United States District Court, E.D. Virginia, Norfolk Division
REBECCA BEACH SMITH CHIEF JUDGE.
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.
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.
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.
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.
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.
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.
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.
FACTUAL AND PROCEDURAL HISTORY
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
Plaintiff is an engineer who began working for NASA in 2002.
Amend. Compl. ¶ 38. 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.
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.
Review of Magistrate Judge's R&Rs
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).
Motion for Summary Judgment
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.
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.
Plaintiff's Intentional Discrimination Claims
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)).
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).
Standard for Comparator Evidence
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).
Plaintiff's Retaliation Claim
VII prohibits an employer from discriminating against an
employee “ because he has opposed any practice made
an unlawful employment practice by this subchapter, or 
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).
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
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.