Ahmad Nurriddin v. Charles Bolden

Filing

OPINION [1607195] filed PER CURIAM OPINION (Pages: 21), DISSENTING IN PART OPINION (Pages: 3) by Judge Wilkins. [14-5156]

USCA Case #14-5156

Document #1607195

Filed: 04/05/2016

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2015

Decided April 5, 2016

No. 14-5156
AHMAD B. NURRIDDIN,
APPELLANT
v.
CHARLES F. BOLDEN, ADMINISTRATOR, NATIONAL
AERONAUTICS AND SPACE ADMINISTRATION,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-02052)

Joshua David Rogaczewski argued the cause for
appellant. With him on the briefs were Paul M. Thompson
and Jeffrey W. Mikoni.
R. Craig Lawrence, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Vincent H.
Cohen, Acting U.S. Attorney, and Andrea McBarnette,
Assistant U.S. Attorney.
Before: BROWN and WILKINS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.

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Opinion for the Court filed PER CURIAM.
Opinion dissenting in part filed by Circuit Judge
WILKINS.
PER CURIAM: This is the second time Ahmad Nurriddin
has brought suit against his former employer, the National
Aeronautics and Space Administration (“NASA”), claiming
unlawful discrimination. In his first appeal to us, we affirmed
grant of summary judgment to NASA on Nurriddin’s various
claims of discrimination and retaliation over a six-year period.
Nurriddin v. Griffin (Nurriddin II), 222 F. App’x 5 (D.C. Cir.
2007). Now focusing on a series of events occurring between
1996-2004, Nurriddin once more claims discrimination and
retaliation under the Rehabilitation Act and Title VII. We
affirm the District Court’s Rule 12(b)(6) dismissal of the
former claims, and grant of summary judgment to the agency
on the latter.
I.
To provide some necessary context, we begin at the
beginning. Nurriddin is an African-American, Muslim male.
He worked in NASA’s Educational Affairs Division, first as a
Publication Specialist, and eventually as an Education
Programs Specialist. For more than a decade Nurriddin has
accused NASA management of discrimination. Beginning in
1991, Nurriddin believed he should have been converted to a
full-time civil servant position at a grade higher than his GS12 level. Nurriddin v. Goldin (Nurriddin I), 382 F. Supp. 2d
79, 86 (D.D.C. 2005). Thereafter, he sought for years to
obtain a promotion. Id. at 95, 102. He eventually brought
suit pro se under Title VII on the basis of this denied
promotion, as well as additional incidents of alleged
discrimination. Id. at 90. These incidents included, among

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others, being denied funds to travel to a Conference of
Engineering Deans of Historically Black Colleges and
Universities, id. at 101, and being exposed to his then coworker, later first-level supervisor’s computer desktop, which
contained empty folders titled, “racist jokes and stories” and
“W/American Heritage,” id. at 87, 108. We summarily
affirmed the District Court’s grant of summary judgment to
NASA. Nurriddin II, 222 F. App’x at 6.
This suit concerns the time period from 1996 until
Nurriddin’s termination in 2004. By 1996, Nurriddin was still
employed within the Education Division at a GS-12 level.
His “first-level” supervisor was Malcolm Phelps, and his
“alternate first-level supervisor” was Sherri McGee. His
“second-level supervisor” was Frank Owens. These three and
several other human resources directors and employees were
to become the subject of nine EEO complaints by Nurriddin
between June 1997 and June 2004.
In 1996, Nurriddin received a performance evaluation of
“Outstanding” for the time period 1995-1996, which was the
highest possible rating on the five-level scale used by the
agency at the time. He received a non-competitive promotion
to the GS-13 level in November 1997. Still, Nurriddin
believed NASA was discriminating against him for previously
filing EEO complaints. He filed two complaints in 1997
naming Owens, McGee, and Phelps as the responsible
management officials.
Nurriddin filed two more EEO complaints in 1998 that
also named these three supervisors. The first, filed in April of
1998, was predicated in part on a coworker’s comment to
Nurriddin that Phelps said his performance evaluation would
be lowered because he attended “too many minority
conferences.” Nurriddin filed the second complaint in

