Tahir v. Lynch

Filing 17

ORDER granting 12 Motion to Dismiss for Failure to State a Claim. Signed by Chief Judge James C. Dever III on 5/2/2017. (Briggeman, N.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-781-D
RAYMOND J. TAHIR,
Plaintiff,

v.

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)
)
)

)

JEFFERSON B. SESSIONS, in his
official capacity as Attorney General
of the United States, 1
Defendant.

ORDER

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)
)
)

)
)

On August 31, 2016, Raymond J. Tahir ("Tahir" or "plaintiff') a former supervisory
investigative specialist with the Federal Bureau of Investigation ("FBI") filed a Title VII national
origin discrimination action against defendant. See [D.E. 1]. On January 5, 2017, defendant moved
to dismiss the complaint for failure to state a claim upon which relief can be granted [D.E. 12] and
filedamemoranduminsupport[D.E.13]. SeeFed.R.Civ.P.12(b)(6). OnJanuary26,2017, Tahir
responded in opposition [D.E. 14]. As explained below, the court grants the motion to dismiss and
dismisses the complaint without prejudice.
I.
On October 6, 1986, Tahir began working for the FBI in New York as a clerk in the NCIC
Editorial Staff Unit of Technical Services. Compl. [D.E. 1] ~~ 6-7. Tahir is an American citizen
of Turkish decent and identifies as an Arab American. Id. ~~ 5, 9. From July 1987 until July 1996,
Tahir worked in the New York Division's Special Surveillance Group ("SSG"). Id.

1

~~

7-9.

On February 9, 2017 Jefferson B. Sessions was sworn in as the 84th Attorney General of
the United States. Thus, the court substitutes Jefferson B. Sessions for Loretta Lynch. See Fed. R.
Civ. P. 25(d).

In July 1996, the FBI promoted Tahir to Supervisory Investigative Specialist and transferred
~

him to Dallas, Texas. See id.
incidental work expenses. Id.

~

10. The FBI issued Tahir a government-issued credit card for

11. Tahir sometimes used the credit card for "non-work purposes

and paid off the statements monthly." Id.
In 2000, the FBI disciplined Tahir and several other employees in his division for improperly
using their government-issued credit cards. Id. ~ 12. Tahir admitted to using the card for personal
purposes and received a three-day suspension. Id. "This was the only time prior to his termination
at issue in this case that ... Tahir was disciplined." Id.
In June 2005, the FBI transferred Tahir to Charlotte, North Carolina, where he served as a
Mobile Surveillance Team Leader. Id. ~ 13. In 2006, the FBI promoted Tahir to Supervisory
Investigatory Team Leader. Id. Starting in 2007, Tahir began to experience financial stress. Id. ~
14. From 2007 through 2011, Tahir used his government-issued credit card to make "roughly 200"
personal purchases. Id. ~ 14.
In July 2010, the FBI transferred Tahir to Raleigh, North Carolina so that Tahir could be
closer to his children. See id.

~

15. Tahir stepped down in position to Supervisory Team Leader.

Id.
On August 30, 2011, Assistant Special Agent in Charge ("ASAC") James E. Jewell learned
that Tahir's government-issued credit card had a balance of $9,294.87. Id. ~ 18. An audit revealed
233 purchases for personal use over a four-year period. Id. ~ 19. Three of the purchases were in
Dearborn, Michigan for $1,250.99, and Tahir denies making those purchases. Id.

~

19.

On September 1, 2011, Tahir met with ASAC Jewell, Tahir's de facto supervisor Jennifer
McMillan, and Acting Supervisory Special Agent Robert Creager to discuss the purchases. See id.
~~

16, 20. On September 14, 2011, the FBI formally notified Tahir that it had started an internal
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investigation of Tahir for Misuse of a Government Charge Card-Personal Use and Lack of
Candor/Lying-No Oath. See id., 21.
On November 9, 2011, FBI internal investigators (including SSA Chaney) presented Tahir
with his credit card statements. See id. , 22. Tahir noticed the three purchases in Dearborn,
Michigan and denied ever being in Dearborn, Michigan or making those three purchases. See id.
SSA Chaney responded that he had heard from several people in the office that Tahir was from
Dearborn, Michigan. See id. According to Tahir, Dearborn, Michigan is significant to the FBI
because "it is known as a hotbed of terrorist activity in the United States. By linking ... Tahir to
Dearborn, he was marked as a threat to the integrity of the [FBI]." Id., 23.
On December 8, 2011, the FBI expanded its investigation to include potential unauthorized
gasoline purchases. See id., 24. On January 9, 2012, the FBI informally notified Tahir that he was
charged with Misuse of a Government Charge Card (Theft) Gasoline or Automated-Related
Expenses due to the fuel purchases. Id. ,, 24, 31. The FBI questioned Tahir about the fuel
purchases, and he justified the vast majority of them based on his cases. Id., 25. The FBI never
formally notified Tahir that he was charged with Misuse of a Government Charge Card (Theft)
Gasoline or Automated-Related Expenses. Id.
At the end of the internal investigation, the FBI recommended terminating Tahir's
employement and submitted findings to the FBI's Disciplinary Review Board. Id., 26. On February
23,2012, the FBI revoked Tahir's security clearance, and he was suspended from work. Id.
On March 1, 2012, Tahir requested his day ledgers. ld. , 27. The FBI provided several day
ledgers, but not those for dates relevant to the alleged fuel theft. See id. Later, the FBI advised Tahir
that the missing day ledgers had been shredded. Id. According to Tahir, the FBI shredded those
documents to ensure Tahir's employment termination by depriving him of the ability to defend

