Igor Belyakov v. Michael Leavitt

Filing 920090121

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-2140

IGOR BELYAKOV, Plaintiff ­ Appellant, v. MICHAEL O. LEAVITT, Secretary, Defendant ­ Appellee.

No. 07-2141

IGOR BELYAKOV, Plaintiff ­ Appellant, v. MICHAEL O. LEAVITT, Secretary, United States Department of Health and Human Services, Defendant ­ Appellee.

Appeal from the United States District Court for the District of Maryland, at Greenbelt. Deborah K. Chasanow, District Judge. (8:04-cv-04008-DKC)

Argued:

October 29, 2008

Decided:

January 21, 2009

Before WILLIAMS, Chief Judge, MICHAEL, Circuit Judge, and John T. COPENHAVER, Jr., United States District Judge for the Southern District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Bart Garry, Baltimore, Maryland, for Appellant. Jason Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Dr. Igor Belyakov filed two actions against his former employer, the Secretary of the U.S. Department of Health and Human Services (DHHS), under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In the first action he

alleged that he was not selected for a new position in DHHS because of his (Russian) national origin. In the second action

he alleged that he was retaliated against (not retained in his existing position) because he had filed an administrative claim alleging national origin discrimination. The district court

entered summary judgment for DHHS in both cases, which have been consolidated on appeal. We affirm. I. Because these cases are before us on appeal from the grant of summary judgment, we state the facts in the light most favorable to the non-moving party, Belyakov. See Holland v. Belyakov

Wash. Homes, Inc., 487 F.3d 208, 210 (4th Cir. 2007). began working in December of 1996 as a senior

postdoctoral

fellow at the National Cancer Institute (NCI), a division of the National Institutes of Health (NIH), which in turn is a part of DHHS. Specifically, he worked in the Vaccine Branch, Center for Belyakov

Cancer Research under Branch Chief Dr. Jay Berzofsky.

was promoted to a Staff Scientist position in November 2001. This appointment was for a five-year term that was potentially 3

renewable for a second five-year term.

In 2002 two tenure track

positions became available in the National Institute of Dental and Craniofacial Research (NIDCR), a separate division within NIH. Both positions were in the Oral Infection and Immunity The openings

Branch headed by Branch Chief Dr. Sharon Wahl.

were for a mucosal immunologist and a molecular immunologist. Belyakov applied for both positions. NIH guidelines outline the standard procedures used to fill tenure track positions within the institutes and centers that form NIH. search The guidelines contemplate the formation of a that includes among its membership a

committee

chairperson who is an expert in the scientific field, a woman scientist advisor, a scientist who identifies him- or herself as an under-represented minority, a representative of the Office of Equal Opportunity and Diversity Management, and a representative nominated by NIH's Deputy Director of Intramural Research.

Additionally, the guidelines contemplate that the Chief of the Lab or Branch with the open position will serve on the

committee.

The search committee has several responsibilities,

the most significant of which is as follows: The search committee members shall review all applications received that are judged at least minimally qualified. Likely candidates are invited for presentation of a seminar and interviews as appropriate. These are scheduled so that a majority of the scientists on the search committee can participate. A short list (no more than 2 or 3) of 4

highly qualified candidates, [should be] prepared by the Committee Chair. J.A. 732. According candidates is to the by guidelines, the Lab or this short list of who

reviewed

Branch

Chief,

recommends a candidate to a Selecting Official. contemplate that the Scientific Director of

The guidelines the relevant

institute or center will serve as the Selecting Official unless he or she serves on the search committee. In that event, the

guidelines indicate that the Director of the institute or center will serve as the Selecting Official. Finally, the Scientific

Director must forward the name of the selected candidate, for review and approval, to the Director of the relevant institute or center and to the Deputy Director for Intramural Research. The guidelines specifically note that modifications to these

procedures are appropriate in individual cases depending on the seniority and expertise level desired in the individual

ultimately selected. The search process used to fill the mucosal

immunologist position in the Oral Infection and Immunity Branch was modified in that one Dr. significant Henning respect. The as guidelines Scientific

contemplated

Birkedal-Hansen

Director of NIDCR would act as the Selecting Official unless he served on the search committee, in which case NIDCR's director,

5

Dr. Larry Tabak, would serve as the Selecting Official.

