Belyakov v. Henry M. Jackson Foundation

Filing 44

MEMORANDUM OPINION (c/m to Plaintiff 2/9/16 sat). Signed by Judge Deborah K. Chasanow on 2/9/2016. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
IGOR BELYAKOV
:
v.

:

Civil Action No. DKC 13-3656

:
HENRY M. JACKSON FOUNDATION
:
MEMORANDUM OPINION
Presently

pending

and

ready

for

resolution

in

this

employment discrimination case are two motions: (1) a motion for
summary judgment filed by Defendant Henry M. Jackson Foundation
(“Defendant” or the “Foundation”) (ECF No. 35); and (2) a crossmotion for summary judgment filed by Plaintiff Igor Belyakov
(“Plaintiff”) (ECF No. 40).

The issues have been fully briefed,

and the court now rules, no hearing being deemed necessary.
Local Rule 105.6.

For the following reasons, Defendant’s motion

for summary judgment will be granted, and Plaintiff’s motion for
summary judgment will be denied.
I.

Background
A.
This

Factual Background1
case

involves

age

discrimination

and

retaliation

claims brought by Plaintiff against his prospective employer.

1

The following facts are uncontroverted, alleged
Plaintiff, or construed in the light most favorable to him.

by

Plaintiff, a United States citizen of Russian origin, was born
on July 13, 1960.

As a result, at all relevant times in this

failure-to-hire action, he was over 40 years old.

(ECF No. 40,

at 1).
Plaintiff received his medical degree in 1983 and worked at
the

National

Cancer

Institute

of

the

National

Institutes

of

Health (“NIH”) from 1996 to 2006 as a postdoctoral fellow and a
senior staff scientist.
at 1).

NIH is part of the U.S. Department of Health and Human

Services (“DHHS”).
the

(ECF Nos. 35-2, at 4; 39, at 5; 40-2,

U.S.

Equal

In 2004, Plaintiff filed a complaint with
Employment

Opportunity

Commission

(“EEOC”)

against NIH and DHHS alleging that he was not promoted due to
his

national

origin.

(ECF

Nos.

4

¶

8;

35-2,

at

4).

He

submitted additional EEOC complaints against NIH and DHHS in
2006

and

2010

for

respectively.

(ECF

failure
No.

to

promote

35-2,

at

4).

and

failure

From

2006

to

hire,

to

2010,

Plaintiff worked for the Midwest Research Institute in Salt Lake
City, Utah.

He then worked as a professor at the Michigan

Nanotechnology Institute for Medicine and Biological Sciences
until January 2013.

(Id.).

According to Plaintiff, he was

unemployed at the time of the events giving rise to this case.
(ECF No. 4 ¶ 4).
Defendant Foundation is a private, non-profit organization
located in Bethesda, Maryland, “that is dedicated to supporting
2

medical research and education programs.”

(ECF No. 35-2, at 5).

The Foundation “staffs federally sponsored programs for medical
research that are funded through grants or contracts.”
One

such

federal

program

“is

the

HIV/AIDS

medical

(Id.).
research

program operated within the Division of AIDS (“DAIDS”)” at NIH.
(Id.).

In late October 2012, DAIDS requested that Defendant

hire a Senior Science Adviser – Mucosal Immunology (“SSA”) to
support the DAIDS program.
served

as

the

hiring

(Id. at 6).

manager

for

the

Monica Richardson Hager
SSA

position

at

the

Foundation, and Whitney Flickinger was assigned to assist Ms.
Hager in filling the SSA position.

Foundation employees Naana

Cleland and Marco Schito assisted Ms. Hager and Ms. Flickinger
in interviewing candidates.

On November 7, 2012, Ms. Flickinger

created an opening for the SSA position on the Foundation’s
online application system and posted the job description to the
Foundation’s website.

(Id.).

The posting did not provide a

specific application deadline.

(ECF No. 4 ¶ 12; see ECF No. 35-

5, at 8).

When candidates applied for the SSA position, the

Foundation’s online system generated and sent an auto-reply email to the candidate confirming receipt of the application.
The submitted application was stored in an online database for
later review.

Ms. Hager and Ms. Flickinger had access to this

database for the SSA position.

