Ali Darvishian v. Pete Geren

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 1:08-cv-00009-TSE-TCB. Copies to all parties and the district court/agency. [998484429] [08-1672]

Ali Darvishian v. Pete Geren

Doc. 0

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1672 ALI DARVISHIAN, Plaintiff - Appellant, v. PETE GEREN, Secretary of the Department of the Army, Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:08-cv-00009-TSE-TCB) Argued: September 21, 2010 Decided: December 14, 2010

Before GREGORY and KEENAN, Circuit Judges, and James C. DEVER III, United States District Judge for the Eastern District of North Carolina, sitting by designation. Affirmed by unpublished opinion. Judge Keenan wrote opinion, in which Judge Gregory and Judge Dever joined. the

ARGUED: Gary M. Gilbert, LAW OFFICES OF GARY M. GILBERT, PC, Silver Spring, Maryland, for Appellant. Leslie Bonner McClendon, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF: Thomas J. Gagliardo, Silver Spring, Maryland, for Appellant. Dana J. Boente, United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 2

KEENAN, Circuit Judge: Ali Darvishian, a 23-year civil servant of Iranian descent, appeals the district court's entry of summary judgment in favor of his former employer, the Secretary of the Army (Secretary), on claims brought under the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. (2006). Darvishian

alleged that the Secretary violated Title VII by removing him from federal employment because he is Iranian and Muslim, and because he filed discrimination claims against his superiors

with the Equal Employment Opportunity Commission (EEOC). The district court dismissed these claims, holding that

Darvishian presented insufficient evidence that the Secretary's nondiscriminatory and nonretaliatory reasons See for his removal

were "pretext for discrimination."

Tex. Dep't of Cmty. The district Merit Systems

Affairs v. Burdine, 450 U.S. 248, 253 (1981). court also affirmed a final decision of the

Protection Board (the Board) upholding Darvishian's removal from federal service. We review the summary judgment decision on Darvishian's

Title VII claims de novo, applying the same standard as the district Washington court. Homes, See Inc., Fed. 487 R. F.3d Civ. 208, P. 213 56(c); (4th Holland Cir. v.

2007).

Under that standard, summary judgment is appropriate when "there is no genuine issue as to any material fact." 2 Fed. R. Civ. P.

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 3

56(c)(2); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 295 (4th Cir. 2010). Therefore, summary judgment may be

granted when there is insufficient evidence for a jury to return a verdict in favor of the nonmoving party. F.3d at 213. In our separate review of the Board's decision, we must affirm the Board an unless of the decision or is "(1) arbitrary, not in See Holland, 487

capricious,

abuse

discretion,

otherwise

accordance with law; (2) obtained without procedures required by law, rule, or regulation having been followed; or (3) Upon

unsupported by substantial evidence." our review of the record, we

5 U.S.C. § 7703(c). the district

affirm

court's

judgment in both the Title VII action and the court's review of the Board's decision.

I. We present the facts in the light most favorable to

Darvishian, and draw all reasonable inferences in his favor. Holland, 487 F.3d at 213. The record before us shows that

before his removal from the federal service on July 7, 2006, Darvishian was a General Engineer at the level of GS-14 working for the Army Contracting Agency (the Agency), Capital District Contracting Center (CDCC). In November 2005, Acting CDCC

Director Lieutenant Colonel Craig DeDecker announced an office3

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 4

wide

reorganization

intended

to

streamline

CDCC

operations.

DeDecker sent an email to all CDCC employees providing a broad outline of this plan. He told employees that a new

organizational division, Construction and Engineering (C&E), was being created and that William E. Campbell would become "Chief" of the division. The email identified three employees,

including Darvishian, who were scheduled to be assigned to C&E. DeDecker attached to the email an organizational chart.

The chart identified both Campbell and Darvishian as GS-14 level employees, and a line extended horizontally across the chart from Campbell's name to Darvishian's name. Underneath

Campbell's name, the chart stated, "Chief, Team 1." One component of this reorganization involved placing all contract specialists on a single floor of the CDCC building. a consequence, to certain employees, offices including to Darvishian, space in As were the

required building.

relocate

their

another

DeDecker

left

his

position

with

the

CDCC

before

the

reorganization was completed.