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September 1998, after he received his performance review for
the 1997-1998 period. That year, NASA switched to a passfail system. Nurriddin received a “pass” and an $800
performance award. Phelps, however, noted on the evaluation
form a “pattern of missed deadlines and unresponsiveness to
his management that must be addressed and improved during
the next year for [his] work to continue to be judged
satisfactory.” In his evaluation meeting, Nurriddin contends
that Phelps “lashed out,” calling his EEO complaints “a bunch
of bull and a crock of s-h-i-t.”
As the administrative investigation into his complaints
proceeded, Nurriddin’s white coworker received a grade
increase from GS-13 to GS-14. Nurriddin did not. Around
this same time, Nurriddin’s health began to decline on
account of depression, anxiety, and back pain, all allegedly
related to his job and confrontations with his supervisors. He
and Phelps exchanged numerous correspondence on the
proper medical documentation necessary for approval of his
sick leave. In October of 1998, his doctor recommended to
NASA that it transfer him to another department to alleviate
his job-related stress. In November and December of 1998,
Nurriddin also requested permission to travel to two “minority
conferences,” which NASA denied.
NASA eventually approved a detail for Nurriddin.
Though, when first exploring the possibility, a human
resources official wrote that one particular office might only
agree to the arrangement “subject to some conditions such as
resolution of the EEO complaints.” Nurriddin filed another
EEO complaint thereafter in January of 1999. In February
1999, Nurriddin began a one-year long detail with the
National Science Foundation (“NSF”). His NSF supervisor
described his performance as “superb” and praised his
“excellent skills in adapting to the rigors of a new office.”

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In August 1999, Nurriddin filed an EEO complaint naming
his NASA supervisors, which for the first time included a
claim of disability discrimination.
Nurriddin returned to NASA in the spring of 2000. He
requested transfer to a different office as a reasonable
accommodation and soon took medical leave. He did not
return again except for a few days in May and September.
He and management attempted to reach agreement on the
proper medical documentation for his periods of absence.
By this point, Nurriddin had joined NASA’s Voluntary
Leave Transfer Program, which allows eligible employees to
receive annual leave donated by other federal employees.
Yet, his status was changed to “AWOL,” or away without
leave. In a June 19, 2000 email, a human resources official
reminded that Nurriddin had been accepted into the leave
transfer program. In response, human resources director Al
Castillo wrote: “Yegads! Will we ever finish with this guy? . .
. For the time being, I’m going to let the AWOL stand as
charged. If we need to correct it as a result of our discussion,
I don’t have a problem stating so in writing.” Nurriddin
remained on AWOL status from September 12, 2000 through
December 1, 2000. Eventually, 737.5 hours of donated leave
were credited to him.
In September of 2000, Phelps denied Nurriddin a “WGI,”
or Within Grade Increase. These increases are automatically
awarded to federal employees after satisfactorily completing a
certain number of calendar weeks in service. 5 U.S.C.
§ 5335. Phelps justified the denial on the basis that Nurriddin
had not worked in the office long enough in the past year for
his performance to be rated acceptable. Around December
2000, Nurriddin began receiving workers’ compensation
benefits. Nurriddin filed another EEO complaint that same

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month naming as responsible management officials, among
others, Owens, Phelps, and Al Castillo and Vicki Novak from
Human Resources.
In 2001, NASA commenced a job search to find
Nurriddin another position. In October 2001, it offered him a
“new” job in his same position, this time under the
supervision of McGee and Owens. NASA arrived at this
decision after discussing various options over email
throughout September 2001. In a message with the subject
line, “Favorite Subject,” Vicki Novak wrote: “I really do not
want to offer him another job in F. He’s not qualified and
he’ll just create major problems if he should accept.”
Castillo responded:
[L]egal counsel, below Bob’s level, asked if CP
could find him a job and make an offer to close off
the [Office of Workers’ Compensation Program
(“OWCP”)] claim (expecting that he won’t take it
and therefore lose his case at OWCP). That claim,
backed by his doc and supported by the OWCP
doc’s, is that he CANNOT work in FE because
that’s the source of his “medical” problem. The
offer of a job is a tactical ploy to chip away at all
his complaints.
The Office of Workers’ Compensation Program
originally found the job offer suitable and gave Nurriddin 30
days either to accept the offer or to provide an explanation for
refusal. In January 2002, Nurriddin filed another EEO
complaint, this time naming Mark Batkin from the General
Counsel’s Office, Dorothy Egbert from Human Resources, as
well as Castillo, Novak, and Owens. OWCP reevaluated the
job offer and found it unsuitable since his supervisors would
remain Owens and McGee, who were named in the original