In this

case, however, Wahl, the Branch Chief, served as the Selecting Official. The record does not indicate why Wahl served as the

Selecting Official, but it does establish that Wahl assumed that position at the start of the search process. The procedures

used were otherwise largely unmodified from those suggested by the guidelines. Wahl initially drafted a list of search

committee members that complied with the criteria specified in the guidelines. That list was and approved NIH's by the Scientific of

Director,

Birkedal-Hansen,

Deputy

Director

Intramural Research, Dr. Michael Gottesman.

Once formed, the

search committee winnowed down the twelve applicants for the mucosal immunologist position to two candidates: Belyakov and Dr. Wanjun Chen. Belyakov had also been selected as a top candidate for the molecular for to immunologist that position a position. had, in The fact, the search already committee scheduled

created Belyakov

present

seminar

when

mucosal

immunologist

search committee informed Wahl that Belyakov was also one of its top candidates. for both On becoming aware that he was a top candidate Wahl suggested to the by committees members then of that both

positions, give a

Belyakov search

single

seminar

attended

committees.

The

committees

would

separately

interview him. 6

Belyakov's dual purpose seminar took place March 18, 2003, as did his interviews with the molecular immunologist Early in the

search committee and several other individuals.

afternoon Belyakov met individually with Wahl and then Tabak. The record does with not Wahl make and clear Tabak which related position to or Belyakov's whether the

interviews

interviews related to both positions.

Belyakov asserts that in

his interview with Tabak, Tabak told him that "there were too many Russians at NIDCR his already." dual the J.A. 440. Thereafter, and met answered with the

Belyakov questions.

presented

purpose seminar

seminar Belyakov

Following

molecular immunologist search committee as a group, and then he met individually with senior investigators working in Wahl's

laboratory.

One of these senior investigators, Nick Ryba, was a

member of the mucosal immunologist search committee, although there is no indication that he interviewed Belyakov in his

capacity as a member of that search committee. The molecular immunologist search committee

recommended two candidates (Belyakov was not one of them) to Wahl, who in turn recommended one of those candidates to

Birkedal-Hansen.

NIDCR director Tabak ultimately decided not to

fund a molecular immunologist position in Wahl's Branch. The mucosal immunologist search committee proceeded by interviewing Dr. Wanjun Chen 7 and attending his seminar

presentation.

The search committee never met as a whole to Nevertheless, several members of the search Belyakov's seminar and one member of the

interview Belyakov. committee attended

committee, Ryba, individually interviewed Belyakov following the seminar. The search committee appears to have had at least one In that discussion

discussion after both candidates' seminars.

"no-one . . . stood up for [Belyakov] as the better candidate." J.A. 565. search In a letter dated September 5, 2003, the Chair of the wrote a letter to Wahl indicating that the

committee

committee considered Belyakov and Chen the top candidates for the mucosal immunologist position. The letter also said that,

"of the two candidates, Dr. Wanjun Chen was judged to be the somewhat stronger candidate." J.A. 544.

On September 23, 2003, Wahl informed Belyakov that the search committee had recommended and that she Chen and for the mucosal had

immunologist

position

Birkedal-Hansen

concurred in this recommendation.

Two days later Belyakov sent

a letter to Gottesman complaining about inequities in the search process. Gottesman agreed to look into the matter, noting that

Chen's appointment could not be finalized without his approval. His staff began contacting to and interviewing whether members of the any

search

committee

determine

there

were

irregularities.

On October 10, 2003, Birkedal-Hansen formally

concurred in the recommendation of Chen and sought approval from 8

both Tabak and Gottesman to appoint Chen to the position.