However, his successor, Christine

Thompson, continued to implement the changes when she became the permanent director of the CDCC in December 2005. On February 22, 2006, the Deputy Director of the CDCC,

Brenda Jackson-Sewell, approached Darvishian in his office to discuss a work-related matter. 4 Darvishian asked her about a

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 5

"rumor" circulating in the office that Darvishian would have to move from his fixed office space to a cubicle. Jackson-Sewell

told Darvishian that this information was "not a rumor." That same day, Campbell personally directed Darvishian to relocate to a cubicle so that a new division chief could move into his office. Darvishian told Campbell that he would not

move, because he did not think that Campbell was "his boss." 1 After he left Darvishian's office, Campbell sent the following email to Darvishian: "As your supervisor[,] it is not required that any additional direction to mine be given. Therefore you

are directed to move to the last cubical [sic] in room 204. This move has to [be] completed by [the close of business] 1 March 2006." Campbell sent a carbon copy of this email to

Thompson and to Jackson-Sewell. The following day, February 23, 2006, Darvishian approached Thompson to express his concerns about Campbell's order to move Darvishian's office. conversation, but it The parties dispute the details of this is clear from the record that Thompson

confirmed to Darvishian that he needed to vacate his office. Darvishian later lodged various complaints against

DeDecker, Campbell, and Thompson by sending an email, stating a subject of "Discrimination," to the head of the Agency.
1

In the

Before this encounter, Campbell spent little or no time supervising Darvishian because, in Campbell's words, "[Darvishian] was a senior civil servant and he knew his job." 5

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 6

email,

Darvishian by move

expressed superiors office,

his

concern under was

that the

he guise

was of

being being to

marginalized ordered to

his his

and,

actually

being

pressured

leave the CDCC.

Darvishian provided the following examples of

his superiors' conduct toward him. Darvishian explained that Thompson's predecessor had sought Darvishian's advice in planning the layout of cubicles and

office spaces. excluded him

Darvishian stated that Thompson, however, had similar planning, and had carried out the

from

office reorganization without consulting him. Darvishian DeDecker Middle bragged upcoming made Eastern that he recounted certain an incident in November about that 2005 when of

inappropriate

comments

people

descent. would to be

Darvishian able to

recalled kill

DeDecker his

Muslims the same

during

deployment

Iraq.

During

encounter,

Darvishian alleged, DeDecker asked, "Why [are you] all radical Muslims[?]" Darvishian also accused DeDecker of threatening

Darvishian that if he "wasn't gone" before DeDecker left the CDCC, Jackson-Sewell and Bill Campbell would "finish[] the job" for him. 2 Finally, Darvishian alleged that DeDecker improperly

had promoted a friend to a GS-14 level position.

Darvishian also described "rumors" that confirmed his suspicion that he was being pressured to leave the CDCC. According to these "rumors," Darvishian was being ordered from 6

2

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 7

Darvishian

next

accused

Campbell

of

improprieties

in

awarding Army contracts.

Darvishian complained that even though

Campbell was not his superior, Jackson-Sewell and Thompson had confirmed Campbell's order that Darvishian relocate from his

office to a cubicle.

Darvishian maintained that Thompson had

"backed [Campbell] up" without considering Darvishian's "side of the story." On receipt of the email, the Director of the Agency for the Northern Region initiated an investigation of Darvishian's

allegations. CDCC hiring

The assigned investigator observed an ambiguity in procedures, but otherwise concluded that

Darvishian's concluded that

allegations lacked merit. DeDecker's reorganization

The investigator also was "based on sound

reasoning with no malicious intent," and that "Darvishian had a responsibility to comply with the lawful orders of his Based

superiors," including DeDecker, Thompson, and Campbell.

on Darvishian's complaints, the investigator recommended certain changes to internal should date of operating meet any with procedures, their new including employees to prevent that on all the

supervisors effective

reorganization

future

"communication gap[s]."