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against the alleged fuel theft. Id.

~~

27-28. "Upon information and belief, other non-white

employees of various national origins were also being targeted for increased discipline by Mrs.
McMillan at this time." Id. ~ 29.
On May 11, 2012, the FBI's Office of Professional Responsibility ("OPR") Adjudication
Unit held an oral appeal hearing at which Tahir and his representatives appeared. Id. ~ 30. At the
hearing's outset, Assistant Director Candace Will asked, " What kind of name is Tahir?" ld. Tahir
responded, "Turkish. My father is Turkish." Id. Will then asked if Tahir spoke the language. Id.
Tahir responded, ''No." Id.
The FBI's OPR Adjudication Unit upheld Tahir's dismissal, finding termination appropriate
for Lack of Candor/Lying-No Oath, Misuse of a Government Charge Card-Personal Use, and
Misuse of a Government Charge Card (Theft) Gasoline or Automated-Related Expenses. Id. ~ 31.
On May 14, 2012, the FBI notified Tahir that OPR' s Adjudication Unit upheld hi~ ·dismissal.
Id. ~ 32. Tahir appealed to the FBI's Human Resources Disciplinary Review Board ("HRDRB").
Id. On January 9, 2013, HRDRB staff sent a memorandum to the HRDRB recommending affirming
Tahir's dismissal. Id.

~

33.

The memorandum noted that the standard penalty for Lack of

Candor/Lying-No Oath and for Misuse of a Government Charge Card-Personal Use was,
respectively, a seven-day suspension. ld. The memorandum also stated that the standard penalty for
Misuse of a Government Charge Card (Theft) Gasoline or Automated-Related Expenses was
'

dismissal. ld.
On January 25, 2013, a five-member panel ofthe HRDRB met. Id. ~ 34. "Upon information
and belief, no members of the DRB were of Arab American decent." Id. •
The HRDRB recommended dismissal based on the following four factors: (1) Tahir
admitted to intentionally using his government-issued credit card for personal gain frequently,

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repeatedly, and willfully; (2) Tahir concealed his actions by di~caniing and hiding government-issued
credit card statements; (3) Tahir, ten years earlier, had been disciplined for similar conduct; and (4)
the nature and extent of independence that Tahir had in his role as a supervisory investigative
specialist. Id. ~ 35.
The HRDRB voted unanimously to terminate Tahir's employment for Lack of
Candor/Lying-No Oath and for Misuse of a Government Charge Card-Personal Use. See id. ~ 36.
The HRDRB found insufficient evidence of Misuse of Government Charge Card (Theft) Gasoline
or Automated-Related Expenses and vacated that charge. Id.
According to Tahir, ''the prior disciplinary history for employee violations very rarely
resulted in such a vicious sanction as termination for [Lack of Candor/Lying-No Oath and for
Misuse of a Government Charge Card-Personal Use]."

Id.

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38.

"Still, OPR and DRB

recommended a severe disciplinary action for Mr. Tahir, an Arab American whose national origin
was paraded in front of them due to the Oral Hearing held by the OPR, with alleged misconduct
occurring at the nation's most notorious Arab terrorist breeding ground, Dearborn, MI." Id. ~ 38.
On February 10, 2013, Tahir filed an EEO complaint alleging national origin discrimination.
Id. ~ 39. On May 5, 2016, an ALJ rejected the claim and granted summary judgment to the FBI. Id.
~ 40.

