Youssef v. Lynch (144 F. Supp. 3d 70, 2015)

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge

Plaintiff Bassem Youssef (“Plaintiff’ or “Youssef’), a former employee of the Federal Bureau of Investigation (“the FBI”), brings this action against the United States Attorney General (“Defendant”) under Title VII of the Civil Rights Act of 1964 (“Title VII”). On July 25, 2011, Youssef, an Egyptian-born American citizen, filed suit, asserting two claims — one sounding in discrimination and the second sounding in retaliation — each challenging his non-selection for an Assistant Section Chief position in the FBI’s Counterterrorism Division Communications Exploitation Section. On March 1, 2013, Defendant filed a [41] Motion for Summary Judgment. On January 28, 2014, the Court granted Defendant’s Motion for Summary Judgment as to Plaintiffs national origin discrimination claim, but denied Defendant’s Motion as to Plaintiffs retaliation claim. Presently before the Court are the parties’ objections in their Joint Pretrial Statement, Plaintiffs Motion in Limine, and Defendant’s Motion in Limine. On June 30, 2015 and August 14, 2015, the Court held pretrial conferences in this matter and made oral findings, which the Court INCORPORATES herein. After each pretrial conference, the Court issued Orders indicating the Court’s findings on' various issues raised in the parties’ motions in limine and ordering the parties to submit supplemental briefing on certain issues that remained unresolved. See Order dated July 2, 2015, ECF No. [86] and Order dated August 14, 2015, ECF No. [92]. The Court has scheduled a third pretrial conference for November 13, 2015. A trial date has not been set.

The parties have completed all briefing relating to their motions in limine, and the motions are ripe for adjudication. Upon consideration of the pleadings, the relevant legal authorities, and the record as a whole, the Court shall GRANT-IN-PART, DENY-IN-PART Defendant’s [79] Motion in Limine and GRANT-IN-PART, DENY-IN-PART Plaintiffs [80] Motion in Limine, and GRANT-IN-PART, DENY-IN-PART the objections made by the parties to their Joint Pretrial Statement. As described in the Court’s opinion, the Court also leaves certain objections in the Joint Pretrial Statement for resolution at a later time. In resolving the parties’ motions in limine and the parties’ objections in their Joint Pretrial Statement, the Court makes the following findings :

A. Defendant’s Motion in Limine

• Plaintiff may introduce testimony and evidence relating to Youssefs work experience and qualifications beyond the information included in Youssefs FD-954 only where Plaintiff first establishes a factual predicate as to why the LCB member in question would have known that specific information and should have, or did in fact, consider that information in the selection process.

• Curran may testify as to Youssefs known accomplishments only to the extent that the testimony provides information regarding the relative importance that the counterterrorism community would have given to the accomplishments listed on Youssefs FD-954.

• Curran may testify as to Youssefs qualifications relative to those of Powers only to the extent that these qualifications were listed on the FD-954s or were necessarily known by the LCB members.

• Curran may not testify as to the baseline of Youssefs reputation and to the impact of Youssefs non-selection on his reputation within the FBI.

• Curran may not testify as to the impact of Youssefs non-selection on Youssefs post-retirement employment prospects.

• Curran may not testify as to the practices and procedures relating to LCBs, including the frequency with which LCBs conducted interviews or the appropriateness of outside conversations with candidates.

• Youssef may testify as to the qualifications in his FD-954 as compared with those of Powers, to the extent that no other witness testifies on behalf of Plaintiff regarding this issue.

• Youssef may also testify on the matter of LCB procedures in place at the time of Youssefs non-selection.

• Plaintiff may not offer at trial Plaintiffs Exhibit 1, Exhibit 15, and Demonstrative Aids No. 1-6.

• The Court shall limit testimony and evidence about Youssefs prior EEO activities to a neutral statement that he was engaging in such activities at the time of his non-selection for the ASC position, and that the FBI is not permitted to take retaliatory action in response to those activities.

• Defendant may offer testimony by Za-rone concerning the OIG Report only as it relates to the narrow issue of Zarone’s handwritten comment on Youssefs 2009 PAR. Plaintiff may impeach Zarone’s testimony, but may not introduce additional testimony and evidence about the underlying IG investigation.

• Plaintiff may introduce a redacted version of the “Mother Jones ” article, with all parts redacted except for the title and the two references to Yous-sefs discrimination lawsuit.

• Plaintiff may introduce testimony about Youssefs EEO activity by non-decisionmakers only to state that Plaintiff was involved in EEO activity and is entitled to protections when he engages in such activity.

• Plaintiff may introduce testimony and evidence regarding the 2009 PAR and the accompanying notes only to the narrow issue of retaliatory animus, and a jury instruction limiting the use of the evidence would be appropriate.

B. Plaintiff’s Motion in Limine

• Defendant may introduce evidence at trial in support of its argument that the denial of Youssefs selection for the ASC position was not an adverse action.

C. Issues Raised Over the Course of Briefing

• Plaintiff may not introduce evidence that Fernandez, the non-voting chairperson of the LCB, deliberately “stacked” the LCB with voting members whom Fernandez knew were biased against Youssef.

• Plaintiff may not introduce evidence that LCB members should have relied on Plaintiffs “totality of experiences” to prefer him over other candidates who may have had higher competency scores.

• The Court shall not strike the evidence set out in the Parlave declarations, and the Court shall permit Parlave to testify at trial. However, Plaintiff must have an opportunity to depose Parlave on the issues addressed in her declarations.

The Court makes its findings based on the Court’s consideration of the record currently before the Court. The Court observes that various aspects of the parties’ trial theories have evolved since the parties filed their Joint Pretrial Statement on March 11, 2015 and their Motions in Limine on March 19, 2015. The Court has provided both parties a number of opportunities to develop their arguments through supplemental briefing and pretrial hearings, and the Court expects that the parties have a thorough understanding of the evidence in this case. The Court therefore will be hesitant to grant additional requests by the parties to introduce at trial new testimony or evidence not already contemplated by the parties in their filings to date. The Court, nevertheless, is mindful that circumstances at trial may open the door to the introduction of additional testimony and evidence, and the Court shall reserve its right to reconsider its findings as the record develops.