his office to "degrade" him and to make him "so unhappy that [he] would want to leave." 7

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 8

On

March to

2,

2006,

Campbell a

went

to

Darvishian's by The the

office human

purportedly resources

deliver at

memorandum

prepared

department

Thompson's

request.

memorandum

characterized Darvishian's failure to move from his office by March 1, 2006, as "insubordination," and stated that Campbell was proposing a penalty of suspension for this misconduct. The

memorandum set a second deadline, 11:30 a.m. on March 3, 2006, by which Darvishian was required to vacate his office. The

document advised Darvishian that disobeying this order "could result in [his] removal from the federal service." An army lawyer, Captain Joshua Drewitz, accompanied

Campbell to see Darvishian but stopped a short distance down the hallway from Darvishian's office. Drewitz could see Campbell in

the office doorway, but did not hear the conversation taking place between Campbell and Darvishian. Campbell carrying any papers. That evening, Darvishian sent an email to senior officials in the Agency describing his exchange with Campbell. Darvishian Drewitz did not observe

stated that when Campbell entered Darvishian's office doorway, Campbell held up a piece of paper that threatened, "Get out or you will be killed." 3

In the same email, Darvishian stated, "I don't believe I mentioned it in my initial email but when I had a discussion with Ms. Thompson on 23 Feb, prior to my contact with EEO, she 8

3

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 9

The next morning, Darvishian reported this alleged threat to the military police. He also sent an email detailing the

threat to the "head" employees of the Agency and to an EEO Counselor. The subject of his email was entitled, "Reprisal."

The police conducted an investigation, which included interviews of Campbell, Darvishian, and Drewitz, but concluded there was "insufficient probable cause to believe that Mr. Campbell

communicated a threat." On the afternoon of Friday, March 3, 2006, after the

deadline stated in the human resources department memorandum had passed, Thompson directed four employees to remove Darvishian's belongings inventory from of the his office. in These individuals office conducted and moved an the

items

Darvishian's

items to a secure file room.

Campbell later sent an email to

Darvishian, informing him that he could retrieve his belongings by contacting Campbell to obtain a key to the file room. After

receiving this email, Darvishian sent another email to Agency "management" and to an EEO Counselor stating, "Bill Campbell continues to harass me." On Monday morning, March 6, 2006, Darvishian called the military police to report a "property theft." He later made a

sworn statement in which he alleged that $1,000 in cash and some told me `You are nothing. people.'" I will take care of my contracting 9

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 10

personal documents were missing.

Darvishian stated, "[b]ecause

[Campbell] has threatened me and now stolen my belongings I am afraid to go back to the office." The military police conducted an investigation of the

alleged theft. property

The four employees who had moved Darvishian's that when they they did made not the find any money of in his

attested desk

Darvishian's belongings. 4

inventory

The military police closed its investigation of the

incident on April 13, 2006, because of "insufficient probable cause" that a theft had occurred. On March 22, 2006, Darvishian filed a formal EEO complaint alleging discrimination against certain CDCC officials, About five that

including Campbell, Jackson-Sewell, and Thompson. weeks later, on April 28, 2006, Campbell

proposed

Darvishian be removed from federal service. In his written proposal, Campbell articulated four reasons for the recommended punishment: insubordination (two incidents), making false statements, failing to provide candid information to the military police, and disrupting the workplace. Under the first charge, insubordination, Campbell wrote

that Darvishian's refusal to comply with two orders to move from his office,
4

by

March

1,

2006,

and

later

by

March

3,

2006,

A former CDCC Director stated in deposition testimony that she had personal knowledge that Darvishian kept cash in his desk. 10

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 11

constituted insubordination.