On June 14. 2016, the FBI notified the parties that it accepted the ALJ's decision in favor of

the FBI. Id. ~ 41.
On August 31, 2016, Tahir filed this action alleging that the FBI terminated his employment
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due to his national origin in violationofTitle VII. On January 5, 2017, defendant moved to dismiss
Tahir's complaint for failure to state a claim upon which relief can be granted.

n.
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal and factual sufficiency of the
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complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 677-80, 684 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 554-63 (2007); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). To
withstand a Rule 12(b)(6) motion, a pleading "must contain sufficient factual matter,_ accepted as
true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678 (quotation
omitted); see Twombly, 550 U.S. at 570; Giarratano, 521 F.3d at 302. In considering the motion,
the court must construe the facts and reasonable inferences "in the light most favorable to the
[nonmoving party]." Massey v. Ojaniit, 759 F.3d 343, 347, 352-53 (4th Cir. 2014) (quotation
omitted); seeClatterbuckv. City of Charlottesville, 708 F.3d 549,557 (4thCir. 2013). A court need
not accept as true a complaint's legal conclusions or unwarranted inferences, unreasonable
conclusions, or arguments. Giarratano, 521 F.3d at 302 (quotation omitted); Iqbal, 556 U.S. at
678-79. Rather, a plaintiff's allegations must "nudge[] [his] claims," Twombly, 550 U.S. at 570,
beyond the realm of"mere possibility" into "plausib[ility]." Iqbal, 556 U.S. at 678-79.
When evaluating a motion to dismiss, a court considers the pleadings and any materials
"attached or incorporated into the complaint." E.I. duPont de Nemours & Co., 63 7 F .3d at 448; see
Fed. R. Civ. P. 10(c); Thompson v. Greene, 427 F.3d 263,268 (4th Cir. 2005). A court also may
take judicial notice of public records such as court documents without converting the motion to
dismiss into a motion for summary judgment.

See,~' Tellabs.

me. v. Makor Issues & Rights. Ltd.,

.551 U.S. 308, 322 (2007); Philips v. Pitt Cty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009).
Tahir alleges national origin discrimination in violation of Title Vll. Title VII makes it
'

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unlawful "for an employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(l). Tahir alleges that defendant
terminated his employment based on his national origin and thereby violated Title Vll.

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Tahir lacks direct evidence of discriminatory termination; therefore, he relies on the burdenshifting analysis in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under McDonnell
Douglas, a plaintiff must prove a prima facie case of illegal discrimination by showing that (1) he
is a member of a protected class; (2) he was discharged; (3) he was fulfilling his employer's
legitimate expectations at the time of his discharge; and (4) the position remained open or was filled
by a similarly qualified applicant outside the protected class.

See,~'

Hill v. Lockhead Martin

Logistics Mgmt.. Inc., 354 F.3d 277,285 (4th Cir. 2004) (en bane); Dugan v. Albemarle Cty. Sch.
Bd., 293 F.3d 716,720 n.1 (4th Cir. 2002); Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995);
see also Guessous v. Fairview Prop. Invs .. LLC, 828 F.3d 208, 216 (4th Cir. 2016); Miles v. Dell.
Inc., 429 F.3d 480,485-89 (4th Cir. 2005).

If the plaintiff establishes a prima facie case, the burden shifts to the defendant to produce
evidence that the adverse employment action was "for a legitimate, nondiscriminatory reason." Tex.
Dept. ofCmty. Affairs v. Burdine, 450 U.S. 248,254 (1981). This burden is one of production, not
persuasion. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509-11 (1993). If the defendant offers
admissible evidence sufficient to meet its burden of production, ''the burden shifts back to the·
plaintiff to prove by a preponderance of the evidence that the employer's stated reasons were not its
true reasons, but were a pretext for discrimination." Hill, 354 F.3d at 285 (quotation omitted); see,
~'Reeves v.

Sanderson Plumbing Prods .. Inc., 530 U.S. 133, 143 (2000); King v. Rumsfeld, 328

F.3d 145, 150-54 (4th Cir. 2003). A plaintiff can demonstrate pretext by showing that the
employer's "explanation is unworthy of credence or by offering other forms of circumstantial
evidence sufficiently probative of[illegal] discrimination." Mereish v. Walker, 359 F.3d 330,336
(4th Cir. 2004) (quotation omitted).
To survive a motion to dismiss, a Title VII plaintiff must plausibly allege his statutory claim,

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although he need not allege a prima facie case under McDonnell Douglas. See McCleary-Evans v.
Md. Dep't ofTransp .• State Highway Admin., 780 F.3d 582, 585-88 (4th Cir. 2015), cert. denied,
136 S. Ct. 1162 (2016). As for causation, the Fourth Circuit has held that "[fJor status-based
discrimination claims, the employee must 'show that the motive to discriminate was one of the
employer's motives, even if the employer also had other, lawful motives that were causative in the
employer's decision."' Guessous v. Fairview Prop. Invs .. LLC, 828 F .3d at 216--17 (quoting Univ.
of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2523 (2013)). Thus, to state a Title VII statusbased claim, a plaintiff must plausibly allege the requisite causal connection between the plaintiff's
protected status and the alleged discrimination. See Guessous, 828 F .3d at 216--17.
"[N]aked allegations" of a causal connection between the plaintiffs national origin and the
alleged discrimination do not state a plausible Title VII claim. See McCleary-Evans, 780 F.3d at
585-86 (quotation omitted). For example, in McCleary-Evans, the Fourth Circuit held that a
plaintiff failed to state a claim when she alleged that "non-Black decisionmakers hired non-Black
applicants instead of the [Black] plaintiff' because they had "predetermined to select for both
positions a White male or female candidate." Id. (quotation omitted). Although the allegation was
"consistent with discrimination, it [did] not alone support a reasonable inference that the
decisionmakers were motivated by bias." Id. at 586 (emphasis in original). In McCleary-Evans, the
plaintiff described at length her own qualifications for the job, but she "did not include any
allegations regarding the qualifications or suitability of the persons hired.'; Id. at 583.:_84. The
Fourth Circuit noted that the employer may have hired the non-Black candidates because they were
"better qualified, or ... perform[ed] better during their interviews, or were ... better suited based
on experience and personality for the positions." Id. at 586. Or, the employer might have acted
discriminatorily. See id. Without plausible factual allegations of appropriate hiring comparators

