NOT RECOMMENDED F OR P UBLICATION File Na me: 13a0517n.06 No. 12-1957 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

HANY G . CHOULAGH, P laintif f-App ellant

v. ERIC H. HOL DER, JR., Att orney G eneral, Defendan t-Appellee ) ) ) ) ) ) ) ) ) ON AP P EAL FROM THE U NI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

BEFORE: MERRITT, SUHRHE INRICH, and DONALD, Circuit Judges.
MERRITT, Circuit Judge

. This Title VI I case involves a lang uag e analy st of I raqi orig in and alleg ations of d i s cr i mination and reta liation ag ainst the Fe dera l Bur eau of I nvestig ation. Although Hany Choulag h’s car ee r with the FB I is riddled with disciplinary incidents, we find nothing in the rec ord indicating that the discipline was ei t her discriminatory or reta liatory in any way . For t he fore g oing rea sons, we aff irm the district court’s g rant of summary judgme nt to the defe ndant employ er, the FB I

. I. Background A. Testim ony in EEO case Hany Choulag h, a lang uag e analy st at the Fe dera l Bur eau of I nvestig ation’s Detroit Division, is of I raqi national orig in. I n Dec ember 2008, Michae l Boyden, a white Americ an, beca meNo. 12-1957

Hany Choulagh v. Eric H older, Jr. Choulag h’s supervisor. Prior to Boy den’s arr ival at the Detroit division, another FB I employ ee, also of I raqi n at i o n al orig in, filed an Equal Employ ment Opportunity complaint ag ainst a differ ent supervisor. Choulag h rec eived an email on Marc h 24, 2009 , i n d i ca t i ng that he was approve d to testify on behalf of the for mer e mploy ee. Choulag h told Boy den he w ould be testify ing on the morning of April 9, 2009, the date he actua lly testified. When asked in depositions whether he told Boy den that he was g oing to testify befor e April 9, Choul agh re s p onded that he could not reme mber, but that Boyden “must have known.” Choulag h also stated that he and Boyden never discussed the nature of his testimony at any time. B. Chou lagh’s Work His tory Wit h that backg round in mind, we tu rn now to the events that took place afte r Boyden’s

arr ival at the Detroit division. As illust rate d below, Boyden’s rela tionship with Choulag h g ot off to

a ro ck y start, beg inning first with a sleeping incident. Although the incidents are numerous and detailed, we will only

briefly rec ite the fa cts rele vant to the leg al ana ly sis. On Marc h 30, 2009, Boy den saw Choulag h sleeping at his desk. Another lang uag e analy st witnessed this incident as well. Boyden t h en called Choulag h on the telephone at his desk, but Choulag h did not answer. B oy den then a sked anothe r ana ly st to call Choulagh on his c ell phone. After approximately

10 ring s, Choulagh a

woke to answ er the phone. On April 1, 2009, Choulag h was out sick with bronch i t i s. On t hat s ame day , Boyden sent Choulag h an email about the sleeping incident. The email stated that Boyden witnessed Choulag h sleeping at his desk, but that the incident wa s minor unless it became a pattern. The email fur

ther -2-No. 12-1957

Hany Choulagh v. Eric H older, Jr. stated, “I f y ou are having some difficulty (medica l or persona l), that y ou would like some time of f to resolve or

if there is any

thing e lse Ican do, ple ase le t me know.” On April 2, 200 9 , C h o u lag h returne d to work and rea d the email. Acting Supervisor J ean Younes and Boyden st ated that upon rea ding the email, C houlag h b ec am e i ra t e and demanded an apolog y . They stated t hat C houlag h said that medica tion may have ma de him drowsy , but he was not sleeping

. During this time period, Boy den rec eiv ed complaints from other languag e analy sts about Choulag h’s disruptive beha vior and e x cessive te lephone use

. Also in e arly April, Boyden noticed that Choulag h beg an to look “unshave n, unkempt, and disheveled” and appea red stressed. Boyden discussed this p h y s i cal chang e with his supervisor, who ag ree d with the observa tion and

rec ommended that Boy den ref er Choulag h to t h e E mploy ee Assistance Prog ram (“EA P”). 1 On April 9, 2009, afte r Choulag h returne d from another few day s of sick leave for his bronchitis, Boyden emailed him a bout the EAP. The e mail stated that its purpose was to “ express my persona l conce rn for y our welfa re, and to addre ss y our rec ent irritability , ag itated demea nor and t rouble with sleep.” I n the email, Boyden st ated that he had issues with Choulag h’s ab i l i t y t o get along with others and his complaining openly to employ ees reg arding his interac tions with Boy den. Boy den rec ommended that Choulag h seek co u nseling throug h EAP. On April 10, 2009, Boy den g ave Choulag h a memo formally ref erri n g him to EAP, but Choulag h ref used to sign the memo