I. BACKGROUND

The factual allegations and legal claims at issue in the case are set forth fully in the January 28, 2014 Memorandum Opinion granting in part and denying in part Defendant’s Motion for Summary Judgment. See Youssef v. Holder, 19 F.Supp.3d 167, 171-77 (D.D.C.2014). In short, Youssef is a former FBI employee who applied, but was not selected, for the position of Assistant Section Chief (“ASC”) in the FBI’s Counterterrorism Division. See id. at 171. The parties are proceeding to trial on Youssef s claim that his non-selection was retaliatory due to his participation in prior Equal Employment Opportunity (“EEO”) activity, which involved a separate lawsuit brought in this Court in 2003. See generally Youssef v. F.B.I., 541 F.Supp.2d 121 (D.D.C.2008) (“Youssef I ”).

II. LEGAL STANDARD

. [1] Although neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence expressly contemplate motions in limine, the practice of allowing such motions has developed over time “pursuant to the district court’s inherent authority to manage the course of trials.” Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443 (1984). Consistent with the historical origins of the practice, motions in limine are “designed to narrow the evidentiary issues for trial and to eliminate unnecessary trial interruptions.” Bradley v. Pittsburgh Bd. of Educ., 913 F.2d 1064, 1070 (3d Cir.1990). Broadly speaking, the Federal Rules of Evidence permit the admission of “relevant evidence” — that is, evidence that “has any tendency to make a fact [of consequence] more or less probable than it would be without the evidence,” Fed. R. Evid. 401 — provided it is not otherwise excluded by the Rules, the Constitution of the United States, or an Act of Congress, Fed. R. Evid. 402, and its probative value is not “substantially outweighed by a danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.

In deference to their familiarity with the details of the case and greater experience in evidentiary matters, trial judges are afforded broad discretion in rendering evidentiary rulings, a discretion which extends to assessing the probative value of the proffered evidence and weighing any factors against admissibility. Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S.Ct. 1140, 170 L.Ed.2d 1 (2008). The trial judge’s discretion extends not only to the substantive evidentiary ruling, but also to the threshold question of whether a motion in limine presents an evidentiary issue that is appropriate for ruling in advance of trial. United States v. Valencia, 826 F.2d 169, 172 (2d Cir.1987); accord Rosemann v. Roto-Die, Inc., 377 F.3d 897, 902 (8th Cir.2004); United States v. Layton, 720 F.2d 548, 553 (9th Cir.1983), cert. denied, 465 U.S. 1069, 104 S.Ct. 1423, 79 L.Ed.2d 748 (1984), and overruled on other grounds by United States v. W.R. Grace, 526 F.3d 499 (9th Cir.2008). The trial judge has the “discretion to rule in limine or to await developments at trial before ruling.” Stephen A. Saltzburg et al., FEDERAL RULES OF EVIDENCE MANUAL § 103.02[12] (9th ed.2006). “[I]n some instances it is best to defer rulings until trial, [when] decisions can be better informed by the context, foundation, and relevance of the contested evidence within the framework of the trial as a whole.” Casares v. Bernal, 790 F.Supp.2d 769, 775 (N.D.Ill.2011) (citation omitted).

III. DISCUSSION

The Court shall first address Defendant’s motion and thereafter turn to Plaintiffs motion. Because of the number and substantive variation of both parties’ requests, the Court shall discuss the factual background relevant to each separate request within the context of its analysis of that request. Further, because of the significant overlap between certain matters raised in the parties’ respective motions, the Court shall occasionally, in discussing one party’s motion, refer to briefing submitted in connection with the opposing party’s motion.

The Court shall also discuss the parties’ objections in their Joint Pretrial Statement where doing so would be relevant to the Court’s analysis of the parties’ motions.

A. Defendant’s Motion /¿v Limine

Defendant’s Motion in Limine requests that the Court grant the following relief: (1) exclude testimony and evidence relating to Youssefs work experience and qualifications beyond the information that Youssef included in his FD-954; (2) exclude testimony and evidence of any alleged prior discriminatory or retaliatory acts, including the basis for the Youssef I retaliation claim; and (3) limit and segregate testimony and evidence relating to the alleged downgrade in Plaintiffs 2009 Performance Appraisal Report (“PAR”). The Court shall address each request in turn.

1. Testimony and Evidence Relating to Youssefs Work Experience and Qualiñcations beyond the Information Included in Youssefs Form FD-954

Defendant objects to Plaintiffs presentation of testimony and evidence relating to his work experience and qualifications beyond the information included in Yous-sefs form FD-954. Specifically, Defendant requests that the Court (1) exclude the testimony of Edward Curran; (2) appropriately limit Plaintiffs testimony; and (3) exclude exhibits and demonstrative aids relating to Plaintiffs qualifications that exceed the contents of the FD-954. Before addressing these three requests, the Court shall first consider the issues stemming from Defendant’s broader request, that the Court exclude testimony and evidence relating to Youssefs work experience and qualifications beyond the information that Youssef included in his FD-954.

a) Plaintiff may introduce testimony and evidence relating to Youssefs work experience and qualifications beyond the information included in Youssefs FD-954 only where Plaintiff first establishes a factual predicate as to why the LCB member in question would have known that specific information and should have considered, or did in fact consider, that information in the selection process.

As a preliminary matter, there is no dispute that the Local Career Board (LCB”) responsible for selecting the new ASC considered information in Youssefs FD-954. The question, therefore, is what evidence and testimony, if any, may be admitted relating to Youssefs work experience and qualifications that go beyond the information that Youssef included in his FD-954.

Defendant argues that applications for the ASC position consisted entirely of FBI forms FD-954, and that members of the LCB were not allowed to consider information beyond what was included in the FD-954. See Def. Mot. at 5. Therefore, according to Defendant, the only evidence relevant to the LCB’s evaluation of Yous-sefs experience and qualifications vis-a-vis the other applicants are the FD-954s themselves. Id. Defendant believes that additional information regarding Youssefs experience and qualifications would be “patently irrelevant and highly prejudicial” and that Plaintiff seeks to introduce “vast swathes (sic)” of such evidence as a means to suggest that Youssef was more qualified for the ASC position than the agent ultimately selected, Daniel Powers. Id.

Plaintiff maintains that the LCB, which consisted of three voting members — Hipól-ito Castro, Erkan Chase, and Arthur Za-rone — and one non-voting chairperson— Armando Fernandez — in fact considered information beyond what was before them when making a determination to deny Plaintiffs application. See Pl.’s Opp’n at 1. Plaintiff argues that LCB members may have considered information outside Plaintiffs FD-954 because they had personal knowledge of Plaintiff, which they were allowed to consider when evaluating his application. Id. at 3. Plaintiff, however, cites no evidence that any LCB member— all of whom were deposed by Plaintiff— actually drew upon any specific personal knowledge of Plaintiff, instead conjecturing that the LCB members’ personal knowledge of Plaintiff “naturally leads one to question the extent to which these Board members considered their own subjective personal knowledge of the Plaintiff during their evaluation of his candidacy for promotion.” Id. at 4.