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complaint. In the meantime, Nurriddin received his WGI to a
GS-13 level step 5.
Also in 2002, NASA underwent a reorganization.
Clifford Houston replaced Phelps as Nurriddin’s first-level
supervisor. With Nurriddin still out of the office, in October
2003, Houston ordered another job search be conducted, but
the search revealed no vacant positions suitable for Nurriddin.
Houston subsequently proposed that Nurriddin be terminated;
he needed someone to fill the position and help ease the
office’s workload. In 2004, Nurriddin’s new third-level
supervisor, Angela Phillips Diaz, terminated his position
effective February 6, 2004. The termination letter’s stated
rationale was that Nurriddin was “medically unable to
perform [his] duties, and that this action [wa]s necessary in
order to promote the efficiency of the service.” Nurriddin had
not worked since 2000.
Nurriddin, originally pro se, filed suit under Title VII and
the Rehabilitation Act. In 2009, the District Court granted in
part and denied in part NASA’s motion to dismiss or in the
alternative for summary judgment. Nurriddin v. Bolden
(Nurriddin III), 674 F. Supp. 2d 64, 97 (D.D.C. 2009). The
court dismissed Nurriddin’s claims of disability
discrimination and retaliation, as well as his hostile work
environment claim. 1 It permitted eight Title VII claims to
proceed, including discrimination and retaliation based on: 1)
denial of a noncompetitive promotion in 1998; 2) an $800
performance award in 1998; 3) denial of two travel requests in
1998 (retaliation claim only); 4) denial of a performance
1

The court furthermore dismissed Nurriddin’s request for injunctive relief
to prevent NASA from communicating with the Office of Workers’
Compensation Program, 674 F. Supp. 2d at 95, as well as a claim against
various agency officials for conspiracy to violate his constitutional rights,
id. at 81.

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award in 1999; 5) designation as AWOL for 59 days in 2000;
6) denial of donated leave after 2000, 7) denial of a WGI
before 2001, and; 8) termination in 2004.
After discovery and retaining counsel, Nurriddin filed a
motion for partial summary judgment, while NASA filed its
own summary judgment motion. The court granted NASA’s
motion. Nurriddin v. Bolden (Nurriddin IV), 40 F. Supp. 3d
104, 110 (D.D.C. 2014). Nurriddin now timely appeals.
II.
We first tackle the District Court’s dismissal in 2009 of
Nurriddin’s Rehabilitation Act claims under Rule 12(b)(6). 2
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). We assume the truth of all wellpleaded factual allegations and construe reasonable inferences
from those allegations in a plaintiff’s favor. Sissel v. U.S.
Dep’t of Health & Human Servs., 760 F.3d 1, 4 (D.C. Cir.
2014). We need not, however “accept inferences drawn by
[a] plaintiff[] if such inferences are unsupported by the facts
set out in the complaint.” Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). Nor must we accept legal
conclusions couched as factual allegations. Iqbal, 556 U.S. at
678.

2

On brief, NASA focused on whether Nurriddin produced enough
evidence of disability discrimination to survive summary judgment, but
the district court dismissed Nurriddin’s Rehabilitation Act claims under
Rule 12(b)(6). See Nurriddin III, 674 F. Supp. 2d at 79, 84-85.

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A.
Nurriddin alleged that he was the subject of adverse
actions because of his disability or perceived disability, based
on his depression, anxiety, and back pain. The Rehabilitation
Act prohibits federal agencies from engaging in employment
discrimination against disabled individuals. See 29 U.S.C.
§ 791(b); Adams v. Rice, 531 F.3d 936, 942 (D.C. Cir. 2008).
It requires federal employers to provide “reasonable
accommodations to the known physical or mental limitations
of an otherwise qualified individual with a disability.” Doak
v. Johnson, 798 F.3d 1096, 1098 (D.C. Cir. 2015) (citing 42
U.S.C. § 12112(b)(5)(A)).
A person is disabled if she has 1) a physical or mental
impairment that substantially limits one or more major life
activities; 2) a record of such an impairment; or 3) if she is
regarded as having such an impairment. 3 See 29 U.S.C.
§ 705(20) (B) (cross-referencing 42 U.S.C. § 12102(1)).
Assuming that working is a major life activity, see Adams,
531 F.3d at 945, “one must be precluded from more than one
type of job, a specialized job, or a particular job of choice” in
order to be considered “substantially limited” in working,
Duncan v. Wash. Metro. Area Transit Auth., 240 F.3d 1110,
1114 (D.C. Cir. 2001) (quoting Sutton v. United Air Lines,
527 U.S. 471, 492 (1999)). The third, “regarded as” prong of
the statute is likewise satisfied only where one is “regarded as
precluded from more than a particular job.” 4 Adams, 531
3

The Rehabilitation Act incorporates the definition of “disability” from
the Americans with Disabilities Act (“ADA”).
See 29 U.S.C.
§ 705(20)(B) (cross-referencing 42 U.S.C. § 12102); see also 29 U.S.C.
§ 791(f) (incorporating ADA standards); 29 C.F.R. § 1614.203(b).