Campbell based the second charge,

making false statements, on Darvishian's report to the military police that of Campbell removal had threatened Darvishian's report as life. The

proposal false."

characterized

this

"knowingly

The third charge, failing to provide candid information to the military police, was based on Darvishian's allegation of theft against Campbell. The notice of proposed removal stated,

"At the time you made your allegation against Mr. Campbell to the military police, you failed to tell the military police that you had not personally viewed, seen or otherwise inventoried any personal items you had left in your office since the previous week, or that you had any personal knowledge that Mr. Bill

Campbell had removed anything from your office." the charge of disrupting the workplace,

With regard to noted that

Campbell

various CDCC employees were forced to leave their regular work duties to participate in the two police investigations of the charges Darvishian had filed. Darvishian writing. responded to these charges orally and in

Thompson issued a five-page memorandum sustaining the

removal charges as supported by the evidence, and Darvishian was removed from federal service on July 7, 2006. Darvishian Board, raising timely appealed and 11 the Agency's action as to the

discrimination

retaliation

"affirmative

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 12

defenses."

See 5 U.S.C. §§ 7513, 7701.

An Administrative Judge

upheld the removal in a lengthy written decision, finding that the Agency had proved all four charges by a preponderance of the evidence, and that Darvishian had failed to demonstrate

discrimination or retaliation by preponderant evidence. Darvishian timely filed a petition for review of this

initial decision, which a panel of three Board members denied in a Final Order. Darvishian also requested a review by the EEOC,

Office of Federal Operations, which issued a decision concurring with the Board. After See 29 C.F.R. § 1614.303 et seq. the EEOC decision, Darvishian filed the

receiving

present action in the district court. 16(c) (2006). service He as alleged a that of the

See 42 U.S.C. § 2000eAgency removed him on from his

federal

result

discrimination

based

religion and national origin, in violation of Title VII, and in retaliation for protected EEO activity, also in violation of Title VII. Darvishian additionally sought review of the Board's The district court granted summary judgment for

final decision.

the Secretary on the Title VII claim, and upheld the Board's decision. The district court concluded that even if Darvishian could present a prima facie case of discrimination and retaliation, he could not demonstrate that the Agency's proffered reasons for his removal were pretextual, because it was beyond dispute that 12

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 13

Darvishian's

conduct

constituted

"insubordination."

The

district court did not address the other nondiscriminatory bases for removal found articulated that the by the Agency, because was the district by had the not the

court

removal

decision and of

supported

insubordination presented

incidents

alone,

that

Darvishian to

sufficient

evidence

pretext

overcome

Agency's stated ground of insubordination. from the district court's judgment.

Darvishian appeals

II. A. We first consider the district court's award of summary judgment in favor of the Secretary on the Title VII claims. Under Title VII, it is unlawful for an employer to discriminate against origin. for an any individual on the basis of religion or national

42 U.S.C. § 2000e-2(a)(1) (2006). employer in a to retaliate VII against

It is also unlawful an or employee for for

participating

Title

investigation

opposing

discriminatory workplace practices. A avert a plaintiff summary alleging judgment

Id. § 2000e-3(a). under of Title an VII may by

discrimination ruling in

favor

employer

presenting either of two theories of proof.

First, a plaintiff

may offer direct and circumstantial evidence of discrimination that raises a genuine issue of material fact regarding whether 13

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 14

an

impermissible

factor

motivated

the

employer's

adverse

employment decision.

See Diamond v. Colonial Life & Accident Second, when a or

Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). plaintiff lacks direct evidence of

discrimination

retaliation, he or she may proceed using the burden-shifting proof scheme set forth in McDonnell Douglas Corp. v. Green, 41 U.S. 792, 802-05 (1973). The present case has proceeded under the McDonnell Douglas analysis. Under that framework, a plaintiff first must

establish a prima facie case of discrimination or retaliation. See Burdine, 450 U.S. at 252-53. After the plaintiff has met

this evidentiary burden, the burden of production shifts to the employer to set forth, through the introduction of admissible evidence, a legitimate nondiscriminatory or nonretaliatory basis for the employment action. Id. at 253; see Bd. of Trustees v.