EAP is a confide ntial prog ram available to help FB I e mp loy ees deal with persona l problems. 1

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Hany Choulagh v. Eric H older, Jr. acknow ledg ing rec eipt. Choulag h did g o to EAP, but the coordina tor conclude d that he would not benef it from joining the pr og ram. On May 18, 2009, Boyden claims that he aga i n o b s er ved Choulag h sleeping at his desk. Boy den met with other supervisors and they decide d that Choulag h’s desk should be moved closer to Boy den’s office so that he could be monitored more closely

. Choulag h claims that the place ment of the de sk near

Boy den’s of

fice is distra cting beca

use it is near a c ommon work are a whe re othe r employ ees cong reg ate to talk. He complains that when he is try ing to translate, Boyden often throws and bounce s a rubbe r ball nea r his desk. On M ay 20, 2009, Boy den tol d Choulag h that he was limit ing him to on-site duties due to his “inappr opriate and disruptive behavior and his insubordination.” I n late May , Boyden also sent

a memo to FB I headqua

rters reque sting approva l to place Choulag h on a Perfor mance I mprovement Plan (“PI P”). Around this same time period, FB I headqua rters sent an email to all lang uag e analy sts reg arding a one-y ear Tempora ry Duty Assignme nt (“TD Y”) to a fore ign country

. Choulag h soug ht Boy den’s approva l to apply for a TDY, but Boyden denied the reque st beca use of Choulag h’s rec ent on-site re strictions. I n J une, FBI headqua

rters approved the PI P reque st and C houlag h was placed on the P I P. As part of the PI P, Choulag h had to acc ount for his daily activities and had restric ted telephone use. These limit ations stemme d f r o m B o y d e n ’ s o b s e r

v a ti o n s a n d other complaints from lang uag e analy sts of Choulag h’s e xc e s s iv e , lo ud, often foul-mouthed, and disruptive telephone use, as well as extended periods of time a

way from his desk, unre lated to work a ctivities. -4-No. 12-1957

Hany Choulagh v. Eric H older, Jr. I n mid-J une, Boy

den hear d that Choulag h had repe atedly asked another languag e analy st to

remove a picture from his work station. The la ng uag e ana ly st had a picture of an Eg y ptian socce r p l ay er named Hany Sham’un cele brating afte r a win, as well as a separ ate, unrela ted pict u re o f a monkey

. Choulag h thought that the two pictures wer e rela ted and ref

err ed to him. I n his complaint, Choulag h alleg es that he wanted the picture as evidenc e for his EEO complaint. Boyden and Younes met with Choulag h to d i s cu s s t h e issue and later emailed Choulag h stating that he was “not to

r e mo v e , b o r

row, damag e, or move” any thing from another employ ee’ s desk w it h o ut th e ir p e r

mi s s io n . I n Aug u s t 2 0 0 9 , Choulag h filed an EEO complaint alleg ing discrimination due to his national orig in and his previous testimony for the former employ ee. I n October 2009, an FB I quality control revie wer , in a double-blind proce ss, rate d Choulag h’s t ranslation as “Not Satisfactory .” This was C h o ulag h’s second such rating

. The repor t stated that the translation had numerous g rammatica l

err ors, spelling mistakes, and mistranslations of signific ant words. I n November , per FB I policy , Boy den noti fied Choul ag h in a memo that beca use he had re ceive d two “not s atisfac tory ” ratings, further quality issues might lea d to the issuance of a wa rning perf ormanc e-a

ppraisal r eport. I n Dec e mb e r 2 0 0 9 , B o y

d e n prepa red a memo for Choulag h’s termination, detailing the above mentioned incidents , as well as continued problems with excessive telephone use and two more sleeping incidents. Boy

den neve r submitted this m emo, and Choulag h was ne ver te rminated. I n Fe bruar

y 2010, Choulag h told Boyden he was interested in participa ting in a Hig h-Va lue I nterrog ation Group (HI G)