4

Congress amended the ADA, effective January 1, 2009, to broaden the
definition of a disability. See ADA Amendments Act of 2008, Pub. L. No.
110-325, 122 Stat. 3553 (2008). The amendments retained § 12102(1) but

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F.3d at 945 (quoting Murphy v. United Parcel Serv., Inc., 527
U.S. 516, 523 (1999)).
B.
Upon review of the record, we find that Nurriddin
essentially “plead[ed] himself out of court by alleging facts
that render success on the merits impossible.” Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006)
(citing Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1116
(D.C. Cir. 2000)). He did not allege that he is substantially
limited in working, which requires inability to perform a
broad range of jobs. See Duncan, 240 F.3d at 1114. In his
complaint, Nurriddin explains that his “medical conditions
[major depression and back pain] were the result of continued
and relentless harassment by management officials in the
Education Division.” J.A. 33 (¶ 23) (alteration in original).
His factual allegations, however, give rise to an inference that
his impairment related only to his particular job. See, e.g.,
J.A. 44 (¶ 93) (describing his success working for the
National Science Foundation). Moreover, Nurriddin directly
concedes that despite this condition, he “was able to perform
some of the positions within NASA.” J.A. 53-54 (¶¶ 167,
176).
For similar reasons, the District Court properly dismissed
Nurriddin’s claim that NASA regarded him as having a
disability. Nurriddin offers a conclusory allegation that “[a]t
all times since August 5, 1998,” he “has been responded to
clarified in paragraph three of that section that an individual is protected
from adverse action taken by an employer “because of an actual or
perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.” 42 U.S.C. §
12102(3)(A) (emphasis added). These amendments are not retroactive and
do not affect our case. See Lytes v. D.C. Water & Sewer Auth., 572 F.3d
936, 938 (D.C. Cir. 2009).

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[by NASA] as an individual . . . perceived to have a
disability.” J.A. 52 (¶ 163); see also J.A. 53 (¶ 172). At other
parts of the complaint, though, he provides facts that indicate
NASA perceived him as being capable of working outside of
his division. J.A. 45 (¶ 99) (medical letter presented to
NASA that Nurriddin could “transfer to a less stressful work
site”); J.A. 45 (¶ 102) (NASA email characterizing
Nurriddin’s actions as targeting one division – “resist[ing]
working in [the Education Division] in any way he can”); J.A.
47 (¶ 119) (NASA email suggesting the agency did not
believe Nurriddin had a disability, and had no “compelling
reason for further accommodations, medical or otherwise”);
J.A. 49 (¶ 132) (NASA email mentioning detail to a different
office as a “strong possibility”); J.A.49 (¶ 133) (NASA email
rejecting a detail as inappropriate not because of Nurriddin’s
disability, but because it “does nothing positive for us except
delay whatever will happen”).
These facts do not give rise to an inference that NASA
regarded Nurriddin as unable to perform a broad range of
jobs. Without a disability within the meaning of the statute,
or NASA regarding him as so impaired, Nurriddin’s claim of
discrimination in violation of the Rehabilitation Act fails. 5
5

The District Court apparently dismissed Nurriddin’s claim of retaliation
under the Rehabilitation Act because it determined that he could not meet
the statutory definition of a disability. See Nurriddin III, 674 F. Supp. 2d
at 85. Because Nurriddin has not challenged this ruling on appeal, we do
not reach it, but we note that under Title VII, an employee’s retaliation
claim does not rise or fall on the success of her underlying, good-faith
discrimination claim, see Grosdidier v. Broad. Bd. of Governors,
Chairman, 709 F.3d 19, 24 (D.C. Cir. 2013), cert. denied, 134 S. Ct. 899
(2014), and our sister circuits overwhelmingly agree the same is true in the
disability rights context, see Bryson v. Regis Corp., 498 F.3d 561, 577 (6th
Cir. 2007) (“A plaintiff may prevail on a disability-retaliation claim even
if the underlying claim of disability fails.” (quotation marks omitted));
Cassimy v. Bd. of Educ., 461 F.3d 932, 938 (7th Cir. 2006); Coons v. Sec'y

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III.
We move on to Nurriddin’s Title VII claims. We review
the District Court’s grant of summary judgment to the agency
de novo. Pardo-Kronemann v. Donovan, 601 F.3d 599, 604
(D.C. Cir. 2010). Summary judgment is appropriate where
there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law. Id. A
dispute over a material fact is “genuine” if “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” George, 407 F.3d at 410 (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In making this determination, we view all of the evidence in
the light most favorable to the nonmoving party. Id.
A.
A plaintiff may prove her Title VII discrimination or
retaliation claim with direct evidence, for example through a
statement that itself shows racial bias in the employment
decision. See Vatel v. All. of Auto. Mfrs., 627 F.3d 1245,
1247 (D.C. Cir. 2011). Alternatively, a plaintiff may base her
claim on circumstantial evidence under the familiar
McDonnell Douglas burden-shifting framework. See George,
407 F.3d at 411; Wiley v. Glassman, 511 F.3d 151, 155 (D.C.
Cir. 2007). After the plaintiff makes out her prima facie

of U.S. Dep't of Treasury, 383 F.3d 879, 887 (9th Cir. 2004); Heisler v.
Metro. Council, 339 F.3d 622, 632 (8th Cir. 2003) (citing Mondzelewski v.
Pathmark Stores, Inc., 162 F.3d 778, 786 (3d Cir. 1998)); Selenke v. Med.
Imaging of Colo., 248 F.3d 1249, 1264 (10th Cir. 2001); Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir. 1999); Standard
v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1328 (11th Cir. 1998); Soileau v.
Guilford of Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997).

