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Alsoofi v. Mnuchin

United States District Court, E.D. Michigan, Southern Division

August 22, 2019

OMAR A. ALSOOFI, Plaintiff,
STEVEN MNUCHIN, in his capacity as Secretary of the United States Department of Treasury, Defendant.



         I. BACKGROUND

         A. Procedural Background

         On July 12, 2016, Plaintiff Omar A. Alsoofi (“Alsoofi”) filed a Complaint against Defendant Secretary of the United States Department of Treasury (the “Government”). (Doc # 1) This action arises out of events that occurred during Alsoofi's training to become a Criminal Investigator with the Internal Revenue Service (“IRS”). (Doc # 1, Pg. 3) Alsoofi claims that he was discriminated against because of his national origin, race, or color in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e, et seq. (Id.) Alsoofi requests damages for lost wages and reinstatement in the Criminal Investigator training program. (Id.)

         Alsoofi was represented by an attorney when this action commenced. On April 11, 2017, Alsoofi filed a Motion to Remove Counsel. (Doc # 11) The Government did not oppose the Motion. (Doc # 12) The Court granted Alsoofi's Motion. (Doc # 13) Alsoofi proceeds on a pro se basis.

         On March 20, 2018, Alsoofi filed a Motion for Leave to File Amended Complaint. (Doc # 30) The Court granted this Motion on August 16, 2018. (Doc # 35) Alsoofi filed his Amended Complaint on August 21, 2018. (Doc # 36) In his Amended Complaint, Alsoofi argued that he was also retaliated against by the Government in violation of Title VII. (Doc # 36, Pg. 3)

         On November 30, 2018, the Government filed a Renewed Motion for Summary Judgment.[1] (Doc # 41) Alsoofi filed his Response on December 3, 2018. (Doc # 42) The Government filed its Reply on December 21, 2018. (Doc # 46) This Motion is currently before the Court. The Court held a hearing regarding this matter on May 1, 2019.

         B. Factual Background

         Alsoofi is an Arab-American. (Doc # 36, Pg. 2) He has been a revenue officer for the IRS since 2006. (Doc # 41, Pg. 8) On July 1, 2012, he began training to become a Criminal Investigator for the IRS. (Doc # 1, Pg. 2) Training was held at the National Criminal Investigator Training Academy (“NCITA”) in Glynco, Georgia. (Id.) Alsoofi's first level supervisor during training at NCITA was Denise Scanlon (“Scanlon”), a Supervisory Academy Instructor (“SAI”). (Doc # 41, Pg. 8) His second level supervisor was Domenic McClinton (“McClinton”), who was the Assistant Director of NCITA. (Id.) Alsoofi was one of 24 trainees in his training cohort. (Id.) Alsoofi asserts that he was the only trainee of Arab descent in his cohort, which lasted from July 1, 2012 until November 29, 2012. (Doc # 1, Pg. 2)

         The NCITA training program evaluated students on the basis of examinations and practical exercises. (Doc # 41, Pg. 8) Evaluations included multiple choice exams and other forms of assessment. (Doc # 1, Pg. 2) The training program also had a “three strike” policy regarding testing and practical exercises for trainees. (Doc # 1, Pg. 2; Doc # 41, Pg. 8) If a trainee failed three of the examinations-either written exams or practical exercises, collectively-before completion of the program, it was considered a failure of three “critical job elements” and the trainee was removed from the training program. (Doc # 41, Pg. 8)

         A score lower than 80% on any of the examinations or practical exercises constituted a failure. (Doc # 1, Pg. 2) If a trainee failed an exam or practical exercise, a second instructor reviewed the scoring to see whether the original grader should have added more points to benefit the trainee. (Doc # 41, Pg. 8) If a trainee failed a practical exercise, NCITA required that the trainee re-take or “remediate” the sections he or she failed in order to advance in the program. (Id. at 9.)

         Alsoofi passed the first two parts of Criminal Investigator training. (Id.) The first practical exercise was called “Specific Item.” (Id.) The exercise entailed analyzing documents and applying evidence to determine the amount of unreported income and additional tax due and owing by a taxpayer. (Id.) During November 2012, prior to the administration of the first practical exercise, Special Agent (“SA”) Daniel Morris (“Morris”), an instructor for the course, presented a slide to the cohort displaying a picture of a camel in the middle of a parking lot. (Id. at 9-10.) Alsoofi claims that while displaying the picture, SA Morris asked the class how you can spot a terrorist. (Doc # 1, Pg. 2)

