudi security service. Rattigan I, 643 F.3d at 978-79.

We have already recognized that Rattigan had conceded the truth of the facts underlying allegations (1), (2), (5), and (6). Rattigan II, 689 F.3d at 772. He now complains that Leighton’s memo presented these facts in a “misleading” manner. But Rattigan II is clear that the “knowingly false” standard cannot be satisfied by assertion of a fact that, though true, is falsely framed so as to suggest a security concern. Id. Accordingly, these four allegations are not in dispute.

As to the remaining allegations, Rattigan focuses on demonstrating that Leigh-ton knew these were false. But this is another dead end. Under Rattigan II there cap be liability for a security investigation referral only where “agency employees acted with a retaliatory or discriminatory motive in reporting or referring information that they knew to be false.” Id. at 771. Motive and knowing falsity must unite in the same person. But there is no evidence that Leighton, who was not the object of Rattigan’s original discrimination claim, had any unlawful retaliatory motive when he documented his concerns. Rattigan did issue a lengthy email complaint about Leighton, but only after Leighton had already brought his concerns to Pyszczymuka, and on the same day that Leighton had submitted the first draft of his memo. While this email condemned Leighton for statements about the conduct of the FBI mission in Riyadh, it never imputed any discriminatory motivation or behavior to Leighton. Only weeks after he sent this critique and Leighton submitted the first version of the memo to Pyszczymuka did Rattigan allege discrimination — in the course of an email follow-up to his initial complaint. Leighton did have an opportunity thereafter .to revise the memo, but, as discussed below, Rattigan does not allege that he added any falsehoods at this stage.. Thus, even if Rattigan could con *417 vince a reasonable jury that Leighton knew his allegations were false, his claim would fail.

Rattigan proposes to cobble together his supervisors’ alleged retaliatory motive and Leighton’s alleged knowing falsehoods: In some circumstances, the law allows a plaintiff to impose liability on a principal by aggregating the unlawfully motivated report of one agent with the act of another. See, e.g., Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 1191, 1192, 179 L.Ed.2d 144 (2011); Griffin v. Washington Convention Ctr., 142 F.3d 1308, 1311 (D.C.Cir.1998). But Rattigan II, as we’ve said, requires joinder in at least one person of the retaliatory purpose with the knowing falsehood. There is no evidence that either Kaciban or Gleicher played any role in the referral. Thus Rattigan can prevail only by showing that Pyszczymuka knew that the facts underlying allegations (3) or (4) were not true.

Rattigan cannot pass this test.

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Bluebook (online)
780 F.3d 413, 599 Fed. Appx. 389, 2015 U.S. App. LEXIS 3936, 98 Empl. Prac. Dec. (CCH) 45,272, 126 Fair Empl. Prac. Cas. (BNA) 637, 2015 WL 1590220, 414 U.S. App. D.C. 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilfred-rattigan-v-eric-holder-jr-cadc-2015.