. Boy den told Choulag h that he had r eser vations about rec ommending 2

A HI G is an interag ency team deploy ed worldwide at short notice when a high- value targ et 2 is in custody

. -5-No. 12-1957

Hany Choulagh v. Eric H older, Jr. him f or the g roup beca

use of his twenty -one sick le ave r equests in the last y ear and beca use it wa s an additional duty

on top of his reg ular a ssignments. B oy den did not rec ommend Choulag h. I n Marc h 2010, Boy

den rec eived additional complaints about Choulag h from other lang uag e analy sts. These complaints conce rned Choulagh’ s excessive personal telephone use an d fr equent absenc es fr om his desk. I n response to these complaints, B oy den aske d Choulag h to keep his cell phone in his desk draw er and to document his time awa y from his desk if the time period exceede d fiftee n minutes. I n April 2010, Choulag h filed a second EEO complaint alleg ing that the events from Dec ember 2009 to Marc h 2010 constituted reta liation for having filed the first complaint in Aug ust 2009. I n addition to the fac ts rec ited above, Choulag h claims that during this time period Boyden also made a derog atory comment ref ere ncing his national orig in. Specifica lly , he claims in his brief to this Court that on one occa sion when a g roup of lang uag e analy sts of I raqi orig in was g ather ed in the office , Boyden ref

err ed to them as a “g ang of I raqis.” Affida vits and deposition testimony from Choulagh h i m s el f, howeve r, reve al that Boyden only used the words “g ang g ather ing” and never ref ere nced the analy sts’ I raqi orig in. I n October 2 0 1 0 , C h o ulag h filed this Title VI I suit alleg ing one count of national orig in discrimination and three counts of reta liation. The defe ndant moved for summar y judgme nt. The

co u rt gra n t ed the motion, finding that Choulag h had not made out a prima fac ie hostile work environment c laim or a re taliation claim. Choulag h timely appea led.

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Hany Choulagh v. Eric H older, Jr. II. Stand ard of Review This Court revie ws de novo a gra nt of sum mary judgme nt. Dixon v. Un i v. o f Toledo , 702 F.3d 269, 273 ( 6th Cir. 2012). Summ ary judgme nt is proper whe n “ther e is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(a)

. T h e C o u rt must deter

mine “whe ther the evidenc e prese nts a sufficie nt disag ree ment to require submissi on to a jury or whether it is so one-sided tha t one party must preva il as a matter of law.” Anderson v. Liberty Lobby , 477 U.S. 242, 251-52 (1986). I n doing so, the Court must construe the evidenc e in the light most favor able to the nonmoving party , draw ing all justifiable infere nces in its favor

. See M

atsushita El ec. I

ndus. Co. v. Zenith Radio Cor p. , 475 U.S. 574, 587 (1986). III. Analysi s A. Hostile Work Environme nt Claim Cho u l agh claims that Boy den cre ated a hostile work environment due to his I raqi orig in. Title VI I forbids employ ers from discriminating ag ains t any individual with respe ct to his “compe nsation, terms, conditions, or privileg es of employ ment, beca

use of such individual’s r ace , color, relig ion, sex, or national orig in.” 42 U.S.C. § 2000e-2( a). In order to establish a prima fac ie

case of a hostile work environm en t , a p l aint iff must prove that (1) he is a member of a protec ted class, (2) he wa s subjected to unwe lcome verbal or phy sical conduct rela ted t o his membership in that class, (3) the hara ssment was based on his membership in that class, (4) the hara ssment

unrea sonably interfe red with his work perf ormanc e by cre ating an intimi dating , hostile, or offe nsive work environment that is sever e or perva siv e, an d (5 ) the employ er knew or should have known

-7-No. 12-1957

Hany Choulagh v. Eric H older, Jr. about the hara ssment, but failed to take any act i o n t o p re v ent it. Barrett v. W hirlpool Corp ., 556 F.3d 503, 515 ( 6th Cir. 2009). Neither party disputes that Choulag h is a member of a protec ted class. The cruc ial question is whether that membership had any thing to do with the alleg ed unwelcome conduct or hara ssment. W e n o t e t h at t he facts i n this case are extensive. Howeve r, t he is sue here turns on the absence of

cer tain fac ts. Nowher e i n the rec ord can we find a ref ere nce to Choulag h’s national orig in. Although Choulag h now claims on appea l that Boyden ref err ed to him and to other analy sts as a “gang of I raqis,” he offe rs no evidenc e to support this contention and instead defe ats h i s o wn arg ument with his own testimony

