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Emami v. Bolden

United States District Court, E.D. Virginia, Norfolk Division

March 10, 2017

SAIED EMAMI, Plaintiff,
CHARLES F. BOLDEN, JR., In his official capacity as Administrator, National Aeronautics and Space Administration, Defendant.



         This matter comes before the court on three separate motions. First, on September 29, 2015, the Defendant, Charles F. Bolden, Jr. ("the Defendant"), filed a Motion for Summary-Judgment and accompanying Memorandum in Support. ECF Nos. 60, 61. On October 12, 2016, the Plaintiff, Saied Emami ("the Plaintiff"), filed a Response, ECF No. 72, and on October 17, 2016, the Defendant filed a Reply. ECF No. 78.

         Second, on October 6, 2016, the Defendant filed a Motion to Exclude Plaintiff's Experts and accompanying Memorandum in Support. ECF Nos. 65, 66, On October 20, 2016, the Plaintiff filed a Response, ECF No. 79, and on October 26, 2016, the Defendant filed a Reply. ECF No. 84.

         Third, on October 12, 2016, the Defendant filed a Motion in Limine and accompanying Memorandum in Support. ECF Nos. 69, 70. The Plaintiff filed a Response on October 25, 2016, ECF No. 83, and on October 31, 2016, the Defendant filed a Reply. ECF No. 86.

         On October 24, 2016, this court referred the above motions to a United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned district judge proposed findings of fact, if applicable, and recommendations for the disposition of the motions. ECF No. 81.

         Having conducted hearings on the above motions on October 31, 2016, ECF No. 87, the Magistrate Judge filed a Report and Recommendation ("R&R") on December 20, 2016, addressing the Motion for Summary Judgment and the Motion in Limine, ECF No. 89 (hereinafter "First R&R"), and then filed another R&R, addressing the Motion to Exclude Plaintiff's Experts, on the same day. ECF No. 90 (hereinafter "Second R&R"). In the First R&R, the Magistrate Judge recommended granting in part and denying in part the Motion for Summary Judgment, granting summary judgment on the Plaintiff's retaliation claim, and directing the parties to proceed to trial on the Plaintiff's claims of intentional discrimination. First R&R at 28-29. The Magistrate Judge also recommended denying in part the Motion in Limine, "to exclude evidence of comparator employees, and consider further objections to comparator evidence at trial." Id. at 29. In the Second R&R, the Magistrate Judge recommended denying the Motion to Exclude Plaintiff's Experts. Second R&R at 26.

         By copy of both R&Rs, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See First R&R at 29-30/ Second R&R at 26-27. On January 3, 2017, the Plaintiff filed an objection to the First R&R. ECF No. 91. On the same day, the Defendant also filed an objection to the First R&R. ECF No. 92. On January 17, 2017, the Plaintiff filed a Response to the Defendant's Objection, ECF No. 93, and then the Defendant filed a Response to the Plaintiff's Objection. ECF No. 94. Neither party objected to the Second R&R. Accordingly, these matters have been fully briefed and are ripe for review.

         For the reasons discussed herein, the court ADOPTS Parts I, II, and III.A of the First R&R; the court REJECTS IN PART and MODIFIES Part III.B of the First R&R; and the court ADOPTS the Second R&R in full. Accordingly, the Motion for Summary Judgment and the Motion to Exclude Plaintiff's Experts are DENIED. For the reasons provided in Part III.C of this Opinion, the Defendant's Motion in Limine is also DENIED.


         This matter arises from the Plaintiff's claims of employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), against Charles F. Bolden, Jr. ("the Defendant")/ in his official capacity as Administrator of the National Aeronautics and Space Administration ("NASA").[1]

         The Plaintiff is an engineer who began working for NASA in 2002. Amend. Compl. ¶ 38.[2] Through 2012, he received ratings of "Meets or Exceeds Expectations" or "Fully Successful, " including "Exceeds Expectations" and "Significantly Exceeds Expectations" for certain job elements. Id. ¶¶ 43-57. In 2012, he was placed on a performance plan, to which he objected. Id. ¶¶ 93-96. The Plaintiff worked under this plan and claims that he "performed all of the tasks assigned to him to the fullest extent possible" during the performance year of 2012-13. Id. ¶ 97. On January 18, 2013, citing unacceptable performance, Rock and another supervisor placed the Plaintiff on a Performance Improvement Plan ("PIP"), requiring the Plaintiff to submit quarterly reports on certain aspects of his work. Id. ¶¶ 119-20. The Plaintiff submitted quarterly reports on February 15, 2013, and February 28, 2013. Id. ¶ 134. On March 8, 2013, the Plaintiff also gave Rock further submissions in an effort to comply with the PIP. Id. ¶ 139.

         On April 12, 2013, claiming that the Plaintiff's work under the PIP was unacceptable, Rock issued a Notice of Proposed Removal to the Plaintiff. Id. ¶¶ 25, 150. On June 21, 2013, Deputy Director Damador Ambur ("Ambur") affirmed the Plaintiff's termination. Id. ¶¶ 25, 178. The Plaintiff appealed his termination to the Merit Systems Protection Board (“MSPB"), alleging discrimination based on national origin and religion, and retaliation, under Title VII. Id. ¶ 25. The MSPB ruled against the Plaintiff on November 20, 2014, and its decision became final on December 25, 2014. Id. The Plaintiff timely filed a Complaint in this court within thirty (30) days of that finalized decision. ECF No. 1. The Plaintiff filed an Amended Complaint on April 1, 2015. ECF No. 4.