Upon consideration of these arguments, the Court issued a finding at the first pretrial conference on June 30, 2015 that Plaintiff may introduce testimony and evidence relating to Youssefs work experience and qualifications beyond the information included in Youssefs FD-954 only where Plaintiff establishes a factual predicate as to why the LCB member in question would have known that specific information and should have considered, or did in fact consider, that information in the selection process. Where Plaintiff is unable to establish such a factual predicate, Plaintiff will not be allowed to introduce testimony and evidence relating to Yous-sefs work experience and qualifications, because such evidence would not be relevant to the issues before the jury. See Fed. R.Evid. 401. This finding sets out the scope of admissible evidence and testimony concerning Youssefs work experience and qualifications beyond the information included in Youssefs FD-954. The Court notes, however, that since the Court issued this finding at the first pretrial conference, Plaintiff has not identified, through his supplemental briefs, such a factual predicate with regard to much of the testimony and evidence that he seeks to introduce on this issue.

b) Plaintiff may introduce testimony by Ed Curran on limited issues.

Defendant objects to Plaintiffs presentation of testimony by Edward Curran, whom Plaintiff seeks to call as a lay opinion witness and as a qualified expert to testify as to (1) the importance of Yous-sefs accomplishments that would have been known to reasonable persons working in the counter-terrorism field; (2) Yous-sefs qualifications relative to those of Powers, the applicant selected for the ASC position; (3) Youssefs reputation within the FBI and the damages caused to that reputation by his non-selection for the ASC position; (4) the impact of Youssefs non-selection on Youssefs post-retirement job prospects outside of the FBI; and (5) the LCB interview procedures in place at the FBI, including the frequency with which LCBs conducted interviews or the appropriateness of outside conversations with candidates. See PL’s Witness Report, ECF No. [74], at 4-7.

i. Curran may testify as to Youssefs known accomplishments only to the extent that the testimony provides information regarding the relative importance that the counterterrorism community would have given to the accomplishments listed on Youssefs FD-954.

Plaintiff seeks to call Curran as a lay opinion witness and as a qualified expert in the field of counterterrorism to testify on the issue of whether a reasonable person working in the field of coun-terterrorism would have been aware of the significance of the achievements Plaintiff listed on his FD-954. See Pl.’s Witness Report, ECF No. [74], at 4-5. Curran, now retired, worked 52 years in the areas of counterintelligence and intelligence for various state and federal agencies, including the FBI. Id. at Exhibit 1. Curran worked for the FBI for 38 years, from 1962 to 2000, and served as Youssefs supervisor for a period of time before his retirement with the FBI. Id. at 3. Curran would testify that several of the achievements that Plaintiff listed on his FD-954, such as winning the Director of Central Intelligence Award, should have been recognized as significant accomplishments by LCB members, who deny knowledge of the accomplishments’ significance. Id. at 4-5; PL’s Opp’n at 6-7. Curran would also testify that Plaintiffs explanation of the awards on his FD-954 was reasonable in light of their significance. PL’s Witness Report, ECF No. [74], at 4-5.

Defendant argues that Curran’s testimony amounts to a mere restatement that Youssef was “fully qualified” for the ASC position, a fact that Defendant concedes. Defi’s Mot. at 7. Defendant also argues that Curran’s knowledge is not relevant to any issue in the case, is not probative of the LCB’s evaluation of the ASC applications, and would confuse the jury and unfairly prejudice Defendant. Id. Defendant further argues that Curran’s testimony is not admissible because expert opinions based on subjective beliefs fail to meet the reliability requirement necessary for the admission of expert testimony. Id.

Plaintiff responds that he seeks to introduce Curran’s testimony not for the purpose of showing that Plaintiff was qualified for the ASC position, but rather that Cur-ran’s testimony is pivotal in showing the existence of retaliatory animus on the LCB and for impeaching several of Defendant’s key witnesses who have claimed to be unaware of the importance of several of the accomplishments on Youssefs FD-954. PL’s Opp’n at 7-8. According to Plaintiff, Curran would testify that it is not credible for a manager at the FBI with any experience in the field of counterterrorism to deny knowledge of the significance of achievements, such as winning the Director of Central Intelligence Award. Id. at 7. Plaintiff further argues that assuming that the LCB members were not aware of the significance of these achievements, Curran’s testimony would demonstrate that the fact that all three members did not make any inquiry into the key facts in Youssefs FD-954 is evidence of pretext. Id.

Upon consideration of the parties’ arguments, the Court issued a finding at the first pretrial conference that Curran may testify as to Youssefs known accomplishments only to the extent that that they were listed on the FD-954. In particular, Plaintiff may use Curran’s testimony to provide additional information as to the importance of these accomplishments in the context that the counterterrorism community would have considered them important. The Court further notes that Defendant is correct in arguing that experts may not “opine on another witness’s credibility.” See, e.g., Engesser v. Dooley, 457 F.3d 731, 763 (8th Cir.2006). Therefore, Curran’s testimony shall be limited to the topics described above concerning the relative importance that the counterterrorism community would have given to the accomplishments listed on Youssefs FD-954. Finally, as noted by the Court in both pretrial conferences, the issue of whether Curran qualifies as an expert in the field of counterterrorism requires resolution at a Daubert hearing. Accordingly, the Court declines to rule on Curran’s qualifications as an expert at this time,

ii. Curran may testify as to Youssefs qualifications relative to those of Powers only to the extent that these qualifications were listed on the FD-954s or were necessarily known by the LCB members.

Plaintiff seeks to call Curran as an expert in the field of counterterrorism to testify on the issue of Plaintiffs qualifications relative to those of Powers, the candidate eventually selected by the LCB. See Pl.’s Opp’n at 9. In particular, Curran would testify that no reasonable person with counterterrorism experience at the FBI could have compared Powers’ FD-954 to Plaintiffs FD-954 and concluded that Powers was a superior candidate. Id.-, PL’s Witness Report, ECF No. [74], at 5-6. According to Plaintiff, this information is highly relevant for the purposes of suggesting retaliatory animus — if the LCB members could not have justified Powers’ promotion in any way based on his experience in the field of counterterrorism, this suggests that the reason he was promoted was because he was simply an alternative to Plaintiff. See PL’s Opp’n at 9.