The application system neither

generated nor sent notifications to Foundation employees when it
3

received an application for the SSA position.

(ECF No. 35-2, at

7).
On November 14, 2012, Ms. Hager received an e-mail from
Mark O’Callahan, the Foundation’s Project Director for DAIDS,
attaching

Dr.

Cesar

stating

that

“[t]his candidate looks promising for the [SSA] position.”

(ECF

No. 35-5, at 12).

Boggiano’s

application

and

Mr. O’Callahan had received Dr. Boggiano’s

application materials from Dr. Patricia D’Souza, an NIH employee
who would work closely with the individual hired into the SSA
position.

(ECF No. 35-2, at 7).

reviewed

applications

rejected

a

number

submitted

of

requisite experience.

to

applicants
(Id.).

On November 21, Ms. Hager
the

online

because

database

and

lacked

the

they

Over the next several days, Ms.

Hager screened the remaining applications, identified the top
candidates,

reviewed

these

colleagues,

and

interviews.

(Id. at 8).

asked

candidates’

Ms.

applications
to

Flickinger

with

screening

conduct

her

After November 26, Ms. Hager did not

return to the online system to review any other application
materials for the SSA position.

According to Ms. Hager, “[a]ny

applications submitted after November 26, 2012 went into the
[online]
reviewed.”

database

Ms.

where

they

simply

remained

without

being

(ECF No. 35-5, at 4).
Flickinger

conducted

Boggiano on November 26.

a

phone

interview

with

Dr.

Between December 6 and December 18,
4

the

top

four

candidates,

including

Boggiano,

were

(ECF No. 40-34).

interviewed by Foundation employees.

Dr.

Ms.

Hager identified Dr. Boggiano as one of the top two candidates
and she arranged additional “meet and greet” interviews for the
two finalists.
candidates

on

(ECF No. 35-2, at 8).
December

27,

Dr.

After meeting with both

D’Souza

recommended

that

the

Foundation hire Dr. Boggiano because “he has worked in the HIV
field, is well qualified in the skill sets I require (mucosal
immunology and innate immunology), knows the key players in the
HIV field and seems highly motivated . . . .
Boggiano]

could

immediately.”

contribute
(ECF

No.

to

the

35-5,

at

DAIDS
19).

I think [Dr.

[s]cientific
Shortly

agenda

after

Ms.

Flickinger checked Dr. Boggiano’s references, Ms. Hager extended
an offer of employment to Dr. Boggiano for the SSA position.
Dr. Boggiano verbally accepted the position on January 11, 2013,
and

he

formally

February 4.

began

his

employment

(ECF No. 35-2, at 9-10).

at

the

Foundation

on

On January 14, Ms.

Flickinger updated the Foundation’s online application system to
reflect that a candidate accepted an offer of employment.

Dr.

Boggiano’s application was placed in “Ready to Hire” status,
while all remaining applicants were placed on “Hold” within the
database.

(Id. at 9).

Once Dr. Boggiano was officially hired

on February 4, the database was updated to reflect his hiring.
This

update

necessarily

rejected
5

all

other

applicants

from

further consideration and “assigned them the disposition reason
‘Another Applicant was Hired.’”

(ECF No. 35-6, at 4).

Plaintiff applied for the SSA position on December 17, 2012
through the Foundation’s online application system.
¶ 13).

(ECF No. 4

Upon submission, he received an e-mail confirmation from

the Foundation stating that “[y]our online application has been
successfully submitted” and “[w]e will review your background to
determine

if

your

qualifications

posting requirements.
will contact you.”

are

commensurate

with

the

If it passes our initial screening, we

(ECF No. 35-3, at 29).

Plaintiff did not

speak with anyone about the SSA position before applying in
December 2012.

(Id. at 6).

Plaintiff alleges that, in January

2013, the Foundation informed him that he was not selected for
the SSA position.

(ECF No. 4 ¶ 14).

Plaintiff, however, has

not produced such an e-mail during discovery, and it is unclear
whether the Foundation sends rejection e-mails to applicants who
were not selected.
B.

(See ECF No. 35-3, at 8-9).