         A. Review of Magistrate Judge's R&Rs

         Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R&R to which a party has specifically objected. Fed.R.Civ.P. 72(b). The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the matter to him with instructions. 28 U.S.C. § 636(b)(1).

         B. Motion for Summary Judgment

         Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. A court should grant summary judgment, if the nonmoving party, after adequate time for discovery, has failed to establish the existence of an essential element of that party's case, on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In essence, the nonmovant must present "evidence on which the [trier of fact] could reasonably find" for the nonmoving party. Anderson, 477 U.S. at 252.

         To defeat a motion for summary judgment, the nonmoving party must go beyond the facts alleged in the pleadings, and rely instead on affidavits, depositions, or other evidence to show a genuine issue for trial. See Celotex, 477 U.S. at 324; see also M & M Med. Supplies & Serv., Inc. v. Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1993) ("A motion for summary judgment may not be defeated by evidence that is 'merely colorable' or 'is not sufficiently probative.'" (quoting Anderson, 477 U.S. at 249-50)). Conclusory statements, without specific evidentiary support, do not suffice, Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998), nor does "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position." Anderson, 477 U.S. at 252. Rather, "there must be evidence on which the jury could reasonably find for the plaintiff." Id.

         C. Plaintiff's Intentional Discrimination Claims

         1. General Standards

         Title VII prohibits an employer from "discharging] any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To succeed on a claim of wrongful termination due to intentional discrimination under Title VII, a plaintiff must carry his burden under the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) . Texas Dep't of Comm. Affs. v. Burdine, 450 U.S. 248, 252-53 (1981). This framework requires, initially, that a plaintiff prove by a preponderance of the evidence a prima facie case for intentional discrimination. Id. at 252-53. For wrongful termination, the prima facie case requires such proof of the following: " (1) membership in a protected class; (2) satisfactory job performance; (3) adverse employment action; and (4) different treatment from similarly situated employees outside the protected class." Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir. 2010) (citing White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)).

         Should a plaintiff demonstrate a prima facie case, a defendant must then "rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason." Burdine, 450 U.S. at 254. If a defendant provides a sufficient rebuttal, a plaintiff, who "retains the burden of persuasion, " must then "have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision." Id. at 256. At this final stage, a plaintiff may ultimately succeed in proving discrimination "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Id. at 256 (citing McDonnell Douglas, 411 U.S. at 804-805).

         2. Standard for Comparator Evidence

         "Plaintiffs are not required as a matter of law to point to a similarly situated comparator to succeed on a discrimination claim." Haywood v. Locke, 387 F.App'x 355, 359 (4th Cir. 2010) (citing Bryant v. Aiken Reg'l Med. Ctrs., 333 F.3d 536, 545 (4th Cir. 2003)). Should a plaintiff rely upon comparators, however, the given comparators must be "similar in all relevant respects." Id. (citing Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992); Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994) (citing Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989))). Haywood provides that a showing of similarity to comparators "would include evidence that the employees 'dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without such differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it."' 387 F.App'x at 359 (quoting Mitchell, 964 F.2d at 583). Comparators need not be identical; rather, they must be similar in all relevant aspects, "such as conduct, performance, and qualifications." Rayyan v. Virginia Dep't of Transportation, No. 1:15cv01681, 2017 WL 123442, at *3 (E.D. Va. Jan. 12, 2017) (citing Haywood, 387 F.App'x at 359).

         D. Plaintiff's Retaliation Claim

         Title VII prohibits an employer from discriminating against an employee “[1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." 42 U.S.C. § 2000e-3(a). The first clause is known as the "opposition clause, " and the second is known as the "participation clause." Crawford v. Metro. Govt, of Nashville & Davidson Cty., Tn., 555 U.S. 271, 274 (2009) . To succeed on a claim of retaliation brought under either clause, a plaintiff must carry his burden under the McDonnell Douglas framework. E.E.O.C. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (2005) (citing Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998)). Under that framework, "a plaintiff bears the initial burden of establishing a prima facie case of retaliation." Id. (citing Laughlin, 149 F.3d at 258).

         For retaliation claims, a plaintiff's prima facie case entails proof of the following elements: (1) the plaintiff "engaged in a protected activity"; (2) "the employer took a materially adverse action against" the plaintiff; and (3) a causal link "between the protected activity and the adverse action." Mascone v. Am. Physical Soc'y, Inc., 404 F.App'x 762, 765 (4th Cir. 2010). "Protected activity" is that which falls under the participation or opposition clauses of Title VII's retaliation provision. Laughlin, 149 F.3d at 259.

         A materially adverse action is one that "'might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Mascone, 404 F.App'x at 765 (quoting Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)). "This objective standard is phrased 'in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.'" Shetty v. Hampton Univ., No. ...

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