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Khowaja v. Sessions

United States Court of Appeals, Seventh Circuit

June 27, 2018

Khalid Khowaja, Plaintiff-Appellant,
Jefferson B. Sessions III, Attorney General of the United States, Defendant-Appellee.

          Argued May 17, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. 2:16-cv-00983-NJ - Nancy Joseph, Magistrate Judge.

          Before Bauer, Easterbrook, and Manion, Circuit Judges.


         Khalid Khowaja served as a Special Agent (SA) in the Federal Bureau of Investigation's Milwaukee field office for nearly a year before his employment was terminated. Khowaja brought this lawsuit under Title VII, alleging that he was discriminated against and terminated from the FBI, and that he was subject to disparate treatment, because he is Muslim. The district court granted summary judgment in favor of the Attorney General, and we affirm.

         I. BACKGROUND

         Prior to joining the FBI, Khowaja served as an Immigration Enforcement Agent with the Department of Homeland Security, Immigration and Customs Enforcement from 2008 to 2012. On February 26, 2012, he began employment with the FBI as a SA on a two-year probationary term. He was assigned to the Milwaukee field office and placed in the office's Joint Terrorism Task Force.

         Probationary SAs are evaluated using the FBI's "Suitability Standards for Probationary Employees," which include the following six "dimensions:" (1) conscientiousness; (2) cooperativeness; (3) emotional maturity; (4) initiative; (5) integrity and honesty; and (6) judgment. A deficiency in any one of these dimensions can result in a SA's removal.

         During his employment, Khowaja's judgment, or lack thereof, was frequently cited as an area of concern by his immediate supervisor, Supervisory Special Agent (SSA) Mark Green, which ultimately formed the basis for his termination. On June 17, 2013, a recommendation for removal report was approved by SSA Green as well as the field office's Special Agent in Charge (SAC), Teresa Carlson, and the Assistant Special Agent in Charge (ASAC), G.B. Jones. The report listed several instances where Khowaja demonstrated a lack of suitability in the judgment dimension. Importantly, Khowaja does not dispute that any of these instances occurred.

         In October 2012, Khowaja went to a local jail to recruit an inmate as a Confidential Human Source (CHS), but failed to provide Miranda warnings before interviewing the inmate. SSA Green counseled Khowaja about this mistake, and noted that he should have known to administer Miranda warnings to an individual in custody given his prior law enforcement experience. Rather than accept this counsel, Khowaja argued with SSA Green and defended his actions.

         In another instance, Khowaja was instructed, and ultimately failed, to properly coordinate with local law enforcement officials before taking investigative actions. In December 2012, Khowaja was working an investigation of a threatening subject in West Bend, Wisconsin, which the local police had been involved with from the beginning. Without coordination from local law enforcement or approval from his supervisors, Khowaja independently interviewed administrators at the West Bend High School regarding the subject. The administrators were alarmed at the FBI's involvement and contacted the local police, who in turn were angered that they had no prior knowledge of Khowaja's actions. Khowaja initially defended his actions to the local police chief, but he later admitted his mistake after being counseled by SSA Green.

         The report also cited other instances where Khowaja demonstrated a disregard for his supervisors' authority. For example, Khowaja needed repeated reminders from his supervisors not to undertake interviews of certain subjects. In addition, he disregarded an instruction to maintain a lower profile with a CHS and avoid meeting the CHS in public. Finally, the report cited his avoidance of senior agents in favor of working with agents junior to him, specifically noting an instance where Khowaja brought an untrained and unarmed intelligence analyst into a dangerous area of Milwaukee to contact a potential source.

         In summary, the report found that Khowaja had demonstrated poor judgment since his arrival at the field office, but that his supervisors had hoped training and cultivation of relationships with senior agents would reverse this trend. Instead, the report concluded, Khowaja's arrogance, his avoidance of senior agents, and his defensiveness when corrected about his mistakes had hindered his judgment.

         Additionally, Khowaja's performance assessments throughout his employment repeatedly highlighted his judgment as an area of concern. During his tenure as a SA, Khowaja's performance was evaluated by SSA Green and others in five "Performance Summary Assessments" (PSA), a "Performance Appraisal Report" (PAR), and in a "6 month New Agent Assessment" (NAA). In his second PSA for the period of September 14, 2012, to October 14, 2012, the assessment noted that Khowaja should use good judgment and develop relationships with senior agents. His third PSA for the period of November 14, 2012, to January 14, 2012, stated that "[p]rofessional judgment has been an issue … that must be improved." The assessment cited to another instance involving ...

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