Lim v. Burwell et al

Filing 120

MEMORANDUM OPINION. Signed by Judge Theodore D. Chuang on 2/28/2020. (c/m 2/28/2020 - dg3s, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND

CHANG LIM,
Plaintiff,
v.

Civil Action No. TDC-17-0438

ALEX M. AZAR, II,
Defendant.

MEMORANDUM

OPINION

Plaintiff Dr. Chang Lim, a former Commissioner's Fellow with the United States Food and
Drug Administration ("FDA"), has filed this action against the Secretary of Health and Human
Services ("HHS"), in which he has alleged that he was subjected to unlawful retaliation for filing
discrimination complaints with the FDA and the United States Equal Employment Opportunity
Commission ("EEOC"), in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e-2000e-17

99

(2018). Pending before the Court is HHS' s Motion for Summary Judgment and

Lim's Cross Motion for Summary Judgment. The Motions are fully briefed, and the Court held a
hearing on the Motions on February 20, 2020. For the reasons set forth below, HHS's Motion will
be GRANTED IN PART and DENIED IN PART, and Lim's Motion will be DENIED.
BACKGROUND
Relevant background is set forth in this Court's memorandum opinion on HHS's Motion
to Dismiss, in which the Court dismissed the race discrimination claims asserted in the Second
Amended Complaint but declined to dismiss the retaliation claims: Lim v. Azar, 310 F. Supp. 3d

588, 594-97 (D. Md. 2018). The Court sets forth below the facts relevant to the resolution of the
pending Motions.
I.

FDA Employment
In 2008, Lim was appointed to a two-year position as a Commissioner's Fellow at the FDA.

The appointment was subject to an initial one-year trial period. As part of the appointment process,
Lim

signed

a "Recruitment/Relocation

Incentive

Service

Agreement"

("the

Incentive

Agreement'), which entitled him to a lump sum bonus payment of $7,500. Joint Record ('"'J.R.")
79-80, ECF No. 115. However, the Incentive Agreement, which was a standard agreement for
Commissioner's

Fellows, also provided that "payment of this incentive is associated with [the

Fellow's] performance and/or conduct." J.R. 79. It further stated that if the Fellow "voluntarily
fail [s] to complete the period of service ... or [is] separated for cause," the Fellow is "entitled only
to those incentive payments already paid by the agency that are attributable to the completed
portion of the service period."

J.R. 80. Further, if the Fellow "received incentive payments in

excess of the amount attributable to the completed portion of the service period," the Fellow would
be obligated to repay the excess amount. Id. The excess amount would "be a debt due to the
United States" that the Fellow agreed to repay in full. Id. However, the Incentive Agreement
provided that the FDA Commissioner "may approve a request for a waiver" if the Fellow's failure
to complete the full t~rm was "due to circumstances which are beyond [the Fellow's] control." Id. .
Lim signed this Incentive Agreement and received the $7,500 bonus payment.
Once Lim began his term as a Fellow, his relationship with the FDA and his colleagues
quickly soured. Lim claims that the project on which he had been appointed to work was not
available once his term began, and that his colleagues prevented him from effectively conducting
the work expected ofa Fellow. His supervisor, Dr. Jonathan Sackner-Bernstein, expressed concern

2

that Lim's work was inadequate and that Lim "does not understand scientific methods nor possess
the interpersonal

skills to work effectively/productively

in a large or intense organizational

structure," concluding that Lim "is unlikely to make great progress as a member of the Agency."
Apr. 1, 2009 Email at 2-3, Compi. Ex. 4, ECF No. 46-4. Lim was also involved in at least two
email disputes with another Fellow, which led to an FDA official sending Lim a memorandum
regarding acceptable office interactions on March 5, 2009. Lim responded with a memorandum
of his own, leveling a variety of accusations at other Fellows and the Fellowship Program.
Eventually, on June 5, 2009, Lim was summoned to a meeting with multiple FDA officials,
including

Kimberly

Holden, Assistant

Commissioner

for Management

(Operations),

who

presented him with a termination memorandum she had authored and gave him the choice to
voluntarily resign or have his employment terminated. Lim declined to resign and was fired.
II.