By

letter dated January 22, 2004, Gottesman informed Belyakov that he had completed his inquiry into the search process and had concluded that Belyakov had been provided a fair opportunity to compete for the position. Shortly thereafter, Gottesman

formally approved Chen. After contacting an Equal Employment Opportunity (EEO) counselor on February 23, 2004, Belyakov filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that his non-selection for the mucosal immunologist position was due to national origin discrimination and age discrimination. The

EEOC dismissed his complaint as untimely, but DHHS has since conceded that the complaint was timely filed. Belyakov filed a

complaint in district court against DHHS on December 23, 2004. Belyakov's complaint alleged national origin discrimination

under Title VII, 42 U.S.C. § 2000e-2, and a violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623. later withdrew his age discrimination claim. DHHS filed He a

motion for summary judgment on March 14, 2007. While pursuing his EEO action, Belyakov continued

working in the Vaccine Branch of the Center for Cancer Research under Branch Chief Dr. Jay Berzofsky. increasingly strained. Their relationship grew

Berzofsky claims that Belyakov

9

became more and more confrontational and antagonistic not only with me, but with the other scientists in the Branch and some outside collaborators. Dr. Belyakov several times refused to follow my direct orders and would become overly insubordinate. . . . As time went on the problems with him started becoming more and more frequent, reaching a crescendo in May 2005 when I was forced to issue Dr. Belyakov an official reprimand in writing. J.A. 259-60. by Belyakov limiting alleges his and that Berzofsky access treated to him

inequitably authorship

resources, sick

equipment, this time

opportunities,

leave.

During

Berzofsky informally rebuked Belyakov at least once for ignoring his instructions. He wrote an email to Belyakov on April 20,

2005, indicating that he was "very concerned and displeased" to learn that Belyakov had contacted a publication to question why it had rejected his submission, even though Berzofsky had J.A.

explicitly told Belyakov not to contact the publication. 283.

Berzofsky issued an official reprimand to Belyakov in May 2005. Although the reprimand referred to one incident in

September 2002 in which Belyakov was allegedly "insubordinate in refusing to include data from a collaborator" in a study, J.A. 285, the bulk of the incidents referred to in the reprimand took place between February and May 2005. The reprimand asserts that

Belyakov refused to make changes to jointly authored manuscripts that Berzofsky requested as the senior author; that Belyakov objected to scheduling changes in a manner that was disruptive 10

and lost

that his

undermined temper

Berzofsky's several

authority; decisions

and

that

Belyakov with In

over

Berzofsky

made

respect to Belyakov's collaborations with other scientists.

November 2005 Berzofsky informed Belyakov that his appointment would not be renewed when it expired the following year. Belyakov filed a complaint with the EEOC on January 13, 2006, alleging that the decision not to renew his position in the Vaccine Branch was in retaliation for prior EEO activity and because of national origin discrimination. On April 4,

2006, Belyakov further submitted an affidavit to the EEOC in which he asserted that Berzofsky had treated him inequitably in various ways and had issued him an official reprimand. The

affidavit suggests that at least some of Berzofsky's conduct was in retaliation for Belyakov's prior EEO activity and because of Belyakov's national origin. The EEOC issued a final decision Belyakov filed a He alleges illegal Belyakov also

denying Belyakov's claims on August 20, 2006. complaint against DHHS on November 11, 2006.

retaliation under Title VII, 42 U.S.C. § 2000e-3. filed a motion to commence discovery.

DHHS filed a motion to

dismiss or, in the alternative, for summary judgment on January 22, 2007. On September 6, 2007, the district court granted DHHS summary judgment in both cases. The court also denied

Belyakov's motion to commence discovery in the retaliation case. 11

Belyakov timely appealed those determinations, and the two cases have been consolidated. II. We first address Belyakov's claim that his rights

under Title VII were violated when he was not selected for the mucosal immunologist position in the Oral Infection and Immunity Branch of NIDCR because of national origin discrimination. We

review de novo the district court's grant of summary judgment to DHHS on this issue. Hill v. Lockheed Martin Logistics Mgmt., "Summary judgment is answers with to the

Inc., 354 F.3d 277, 283 (4th Cir. 2004). appropriate `if the and pleadings, admissions on

depositions, file,

interrogatories,

together

affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Id. at 283 (quoting Fed. R. Civ.