Sweeney, 439 U.S. 24, 25 n.2 (1978). If the employer satisfies this burden of production, the plaintiff must establish by a preponderance of the evidence that the neutral reasons offered by the employer are merely pretext for discrimination or retaliation. 253. the See Burdine, 450 U.S. at

A plaintiff may prove such pretext by demonstrating that defendant's explanation is "unworthy of credence" or by

offering circumstantial evidence sufficiently probative of the issue of discrimination or retaliation. 14 See Reeves v. Sanderson

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 15

Plumbing Thompson,

Prods., 380

Inc., 209,

530 212

U.S. (4th

133, Cir.

148

(2000); EEOC

Price v.

v.

F.3d

2004);

Sears

Roebuck & Co., 243 F.3d 846, 853-54 (4th Cir. 2001). In practice, the McDonnell Douglas analytical burden

shifting ends at this stage, and the "pretext" inquiry merges with the plaintiff's ultimate burden to prove that he or she was the victim of intentional discrimination or retaliation. A

Burdine, 450 U.S. at 256; see Merritt, 601 F.3d at 294-95.

plaintiff is entitled to a trial on the merits of a Title VII claim if he or she establishes a factual record permitting a reasonable finder of fact to conclude that it is more likely than not that the adverse employment action was the product of discrimination or retaliation. Burdine, 450 U.S. at 254; Ennis

v. Nat'l Ass'n of Bus. & Educ. Radio, Inc, 53 F.3d 55, 58 (4th Cir. 1995). issue boils Therefore, "[b]y the time of appeal especially, the down to whether of the plaintiff has presented a

triable

question

intentional

discrimination

[or

retaliation]." In

Merritt, 601 F.3d at 295. Darvishian's Title VII claim of

considering

discrimination, we assume, without deciding, that Darvishian has established a prima facie case of discrimination. This prima

facie case includes the comments allegedly made by Campbell and DeDecker to Darvishian.

15

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 16

We conclude that the Agency met its burden to articulate a legitimate, federal nondiscriminatory As basis to remove the Darvishian gave from four

service.

described

above,

Agency

lawful reasons why Darvishian should be removed, as stated in Thompson's concluded Notice that of Decision to Remove. First, Thompson 22,

Darvishian

disregarded

Campbell's

February

2006 email to relocate to a cubicle by March 1, 2006. further found that Darvishian ignored the March

Thompson 2, 2006

memorandum, which directed him to move his belongings by 11:30 a.m. on March 3, 2006. received and disobeyed Thompson stated that Darvishian had both orders, and that these acts of

noncompliance constituted insubordination. Second, that Thompson determined that Darvishian's life was accusation

Campbell

threatened

Darvishian's

unsupported.

Thompson also concluded that Darvishian made this accusation to retaliate against Campbell for ordering Darvishian to move from his office to a cubicle. Third, Thompson determined that Darvishian gave incomplete information to the police when he reported that Campbell Finally,

allegedly had stolen some of Darvishian's

property.

Thompson determined that as a result of Darvishian's actions, at least five CDCC employees were required temporarily to leave their work duties to participate in police as investigations. exhibiting a

Thompson

summarized

Darvishian's 16

conduct

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 17

disregard

for

authority

that

"deminish[ed]

[sic]

his

supervisor's confidence in being able to continue to task or assign duties to Mr. Darvishian." To rebut these legitimate reasons for his removal,

Darvishian was required to produce a record that would permit a reasonable fact-finder to conclude that the justifications

stated by the Agency were merely a pretext for discrimination. See Burdine, 450 U.S. at 253. failed to satisfy this burden. Darvishian argues that the Agency lacked a legitimate basis for removing him from him. the federal He relies that a service, on the rather March was than 2, the for 2006 only We conclude that Darvishian has

merely

suspending which

memorandum,

indicated

suspension

penalty being considered by the Agency for the first act of insubordination. Darvishian contends that, therefore,

Thompson's choice of a more severe penalty was suggestive of pretext. This establishes argument, that at however, least is three unavailing. Agency The record having

officials

supervisory authority over Darvishian directed that he vacate his office. Even if we accept Darvishian's argument that he

reasonably doubted Campbell's supervisory authority on February 22, 2006, there is no doubt that by February 23, 2006, two other individuals with unquestioned authority 17 over Darvishian had