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case, 6 the employer must articulate a legitimate,
nondiscriminatory reason for its actions, after which the
plaintiff has an opportunity to show the employer’s stated
reason was pretextual. See George, 407 F.3d at 411.
At the summary judgment stage, once the employer has
claimed a nondiscriminatory reason for its actions, this
burden-shifting framework disappears.
See Jones v.
Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). We no longer
consider whether the plaintiff properly made out her prima
facie case. See Brady v. Office of Sergeant at Arms, 520 F.3d
490, 494 (D.C. Cir. 2008) (describing the prima facie burden
at this point as a “largely unnecessary sideshow”). The “one
central inquiry” that remains is whether a reasonable jury
could infer retaliation or discrimination from all the evidence.
Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir. 2012);
see also Jones, 557 F.3d at 677. We evaluate this question
“in light of the total circumstances of the case,” asking
“whether the jury could infer discrimination from the
combination of (1) the plaintiff's prima facie case; (2) any
evidence the plaintiff presents to attack the employer's
proffered explanation for its actions; and (3) any further
evidence of discrimination that may be available to the
plaintiff . . . or any contrary evidence that may be available to
the employer.” Hamilton, 666 F.3d at 1351 (quoting Aka v.
Wash. Hosp. Ctr., 156 F.3d 1284, 1289, 1291 (D.C. Cir.

6

A plaintiff establishes a prima facie case of discrimination by showing
that she: 1) is a member of a protected class; 2) suffered an adverse
employment action; and that 3) the unfavorable action gives rise to an
inference of discrimination. George, 407 F.3d at 412. A prima facie case
of retaliation requires that a plaintiff demonstrate she: 1) engaged in a
statutorily protected activity; 2) suffered a materially adverse action by her
employer; and that 3) a causal connection existed between the two. Wiley,
511 F.3d at 155.

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1998) (en banc)); see also Pardo-Kronemann, 601 F.3d at
604.
The District Court granted summary judgment to NASA
on Nurriddin’s Title VII discrimination and retaliation claims,
which, as discussed above, were based on eight events: 1)
denial of a noncompetitive promotion in 1998; 2) an $800
performance award in 1998; 3) denial of two travel requests in
1998 (retaliation claim only); 4) denial of a performance
award in 1999; 5) designation as AWOL for 59 days in 2000;
6) denial of donated leave after 2000, 7) denial of a WGI
before 2001, and; 8) termination in 2004.
We can affirm the District Court on several of these
claims at the outset. Nurriddin simply offers conclusory
statements, with little citation to the record, in order to rebut
NASA’s proffered legitimate reasons for denying two travel
requests in 1998, designating him as AWOL in 2000, and
awarding his WGI in 2001 rather than in 2000. Furthermore,
there is no evidence that NASA denied him donated leave in
2000. Even assuming all of these discrete events are
actionable, there is no basis whatsoever for a reasonable jury
to infer either discrimination or retaliation.
Nurriddin does not fare much better with regard to his
claims based on 1) denial of a noncompetitive promotion in
1998; 2) an $800 performance award in 1998; 3) denial of a
performance award in 1999, or; 4) his termination in 2004.
Still, we consider these claims in more detail as follows.
B.
Nurriddin argues that he was denied a promotion in 1998
as a result of discriminatory and retaliatory animus. The
District Court granted summary judgment to NASA, in part
because the white co-worker Nurriddin offered as an alleged