P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court must construe the evidence in the record in

the light most favorable to the nonmoving party and draw all reasonable inferences in his favor. Inc., 477 U.S. 242, 255 (1986). Anderson v. Liberty Lobby,

But, there must be "sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party. is not significantly If the evidence is merely colorable, or probative, summary judgment may be

granted."

Id., at 249-50 (internal citations omitted). 12

Title VII makes it unlawful for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual or with respect of to his

compensation, because of

terms,

conditions,

privileges color,

employment, sex, or

such

individual's

race,

religion,

national origin."

42 U.S.C. § 2000e-2(a)(1).

Belyakov, who was

born in Russia, argues that DHHS failed or refused to hire him in a new position because of his national origin. Belyakov may

prove this alleged violation of Title VII in either of two ways: (1) by "using any direct or indirect evidence relevant to and sufficiently probative" of discriminatory purpose or (2) by

using the burden-shifting approach outlined in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973). F.3d 373, 391-92 (4th Cir. 2001). Rhoads v. FDIC, 257 argued to the of the

Belyakov

district

court

that to

there

was

sufficient

direct

evidence in

discrimination

withstand

summary

judgment

and,

alternative, that he was able to succeed under the McDonnell Douglas burden-shifting approach. both arguments. judgment was not The district court rejected

On appeal Belyakov argues only that summary appropriate in light of sufficient direct

evidence of discrimination. To evidence of overcome summary judgment by proving must direct to

discriminatory

purpose,

Belyakov

point

"evidence of conduct or statements that both reflect directly 13

the alleged discriminatory attitude and that bear directly on the contested employment 180 F.3d 67 decision." 598, 607 (4th 1142 the Brinkley Cir. (4th sole v. Harbour (quoting 1995)). for the

Recreation Fuller v.

Club,

1999) Cir.

Phipps,

F.3d need

1137, not be

Discriminatory

purpose

reason

employment decision, but it must play a motivating role in the decision. 42 U.S.C. § 2000e-2(m); Baird v. Rose, 192 F.3d 462,

470 (4th Cir. 1999). Belyakov argues that Dr. Tabak's statement that "there were too many Russians at NIDCR already" constitutes direct

evidence of discrimination.

When this statement is construed in

the light most favorable to Belyakov, it reflects discriminatory animus. Discriminatory animus is not enough by itself, however;

there must also be a showing that Tabak was responsible for the decision present[] not to hire Belyakov. to "[T]he establish plaintiff that [the [must] person

sufficient

evidence

allegedly acting pursuant to a discriminatory animus] was the one `principally responsible' for, or the `actual decisionmaker' behind, the action." Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 288-89 (4th Cir. 2004) (citing Reeves v. Sanderson, 530 U.S. 133, 151-52 (2000)). The district court

concluded that the actual decisionmaker in this case was Deputy Director Gottesman whose approval was required in order to

14

finalize position.

Chen's

appointment

to

the

mucosal

immunologist

Belyakov agues that Gottesman may have been the actual decisionmaker with respect to the decision to hire Chen, but not with respect to the non-selection of Belyakov. Belyakov had

already been eliminated from the search process by the time the decision reached Gottesman. Certainly, a search process that

eliminates candidates because of discriminatory animus is not insulated under Title VII by virtue of the fact that non-

discriminatory personnel decisions are later made with respect to remaining candidates. evidence that Tabak, In this case, however, there is no who was allegedly acting with

discriminatory animus, was responsible for the decision not to select Belyakov. Tabak attended Belyakov's seminar and

interviewed Belyakov the morning of the seminar.

But a number

of NIDCR scientists who were not part of the search process attended the seminar. Participation and questioning from the

scientific community appears to have been expected and required so that the search committee members present had an opportunity to see Belyakov answer questions and interact with scientists in the pertinent field the of research. Five senior search scientists committee that

unaffiliated interviewed these

with

molecular that day.

immunologist There in is any no

Belyakov

suggestion

scientists

were

involved 15

search

committee

decisions.