Procedural History

On March 1, 2013, Plaintiff filed an EEOC charge alleging
age

discrimination

and

retaliation.

In

his

EEOC

Plaintiff asserted:
In or about December 2012, I applied
for a vacant, advertised position with
[Defendant].
The position to which I
applied was Senior Science Advisor.
On
February 4, 2013, I received notice that I
6

charge,

was not selected for the position.
I
believe my denial of hire and non-selection
was due to my age (52) and in retaliation to
my filing of previous complaints and whistle
blowing activities with my former employer,
[NIH].
As a result of these previous
actions, I believe I have been subjected to
continuous retaliation regarding denial of
any employment opportunities in which NIH is
affiliated.
(ECF No. 1-1).

In response to the charge, Defendant submitted a

“position statement” to the EEOC investigator, asserting that
Plaintiff’s application “was received so late in the recruitment
process that it was never even seen by [the] hiring manager”
prior to selection of the successful applicant and that, in any
event,

the

hiring

manager

was

unaware

of

Plaintiff’s

age,

“having never met him,” and “did not know anything about [his]
complaints

regarding

the

[NIH]

at

the

time

of

the

decision — she didn’t even know who [Plaintiff] was.”
4–5, at 1-2).

hiring

(ECF No.

On September 20, 2013, the EEOC dismissed the

charge and advised Plaintiff of his right to sue.

(ECF No. 4-

1).
Plaintiff, proceeding pro se, sued Defendant in this court
on December 4, 2013.

(ECF No. 1).

complaint on December 23.
alleges:

age

Plaintiff filed an amended

(ECF No. 4).

discrimination

in

The two-count pleading

violation

of

the

Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §
621 et seq. (Count I); and retaliation in violation of Title VII

7

of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e
et seq. (Count II).2

Defendant filed a motion to dismiss the

amended complaint for failure to state a claim (ECF No. 15),
which the court denied on March 6, 2015 (ECF No. 22).

On August

27, Defendant moved for summary judgment on the claims asserted
in the amended complaint.

(ECF No. 35).

Plaintiff responded

(ECF No. 39), and Defendant replied (ECF No. 41).

Plaintiff

filed a cross-motion for summary judgment (ECF No. 40), which is
fully briefed (ECF Nos. 41; 42).
II.

Standard of Review for Cross-Motions for Summary Judgment
A motion for summary judgment will be granted only if there

exists no genuine dispute as to any material fact and the moving
party

is

entitled

to

judgment

as

a

matter

of

law.

See

Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986);

Anderson

v.

Liberty

Lobby,

Inc.,

477

U.S.

242,

250

(1986); Emmett v. Johnson, 532 F.3d 291, 297 (4th Cir. 2008).
Summary judgment is inappropriate if any material factual issue
“may reasonably be resolved in favor of either party.”

Liberty

Lobby, 477 U.S. at 250; JKC Holding Co. LLC v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001).

2

The amended complaint lists Counts I and III. (ECF No. 4,
at 11-12). Plaintiff acknowledges that Count III was mislabeled
and should be Count II. (ECF No. 35-3, at 3). This memorandum
opinion will refer to Counts I and II.
8

The moving party bears the burden of showing that there is
no genuine dispute as to any material fact.

However, no genuine

dispute of material fact exists if the nonmoving party fails to
make a sufficient showing on an essential element of his or her
case as to which he or she would have the burden of proof.
Celotex, 477 U.S. at 322–23.

Therefore, on those issues on

which the nonmoving party has the burden of proof, it is his or
her responsibility to confront the summary judgment motion with
an “affidavit or other evidentiary showing” demonstrating that
there is a genuine issue for trial.

See Ross v. Early, 899

F.Supp.2d 415, 420 (D.Md. 2012), aff'd, 746 F.3d 546 (4th Cir.
2014).

“A mere scintilla of proof . . . will not suffice to

prevent summary judgment.”
(4th Cir. 2003).
significantly

Peters v. Jenney, 327 F.3d 307, 314

“If the evidence is merely colorable, or is not

probative,

summary

judgment

may

be

Liberty Lobby, 477 U.S. at 249–50 (citations omitted).
pro

se

litigants

are

to

be

standards apply to everyone.

given

some

latitude,

granted.”
Although
the

above

Thus, as courts have recognized

repeatedly, even a pro se party may not avoid summary judgment
by relying on bald assertions and speculative arguments.