Post- Termination Activity
A.

Unemployment Insurance Benefits Application

After his termination,
Department

Lim sought unemployment

of Labor, Licensing, and Regulation ("DLLR").

benefits through

the Maryland

However, after reviewing the

circumstances of Lim's departure from the FDA, DLLR denied benefits on July 23, 2009 on the
grounds that Lim "voluntarily quit employment with FDA on 06/05/2009 in anticipation of
discharge" at a time when "the employer had not made a decision to discharge" him. J.R. 88. To.
explain how DLLR reached this conclusion, Lim has produced a document he asserts was provided
to him by DLLR that includes an "Employer Fact Finding Statement," apparently provided by an
FDA Human Resources Specialist named "Keith," which asserts that Lim "voluntary quit in
anticipation of discharge" and that Lim "was not nor would have been discharged." J.R. 134. The
statement further claimed that as of June 5, 2009, "no decision had been made to discharge him"

3

and that "[i]t was something that could have happened, but did not at the time. Continuing work
was available."

J.R. 134. HHS objects to the consideration of this document on the grounds that

it has not been authenticated and contains hearsay.
On July 29, 2009, Lim appealed the denial of benefits. At a September 8, 2009 hearing
before a DLLR Hearing Examiner, both Lim and FDA officials testified that Lim did not
voluntarily resign and was instead terminated.

On September 25, 2009, the DLLR Hearing

Examiner reversed the denial of benefits, finding that Lim had been terminated.

The Hearing

Examiner further concluded that Lim was not otherwise disqualified from receiving benefits
because he had not been "discharged ... for gross misconduct or misconduct connected with the
work" within the meaning of the relevant Maryland law. J.R. 92. According to Lim, although he
began receiving unemployment benefits, he did not receive benefits for the time period from the
DLLR's initial' denial of benefits until the DLLR Hearing Examiner's reversal of that denial.
B.

Overpayment and Leave Payout

Although Lim was terminated on June 5, 2009, the FDA continued to pay him for the next
two pay periods, covering the time period from June 6, 2009 to July 4,2009.

On June 26,2009,

the FDA deposited $3,140.95 into Lim's Bank of America account, and then on July 10,2009, it
deposited $3,140.96 into that account. Together, Lim was overpaid $6,281.91.
On May 7, 2010, the FDA listed the overpayment as

a debt

Lim was required to return.

[J.R. 159] However, it did !lot seek to recoup this entire amount. It instead opted to decrease the
requested repayment by the amount that, under agency policy, Lim was entitled to be paid out for
his unused annual leave and credit hours. At the time of his termination, Lim had accrued 16 hours
of annual leave and 24 credit hours. At Lim's hourly rate of $54.15, these 40 hours entitled him
to $2,166, which after deductions as calculated by the FDA, resulted in a net payout of $1,334.26.

4

The FDA consequently decreased the amount it sought for the salary overpayment by this amount,
demanding only $4,947.65 from Lim and thereby effectively cancelling out the debt it owed to
him for the leave payout. Although Lim made at least one substantial payment of$5,235.79,

and

the Internal Revenue Service ("IRS") seized his tax refunds for 2010 and 2011 in part to offset this
debt, on July 26, 2012, he was notified that his debt-now
and $30.10 in unpaid interest-had
("Treasury").

calculated at $235.18 in unpaid principal

been referred to the United States Department of the Treasury

Then, on October 9, 2012, Lim was informed that an outstanding debt of $272.14

had been referred to Performant Recovery, Inc., a private collection firm. Some time later, Lim
received a letter from Pioneer Credit Recovery, Inc. attempting to collect a debt of$372.56.

C.

Relocation Bonus Recoupment

After Lim was terminated, the.FDA also sought to recoup a portion of the $7,500 bonus
payment that Lim received as part of the Incentive Agreement. Because Lim h~d already worked
for several months at the ti11?-ef his termination, the FDA sought only a prorated portion of the
o
bonus, demanding in an August 25, 2009 letter that Lim pay back $5,208.90.