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comparator was not sufficiently similarly situated. Nurriddin
IV, 40 F. Supp. 3d at 121. Nurriddin claims this was in error,
and also spills much ink criticizing the District Court’s
alleged reliance on whether he made out a prima facie case.
We note that it is unclear whether the District Court
believed that a plaintiff must demonstrate that a “similarly
situated” employee outside of her protected class received a
promotion as part of her prima facie case. See id. at 120
(citing Taylor v. Small, 350 F.3d 1286, 1294 (D.C. Cir.
2003)). Such a showing is not required. See Stella v. Mineta,
284 F.3d 135, 146 (D.C. Cir. 2002) (recognizing that prior
decisions “created confusion on this point”); see also Brady,
520 F.3d at 494 n.2 (“[T]o make out a prima facie case, a
plaintiff need not demonstrate that he or she was treated
differently from a similarly situated employee or that the
position was filled by a person outside the plaintiff's group.”);
Wiley, 511 F.3d at 156.
In any case, the issue before us is not Nurriddin’s prima
facie burden. And we disagree with Nurriddin that the
District Court fundamentally erred in its discussion of the
prima facie case at the summary judgment stage. The court
was explicit that it was analyzing “the prima facie case not to
evade[ ] the ultimate question of discrimination vel non, but
rather because [the plaintiff's] prima facie case is part of the
evidence [the Court] must consider in addressing that
question.” Nurriddin IV, 40 F. Supp. 3d at 120 (quotation
marks omitted) (alterations in original); see also id. at 118
(citing Brady, 520 F.3d at 494). Some portions of the District
Court’s opinion are admittedly in tension with this correct
statement of the law. See, e.g., id. at 118 (reconsidering
whether “Nurriddin meets his burden under the McDonnell
Douglas framework”); id. at 127 (“Nurriddin fails to make out
a prima facie case.”).
Ultimately, though, the court

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articulated the correct legal standard, and we review its
decision de novo in any event.
All this said, Nurriddin has not established that he was
denied a promotion as a result of illegal discrimination or
retaliation. He seems to argue generally that he was due for
an accretion of duty promotion.
Such promotion
opportunities arise where the “position is reclassified at a
higher grade because the duties and responsibilities of the
position have increased over a period of time.” See Wiley,
511 F.3d at 156 (quotation marks omitted). But Nurriddin
nowhere explains this process, why it applies to his position,
what his original duties were, or how they had evolved by the
time he was denied a promotion. Without any evidence that
“the duties and responsibilities of [his] job had increased so as
to warrant an accretion of duty promotion,” he fails to
demonstrate the lack of promotion was either a pretext for
discrimination or retaliation. Id. at 157.
C.
Next, Nurriddin claims NASA discriminated and
retaliated against him when it awarded him a “mere $800
performance award in 1998.” Apparently Nurriddin first
claimed that he was denied a performance award in 1998 for
the 1997-1998 period, after which NASA responded that he in
fact received an $800 award. Nurriddin IV, 40 F. Supp. 3d. at
124. In his opposition to NASA’s motion for summary
judgment, he then conceded that he received $800, but that
“only an $800 performance award” was nonetheless
discrimination and retaliation. Id. In support of this
argument, Nurriddin presents what he believes to be two
pieces of direct evidence of animus: 1) Nurriddin’s statement
that a co-worker told him that Phelps said Nurriddin’s
performance evaluation would be lowered because of his

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work as a minority advocate; and 2) Nurriddin’s statement
that Phelps said Nurriddin’s EEO complaints were a “crock of
s-h-i-t.”
Even though denial of a discretionary bonus is an
actionable adverse employment action, see Douglas v.
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009), Nurriddin does
not succeed in rebutting the agency’s explanation. NASA’s
proffered legitimate reason for the award is that Nurriddin’s
performance did not merit a higher one. Indeed, Nurriddin
received $800 despite the fact that his review for the same
time period noted “a pattern of missed deadlines and
unresponsiveness to his management.”
When it comes to retaliation, Nurriddin offers no
evidence supporting a causal connection between any
protected activity and the $800 award. Nurriddin’s contention
that a co-worker told him that Phelps said he was going to
lower Nurriddin’s evaluation is inadmissible double hearsay.
See Gleklen v. Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1369 (D.C. Cir. 2000) (“[T]he evidence still must
be capable of being converted into admissible evidence.”).
Furthermore, Nurriddin offered absolutely no evidence to the
district court about when Phelps’ alleged “crock of s-h-i-t”
comments occurred. See Nurriddin IV, 40 F. Supp. 3d at 124
(“[N]either in his deposition nor in his brief does Nurriddin
provide a date when this alleged statement was made.”).
Even assuming this confrontation happened on October 1,
1998, as Nurriddin attempts to convince us on appeal, this
would have been after both receipt of the award on August 17,
1998, and his filing of a September 9, 1998 EEO complaint.
His retaliation claim therefore fails for lack of any causal
connection.