See

Smith v. Vilsack, 832 F.Supp.2d 573, 580 (D.Md. 2011) (citing
cases).
“When

cross-motions

for

summary

judgment

are

before

a

court, the court examines each motion separately, employing the
9

familiar standard under Rule 56 of the Federal Rules of Civil
Procedure.”

Desmond v. PNGI Charles Town Gaming, LLC, 630 F.3d

351, 354 (4th Cir. 2011).

The court must deny both motions if it

finds there is a genuine dispute of material fact, “[b]ut if
there is no genuine issue and one or the other party is entitled
to prevail as a matter of law, the court will render judgment.”
10A Charles A. Wright, et al., Federal Practice & Procedure §
2720 (3d ed. 1998).
III. Analysis
The

two-count

amended

complaint

alleges

that

Defendant

discriminated against Plaintiff by failing to hire him due to
his age and in retaliation for earlier EEOC complaints filed
against

NIH.

Defendant

instead

hired

Dr.

Boggiano,

who

is

younger.
A.

ADEA Discrimination Claim (Count I)

The ADEA prohibits employers from discriminating against
employees or prospective employees because of an individual’s
age.

29 U.S.C. § 623(a).

judgment,

a

plaintiff

To survive a motion for summary

must

provide

evidence

of

intentional

discrimination through one of two avenues of proof: (1) direct
or

circumstantial

employer’s

adverse

evidence

that

employment

discrimination

decision;

or

(2)

motivated
the

the

McDonnell

Douglas “pretext framework” that requires a plaintiff to show
that “the employer’s proffered permissible reason for taking an
10

adverse

employment

[discrimination].”

action
Hill

is

v.

actually

Lockheed

a

Martin

pretext

Logistics

for
Mgmt.,

Inc., 354 F.3d 277, 285 (4th Cir. 2004) (citing Texas Dep’t of
Comm. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981); McDonnell
Douglas

Corp.

v.

Green,

411

U.S.

792,

807

(1973)).

Here,

Plaintiff must rely on the McDonnell Douglas framework because
he offers no direct evidence.
Under the McDonnell Douglas framework, once the plaintiff
meets his initial burden of establishing a prima facie case for
discrimination, “the burden shifts to the employer to articulate
a

legitimate,

nondiscriminatory

employment action.”

Id.

reason

for

the

adverse

Once the employer meets this burden of

production, “the burden shifts back to the plaintiff to prove by
a

preponderance

reasons

‘were

of

not

discrimination.’”

the

evidence

its

true

Id.

(quoting

that

reasons,

the

but

Reeves

v.

Prods., Inc., 530 U.S. 133, 143 (2000)).

employer’s

were

a

stated

pretext

Sanderson

for

Plumbing

“The final pretext

inquiry merges with the ultimate burden of persuading the court
that

[the

plaintiff]

has

been

the

victim

of

intentional

discrimination, which at all times remains with the plaintiff.”
Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 294
(4th Cir. 2010) (internal quotation marks omitted).

To establish

a prima facie case of age discrimination, Plaintiff must show
that: (1) he was in the age group protected by the ADEA; (2) he
11

was qualified for the job for which the employer was seeking
applicants;
qualified;

(3)
and

circumstances

he

was

(4)

he

giving

rejected
was

for

rejected

rise

to

an

the
for

job
the

inference

despite

being

position

under

of

unlawful

Brown v. McLean, 159 F.3d 898, 902 (4th Cir.

discrimination.

1998) (citations omitted); see Burdine, 450 U.S. at 253, 253
n.6.
The ADEA’s protections apply to individuals at least 40
years of age, 29 U.S.C. § 631(a), and do not permit a mixedmotives age discrimination claim.
Inc.,

557

U.S.

167,

175

Gross v. FBL Fin. Servs.,

(2009).

Instead,

Plaintiff

must

establish “that age was the ‘but-for’ cause of the employer’s
adverse

action.”

absence

of

any

Id.

at

direct

177

(citations

evidence

of

age

omitted).