Defendant argues that Curran, who left the FBI in 2000 and has never worked in the FBI’s Counterterrorism Division, lacks the necessary expertise to testify about what attributes and experience were important to the Counterterrorism Division in 2009. See Def.’s Mot. at 8. Defendant notes that Curran’s departure from the FBI predates the establishment of the Counterterrorism Division and of the ASC position for which Plaintiff applied. Id. Given Curran’s lack of expertise in this area, Defendant argues, Curran’s opinion that Youssef was more qualified than Powers would amount to nothing more than his own subjective belief. Id. In response, Plaintiff argues that Curran’s testimony would not be based on his subjective opinion. PL’s Opp’n at 9. Rather, Curran would testify as an expert in the field of counterterrorism, drawing on his professional experiences, developed over 38 years at the FBI, then later at the NYPD’s Intelligence Division. Id.

Upon consideration of the parties’ arguments, the Court finds that Curran may testify on the issue of Plaintiffs qualifications relative to those of Powers only to the extent that these qualifications were on the FD-954s or would have necessarily been known by the LCB members. Cur-ran’s testimony, as indicated by Plaintiff, shall not be based on Curran’s subjective opinion, but rather on his experiences in the field of counterterrorism. As previously stated, the issue of whether Curran qualifies as an expert in the field of coun-terterrorism requires resolution at a Dau-bert hearing. Accordingly, the Court declines to rule on Curran’s qualifications as an expert at this time,

iii. Curran may not testily as to the baseline of Youssefs reputation and to the impact of Youssefs non-selection on his reputation within the FBI.

Plaintiff seeks to offer lay opinion testimony by Curran as to the baseline of Youssefs reputation, i.e., Youssefs reputation prior to his non-selection, and to the impact of Youssefs non-selection on his reputation within the FBI. See PL’s Witness Report, ECF No. [74], at 6. Specifically, Curran would provide lay opinion testimony as to Youssefs reputation as an “excellent performer.”

The parties disagree as to what evidence is relevant to establishing Youssefs repu-tational baseline. Defendant contends that the only pertinent baseline of reputation is at the time immediately before the 2009 non-selection decision. See Def.’s Mot. at 8. Defendant argues that Curran, who resigned from the FBI in 2000 and has not worked with Youssef since 1996, has no personal knowledge of Youssefs reputation after 2000. Id. Defendant further argues that Youssefs reputation in the 1990s cannot reflect his reputation in 2009 because of intervening events after Curran’s departure, which according to Youssefs testimony in his prior trial, negatively impacted his reputation. Id. Therefore, Defendant argues, Plaintiffs reputation as known to Curran is not the relevant baseline reputation at issue, and Curran’s testimony should be excluded as irrelevant. Id. In support of this argument, Defendant cites several D.C. Circuit cases, which hold that reputation evidence must be based on observation of the reputation that is close in time to the events at issue, and may not be based in observations made in the distant past. See, e.g., United States v. Whitmore, 359 F.3d 609, 617 (D.C.Cir.2004).

In response, Plaintiff argues that the relevant reputation baseline should date back to the 1990s in order to provide the jury with the full context of Plaintiffs work history. PL’s Supp. Pretrial Brief at 7. Plaintiff argues that such evidence would establish Plaintiffs credibility, and purpose in alleging retaliation, two prerequisites for establishing a baseline reputation. Id. In support of this . argument, Plaintiff cites several employment discrimination cases, where courts admitted evidence of plaintiffs’ work histories to establish that there could have been discriminatory animus behind the defendants’ actions. See, e.g., Watson v. Nationwide Ins. Co., 823 F.2d 360 (9th Cir.1987). However, the cases cited by Plaintiff do not discuss whether to allow repu-tational evidence at trial, and are not instructive to the Court’s analysis in this case.

Upon review of these arguments, the Court finds that the relevant reputation baseline must be close in time to the events at issue in 2009, and cannot date back to the 1990s. See Whitmore, 359 F.3d at 609. Plaintiffs reputation in the 1990s does not accurately reflect Plaintiffs reputation in 2009, because his reputation changed over that time. Plaintiffs own testimony in Youssef I supports this conclusion. In Youssef I, Plaintiff testified that his reputation was injured in 2005 when he was denied permission to attend inspections. See Def.’s Supp. Pretrial Brief, ECF No. [89], at 5 (citing Tr. Of Jury Trial, Day 3, AM Session, 98:6-21, 125:1-5). Furthermore, the parties do not dispute Youssefs reputation in 2009 when he applied for the ASC position. Defendant acknowledges that Youssef met the eligibility requirements for the position, and that he was “fully qualified.” See Def.’s Mot. at 7. Therefore, the probative value of evidence establishing Youssefs reputation baseline, no less a baseline dating back to the 1990s, is marginal.

Finally, Curran does not have personal knowledge of Youssefs reputation within the FBI around the time of Youssefs non-selection in 2009. Therefore, Curran is not an appropriate witness to testify on this subject. At the second pretrial conference, the Court indicated a willingness to consider the admissibility of testimony by another of Plaintiffs witnesses concerning the issue of Youssefs reputation and the damages caused to his reputation within the FBI by his non-selection for the ASC position. However, Plaintiff failed to indicate in his supplemental briefing dated September 21, 2015 that he has any other evidence relating to Youssefs reputation within the FBI. See Pl.’s Supp. Mem., ECF No. [97]. Specifically, Plaintiffs supplemental briefing did not provide any information indicating “what the relevant community for evaluating Youssefs reputation is, what the quality of Youssefs reputation prior to his non-selection was, and who will testify as to Youssefs reputation,” as required by the Court’s Order dated August 14, 2015. See Order, ECF No. [92], at 3. Because Plaintiff has not responded to the Court’s inquiry above, Plaintiff cannot, at some later date, proffer another witness on this issue not identified at this time. However, the Court also observes that Plaintiff states in the Joint Pretrial Statement that Plaintiff would provide testimony as to the damages to his reputation. See Joint Pretrial Statement, ECF No. [77], at 12; see also PL’s Witness Report, ECF No. [74], at 9-11. The Court is reluctant to preclude Plaintiff from testifying on this issue, noting that Defendant did not raise any objections to Plaintiffs proffered testimony in the Joint Pretrial Statement, and that the Court allowed similar testimony concerning reputational damages by Plaintiff in Youssef I. See PL’s Witness Report, ECF No. [74], at 9-11; Def.’s Objections, ECF No. [77-6], at 4-6. Accordingly, the Court finds that Youssef, in lieu of Curran, may provide lay opinion testimony as to the baseline of Youssefs reputation and to the impact of Youssefs non-selection on his reputation within the FBI. However, the Court shall allow Youssefs testimony on reputational damages, only after Plaintiff provides further information indicating the relevant community for evaluating Youssefs reputation, as well as the quality of Youssefs reputation prior to his non-selection. •

iv. Curran may not testify as to the impact of Youssefs non-selection on Youssefs post-retirement employment prospects.