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D.
We move on to 1999. Nurriddin did not receive any
performance award, and thinks he should have. NASA
explains the lack of an award because he had been on leave a
significant part of the time from August 1998 through January
1999, and then went on detail to NSF in February 1999 for a
year. Nurriddin claims he presented the District Court with
evidence that this explanation is pretext, including evidence
that: 1) awards were given to several of his coworkers; 2)
NASA meant to condition his detail assignment on the
“resolution” of his EEO complaints, as shown in a November
3, 1998 email and; 3) the high quality of his work while on
detail.
Despite his allegations, Nurriddin cannot point to any
evidence of discrimination. The best evidence demonstrating
unequal treatment would be a comparison. 1 Barbara
Lindemann & Paul Grossman, Employment Discrimination
Law 73 (4th ed. 2007) (“In most cases the key to proving
pretext is comparative evidence.”). Here, that would be
another employee assigned to detail that NASA treated more
favorably than Nuriddin. But Nurriddin has provided no
evidence of such an employee. In fact, Nurriddin has not
provided any evidence that would undermine NASA’s
about conferring discretionary awards to employees assigned
on detail.
Our dissenting colleague quibbles with NASA’s
proffered justification for not rewarding Nurriddin for
satisfactory performance while away on detail. The best the
dissent can do is point to a constellation of facts that indicate
Nurridin’s time at NSF may have warranted an award and that
NASA had the discretionary authority to reward Nurridin—
even if NSF declined to do so. But again, that is not evidence

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suggesting NASA’s stated reasons are pretextual. Instead, the
record makes clear that performance awards are
discretionary. NSF, despite an otherwise positive evaluation
letter, chose not to reward Nurriddin’s performance during his
detail. NASA declined to reward Nurriddin’s performance
because, in management’s estimation, Nurriddin’s
performance did not merit reward. Without evidence that a
similarly situated employee received special recognition
denied to Nurriddin, or evidence NASA is “lying about the
underlying facts that formed the predicate” for their decision
not to confer a performance award, Brady, 520 F.3d at 495,
we cannot conclude that NASA’s decision to withhold his
discretionary award was discriminatory.
E.
Nurriddin lastly claims that he was wrongfully terminated
in 2004 as a result of both discrimination and retaliation. To
conclude the saga, we remind the reader that Nurriddin had
last attended work in the spring of 2000. After yet another
job search in October 2003 did not return any vacant
positions, Houston proposed removing Nurriddin. Diaz made
the final decision to terminate, effective February 2004, based
on Nurriddin’s medical inability to perform his duties.
Houston, who replaced Phelps as Nurriddin’s supervisor,
joined the agency in February 2003 and had never met
Nurriddin before then. Diaz had been on detail to an external
office since 1998, and only returned to the Education Division
as Nurriddin’s third-level supervisor in October 2003.
Nonetheless, Nurriddin offers us a conspiracy theory
dating back to 2001. He points to an email from September
18, 2001, where Human Resources used the words, “tactical
ploy,” to describe a potential course of action: offering
Nurriddin a position with a different first-level supervisor

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that, if he did not accept, would foreclose his OWCP claim.
As it turned out, OWCP did not require Nurriddin to accept
that job offer, because even though the agency offered to
switch his first-level supervisor, Nurriddin had also named
that individual in his numerous EEO complaints over the
years. Nurriddin explains that if the 2001 job offer had been
extended in good faith, he would have returned to work at that
time, meaning he would not have suffered a gap in
employment, and Diaz would have had no reason to terminate
him in 2004.
Nurriddin’s evidence is insufficient to prove any pretext
on the part of NASA. Nurriddin had left the office back in
2000. By 2004, he had been assigned new supervisors.
Houston and Diaz had no involvement in his long dispute
with previous management. As Houston described, NASA
was implementing new initiatives that required gearing up its
educational programs. The agency needed to free up
Nurriddin’s position to meet this need. The 2001 email,
written by different individuals three years prior, simply does
not give rise to an inference that Nurriddin was terminated on
the basis of discrimination. See Vickers v. Powell, 493 F.3d
186, 196 (D.C. Cir. 2007) (describing a subordinate’s bias as
irrelevant where the ultimate decision maker is not influenced
by the subordinate).
Nurriddin’s reliance on the September 2001 email as
evidence of retaliatory termination is similarly unconvincing.
Nurriddin ignores the fact that, to succeed on this claim, he
must connect the termination decision to some activity
protected under the statute. Even considering that he named a
human resources official and Office of General Counsel
attorney – Dorothy Egbert and Mark Batkin – in a January
2002 EEO complaint, his termination occurred more than two
years later in February 2004. See Payne v. D.C. Gov't, 722

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F.3d 345, 354 (D.C. Cir. 2013) (rejecting, without any further
evidence, an eight-month gap between the protected activity
and alleged retaliation as proof of a causal connection). Diaz
of course made the decision to terminate in consultation with
human resources and agency counsel. But that alone does not
suffice to show that a retaliatory reason more likely than not
motivated NASA’s decision to terminate Nurriddin.
***
Nurriddin’s lengthy dispute with NASA thus comes to a
close.
The District Court did not err in dismissing
Nurriddin’s claims under the Rehabilitation Act, and properly
granted summary judgment to the agency on his Title VII
claims.
Our employment discrimination laws are meant to protect
against more than just decisions an employee believes to be
unfair. See Patterson v. Johnson, 505 F.3d 1296, 1301 (D.C.
Cir. 2007). For the foregoing reasons, we affirm the District
Court’s judgment in its entirety.
So ordered.