Although Lim

requested a waiver of this recoupment, it was denied by Kimberly Holden, the FDA Assistant
Commissioner for Management who authored Lim's termination letter and was present at the June
5,2009 meeting when Lim was terminated. On February 28, 2011, Lim paid off the $5,208.90 in
full.
However, the previous year, on May 7, 2010, the FDA had created another debt in Lim's
name for $5,208.90. Lim's tax refunds for 2010 and 2011 were seized in part to offset this debt.
On April 20, 2011, Lim sent an email, copying Holden, to William Darracott, the Chief of the Debt
Servicing Section within HHS and the official who forwarded Lim's debt~ from HHS to Treasury
for collection, in which he requested confirmation that the debt associated with the bonus

5

recoupment had been fully paid. On April 21, 2011, Darracott denied the request by email, also
copying Holden, in which he acknowledged that the February 28, 2011 payment had satisfied the
bonus recoupment, but referenced the outstanding second bonus recoupment debt, which with
interest had increased to $5,717.95.
After making some payments on this debt, Lim was notified on July 26, 2012 that this
debt-now

calculated at $4,859.28, including unpaid principal and interest-had

been referred to

Treasury for collection. On October 9,2012, Lim was notified that this debt, which with interest
had increased to $4,998.36, had been referred to by Treasury to Performant Recovery, Inc. for debt
collection.
During the present litigation, defense counsel sent Lim a letter explaining that during the
course ofthis case, HHS discovered that it "may have inadvertently collected, attempted to collect,
or referred to the Department of Treasury for collection $5,208.90 more than the amount [Lim]
actually owed." J.R. 125. Consequently, it sent Lim a check for $5,208.90 "without any condition,
regard, or intended effect on the outcome" of this case. Id.
III.

Equal Employment Activity
During the June 5, 2009 meeting at which Lim declined to resign and was fired, he was

asked to sign a termination memorandum authored by Holden, but he refused. Instead, he wrote
on the memorandum, "David Lim is refusing to sign, and David Lim will-be filing a lawsuit to
reinstate and with the following causes of action (l) discrimination based on national origin (2)
retaliation (3) negligence, etc." Termination Mem. at 3, ECF No. 46-6. Holden was present and,
aC'cording to Lim, was "uncontrollably yelling at me." J.R. 29.
On June 11, 2009, Lim initiated contact with the FDA Office of Equal Employment
Opportunity and Diversity Management (the "EEO Office") regarding his termination, and he filed

6

a formal complaint with the EEO Office on September 16,2009. On April 29, 2013, HHS issued
a final order rejecting Lim's complaint. Lim appealed this decision to the EEOC, which affirmed
the HHS decision on August 6,2015.
Separately, on September 27,2010, during the processing of his first EEO complaint, Lim
filed a second formal complaint with the EEO Office alleging post-termination

retaliation.

Specifically, Lim alleged that on August 2, 2010, the Chief of the HHS Debt Services Section
referred Lim to a debt collection agency, which resulted in Lim receiving a collection letter in
retaliation for his prior complaints. The EEO Office dismissed the complaint pursuant to 29 C.F .R.

S

1614.107(a)(3) on the grounds that these claims were not accepted for consideration in the

proceedings on the first complaint.
On July 7, 2011, Lim filed a third formal complaint with the EEO Office, alleging that he
was retaliated against for his prior complaints when he was reported to the IRS and a debt
collection agency. This complaint was dismissed on October 4, 2011 for failing to state a claim
that affected the terms, conditions, or privileges of Lim's employment.
DISCUSSION
In its Motion, HHS seeks summary judgment on the grounds that based on the record
evidence, there are no genuine issues of material fact and it is entitled to judgment as a matter of
law on Lim's retaliation claims.

In his Cross Motion, Lim argues that HHS cannot show

legitimate, non-retaliatory reasons for its actions, such that he is entitled to summary judgment on
his retaliation claims.
I.