In

discrimination,

the
“the

plaintiff in a failure-to-hire suit is generally required to
show that the employer took adverse action against an applicant
who

was

qualified

for

employment,

‘under

circumstances

give rise to an inference of unlawful discrimination.’”
v.

Bd.

of

Educ.

of

Howard

Cty.,

No.

ELH-12-2789,

which
Krpan

2013

WL

4400475, at *11 (D.Md. Aug. 15, 2013) (quoting Burdine, 450 U.S.
at

253).

In

its

motion

for

summary

judgment,

Defendant

challenges whether Plaintiff can satisfy the fourth prong of the
prima facie case.
has

legitimate,

In the alternative, Defendant argues that it
nondiscriminatory
12

reasons

for

not

selecting

Plaintiff for the SSA position and that there is no evidence of
pretext to support Plaintiff’s claim of discrimination.
Defendant is entitled to summary judgment on Plaintiff’s
age discrimination claim.

Plaintiff cannot establish but-for

causation because the evidence establishes that the decision to
hire

Dr.

Boggiano

was

made

before

anyone

involved

in

the

selection process knew that Plaintiff had applied or had any
information

about

Computing,

86

uncontroverted
during

the

applied
inference
Director
position,

his

age.

F.Supp.3d
evidence

See
430,

shows

hiring

for
of
for

process

the

position,

declared,

who

442

that

“Until

(D.Md.

knowledge

thereby
Mr.

convened
I

v.

Med.

that

O’Callahan,

learned

team
of

to

&

The

decisionmakers

removing

the

Sci.

2015).

Defendant’s

lacked

discrimination.
DAIDS

Belyakov

any
the
fill

Plaintiff
possible
Project
the

[Plaintiff’s

SSA

EEOC]

charge in mid-February 2013, I had never heard of [Plaintiff]
and never discussed [him] with anyone for any purpose.”
No. 35-4, at 4).

(ECF

Similarly, Ms. Hager, the hiring manager for

the SSA position, stated, “After learning of [Plaintiff’s EEOC]
charge in mid-February 2013, I also learned for the first time
that [Plaintiff] had submitted an application on December 17,
2012 for the SSA position.

Because [he] applied . . . after

November 26, 2012, I never reviewed his resume and never knew
that he had applied.”

(ECF No. 35-5, at 5).
13

Moreover, Ms.

Hager “had never heard of Plaintiff prior to learning about [his
February

2013

EEOC

charge].”

(Id.).

Ms.

Flickinger,

a

recruiter assigned to assist Ms. Hager in hiring for the SSA
position, affirmed that until “mid-February 2013, . . . I had
never heard of [Plaintiff] and did not know he had ever applied
for the SSA position.”

(ECF No. 35-6, at 4).

Even in cases in which the employer knew that the plaintiff
applied for an open position, the plaintiff cannot establish a
prima facie case of discrimination unless he can show that the
employer also knew the plaintiff’s age.

See Gladden v. McHugh,

No. PJM-10-1793, 2011 WL 2791139, at *6 (D.Md. July 13, 2011)
(noting that to survive summary judgment, “the protected status
must have actually played a role in the employer’s decisionmaking process” (citing Hill, 354 F.3d at 286)), aff’d sub nom.
Gladden v. U.S. Dep’t of the Army, 469 F.App’x 221 (4th Cir.
2012).

It

follows,

then,

that

lack

of

knowledge

about

the

application itself cannot support an inference of discrimination
on the basis of age.

Id. (“[T]here obviously must be some

indication that the deciding officials knew of the applicant’s
status as a protected individual.”).
Plaintiff argues that Defendant’s employees reviewed his
application and took note of his age, which can be inferred from
the dates on his CV, because he received an e-mail response
confirming receipt of his application.
14

(ECF Nos. 39, at 2, 5;

40,

at

3,

17).

This

e-mail

noted

that

Plaintiff’s

“online

application has been successfully submitted” and Defendant “will
review your background to determine if your qualifications are
commensurate with the posting requirements.
initial screening, we will contact you.”

If it passes our

(ECF No. 35-3, at 29).