Thus,

the

fact

that

someone

participated

as

an

interviewer does not prove that he or she also participated in search committee decisions. Tabak was not on the search committee, and there is no evidence that Tabak influenced the committee in its decision not to select Belyakov. The search committee chair sent a

recommendation letter to Wahl indicating that both Belyakov and Chen "were excellent young scientists with very considerable

promise," but that, "of the two candidates, Dr. Wanjun Chen was judged to be a somewhat stronger candidate." J.A. 544-45. It

made clear that the committee "considered Dr. Wanjun Chen as the top candidate." J.A. 545. Belyakov fails to establish that

Tabak had any responsibility over the decision not to select him. Belyakov notes that Tabak approved the decision of the search committee and recommendation of Wahl to select Chen.

Tabak's approval simply meant that the ultimate decision was referred selection to in Gottesman. a Gottesman way. did not approve he Chen's to

perfunctory

Rather,

responded

Belyakov's concerns about the propriety of the search process by conducting an independent review. every member of the search Gottesman's staff interviewed to determine whether

committee

Belyakov had a fair opportunity to apply for the position and, if not, whether to re-open the process. 16 The extent of this

inquiry

suggests and

that there

Gottesman is no

was

truly that

the he

final bore

decisionmaker,

evidence

discriminatory animus toward Russian-born applicants. For these reasons, the award of summary judgment to DHHS was appropriate on Belyakov's national origin discrimination claim. III. We next consider Belyakov's claims that Dr. Berzofsky took adverse employment actions against Belyakov in retaliation for Belyakov's prior EEO activity. with the EEOC to in January 2006 Belyakov filed a complaint alleging Staff that Berzofsky position had in

declined

renew

Belyakov's

Scientist

retaliation for Belyakov's prior EEO activity.

Belyakov later

claimed, and asserts in his complaint filed in district court, that Berzofsky also retaliated in the following ways: he took away projects, took away for resources, projects, prevented prevented eliminated job training, authorship from

eliminated opportunities

funding on

projects,

applications

proceeding, made false accusations of sabotage, and issued an official reprimand. were also taken in Belyakov claims that these adverse actions retaliation for his prior EEO activity.

Belyakov never amended his EEO complaint to add these additional claims. He did, however, file an affidavit on April 7, 2006, The district ground that

which, he says, covers these additional claims. court dismissed the additional 17 claims on the

Belyakov failed to administratively exhaust them.

The court

then granted summary judgment to DHHS on the remaining claim that Belyakov's Staff Scientist position was not renewed due to retaliation. Belyakov appeals these rulings. A. "Before filing suit under Title VII, a plaintiff must exhaust h[is] administrative remedies by bringing a charge with the EEOC." Smith v. First Union Nat'l Bank, 202 F.3d 234, 247 The administrative charge does not strictly

(4th Cir. 2000).

delimit the claims a plaintiff may later make in federal court. "[R]ather, the scope of the civil action is confined only by the scope of the administrative investigation that can reasonably be expected to follow the charge of discrimination." U.S. Postal Serv., 665 F.2d 482, 491 that (4th his Chisholm v. Cir. 1981).

Belyakov's

formal

complaint

alleged

Staff

Scientist He

position was not renewed in reprisal for prior EEO activity.

argues that his other claims of retaliation -- that Berzofsky took away projects, resources, and training; eliminated

authorship opportunities on projects; prevented job applications from proceeding; issued made false an accusations official of sabotage; -and were

formally

Belyakov

reprimand

administratively exhausted because they fall within the scope of a reasonable administrative investigation.

18

We

agree

that

administrative

investigation

of

the

official reprimand Berzofsky issued to Belyakov could reasonably be expected to occur in light of Belyakov's complaint. This

reprimand was a prelude to the non-renewal of his appointment; Berzofsky issued it in anticipation of terminating or declining to renew Belyakov's letter appointment. the Indeed, the EEOC's in final

decision

discusses

official

reprimand

detail.