Legal Standard
Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the

moving party demonstrates that there is no genuine issue as to any material fact, and that the

7

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court must believe the evidence
of the non-moving party, view the facts in the light most favorable to the nonmoving party, and
draw all justifiable inferences in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986). "A material fact is one.that might affect the outcome ofthe suit under the governing law."
Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson, 477 U.S.
at 248). A dispute of material fact is only "genuine" if sufficient evidence favoring the nonmoving
party exists for the trier of fact to return a verdict for that party. Anderson, 477 U.S. at 248-49.
"When faced with cross-motions for summary judgment, the court must review each
motion separately on its own merits 'to determine whether either of the parties deserves judgment
as a matter of law.'"

Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (quoting Philip

Morris, Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir. 1997)).
II.

Retaliation
A Title VII retaliation. claim follows a burden-shifting

framework analogous to the

discrimination framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973):
[A] plaintiff bears the initial burden of establishing a prima facie case ofretaliation.
Once this burden is carried, the burden shifts to the defendant, who is obliged to
articulate a legitimate, non-retaliatory justification for the adverse employment
action. If the defendant carries this burden, the onus is on the plaintiff to then
demonstrate that the non-retaliatory reason advanced by the defendant is a mere
pretext.
EEOC. v. Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005) (internal citations omitted);
cf McDonnell Douglas, 411 U.S. at 802-05.
To establish a prima facie case of retaliation, a plaintiff must present facts that establish
that (1) the plaintiff engaged in a protected activity; (2) the employer took a materially adverse
action against the plaintiff; and (3) "there was a causal link between the two events."
8

Boyer-

Liberto v. Fontainebleau Corp., 786 F.3d 264,281 (4th Cir. 2015) (citation omitted). "Protected
activity" consists of "oppos(ing] any practice made an unlawful employment practice" under Title
VII. 42 U.S.c.

S

2000e-3.

Employment practices made unlawful by Title VII are those that

discriminate against employees on the basis of race, color, religion, sex, or national origin. See id.

S 2000e-2

(delineating unlawful employment practices under Title VII). Thus, as HHS does not

dispute, Lim's complaints of discrimination, including his filings and other interactions with the
EEO Office, constituted protected activity. The crux of the parties' disagreement regarding the
prima facie case, then, pertains to the second and third McDonnell Douglas factors.
For a defendant's action to satisfy the second factor and constitute a materially adverse
action, it must be of such a nature that it "could well dissuade a reasonable worker from making
or supporting a charge of discrimination."

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53,

. 57 (2006). To satisfy the third factor, the plaintiff, while not required to establish that the protected.
activities were a but-for cause of the adverse action, must make "some showing" of causation,
such as demonstrating

that the "employer either understood or should have understood the

employee to be engaged in protected activity" and that "the employer took adverse action against
the employee soon after becomillg aware of such activity." Perkins v. Int'! Paper Co., 936 F.3d
196, 214 (4th Cir. 2019). "(T]he employer's knowledge that the plaintiff engaged in a protected
activity is absolutely necessary to establish the third element of the prima facie case." Dowe v.
. Total Action Against Poverty in Roanoke Valley, 145 F.3d 653, 657 (4th Cir. 1998).
If the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant
to show a legitimate, non-retaliatory reason for the adverse action. See Navy Fed. Credit Union,
424 F.3d at 405. The defendant's burden, however, "is one of production, not persuasion." Reeves
v. Sanderson Plumbing Prods., Inc., 530

u.s.

133, 142 (2000). The defendant can meet it by

9

"offering admissible evidence sufficient for the trier of fact to conclude" that the proffered
legitimate, non-retaliatory reason was the actual reason for the adverse action. Id. If the defendant
makes such a showing, the burden then shifts back to the plaintiff to show that the stated reason
was pretextual and that retaliation was the "actual reason" for the materially adverse action. See
Foster v. Univ. of Md.-£. Shore, 787 F.3d 243,253-54 (4th Cir. 2015).
Lim alleged a variety of materially adverse actions that he claims were retaliatory. HHS,
for its part, contests some of these actions on the ground that they never occurred and others on
the ground that they were taken for legitimate, non-retaliatory reasons. The Court addresses these
actions individually.
A.