Absent more, an automated e-mail reply is insufficient to show
that

the

hiring

recognized
evidence

his
that

Foundation

was

team

viewed

protected
any

status.

decisionmaker

aware

that

Plaintiff’s
Put
or

simply,

other

Plaintiff

application
there

employee

applied

for

or

is

no

at

the

the

SSA

position, or discussed his age, or acted upon such information
with a discriminatory animus.

See Merritt, 601 F.3d at 300 (“It

is the decision maker’s intent that remains crucial, and in the
absence

of

a

clear

nexus

with

the

employment

decision

in

question, the materiality of stray or isolated [evidence of a
subordinate’s intent] is substantially reduced.”).
any

evidence

that

any

NIH

employee

with

Nor is there

influence

over

Defendant’s hiring process had knowledge that Plaintiff applied
for the position, or was aware of his age, when it approved of
Dr. Boggiano’s selection.

Rather, the undisputed facts are that

Ms. Hager completed screening applications for the SSA position
by November 26, 2012.

(ECF No. 35-5, at 4-6).

After November

26, she did not review any additional applications for the SSA
position and was not notified by the application database when
15

new applications were received.

(Id.).

Plaintiff did not apply

for the SSA position until December 17, three weeks after Ms.
Hager stopped reviewing new applications.
hiring

decisionmakers

had

interviewed

By that time, the
four

finalists

and

narrowed their choice to two candidates, including Dr. Boggiano.
(Id. at 4).

Although Plaintiff has likely satisfied the first

three prongs of a prima facie case for age discrimination under
the McDonnell Douglas framework, he has not provided evidence
showing

that

circumstances
discrimination.

he

was

giving

rejected
rise

to

for
an

the

SSA

inference

position
of

under

unlawful

As a result, his prima facie case fails.

In his cross-motion for summary judgment, Plaintiff relies
on an affidavit of an expert witness, Dr. Oleg Kuzmenok, to
argue that there is evidence to establish discriminatory intent
based on Plaintiff’s superior credentials.
13; see ECF No. 40-30).

(ECF No. 40, at 11-

In his affidavit, Dr. Kuzmenok states

that “it is very clear that [Plaintiff] is substantially more
qualified for a [SSA] position than Dr. Boggiano.

I do not find

the reasons given by [Defendant] for selecting Dr. Boggiano to
this position particularly credible.”

(ECF No. 40-30, at 3).

Plaintiff argues that Dr. Kuzmenok’s conclusion regarding the
qualifications of Plaintiff vis-à-vis Dr. Boggiano is evidence
of Defendant’s discriminatory intent.

16

In Holcomb[ v. Powell, 433 F.3d 889 (D.C.
Cir. 2006)], the United States Court of
Appeals for the District of Columbia Circuit
explained that “a factfinder could infer
discrimination if the evidence showed a
reasonable employer would have found the
plaintiff significantly better qualified for
the job but nevertheless failed to offer the
position to [him.]”
Id. at 897.
This
consideration is typically implicated where
an
employer
directly
compares
the
qualifications of two candidates, see, e.g.,
id. at 896–97, or uses subjective criteria
to
justify
hiring
one
candidate
over
another,
which
can
be
used
to
mask
discrimination in some cases, see, e.g., Aka
v. Wash. Hosp. Ctr., 156 F.3d 1284, 1294 &
n.10, 1298 (D.C. Cir. 1998).
Belyakov,

86

F.Supp.3d

at

443.

Here,

however,

Defendant’s

decisionmakers did not know that Plaintiff had applied for the
SSA

position,

and

thus

did

not

compare

Plaintiff’s

qualifications to those of the finalists.
Even

assuming

arguendo

that

Plaintiff

could

establish

a

prima facie case for age discrimination, he nevertheless cannot
rebut

as

pretextual

Defendant’s

legitimate,

nondiscriminatory

reason for hiring Dr. Boggiano – that the hiring decisionmakers
were

unaware

of

Plaintiff’s

application,

and

that

his

application was treated the same as all other applicants who
responded to the job posting after November 26.
35-2, at 18 n.8).

(See ECF No.

Critically, not one of Defendant’s employees

tasked with filling the SSA position knew that Plaintiff applied
until he filed his February 2013 EEOC complaint that led to this

17

action.