Plaintiff also seeks to call Curran to testify about Youssefs post-retirement reputational damage due to his diminished post-retirement employment prospects. See PL’s Supp. Pretrial Brief, ECF No. [88], at 10. Curran would provide expert and lay opinion testimony that Youssef, having left the FBI as Unit Chief and having not been selected for the ASC position, was unable to secure certain positions and earn certain compensation in his coun-terterrorism career beyond the FBI. Id. at 10-11. Plaintiff states in his supplemental briefing after the first pretrial conference that since his retirement from the FBI, he has pursued, without success, consulting positions at firms, including Booz Allen, who are looking for employees with coun-terterrorism experience. Id. at 10. Plaintiff, however, provided no further information regarding these consulting positions or any evidence whatsoever suggesting that the denial of the ASC position in 2009 caused Plaintiff to lose any of these job opportunities following his retirement in October 2014. The Court raised these concerns at the second pretrial conference and provided Plaintiff an opportunity to supplement its arguments on this issue. See Order dated August 14, 2015, ECF No. [92], at 3. Specifically, the Court ordered Plaintiff to “indicate whether he has tried to find post-retirement employment, what opportunities he has missed, what Curran will testify to, and the factual predicate that would permit Curran to testify as an expert about Youssefs allegedly diminished post-retirement employment prospects.” Plaintiff failed entirely to adduce any such evidence in his supplemental brief filed on September 21, 2015. See PL’s Supp. Mem., ECF No. [97].

Accordingly, the Court finds that Plaintiff may not offer testimony by Curran, or by any other witness, as to the impact of Youssefs non-selection on Youssefs post-retirement job prospects outside of the FBI. After several inquiries by the Court, Plaintiffs sole evidence of lost job opportunities remains a single, generalized reference to Plaintiffs pursuit of a consulting position at Booz Allen. Furthermore, when given the opportunity by the Court, Plaintiff failed to proffer any evidence suggesting that Plaintiff was not hired for the consulting position at Booz Allen following his retirement in 2014 because of his non-selection of the ASC position in 2009. The Court therefore agrees with Defendant that Plaintiff has provided no evidence to support a conclusion that any marginal value added by an ASC title would have qualified Plaintiff for jobs that were otherwise out-of-reach for him. Déf.’s Supp. Pretrial Brief, ECF No. [89], at 7. As Defendant notes, Plaintiff had a long career at the FBI, during which he rose to the ranks of management and occupied an important GS-15 Unit Chief position at the end of his tenure. Id. The record currently before the court provides no reason to suggest that the denial of the ASC position in 2009 would have caused Plaintiff to lose any job opportunities following his retirement in October 2014. Accordingly, the Court finds that Plaintiff may not offer testimony by Curran, or by any other witness, as to the impact of Youssefs non-selection on Youssefs post-retirement job prospects outside of the FBI.

v. Curran may not testify as to the practices and procedures relating to LCBs, including the frequency with which LCBs conducted interviews or the appropriateness of outside conversations with candidates.

Plaintiff also seeks to call Curran to testify as an expert concerning the practices and procedures relating to LCBs. See Pl.’s Witness Report, ECF No. [74], at 4. Specifically, Curran would testify as to the role of LCBs in the FBI promotional process, the role of the Chairman of the LCB, and the procedures used by LCBs. Id. This testimony would include discussion as to the right and responsibility of LCB members to interview candidates in order to understand their qualifications, especially if they were not familiar with significant achievements set forth in the FD-954. Id. Curran would also render an opinion that the failure to interview Yous-sef, combined with the fact that the Chairman of the LCB did talk with other applicants, was inappropriate. Id. Curran would also testify that LCB members should review the complete FD-954, and take into consideration factors such as years of experience, an applicant’s employment in the section for which the promotion would occur, and other career milestones reflected in the FD-954. Id.

As a preliminary matter, the Court observes that Plaintiff has not put forth any evidence to suggest that Curran, who left the FBI in 2000, was knowledgeable of the LCB policies and procedures in place at the time of the Plaintiffs non-selection in 2009. At the second pretrial conference, the Court raised this concern to Plaintiff, stating that it was not clear to the Court what expert testimony Curran would be able to provide about the LCB interview procedures. See Order dated August 14, 2015, ECF No. 92, at 3-4. After the second pretrial conference, the Court provided Plaintiff an opportunity to proffer additional evidence through an additional round of supplement briefing. See id. In his supplemental brief filed in response to the Court’s Order, Plaintiff, however, failed to respond to the Court’s concerns regarding Curran’s lack of knowledge of procedures in effect at the time of Plaintiffs non-selection. See Pl.’s Supp. Mem., ECF No. [97]. Plaintiff also did not indicate whether he still seeks to introduce expert testimony from Curran on the subject of LCB interview procedures. See id.

Instead, Plaintiff argues that the Court should not consider certain evidence proffered by Defendant in its supplemental briefing concerning the impact of certain policy changes in 2004 on LCB interview procedures. See id. at 2-3. Specifically, Plaintiff contends that Defendant inappropriately relies on a declaration of Valerie Parlave concerning the impact of the 2004 policy changes on interview procedures. See Pl.’s 2nd Supp. Pretrial Brief, ECF No. [90], at 3-4; PL’s Supp. Mem., ECF No. [97], at 2-3. The Court addresses, in great detail, Plaintiffs objections to Par-lave’s testimony and her declaration, including her declaration concerning the impact of the 2004 policy changes on LCB interview procedures, later in this Opinion, in Part III.C.4. As stated in Part III.C.4, the Court concludes that the Court may consider the Parlave declaration concerning the 2004 changes relating to candidate interview procedures, but the Court shall allow Plaintiff the opportunity to depose Parlave. See Part III.C.4

Defendant relies on the Parlave declaration in support of its argument that the FBI overhauled the career board process in 2004, four years after Curran’s departure, and that Curran has “no understanding of the revised process.” Def.’s Mot. at 9. The Parlave declaration provides details of the 2004 changes, which included, inter alia, a requirement that applicants provide “substantially more information” on the FD-954 in use after 2004, which reduced the likelihood that the LCB would conduct interviews, of candidates. Def.’s Supp. Pretrial Brief, ECF No. [89], at 3-4 and Exhibit 1, Declaration of Valerie Par-lave (“Parlave Declaration”).