Belyakov thus exhausted the claim that the official reprimand he received was the result of retaliation. The district court correctly dismissed the remaining claims of retaliation, however. away projects, resources, hindered sabotage The claims that Berzofsky took funding, and and of authorship made the false major

training, job

opportunities, accusations employment investigation complaint. of

applications, outside a the

are that

scope

decisions would have

reasonable in light of

administrative Belyakov's EEO

covered

Belyakov also argues that the affidavit he submitted to the EEOC on April 7, 2006, was sufficient to administratively exhaust the claims he failed to raise in his original complaint. Belyakov argues that such an affidavit should shape the scope of a reasonable EEOC investigation. See Ihekwu v. City of Durham, Even if we were to not sufficient to

129 F. Supp. 2d 870, 886 (M.D.N.C. 2000). adopt this principle, the affidavit 19 was

require

an

expansion

of

the

scope

of

the

administrative The ten-

investigation to include Belyakov's additional claims.

page affidavit describes a number of perceived inequities and specific disagreements between Belyakov and Berzofsky. A

reasonable EEOC investigation here would not have included a reorientation of efforts to sift through Belyakov's numerous

additional allegations against Berzofsky. Moreover, the affidavit was filed four months after the original EEOC charge. was well under way. received from By that time, the EEOC investigation

Affidavits had already been solicited and and Employee and Labor Relations

Berzofsky

Specialist Maria Gorrasi.

Deputy Director of the Center for

Cancer Research, Douglas Lowy, had also substantially completed an affidavit. affect Even the assuming scope of that a a complainant's affidavit

might

reasonable

administrative

investigation, an affidavit filed late in the process, after an administrative investigation has substantially advanced, cannot be expected to significantly expand its scope. We thus conclude

that Belyakov failed to administratively exhaust all but two of his claims. While he did exhaust his claim that DHHS failed to

renew his appointment and issued him an official reprimand in violation dismissed exhausted. 20 of on Title the VII, the that remaining they were claims not were properly

ground

administratively

B. We proceed to consider whether the claims that

Belyakov did administratively exhaust were nevertheless properly rejected on summary judgment. Here, we use the burden-shifting

framework suggested in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 803-05 (1973), for evaluating claims of

retaliation under Title VII.

Under this framework the plaintiff "If a

must establish a prima facie case of discrimination.

prima facie case is presented, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for the

adverse employment action."

Hill v. Lockheed Martin Logistics If the employer

Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004).

meets this burden of production, "the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the employer's stated reasons `were not its true reasons, but were a pretext for discrimination.'" Id. at 285 (citing Reeves v.

Sanderson Plumbing Prods., Inc., 330 U.S. 133, 143 (2000)). To establish a prima facie case of retaliation, a

plaintiff must show (1) that he engaged in protected activity; (2) that an adverse employment action was taken against him; and (3) that there was a causal link between the protected activity and the adverse employment action. Laughlin v. Metro. Wash.

Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998). prior EEO complaint constitutes protected activity. 21

Belyakov's See Price

v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004).

Issuing an

official reprimand and declining to renew Belyakov's appointment are adverse employment from actions; making or both would dissuade a charge "a of

reasonable

worker

supporting

discrimination."

Lettieri v. Equant Inc., 478 F.3d 640, 650 n.2

(4th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)). Finally, evidence that an

employer acted only after becoming aware that an employee filed a discrimination charge is sufficient to establish the causal connection required under the third element of a prima facie case. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Belyakov offers evidence suggesting that Berzofsky

Cir. 1989).

became aware of his EEO activity in or shortly prior to an August 6, 2004, meeting with scientists who had served on the mucosal immunologist search committee. official reprimand May 27, 2005, and Belyakov it mostly issued the refers to

incidents that occurred on or after February 17, 2005.

Belyakov

was informed on November 7, 2005, that his appointment would not be renewed when it expired the following year. There is thus "While

evidence that allows some loose inference of causality. this casual proof far from it conclusively certainly establishes satisfies the the less

requisite onerous

connection,

burden of making a prima facie case of causality."

Id. at 457.

22

When the plaintiff carries his burden of showing a prima facie case to of retaliation, a the burden shifts to the

defendant

articulate

legitimate,

non-retaliatory See Reeves,

justification for the adverse employment action. 530 U.S. at 143. DHHS meets this burden.