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WILKINS, Circuit Judge, dissenting in part:
While I join the bulk of the Court’s opinion, I must part
ways with my colleagues on Nurriddin’s Title VII claims
related to NASA’s decision not to give him a performance
award in 1999. I believe a reasonable jury could infer this
decision was motivated by unlawful discrimination or
retaliation.
The “‘central question’ at summary judgment becomes
whether ‘the employee produced sufficient evidence for a
reasonable jury to find that the employer’s asserted
nondiscriminatory or non-retaliatory reason was not the actual
reason and that the employer intentionally discriminated or
retaliated against the employee.’” Walker v. Johnson, 798
F.3d 1085, 1092 (D.C. Cir. 2015) (quoting Allen v. Johnson,
795 F.3d 34, 39 (D.C. Cir. 2015) (brackets omitted)).
I disagree with the majority that Nurriddin needs to point
to a comparator to survive summary judgment. See Maj. Op.
18 (objecting that Nurriddin has provided “no evidence” of an
employee treated more favorably than him). Nurriddin
certainly is not required to come forth with evidence that
NASA treated similarly situated employees more favorably.
While that is one potential avenue, he can also support an
inference of discrimination by exposing NASA’s explanation
as “inconsistent or dishonest.” Walker, 798 F.3d at 1092; see
also Brady v. Office of Sergeant at Arms, 520 F.3d 490, 495
(D.C. Cir. 2008) (“Alternatively, the employee may attempt to
demonstrate that the employer is making up or lying about the
underlying facts that formed the predicate for the employment
decision.”). He has done so here.
NASA’s proffered legitimate reason for not giving a
1999 bonus is that Nurriddin worked elsewhere during that
time. According to a 2001 affidavit from Malcolm Phelps,

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Nurriddin’s first-level supervisor, no award was given
“because [Nurriddin] had not worked in the office for the
entire year.” Also in a 2001 affidavit, alternate first-level
supervisor Sherri McGee explained that “in management’s
estimation, there was no ‘performance’ that justified an
award.” NASA contends that it was up to the detail agency,
the National Science Foundation (“NSF”), to provide the
bonus.
NASA’s proffered reason is flatly contradicted elsewhere
in the record. Deposition testimony by human resources
official Inez Hunter reveals that if a detail office was not
willing to fund a bonus, NASA could still fund it – at
management’s discretion. “[I]f the work was actually
outstanding,” explained Hunter, “. . . what the [employee]
would get, that would be management’s discretion.” When
asked if an employee’s detail was a valid reason to deny a
performance award, Hunter answered, “no.”
NASA does not engage with this contradiction but
instead simply maintains that Nurriddin’s detail office “did
not fund” an award. For support, the agency cites to an
evaluation letter from the NSF. The letter is entirely glowing
of Nurriddin’s performance but does not say one way or
another whether the NSF provided money for an award. The
only conclusion this letter supports is that Nurriddin’s work
on detail “was actually outstanding.”
Viewing the evidence in the light most favorable to
Nurriddin, his supervisors gave reasons for not providing a
bonus that a reasonable jury could find false. See Walker, 798
F.3d at 1092 (“A plaintiff may support an inference that the
employer's stated reasons were pretextual . . . by citing the
employer’s . . . inconsistent or dishonest explanations . . . or
other relevant evidence that a jury could reasonably conclude

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evinces an illicit motive.”). Human Resources contends
Phelps and McGee did have the discretion to give Nurriddin
an award. The District Court confirmed that “other NASA
managers received performance awards while on detail.”
Nurriddin IV, 40 F. Supp. 3d. at 127. Furthermore, the
agency was caught in a November 1998 email chain
discussing Nurriddin’s placement options on detail in terms of
“conditions such as resolution of the EEO complaints,” after
which Nurriddin filed another EEO complaint naming Phelps
and McGee as responsible management officials in January of
1999. All of this evidence combined gives rise to an
inference that Nurriddin did not receive a bonus on account of
unlawful discrimination or retaliation.
When considering the evidence in the light most
favorable to Nurriddin, as we must, I do not believe that
NASA has met its burden of proving “that there is no genuine
dispute as to any material fact” regarding whether it was up to
the detail agency to award a bonus, see Fed. R. Civ. P. 56(a),
and I would reverse the District Court on these discrimination
and retaliation claims alone.

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