Throughout the selection process, these employees never

learned of Plaintiff’s application, screened Plaintiff’s resume,
discussed Plaintiff or his qualifications, or even had heard of
Plaintiff.

Beyond

offering

mere

speculation

and

inference,

Plaintiff concedes that he has no evidence to the contrary.
(See ECF No. 35-3, at 10-12, 18).3

He provides no evidence to

refute the fact that the hiring decisionmakers at the Foundation
did not evaluate or screen applicants who applied after November
26,

and

thus

never

knew

that

Plaintiff

had

applied

for

the

position, let alone his age, by the time Defendant selected Dr.
Boggiano in January 2013.
Accordingly,

Plaintiff

See Belyakov, 86 F.Supp.3d at 442.

cannot

show

that

Defendant’s

stated

reason for his non-selection “was false, and that discrimination
was the real reason.”

Adams v. Trustees of the Univ. of N.C.-

3

Plaintiff attempts to cast doubt on the credibility of
Defendant’s
stated
explanation,
evidence,
and
employee
declarations. He contends that Defendant’s SSA application data
– compiled and shared during discovery as a spreadsheet of
information culled from the online database – is inconsistent,
contradictory, and in conflict with the record.
(ECF Nos. 39,
at 7-9; 40, at 19-20). Plaintiff’s argument, however, does not
create any genuine issue of material fact, as Ms. Flickinger’s
uncontroverted declarations show that she did not update
Defendant’s applicant tracking system at each step in the hiring
process. (See ECF No. 35-6, at 4). As a result, “the applicant
tracking system reflects the date on which Ms. Flickinger
entered [] information into the system and is not intended to be
a real-time account” of the recruitment and hiring process.
(ECF No. 41, at 6). Moreover, Plaintiff provides no evidence to
challenge whether the hiring decisionmakers ceased reviewing SSA
applications on November 26, 2012.
18

Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (quoting Jiminez v.
Mary

Washington

Coll.,

57

F.3d

369,

378

(4th

Cir.

1995))

(emphasis in original).
Plaintiff’s case is based entirely on the fact that he is
older than Dr. Boggiano and his belief that he is more qualified
than Dr. Boggiano.

(See, e.g., ECF No. 35-3, at 13-14).

This,

without more, does not create any genuine issue of material
fact.

The

uncontroverted

evidence

shows

that

Defendant’s

decisionmakers were unaware of Plaintiff’s application – and, by
extension,
result,

his

age

Plaintiff

can

during

the

establish

SSA

hiring

neither

process.

As

circumstances

a

giving

rise to an inference of unlawful discrimination nor that age was
the but-for cause of his non-selection.

Defendant is entitled

to summary judgment on the ADEA claim in Count I.
B.

Title VII Retaliation Claim (Count II)

Plaintiff

asserts

that

he

was

retaliated

against

in

violation of Title VII based on his non-selection for the SSA
position.

Title

VII

prohibits

retaliation

by

the

against employees who engage in a protected activity.
§ 2000e–2(a).

employer
42 U.S.C.

Protected activity includes opposing “unlawful

employment practice[s] [under] this subchapter” or “ma[king] a
charge, testif[ying], assist[ing], or participat[ing] in . . .
[a

Title

U.S.C.

§

VII]

investigation,

2000e–3(a).

To

proceeding,

establish
19

a

or
prima

hearing[.]”
facie

case

42
of

retaliation under Title VII, a plaintiff must show that: (1) he
engaged

in

a

protected

activity;

(2)

an

adverse

employment

action was taken against him; and (3) the protected activity was
causally

connected

to

the

adverse

action.

See

Balas

v.

Huntington Ingalls Indus., Inc., 711 F.3d 401, 410 (4th Cir.
2013); Holland v. Washington Homes, Inc., 487 F.3d 208, 218 (4th
Cir.

2007).

Again,

because

Plaintiff

presents

no

direct

evidence of retaliation, his retaliation claim will be analyzed
under the McDonnell Douglas framework.

See Staley v. Gruenberg,

575 F.App’x. 153, 155 (4th Cir. 2014).

Here, Defendant does not

dispute that the first two prongs are met.