In response, Plaintiff argues that Cur-ran had substantial experience with career boards up until his departure from the FBI in 2000, and that the 2004 changes merely amounted to “minor changes” that would not affect the probative value of Curran’s testimony. Pl.’s Opp’n at 8-9. The Court does not find this argument convincing. The changes to the career board process went beyond “minor changes” to the system with which Curran was familiar in the 1990s. The 2004 policy changes directly impacted the rights and responsibilities of LCB members to interview candidates — a key procedure for which Plaintiff has proffered Curran’s expert testimony. See Pl.’s Witness Report, ECF No. [74], at 4. As noted above, Plaintiff, despite repeated opportunities, has not put forth any evidence to suggest that Curran was knowledgeable of these post-2004 policies and procedures relating to LCBs. Accordingly, the Court finds that Curran may not testify as to the practices and procedures relating to LCBs, including the frequency with which LCBs conducted interviews or the appropriateness of outside conversations with candidates.

c) Plaintiff Youssef may provide testimony on limited issues.

Defendant seeks to limit Youssefs own testimony. Specifically, Defendant requests that Youssef not be permitted to testify — whether as “background,” “reputation” evidence, or otherwise — about his qualifications, experience, accomplishments, etc. except to the extent that those points are specifically described in his FD-954. Def.’s Mot. at 10.

i. Youssef may provide testimony comparing the qualifications in his FD-954 with those of Powers, to the extent that no other witness testifies on behalf of Plaintiff regarding this issue.

Youssef seeks to offer his own lay opinion testimony comparing his qualifications with those of Powers, the candidate selected for the ASC position. See Pl.’s Supp. Pretrial Brief, ECF No. [88], at 13.

Defendant argues that Youssef should not be permitted to testify on his qualifications relative to those of Powers because of the Court’s decision at the summary judgment stage, in which the Court held that Youssefs subjective opinion concerning his credentials did not weigh heavily in the Court’s analysis. See Def.’s Mot. at 11-12 (citing Youssef, 19 F.Supp.3d at 191). Defendant further argues that Youssefs own opinions that go beyond the contents of the FD-954 would only serve to distract the jury from the narrow retaliation claim and confuse the jury as to which of Plaintiffs qualifications were actually considered by the LCB. Id. at 10.

Plaintiff argues that his testimony would provide evidence showing that he had qualifications, of which LCB members were (or reasonably should have been) aware, that made him objectively better qualified for the ASC position than the candidate who was ultimately selected. PL’s Opp’n at 11., Plaintiff further argues that such evidence would also show the jury that the LCB did not have a legitimate' business reason for denying Plaintiffs application for promotion to the ASC position. Id. In other words, Plaintiffs testimony would be relevant for the purpose of showing a potential retaliatory animus by members of the LCB. Id.

The Court begins its analysis by observing that at the summary judgment stage, a plaintiffs own self-perception regarding the strength of his own credentials is normally of limited value for purposes of establishing discriminatory conduct. See, e.g., Perry v. Shinseki, 783 F.Supp.2d 125, 137 (D.D.C.2011), aff'd 466 Fed.Appx. 11 (D.C.Cir.2012). However, once the plaintiff has survived summary judgment, the Court’s analysis must change. Opinion testimony at trial in this case must be viewed not in light of whether it is relevant to establishing a disputed material issue of fact, but whether the opinion testimony has any tendency to make it more likely that the decision to promote Powers, instead of Youssef, was made with retaliatory animus. See Fed. R. Evid. 401. Thus, the bar for relevance at trial is lower than when evaluating the earlier motion for summary judgment, because Plaintiffs opinion need not, alone, establish a disputed issue of material fact. See, e.g., Burlington v. News Corp., No. 09-1908, 2010 WL 5481734, at *1 (E.D.Pa. Dec. 30, 2010). For this reason, if the parties reach trial, and there is no one else to speak on behalf of Plaintiff as to his qualifications, Plaintiff should be afforded the opportunity to give his opinion comparing his qualifications, in order to complete the record for the jury. See Greenfield v. Sears, Roebuck & Co., No. 04-71086, 2006 WL 2927546, at *12 (E.D.Mich. Oct. 12, 2006) (unpublished table opinion). The Court is mindful that the relevant issue in this case is the LCB’s perception of Youssefs qualifications, not Youssefs perception of his own qualifications. Therefore, to the extent that another witness, such as Cur-ran, testifies as an expert and compares Youssefs qualifications with Powers’ qualifications, then Youssef should not be permitted to give his opinion comparing their qualifications. However, the Court also recognizes that the jury must consider a complete record, and that the jury should not hear only from the LCB members on the issue of Youssefs qualifications. Accordingly, if Plaintiff is unable to call any other witnesses who can testify on his behalf comparing his qualifications with those of Powers, Plaintiff may provide his own testimony on the issue. The Court is not opening the door for Youssef to testify as to every experience from the beginning of his career. Rather, Plaintiff may testify only to the qualifications that were on his FD-954, including his positions and competencies, and his testimony should be limited in scope to information that would have been necessarily known to the LCB members.

As a related point, in the parties’ Joint Pretrial Statement, Defendant indicates that it intends to proffer testimony from the LCB members — Castro, Chase, Za-rone, and Fernandez — concerning the application requirements for the ASC position, their review, assessment, and scoring of the FD-954s of the four candidates for the ASC position, including Youssef, and the LCB proceedings related to this vacancy. Joint Pretrial Statement, ECF No. [77], at 20. These witnesses would also testify that their knowledge, if any, that Youssef had a pending lawsuit did not influence their scoring of his description of the various competencies for the ASC vacancy. Id. The Court shall admit their’ testimony on these issues under Rule 701

Defendant also indicates that it would call Powers to testify about the work-related experience described in Powers’ FD-954 to rebut testimony by Youssef, or any other witness called by Plaintiff, about the relative qualifications for the vacancy at issue. Joint Pretrial Statement, [77], at 23. The Court shall allow Powers’ testimony about his qualifications under Rule 701, but shall limit his testimony only to those qualifications stated on his FD-954.

ii. Youssef may also testify on the matter of LCB procedures in place at the time of Youssef s non-selection.