Berzofsky said that

Belyakov became increasingly confrontational and insubordinate and that he ignored direct orders and criticized Berzofsky in private and in public. Even Belyakov acknowledges that he

criticized Berzofsky and suggested that Berzofsky was unethical. Berzofsky's dissatisfaction with this confrontational behavior and how it affected relevant professional relationships is a legitimate, reprimand to non-retaliatory Belyakov and, reason later, for issuing to an official renew his

declining

appointment.

DHHS thus satisfies its burden of production.

The burden shifts back to Belyakov to demonstrate that the non-retaliatory justifications offered by DHHS were not its true reasons, but pretext for retaliation. Id. at 143. We

conclude that Belyakov fails to put forth sufficient evidence to show that the legitimate, non-retaliatory reasons proffered by Berzofsky were false. The evidence that Belyakov instigated

arguments and disobeyed instructions as Berzofsky describes is unrebutted. did not And, nothing in the record suggests that Berzofsky believe that Belyakov was confrontational,

insubordinate, and disruptive.

See Holland v. Wash. Homes Inc., 23

487 F.3d 208, 215 (4th Cir. 2007).

In short, Belyakov fails to

provide evidence that "the defendant's explanation is unworthy of credence." that there is Reeves, 530 U.S. at 147. insufficient evidence of We therefore conclude pretext to withstand

summary judgment. Belyakov appropriate in also argues that summary judgment there was was not not

the

retaliation

case

because

adequate time for discovery.

The district court declined to

permit Belyakov the opportunity to engage in discovery prior to the entry of summary judgment. abuse of discretion. Harrods We review that determination for Ltd. v. Sixty Internet Domain

Names, 302 F.3d 214, 244 (4th Cir. 2002).

"Generally speaking,

`summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is

essential to his opposition.'"

Id. at 244 (quoting Anderson v. The party that

Liberty Lobby, Inc. 477 U.S. 242, 250 n.5 (1986)). opposing summary judgment must make clear,

however,

discovery is essential to his opposition.

Shafer v. Preston

Mem'l Hosp. Corp., 107 F.3d 274, 282 (4th Cir. 1997). If a party believes that more discovery is necessary for it to demonstrate a genuine issue of material fact, the proper course is to file a Rule 56(f) affidavit stating "that it could not properly oppose a motion for summary judgment without a chance to conduct discovery." . . . Indeed, "the failure to file an affidavit under Rule 56(f) is itself sufficient grounds to reject a claim that the opportunity for discovery was inadequate." 24

Harrods

Ltd.,

302

F.3d

at

244

(quoting

Evans

v.

Techs. We the

Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). have recognized that there may be circumstances when

opposing party fails to file a Rule 56(f) affidavit, and yet it is appropriate for a court to conclude that summary judgment is premature. party motion must is Even in those circumstances, however, the nonmoving "adequately premature inform[] that the more district discovery court is that the

and

necessary."

Harrods Ltd., 302 F.3d at 244. Belyakov argues that an affidavit filed by his counsel is a Rule 56(f) affidavit and that the district court abused its discretion by failing to deny summary judgment in light of the affidavit. "the issues The affidavit Belyakov refers to seeks discovery on of a causal connection between the protected

activity and adverse actions, as well as the issue of pretext." J.A. 427. in to While its put the district the court did not was mention in no the event summary

affidavit sufficient

decision, the

affidavit court on

district

notice

that

judgment was premature.

Nothing in the affidavit invokes Rule

56(f) or suggests that a summary judgment decision should have been deferred. In fact, the affidavit states that "Plaintiff J.A.

has presented enough evidence to defeat summary judgment." 427.

It simply discusses the need for additional discovery in J.A. 427. Belyakov did

order "to prove its case for trial." 25

not adequately inform the district court that summary judgment was premature and that additional discovery was necessary. As a

result, Belyakov fails in his argument that inadequate discovery made summary judgment inappropriate. 282. See Shafer, 107 F.3d at

Because we conclude that Belyakov did not offer sufficient

evidence to create a material issue of fact with respect to pretext, judgment we to affirm DHHS the on district court's claims grant of of summary in

Belyakov's

retaliation

violation of Title VII. IV. The orders awarding summary judgment to DHHS in both cases are AFFIRMED.

26