. I n his de position, Choulag h expli citly states that Boyden never used the word “I raqi” in connec tion with the alleg ed “g ang g ather ing” comment. The rec ord simply

co n t ains no evidenc e to support the claim that Boyden considere d Choulag h’s I raqi ori gi n wh en issuing dis ciplinary measure s ag ainst him. As this Court has established, a plainti ff may rec ite “a litany of perc eived slights and abuses,” but th e h ar as s i n g acts are not part of the hostile work environment analy sis if there is no proof that the hara ssment was based on national orig in. Bowman

v. Shawnee State Univ. , 220 F.3d 456, 464 (6th Cir. 2000). As the district court observe d, “Plaintiff cannot cre ate a g enuine issue of materia l fac t by ignor ing the absenc e of any discriminatory animus in the rec ord an d co n s tructing the prima fac ie case with his subjective belief that Def endant considere d his national orig in a materia l fac tor in issuing discipline.” Choulagh v. Holder , No. 10- 14279, 2012 WL 2891188, at *7 (E.D. Mich. J uly 16, 2012). Summary judgme nt as to the hostile work e nvironment claim should be af firmed.

-8-No. 12-1957

Hany Choulagh v. Eric H older, Jr. B. Retaliation Claim I n addition to the hostile work environmen t cl ai m, Choulag h alleg es three counts of reta liation. Title VI I prohibits reta liation ag ainst an employ ee “bec ause he has opposed any prac tice made an unlawful employ ment prac tice

. . . or beca

use he has made a char g e, testified, assisted, or participa ted in any manner in an investigation, proce eding , or h ea ri n g” i n connec tion with an unlawful e mploy

ment prac tice. 42 U.S.C. § 2000e-3( a). I n order to establish a prima fac ie case of reta liation, a plaintiff must demonstrate that (1) he eng ag ed in activi t y p ro t ec t ed by Title VI I ; (2) the defe ndant knew of hi s exercise of his protec ted rig hts; (3) the defe ndant s u b s equently took an adver se employ ment action ag ainst the plaintiff or subjected the plaintiff to sever e or perva sive reta liatory hara ssment ; and (4) there was a causa l

connec tion between the plaintiff’s prote cted a ctivity and the adver se employ

ment action. Barrett , 556 F.3d at 516. Once this showing is made , t h e d ef en d ant must articula te a leg itimate, nonre t al i at o ry reason for its action befor e the burden shifts back to the plaintiff to show that the proff ere d rea son was not its true rea son, but mere ly a prete x t for reta liation. Harris v. Metro. Gov’ t of Nashville & Davidson Cnty., Tenn. , 594 F.3d 476, 485 ( 6th Cir. 2010). Choulag h’s three counts of reta liation each involve separ ate “prote cted activity ,” so eac h count satisfies prong s one and two of the require ments for a prima fac ie reta liation claim. The first count encompa sses the time period betwee n Marc h 24, 2009, when C h o u l agh received the email stating that he could testify on behalf of a former employ ee , an d Ap ril 9, 2009, when he actua lly testified. The protec ted activity is the ref ore his a g ree ment to te stify

. The alleg ed reta liation is the confr ontation reg arding the sleeping incident and the me mo refe rring Choulag h to the EAP. -9-No. 12-1957

Hany Choulagh v. Eric H older, Jr. The second count is based on the protec ted activity of testify ing for the former employ ee and the reta liatory conduct includes the second alleg ed sleeping incident, the desk move, duty restric tion, the PI P, and the non-satisfa ctory work re view. For the last count, Choulag h alleg es that he was reta liated ag ainst for filing his Aug ust 2009 EEO complaint. Thus, the complaint is the protec ted activity and the alleg ed re t al iation is the termination memo, declining to ref er him to the High -V al u e I nterrog ation Group and Tempora ry Duty Assignme nt, and counseling him about hi s ex cessive persona l telephone use and fre quent absenc es fr om his desk. I n additi o n t o satisfy ing the first two prong s, Choulag h must prove that an adver se action

occur red or that he was subjecte d to sever e or perva sive reta liatory hara ssment and that there was

a ca usal link betwee n the protec ted expression and the a dverse action or ha rassment. First, Choulag h cannot prove that he was subjected to sever e o r perva sive reta liatory hara ssment. I n order to establish sever e or perva sive reta liatory hara ssment, both an objective and subjective test must be met: the conduct must be sever e and perva sive en o u gh to cre ate an environment that a rea sonable person would find hostile or abusive and the victim must subjectively reg ard tha t environment as abusive. Bowman v. Shawnee State Univ. , 220 F.3d 456, 463 ( 6th Cir. 2000). Her e, Choulag h cannot meet the objective t est