Youssef also seeks to testify as a lay person and as an expert on the matter of LCB. procedures. Pl.’s Witness Report, ECF No. [74], at 8. Specifically, Youssef would testify as to the role of career boards in the FBI promotional practice, the role of.the chairman of the career board, and the procedures used by career boards. Id. His testimony would address the rights and responsibilities of career board members to interview candidates in order to understand their qualifications, especially if they were not familiar with significant achievements set forth in the FD-954. Id. He would also render an opinion that the failure to interview Youssef, combined with the fact that the chairman of the LCB did talk with other applicants, was inappropriate. Id. Yous-sef would also testify that LCB members should review the complete FD-954, and take into consideration years of experience, the fact that the applicant was employed in the section for which the promotion would occur and other career milestones reflected in the FD-954. Id.

Defendant argues that Plaintiff should not be allowed to offer his personal opinion about how the LCB proceedings should have occurred in this case. Def.’s Mot. at 8. Defendant argues that Plaintiff has not shown that the career boards on which Plaintiff has participated operated under the same or similar rules as the LCB in this case, that those career boards considered similar positions as the ASC position in this case, or any other facts to suggest relevant knowledge to establish a foundation for his testimony. Id. According to Defendant, Plaintiff would be offering his own personal, subjective opinion under the guise of expert testimony. Id.

Plaintiff argues that he is highly qualified to testify as an expert witness on the matter of LCB procedures. Pl.’s Opp’n at 12. As a management-level employee at the FBI, Plaintiff was on several occasions asked to sit on LCBs and did in fact sit on at least 25 such career boards over the course of his time at the FBI. Id. Plaintiff also chaired at least 15 career boards, and argues that he has a high level of familiarity and expertise regarding the LCB process. Id.

Upon consideration of the parties’ arguments, the Court finds that Youssef may testify as to LCB policies and procedures, so long as Youssef has personal knowledge of these procedures from his experience on LCB panels during the relevant 2009 time period. The Court observes from the record that as a manager, Youssef was formally trained by the FBI in the career board process and indicates that he is “fully familiar” with the rules governing Career Boards at the time when his Assistant Section Chief application was reviewed.” Pl.’s Witness Report, ECF No. [74], at 7-8. The Court also observes that he has chaired 15 LCB panels and has been on 25 career boards. Id. It appears to the Court that Youssef may testify on these issues as a lay witness under Rule 701, so long as Youssef has personal knowledge of LCB procedures from his experience on LCB panels during the relevant 2009 time period. The Court, however, is unable to determine from the current record whether Youssef would qualify as an expert as to LCB policies and procedures, and concludes that if Plaintiff continues to request that Youssef be qualified as an expert, then the issue of Youssefs qualifications as an expert shall require resolution at a Daubert hearing.

Finally, as a related point, the Court shall not permit Youssef to testify, as a lay witness or as an expert, as to whether any specific actions taken by the FBI were retaliatory under Title VII. Plaintiff has not established any qualifications by which the Court could conclude that he is an expert on such issues, and to the extent that Youssef has personal knowledge of these issues, his testimony would be unfairly prejudicial and would not be helpful to the jury. See Fed. R. Evid. 403.

d) Plaintiff may not offer at trial Plaintiffs Exhibit 1, Exhibit 15, and Demonstrative Aids No. 1-6.

Defendant also seeks to exclude certain exhibits and demonstrative aids that Plaintiff intends to offer at trial. Def.’s Mot. at

12. Specifically, Defendant seeks to exclude Plaintiffs Exhibit 1, Exhibit 15, and Demonstrative Aids No. 1-6. Id. at 12-13.

i. Plaintiff may not offer at trial Plaintiffs Exhibit 1, which consists of Plaintiffs performance appraisal reports from 1989 to 2004.

Plaintiffs Exhibit 1 consists of Plaintiffs FBI performance appraisal reports (“PARs”) from 1989 to 2004. Defendant argues that Plaintiff hopes to sway the jury by the introduction of these reports because they may contain positive remarks about Plaintiffs job performance. Def.’s Mot. at 12. Defendant argues that the reports are irrelevant to the LCB review process and the non-selection decision at issue in this case because they were not considered by the LCB. Id. Plaintiff argues that these PARs, particularly the 1995 and 2000 PARs, discuss Youssefs role in the investigation of Omar Abdel Rahman, a.k.a., the “Blind Sheikh,” Yous-sefs performance as the Legal Attaché in Riyadh, and the evaluations and reasoning behind giving Youssef the Director of Central Intelligence Award. Pl.’s Supp. Pretrial Brief, ECF No. [88], at 14.

Plaintiff argues that these elements are all noted in Youssefs FD-954 and were factors considered by the LCB. Id. at 14-15. Plaintiff argues that the PARs would be helpful to members of the jury who may not be aware of these accomplishments. Id. at 15.

Upon consideration of the parties’ arguments, the Court concludes that the PARs in Exhibit 1 are not relevant to the non-selection decision because they were not considered separately by the LCB when selecting the new ASC. See Fed. R. Evid. 401. Furthermore, the information in the 1995 and 2000 PARs concerning Youssefs role in the investigation of the Blind Sheikh and his performance as the Legal Attaché in Riyadh are in the FD-954 itself, thereby making introduction of Exhibit 1 prejudicial, not helpful to the jury, and needlessly cumulative. See Fed. R. Evid. 403. Accordingly, Plaintiff may not introduce Plaintiffs Exhibit 1 at trial,

ii. Plaintiff may not offer at trial Plaintiffs Exhibit 15, which concerns Plaintiffs performance in the Riyadh office.

Plaintiffs Exhibit 15 comprises 15 pages of a 28-page report concerning an inspection of an FBI office in Riyadh, Saudi Arabia. The document describes in detail Plaintiffs role on this assignment at the Riyadh office in the late 1990s. Defendant argues that the- document is irrelevant to the claim in this case because it was not submitted to or considered by the LCB. Def.’s Mot. at 15. Defendant further argues that to the extent that any portions of the report were quoted in Plaintiffs FD-954, those references will be admitted through the FD-954 itself.- Id.

Plaintiff argues that like Exhibit 15, Exhibit 1 would help the jury to understand the significance of Youssefs accomplishments in the Riyadh office. Pl.’s Supp. Pretrial Brief, ECF No. [88], at 15. The Court finds this argument unavailing. Plaintiffs Exhibit 15 suffers from the same defects as Plaintiffs Exhibit 1. Exhibit 15 is not relevant to the non-selection decision because it was not considered separately by the LCB when selecting the new ASC. See Fed. R. Evid. 401. Furthermore, Youssefs performance as the Legal At-taché in Riyadh is described in the FD-954. Introduction of separate evidence without a link to the LCB deliberation process would be prejudicial and not helpful to the jury. See Fed. R. Evid. 403. Accordingly, Plaintiff may not offer at trial Plaintiffs Exhibit 15.

iii. Plaintiff may not offer at trial Plaintiffs Demonstrative Aids No. 1-6, which contain information as to Plaintiffs length of service.