Plaintiff engaged in

protected activity by filing EEOC complaints against NIH and
DHHS

in

the

positing.
for

the

adverse

years

prior

to

responding

to

Defendant’s

job

And Defendant informed Plaintiff of his non-selection
SSA

position

employment

in

January

action.

(ECF

2013,
No.

which
4

¶

constitutes

14).

an

Defendant

challenges whether Plaintiff can establish the third prong – a
causal connection – due to the decisionmakers’ lack of knowledge
concerning

both

protected activity.
A
adverse

causal

Plaintiff’s

and

his

earlier

(ECF No. 35-2, at 19).

connection

employment

application

action

“exists
against

where
an

learning of the protected activity.”

[an]

employer

takes

shortly

after

employee

Price v. Thompson, 380

F.3d 209, 213 (4th Cir. 2004) (citation omitted).
20

In addition,

because “an employer cannot take action because of a factor of
which it is unaware, the employer’s knowledge that the plaintiff
engaged

in

a

protected

activity

is

absolutely

necessary

establish the third element of the prima facie case.”
Vilsack,

832

F.Supp.2d

internal

quotation

evidence

shows

573,

marks

that

586

(D.Md.

omitted).

Ms.

Hager,

2011)

Here,
Ms.

Smith v.

(citations

the

to

and

uncontroverted

Flickinger,

and

their

colleagues at the Foundation did not know that Plaintiff had
applied for the SSA position because they ceased checking the
online application database on November 26, 2012.
Hager,

Ms.

Plaintiff

Flickinger,

before

he

and

filed

Mr.
his

O’Callahan
February

Moreover, Ms.

never

2013

heard

EEOC

of

charge.

Plaintiff cannot point to any evidence that raises a genuine
issue

of

material

fact

about

the

decisionmakers’

awareness

concerning both Plaintiff’s SSA application and his earlier EEOC
complaints.

Even

so,

knowledge

of

an

applicant’s

prior

protected activity alone is insufficient to establish causation
for the purposes of retaliation.

Gibson v. Old Town Trolley

Tours of Washington, D.C., Inc., 160 F.3d 177, 182 (4th Cir.
1998)

(citations

omitted).

There

must

be

evidence

that

Defendant was motivated in some way by Plaintiff’s protected
activity to take adverse employment action.

See id.

Here,

Plaintiff presents no such evidence, and he cannot create a
genuine issue of material fact through mere speculation or the
21

building of inference upon inference.

Beale v. Hardy, 769 F.2d

213, 214 (4th Cir. 1985).
To

the

extent

that

Plaintiff

argues

that

NIH,

a

DHHS

agency, was at least institutionally aware of his prior EEOC
complaints and influenced Defendant’s hiring process, his claim
fails because he presents no evidence that NIH was ever aware he
was

interested

Belyakov,

86

in

or

applied

F.Supp.3d

at

for

444;

the
(ECF

SSA

position.

No.

40,

at

See
27-28).

Plaintiff is unable to identify any NIH personnel who shared
information about his prior protected activity with Foundation
employees.

(See ECF No. 35-3, at 17-18).

Accordingly, there

can be no causal connection between Plaintiff’s prior protected
activity – that is, his previously-filed EEOC complaints against
NIH – and Defendant’s failure to select Plaintiff for the SSA
position.
It also bears repeating that, as explained above, Defendant
provides

legitimate,

challenged

actions.

nondiscriminatory
As

Ms.

Hager

and

reasons
her

for

colleagues

the
moved

forward in the SSA hiring process to the interview stage, they
ceased

checking

applications.
in

the

SSA

application,
November

26

the

online

database

and

reviewing

new

As a result, Defendant’s employees who took part
hiring
and
were

process

all

had

no

applications

treated

the
22

knowledge
that

same.

were
As

of

Plaintiff’s

received
with

his

after
age

discrimination claim, Plaintiff fails to provide evidence - or
even a forecast of evidence - that these reasons are pretext.
The evidence does not support a finding of retaliation, and
Defendant is entitled to summary judgment on that claim.
IV.

Conclusion
For the foregoing reasons, Defendant’s motion for summary

judgment will be granted, and Plaintiff’s motion for summary
judgment will be denied.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

23