. A rea sonable person would not find the disciplinary actions sever e or perva sive, espec ially in light of the fac t that Choulag h has not put forth any evidenc e ref

uting his falling aslee p at work, his inability to g et along with other cowor kers, his irate exchang es with his superiors, his excessive telephone use, or his poor quality control rating s.

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Hany Choulagh v. Eric H older, Jr. I n fac t, a rea sonable jury could n o t find that the disciplinary actions wer e unjustified in light of Choulag h’s workpla ce be havior. Choulag h simil arly fails to prove any adver se action occur red. I n Hollins v. Atlantic Co. , 188 F.3d 652 (6th Cir. 2009), we stated that in order to establish a materia lly adver se employ ment action, the chang e must be “more disruptive that a mere inconvenienc e or alteration of job responsibilities.” I n Hollins , we listed a series of actions that may be considere d a materia lly adver se chang e, including termi nation of employ

ment, a demotion evidenc ed by a decr ease in wag e or salary , a less distinguished title, a materia l loss of benef its, or signific antly diminis hed materia l responsibilities. Id. Her e, the alleg ed ac t i ons are de minimus at best and none constitute a materia lly adver se action. None of the alleg ed reta liatory act s al l ege d resulted in a decr ease in salary , a less distinguished title, or a loss of benef its. The place ment on the perf ormanc e improvement plan and the non-satisfac tory work revie ws had leg itimate, non-re taliatory motivations and do not rise to the level o f a m at er i al l y adver se action. See Agnew v. BASF Corp. , 286 F.3d 307 (6th Cir. 2002) (holding that an employ er’ s require ment that an employ ee comply with a “per formanc e improvment plan” or fac e disciplinary

action did not constitute adver se employ ment action); Hollins , 188 F.3d at 662 (holding that lowere d rating s in a perf orm an ce ev al uation did not constitute an adver se employ ment action wher e there wa s n o ev i dence showing an eff ect on wag es). Even the on-site restric tions, which Choulag h alleg es aff ect his ability for promotions are temporar y restric tions with only a hy pothetical possibili ty of an impact on wag es and benef its. See Kocsis v. Multi-care Mgmt. , 97 F.3d 876, 885 ( 6th Cir. 1996). -11-No. 12-1957

Hany Choulagh v. Eric H older, Jr. Fur ther, Choul ag h cannot prove causal connectio n b ec au s e nothing in the record links the protec ted activity to the subsequent discipline, with the exception of temporal proxi mity

. A prima fac ie case of re t al i at ion cannot be based on temporal proxi mity alone. Spengler v. W orthington Cyclinders , 615 F.3d 481, 494 (6th Cir. 2010). Even the temporal prox imity , as t he d i s t ri ct co urt points out, is attenuate d beca use many of the disciplinary incidents took place wee ks if not months afte r the “ protec ted ac tivity .” Choulagh , 2012 WL 2891188, at *8. Moreove r, Ch o u la g h o f

f e r s n o response to the defe ndant’s leg itimate, non-re taliatory rea sons for discipline. T h e district court conclude d, “The rec ord clea rly sets forth Def

endant’ s rationale behind its disciplinary decisions. Plaintiff has no evidenc e that these rea sons are prete x tual.” Id

. at

* 1 0. Choulag h’s reta liation claims fail. We ag ree with the district court’s g rant of su m m ar y judgme nt for the de fenda nt. IV. Conclusion Choulag h cannot make out a prima fac ie case of a hostile work environment without even

a ref ere nce to his national orig in. He als o cannot prove reta liation in the absenc e of sever e or perva sive hara ssment, an adver se employ m ent action, or a causa l connec tion. Fur thermore , Choulag h’s alleg ed actions in the workplac e provide leg itimate, non-discriminatory , and nonreta liatory rea sons for the disciplinary actions ag ainst him. Acc ording ly , the judgme nt of the district court is af firmed.

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