Plaintiffs Demonstrative Aids No. 1-6 describe information about Plaintiffs length of service in various capacities in comparison to that of Powers.

The parties disagree as to whether the LCB could take into consideration an applicant’s length of service. The disagreement concerns the applicability of an LCB procedure allowing for the LCB’s technical consideration of an applicant’s “totality of experience.” The Court addresses the parties’ arguments concerning the applicability of this “totality of experience” approach later in the Court’s opinion, in Part III.C.2. For the purposes of the Court’s analysis with regard to Plaintiffs Demonstrative Aids No. 1-6, the Court concludes for the reasons stated in Part III.C.2 that the applicable procedures in place at the time of Youssefs non-selection would not have allowed for the technical consideration of an applicant’s “totality of experience.” See Part III.C.2; see also Youssef, 19 F.Supp.3d at 189.

Defendant argues that because the LCB members were not allowed to consider the applicants’ relative lengths of service, Plaintiffs Demonstrative Aids No. 1-6 would confuse the jury by suggesting that Plaintiff was the better-qualified applicant according to factors that were irrelevant to the selection decision. See Def.’s Mot. at 13.

In response, Plaintiff notes that Demonstrative Aids No. 1-6 each contain information contained within Youssefs FD-954. Pl.’s Opp’n at 13. Plaintiff argues that the documents would not confuse the jury, and would merely set forth the information contained directly on Youssefs FD-954 and then contrast the information to the information set forth on Powers’ FD-954. Id. at 14.

Upon consideration of the parties’ arguments, the Court concludes that Plaintiffs Demonstrative Aids No. 1-6 — -which focus on the relative length of service of the two applicants — would not be helpful to a jury, as this would highlight a factor not part of the deliberative process of the LCB. As conceded by both parties, the information described by these documents can already be found in the FD-954s, which will be introduced to the jury. Therefore, Demonstrative Aids No. 1-6, introduced on their own, would be prejudicial, not helpful to the jury, and needlessly cumulative. See Fed. R. Evid. 403. Accordingly, Plaintiff may not offer at trial Plaintiffs Demonstrative Aids No. 1-6.

2. Testimony and Evidence of Any Alleged Prior Discriminatory Acts or Retaliatory Acts including the Basis for the Youssef I Retaliation Claim

Defendant objects to Plaintiffs introduction of evidence of alleged prior discriminatory or retaliatory acts or claims. Specifically, Defendant’s motion requests that the Court (1) limit testimony and evidence about Youssefs prior EEO activity to a neutral statement that he was engaging in such activity at the time of his non-selection for the ASC position and (2) exclude evidence concerning the ongoing Inspector General Investigation, arising from whistleblower activity, or any alleged prior discriminatory or retaliatory acts by FBI officials other than any such allegations directed at the LCB decisionmakers that are close in time to the alleged retaliation in this case. Def.’s Mot. at 14, 16. The Court shall address each request in turn.

a) The Court shall limit testimony and evidence about Youssefs prior EEO activities to a neutral statement that he was engaging in such activities at the time of his non-selection for the ASC position, and that the FBI is not permitted to take retaliatory action in response to those activities.

Defendant requests that the Court limit testimony and evidence about Yous-sefs prior EEO activity to a neutral statement that he was engaging in such activity, such as depositions, at the time of his non-selection for the ASC position. Def.’s Mot. at 14. Defendant further requests that to the extent that Youssef is permitted to introduce alleged evidence of other discriminatory or retaliatory acts by the FBI as background information or for any other purpose, the FBI should be entitled to introduce evidence that the Youssef I jury found that the FBI did not retaliate against Youssef to show that the prior allegations were found to lack merit. Id.

As background, the Court notes that Youssef claims that the FBI retaliated against him when he was not selected for the ASC position in 2009. Id. At the time of the selection decision, Youssef was participating in depositions and court proceedings related to his retaliation claim in Youssef I. Id. In Youssef I, Youssef also brought a national origin, discrimination claim, which had been dismissed eighteen months prior to the selection decision, but was later reinstated by the Court of Appeals. Id. Defendant argues that the Court should not allow testimony about Youssefs national origin claim because the unfair prejudice to the FBI would outweigh any probative value under Fed. R. Evid. 403. Id. Specifically, Defendant argues that the introduction of evidence relating to Youssefs national origin claim would be unfairly prejudicial because the claim was not the protected activity upon which Youssef bases his retaliation claim in this case. Id. at 15. Rather, Defendant argues, Youssefs protected activity in the fall of 2009 was a Title VII retaliation claim based on Youssefs same national origin claim, on which the Youssef I jury later entered a verdict in favor of the FBI. Id. Defendant further argues that Youssef, by introducing this evidence, would mislead the jury into believing that his pending protected activity was based solely on a national origin discrimination claim. Id. Defendant requests that to the extent that Youssef seeks to introduce evidence about his prior protected activity- — other than a neutral statement that he engaged in protected EEO activity — the FBI should be entitled to introduce evidence that the protected activity was a claim for retaliation based on the same underlying protected activity and that a prior jury entered judgment in favor of the FBI. Id.

Plaintiff agrees with Defendant that any discussion concerning the merits of his pri- or claims, by either party, is inappropriate. PL’s Opp’n at 15; Pl.’s Mot. at 5-6. Plaintiff also agrees with Defendant’s argument that any reference to dismissed claims would be highly prejudicial. Id. According to Plaintiff, the issue in this retaliation ease is Youssef s right to participate in anti-discrimination proceedings or to oppose discriminatory practices. Id. Plaintiff disagrees with Defendant’s suggestion that any reference to the existence of these claims for the purpose of providing background to Plaintiffs retaliation claim necessitates the introduction of the prior jury verdict Defendant mentions. Id. Plaintiff further argues that Defendant’s presentation of the results of the earlier case would mislead the jury by insinuating that a previous jury entered a verdict that Plaintiff was not retaliated against. Id. Instead, Plaintiff argues, the previous jury only reached the question of whether or not a delay or denial of inspection certification constituted an adverse employment action. Id. The jury never reached the ultimate question of retaliation. Id. Plaintiff therefore requests that