         SA Morris was responsible for grading Alsoofi's Specific Item exercise. (Id.) On one section of the Specific Item exercise, Alsoofi scored a perfect thirteen out of a possible thirteen points, but was given a 97% on the section. (Id.) This error also occurred on two other Specific Item grade sheets completed by SA Morris for exercises taken by members of Alsoofi's cohort. (Doc # 41-6, Pgs. 2, 4) One of the exercises was taken by trainee LH, a black male, and the other was taken by trainee MW, a white male. (Id.) SA Morris scored Alsoofi's exam at 76.3%, a failing score. (Doc # 41, Pg. 10) SAI Scanlon rescored Alsoofi's exam, and Alsoofi earned a score of 78.95%. (Id.) Had the error been corrected, Alsoofi's score on the exam would have been 79.05% instead of 78.95%. (Id. at 12.) As 80% is the required score for a passing grade, this was Alsoofi's first failure and his “first strike.” (Id.) The other trainees who failed were: AG, a white man; PP, a black woman; NP, a white man; and GS, a white man. (Doc # 41-2, Pgs. 62-71)

         Alsoofi was downgraded by 3% on each section of the Specific Item exercise for formatting and spelling. (Doc # 1, Pg. 3) He was also penalized for overdocumentation, as were four of the five other students who failed the Specific Item exercise. (Doc # 41-2, Pgs. 58-70) Overdocumentation means that the trainee attached irrelevant exhibits to the exercise. (Doc # 41, Pg. 11) Alsoofi's deduction for overdocumentation was 11.1% of his overall score. (Doc # 41-2, Pg. 58) His deduction was not the highest, as trainee PP's overall deduction was 39.2% of her overall score on the exercise. (Id. at 68-69.)

         After receiving his first failing grade, Alsoofi spoke with the cohort advisor, JoAnne McLean (“McLean”). (Doc # 41, Pg. 12) During the conversation, he told her his exercise results were “bullshit” and that he would not retake the exercise. (Id.) Alsoofi later spoke with SAI Scanlon about the exercise results. (Id. at 12-13.) Alsoofi told Scanlon that he preferred a multiple-choice format, at which time Alsoofi claims Scanlon told him the Criminal Investigator job was not for him. (Id. at 13.) Scanlon indicated that the practical exercises were more closely aligned with the on the job duties of an IRS Criminal Investigator. (Id.) Alsoofi subsequently completed the remedial Specific Item exercise and passed. (Id.)

         Alsoofi took the second practical exercise later in November 2012. The practical exercise was called Report Writing. (Id.) SA Denise Cole (“Cole”) graded Alsoofi's Report Writing exercise. (Id.) Alsoofi earned a 75.4% percent score. (Id.) Greg Stuart, another instructor for the program, reviewed Alsoofi's exercise and gave it a score of 75.6%. (Id.) Alsoofi claims that he was downgraded for overwriting. (Doc # 1, Pg. 3, ¶17) Five trainees failed the failed the Report Writing exercise: (1) Alsoofi; (2) AG, a white man; (3) PP, a black woman; (4) NP, a white man; and (5) TW, a black man. (Doc # 41, Pgs. 13-14) Trainee PP earned the lowest score on the Report Writing exercise, at 74.6%. (Id. at 14.) This failure was Alsoofi's second “strike.” (Id.)

         After his second failure, Alsoofi was allowed to retake the portions of the exercise he failed on November 28, 2012. (Id.) Alsoofi was allowed to “remediate” the sections titled “Books and Records, ” “Willfulness, ” and “Explanation and Defense of Subject.” (Id.) Alsoofi was scored on the three sections he retook, and earned a score of 75.15%. (Id.) This failure was Alsoofi's third “strike.”

         Pursuant to the NCITA's “three strike” policy, SAI Scanlon briefed her supervisor, Assistant Director McClinton (“McClinton”), and recommended that Alsoofi be removed from the training program due to his academic failure. (Id. at 14-15.) Between August 2009 and November 2016, Scanlon has recommended the removal of over 30 trainees from the NCITA program due to academic failure. (Id. at 15.) Scanlon once recommended the removal of a trainee who failed his third practical exercise with a score of 79.70%. (Id.)

         Relying on Scanlon's recommendation, McClinton recommended Alsoofi's removal from the program to the Director of NCITA, Terry Stuart (“Stuart”). (Id.) On November 30, 2012, Stuart relayed McClinton's recommendation to Director of Strategy Charles Hunter (“Hunter”). (Id.) Hunter made the final decision to remove Alsoofi from the training program. The IRS arranged for Alsoofi to return to his former position as a revenue officer. (Id.) Alsoofi was placed in the Pontiac, Michigan office, but later returned to his original office location in Clinton Township, Michigan on March 10, 2013. (Id.)

         From the original cohort of 24 trainees, only Alsoofi and trainee AG were removed from the training program for academic failure. (Id.) AG failed a written examination, the Specific Item practical exercise, and the Report Writing practical exercise. (Id.)

         Alsoofi filed an Equal Employment Opportunity (“EEO”) claim against the Department of Treasury, IRS, asserting that his removal was the result of discriminatory practices. (Doc # 41-2) The EEO process concluded on April 13, 2016. (Doc # 4, Pg. 2) Alsoofi subsequently filed this suit on July 12, 2016. (Doc # 1)

         II. ...

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