Communications with DLLR

In his Second Amended Complaint, Lim asserts that the FDA "falsely reported Lim's
termination to the State of Maryland as voluntary, intending to prevent him from getting
unemployment benefits," in retaliation for his protected activity. Second Am. Compi. ~ 61, ECF
No. 68-1. Providing false information to cause DLLR to deny Lim unemployment benefits would
constitute

a materially

adverse action, as it would "dissuade a reasonable

worker" from

participating in protected activity. Burlington N., 548 U.S. at 57. In Williams v. WD. Sports,
N.M, Inc., 497 F.3d 1079 (lOth Cir. 2007), for example, the court found that falsely claiming that
an employee was fired for sexual harassment in an apparent attempt to disqualify the employee
from receiving unemployment benefits was a materially adverse action. Id. at 1090; cf Aviles v.
Cornell Forge Co., 183 F.3d 598, 605-06 (7th Cir. 1999) (holding that an employer's filing of a
false police report was an "adverse employment action" for purposes of a Title VII retaliation
claim).

10

HHS does not contest this legal conclusion. Instead, it asserts that the FDA never took this
action. It argues that although the first DLLR decision on Lim's claim denied it on the grounds
that Lim voluntarily quit, it was Lim, not FDA officials, who reported that Lim voluntarily
resigned. Specifically, it points to the fact that the DLLR Hearing Examiner stated to Lim during
the appeal hearing that "you told the claims specialists you quit because you thought you were
going to be discharged," an assertion which Lim denied. lR. 97. But a question by a hearing
examiner that assumed that Lim told claims specialists that he had quit is not evidence where Lim
denied it and no claims specialist testified to that fact. More persuasively, HHS highlights the fact
that during the DLLR appeal hearing, FDA officials specifically testified that Lim had been
terminated and had not resigned.
Lim, for his part, has presented evidence in the form of a DLLR "Employee Fact Finding
Statement" reflecting that an FDA Human Resources Specialist named "Keith" told DLLR that
Lim had voluntarily resigned. lR. 134. HHS objects to the consideration of this document on the
grounds that it has not been authenticated and that it contains hearsay. Under such an objection,
"the movant has the burden to show that the material is admissible as presented or to explain the
admissible form that is anticipated."

Humphreys & Partners Architects, L.P. v. Lessard Design,

Inc., 790 F.3d 532,538-39 (4th Cir. 2015) (quoting Fed: R. Civ. P. 56 advisory committee's note).
Here, Lim asserted at the hearing on the Motions that he received the Employee Fact
Finding Statement from DLLR, and that fact is supported by markings on the face of the document,
such as a listed internet address, reflecting that it is a DLLR record. Moreover, the document,
which includes information purportedly from FDA describing to the circumstances of Lim's
departure, appears to be a record of regularly conducted activity: Maryland law requires employers
to submit "separation notices" if requested by the Secretary of Labor, Licensing, and Regulation,

11

Md. Code Ann., Lab. & Empl.

S 8-627(a)

(LexisNexis 2016), and Maryland regulations require

both that the Secretary make such a request whenever a claimant files a claim for unemployment
insurance and that the employer provide the "[r]eason for the claimant's
employment,"

Md. Code Regs. 09.32.02.05(B) (2017).

separation from

Thus, the document likely could be

authenticated by a DLLR official as a public record or a record of regul~rly conducted activity.
See Fed. R. Evid. 803(6), (8).
Further, although HHS argues that the statements by "Keith" are hearsay where Keith does
not work for DLLR, those statements likely would not be offered for the truth of the matter
asserted, since Lim disputes that he resigned, but would instead be offered to show that the
statements were made by the FDA. See Fed. R. Evid. 801(c)(2). Even if they were offered for the
truth, there is a reasonable basis to infer that DLLR relies on such reports from an employer on the
circumstances of an employee's departure because the information is strikingly similar to the facts
actually included in the DLLR's notice of denial of benefits relating to Lim. Both documents state
that Lim "voluntarily quit," that he did so "in anticipation of discharge," and that the FDA had not
"made a decision to discharge" Lim at the time that he quit. Compare IR. 88 with l.R. 134. A
statement within a business or public record may be admissible even if made by an individual
outside the organization if it is the type of statement relied upon by the organization in its activities.
See, e.g., Smith v. SEECO, Inc., 922 F.3d 406, 412-13 (8th Cir. 2019) (holding that it was not an
abuse of discretion to admit a document containing statements from another entity "so long as the
custodian entity relied upon the accuracy of the record and the other requirements of Rule 803(6)
are satisfied" (citation omitted)).