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(i.e. qualifications, interview performance, suitability for the job), the court could only speculate as
to why the employer hired the non-Black individuals. Id. To satisfy the causal element of her Title
VII claim, a plaintiff must plausibly allege that ''the motive to discriminate was one of the
employer's motives." Id.; see Nassar, 133 S. Ct. at 2523; Guessous, 828 F.3d at 216.
Tahir fails to state a claim because he does not plausibly allege the requisite causal
connection between his national origin and his discharge. First, Tahir's bare allegation that he is an
Arab American and was discharged does not plausibly allege national origin discrimination. See
McCleary-Evans, 780 F.3d at 585-86.
Next, Tahir claims that the FBI disregarded precedent, deprived Tahir of an opportunity to
defend himself against one ofthe charges against him, and punished Tahir too severely. See Compl.
~ 46.

Those allegations, without more, do not plausibly support a reasonable inference that the FBI

discharged him due to his national origin. See McCleary-Evans, 780 F.3d at 582, 584. Tahir's
allegation that the FBI applied a harsher-than-usual punishment to him does not equal a plausible
allegation that the FBI failed to discharge a non-Arab American comparator who admitted to
intentionally using his government-issued credit card for personal gain frequently, repeatedly, and
willfully, who concealed his actions by discarding and hiding government-issued credit card
statements, who ten years earlier had been disciplined for similar conduct, and who had the same
level independence that Tahir had in his role as a supervisory investigative specialist. Thus, Tahir's
conclusory allegation concerning "precedent" arising from the FBI's prior treatment of employees
charged with similar offenses does not plausibly support a reasonable inference that national origin
I

was a motivating factor in his termination. See McCleary-Evans, 780 F.3d at 584--86. Moreover,
Tahir's suggestion that the FBI deprived him of the opportunity to defend himself against charges
adds nothing because that allegation only concerns the vacated charge of Misuse of a Government

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Charge Card (Theft) Gasoline or Automated-Related Expenses.
Tahlr' s suggestion that the FBI punished him too severely for his repeated misconduct does
not plausibly allege national origin discrimination because it is not accompanied by a plausible
allegation concerning a similarly-situated comparator who was not an Arab American who was not
discharged.

See,~'

id.; Taylor v. Va. Union Univ., 193 F.3d 219,234 (4th Cir. 1999) (en bane);

abrogatedinpartonothergroundsbyDesertPalace.Inc. v. Cosm, 539U.S. 90(2003); Cookv. CSX
Transp. Com., 988 F.2d 507, 511 (4th Cir. 1993); Moore v. City of Charlotte, 754 F.2d 1100,
1105-06 (4th Cir. 1985); Iskanderv. Dept. ofNayy. 116 F. Supp. 3d 669,679-80 (E.D.N.C. 2015),
aff'd, 625 F. App'x 211 (4th Cir. 2015) (per curiam) (unpublished). Finally, Tahir's allegations
concerning Assistant Director Will's questions about the name Tahlr and whether Tahlr spoke
Turkish do not support "a reasonable inference that the decisionmakers were motivated by bias."
McCleary-Evans, 780 F .3d at 585-86 (emphasis in original). At most, the inquiries suggest that the
OPR Adjudication Unit was aware that Tahlr was Arab American. Knowledge of protected status
under Title VII, however, is not enough to reasonably infer causation under Title VII. See, e.g.,
Gibson v. Old Town Trolley Tours of Wash.. D.C .. Inc., 160 F.3d 177, 182 (4th Cir. 1998)
(collecting cases). Accordingly, Tahlr's national origin discrimination claim fails to state a claim
upon which relief can be granted.
III.

In sum, the court GRANTS defendant's motion to dismiss [D.E. 12] and DISMISSES
plaintiff's complaint without prejudice.
SO ORDERED. This ..J::_ day of May 2017.

JA11Es c. D~v~~

Chief United States District Judge .

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