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 18

either instructed him to move, or confirmed the legitimacy of Campbell's directive. Thus, regardless whether Darvishian was

given the memorandum containing the second deadline of March 3, 2006, his ongoing refusal to move his office constituted

insubordination. We also observe that the penalty imposed by Thompson was consistent with the punishments set forth in the Table of

Penalties in the Army regulations. a single a offense false of

According to that document, or a single by incident of The

insubordination can be

making

statement

punished

removal.

possibility that a different decision maker may have imposed a less severe penalty if presented with similar circumstances does not support a conclusion or that her that Thompson was motivated for by

discrimination,

stated

explanation

removing

Darvishian was false. Nonetheless, we are mindful that the Supreme Court has

cautioned that courts should not become mired in the intricacies of the McDonnell Douglas proof scheme. See U.S. Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); Proud v. Stone, 945 F.2d 796, 798 (4th Cir. 1991). Thus, ultimately, we

must reverse the district court if it appears that a reasonable fact-finder could conclude that Thompson more likely than not removed Darvishian because of his religion or national origin. Burdine, 450 U.S. at 254. 18

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 19

Darvishian

argues

that

the

following

evidence

of

record

supports a conclusion that Thompson's employment decision was motivated by discriminatory animus. Thompson's irrational deposition behavior." testimony First, Darvishian points to she feared from "Darvishian's statement

that

Darvishian

infers

this

that Thompson's apprehension was "based solely on her perception that an Iranian-born man . . . was dangerous." Second,

Darvishian heavily relies on an affidavit made by a former CDCC employee, Tracy Fetchik. In her affidavit, Fetchik stated that

on March 3, 2006, the day Darvishian's belongings were removed from his office, Thompson drew her finger across her neck as if she were slitting a throat, and stated, "I finally got rid of him." supports However, while the above evidence cited by Darvishian an inference that Thompson disliked Darvishian

personally, this evidence does not establish a link between her personal dislike of Darvishian and his membership in a protected class. Our conclusion does not change when we additionally

consider the balance of Fetchik's affidavit.

Most particularly,

Fetchik stated that "sometimes Ms. Thompson, [another employee,] and Ms. Brenda Jackson-Sewell would make comments amongst

themselves about Mr. Darvishian, like he is a crazy Muslim." Notably, however, Fetchik's affidavit fails to identify any

particular statement that Thompson made regarding Darvishian's 19

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 20

religion or national origin, but only attributes the above type of offensive remark to general group conversation. In the

absence of any indication which of the three individuals made a statement of that nature, or any other discriminatory remarks, we are unable to accord such remarks any probative value as tending to establish that Thompson, in fact, was motivated by discrimination regarding Darvishian's religion or national

origin in her decision to terminate him from federal service. Absent such probative value, any remarks of this nature were not admissible evidence and, thus, did not create a genuine issue of material fact to avert an award of summary judgment. R. Civ. P. 56(e)(1); Fed. R. Evid. 402. Based on our review of the record, we observe that Thompson apparently developed a dislike of Darvishian. that Darvishian perceived that he was It is also clear pressured by See Fed.

being

DeDecker, Campbell, and Thompson to leave the Agency.

But Title

VII is not "a general civility code for the American workplace." Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). intentional Rather, Title VII makes unlawful certain, defined acts of discrimination. Darvishian has not

demonstrated, as he must to survive summary judgment, that on this record held a reasonable fact-finder biases 20 could based on conclude that

Thompson

discriminatory

Darvishian's

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 21

religion

and

national

origin

that

motivated

her

decision

to

remove him from federal service. We recognize, nevertheless, that under certain

circumstances, discriminatory statements by non-decision makers can be attributed to the ultimate decision maker. See Merritt,

601 F.3d at 300; see, e.g., Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 289-91 (4th Cir. 2004) (en banc); Russell v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000); Willis v. Marion County Auditor's Office, 118 F.3d 542, 547 (7th Cir. 1997). Thompson Darvishian argues that in this case, Campbell and were carrying out DeDecker's directive to

merely

"finish the job" of pressuring Darvishian to leave the CDCC. However, based on the present record, there is no reason to conclude that Thompson based her decision to remove Darvishian on another person's judgment. The Agency has given a consistent, lawful rationale for its removal of Darvishian, contemporaneously with the disciplinary proceeding and throughout this litigation. has not demonstrated in the such weaknesses, Further, Darvishian implausibilities, reasons for or his

inconsistencies

Agency's

proffered

removal that a reasonable fact-finder could find those reasons "unworthy of credence." See Price, 380 F.3d at 212; Fuentes v. Thus, we conclude

Perskie, 32 F.3d 759, 765 (3d Cir. 1994).

that Darvishian has not met his burden to show that a reasonable 21

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 22

fact-finder

could

conclude

that

the

Agency's

explanation

was

pretext for discrimination, or that material factual questions remain regarding the Agency's motives. 295. See Merritt, 601 F.3d at

Accordingly, we conclude that on this record, a reasonable could not say that Darvishian has presented

fact-finder

sufficient facts to show, by a preponderance of the evidence, that discrimination was more likely than not a determinative cause of the Agency's employment decision.

B. Darvishian also contends that he was removed from his

employment in retaliation for complaining about the allegedly discriminatory conduct by his superiors. facie case of retaliation, Darvishian To establish a prima was required to

demonstrate that he engaged in "protected activity," and that he was removed by the Agency because of that activity. See

Holland, 487 F.3d at 218. The record shows that when Thompson removed Darvishian from federal service, at she his knew that he had complained contends about that

discrimination

workplace.

Darvishian

because his protected activity occurred so close in time to the Agency's proximity events. 22 removal decision, a the simple fact of this temporal the two

establishes

causal

connection

between

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 23

We

will

assume,

but

do

not

decide,

that

Darvishian

has

shown a causal connection establishing a prima facie case of retaliation. See Holland, 487 F.3d at 218. Thus, proceeding

under the McDonnell Douglas framework, Darvishian was required to rebut the legitimate nonretaliatory reasons articulated by the agency for his removal. Id. Based on our review of the

record, we hold that Darvishian failed to make this required showing. We reach this conclusion for the same reasons we

already have held that Darvishian failed to demonstrate pretext with respect to his discrimination claims.

III. Finally, decision. under we consider Darvishian's appeal of the Board's

We apply an established, narrow standard of review, we must affirm the of the Board unless, is or based on the

which

administrative capricious, an

record, abuse

decision

"(1)

arbitrary, not in

discretion,

otherwise

accordance with law; (2) obtained without procedures required by law, rule, or by regulation substantial having been 5 followed; U.S.C. § or (3)

unsupported (2006).

evidence."

7703(c)

In this case, the Administrative Judge determined that the Agency carried its burden to prove by a preponderance evidence each charge stated in 23 the notice of removal. of the The

Case: 08-1672 Document: 61

Date Filed: 12/14/2010

Page: 24

Administrative

Judge

also

made

certain

credibility

determinations, which are "virtually unreviewable" by this court on appeal. Bieber v. Dept. of the Army, 287 F.3d 1358, 1364

(Fed. Cir. 2002); see Pope v. U.S. Postal Serv., 114 F.3d 1144, 1149 (Fed. Cir. 1997). the In assessing testimony Judge related to

Darvishian's

conduct,

Administrative

determined,

"[T]he appellant is not a reliable or credible witness in light of his implausible allegations and inconsistent statements." In

contrast, the Administrative Judge found that Thompson was a "credible witness." Applying the deferential standards applicable to our review of the Board's decision, and based on the evidence contained in the administrative record, we hold that the Board conclusions cannot reasonably be said to be arbitrary and capricious, an abuse of discretion, or unsupported by substantial evidence.

The Board had sufficient evidence before it, and made a reasoned decision based on that record. For these reasons, we affirm the district court's judgment.

AFFIRMED

24