Where it is apparent that DLLR relies on statements from

employers such as those offered by the FDA official in making its benefits determinations, it is
fair to anticipate that this document could be rendered admissible as a business or public record of

12

DLLR including information from employers typically relied upon by DLLR.
circumstances,

and particularly where Lim is self-represented,

Employee Fact Finding Statement in evaluating the Motions.

Under these

the Court will consider the
See Humphreys & Partners

Architects, 790 F.3d at 538-39.
Consequently, there is a genuine issue of material fact as to whether the FDA actually
reported to DLLR that Lim resigned, causing the denial of benefits. Although HHS argues that
there is no evidence that "Keith" was an FDA Human Resources Specialist or was aware of Lim's
protected activity, HHS acknowledges that it has not located Keith and has no evidence that he
was not an FDA Human Resources Specialist. More importantly, where Holden had a managerial
role over Human Resources at FDA, including having exercised her authority to terminate Lim
and to decide whether to waive his bonus recoupment, it is reasonable to infer that her staff was
acting at her direction in responding to the DLLR. She was specifically aware of Lim's protected
activity because she was present on June 5, 2009 when he informed her that he would be suing
FDA for discrimination.

Viewing the facts in the light most favorable to Lim, the Court finds that

on the present record, there is a genuine issue of material fact on whether FDA told DLLR that
Lim resigned in order to prevent him from receiving unemployment benefits.

The Court will

therefore deny summary judgment to both HHS and Lim on this claim.
B.

Accrued Leave

Lim also claims that the FDA retaliated against him by taking the materially adverse action
of failing "to fully, timely compensate Lim's accrued and unused annual leave and credit hours."
Cross Mot. Summ. J. at 2, ECF No.1 08. If established, the withholding of compensation to which
Lim was entitled would constitute a materially adverse action. See Burlington N., 548 U.S. at 72-

13

73 (holding that even a temporary suspension of pay is a materially adverse action under Title
VII).
HHS concedes that Lim "was entitled to be paid for his accrued and unused annual leave
and credit hours" when his employment was terminated. Mot. Summ. 1. at 11; see also l.R. 253
("[A]n employee will receive a lump:'sum payment for any unused annual leave when he or she
separates from Federal service.").

When he was terminated, Lim had accrued 40 hours of such

leave. At his hourly rate of$54.15, the amount to which Lim was entitled upon termination was
$2,166, less standard payroll deductions.
HHS does not claim that the FDA issued a payment to Lim in this amount. Rather, it claims
that the FDA deducted this amount, less the payroll deductions as calculated by FDA, from a
separate debt that Lim owed. After terminating Lim's employment, the FDA had inadvertently
continued to pay Lim for two additional pay periods, even though-as
deposition-he

did no work for the FDA during these periods.

Lim acknowledged in his
In total, Lim was overpaid

$6,281.91. Rather than seek that entire amount from Lim, the FDA sought the difference between
that figure and the amount that it owed Lim for his unused leave. Thus, while the FDA never
separately paid Lim what he was owed for his accrued leave, it did not withhold this amount from
Lim. See Madison v. Virginia, 474 F.3d 118,126 (4th Cir. 2006) (noting that "money is fungible").
Accordingly, no reasonable jury could find that the FDA took a materially adverse action regarding
Lim's leave payout.

The Court therefore grants summary judgment to HHS on the claim of

retaliation arising from the failure compensate Lim for accrued leave and denies summary
judgment to Lim on this issue.

14

C.

Salary Overpayment

As another example of a retaliatory action, Lim claims that the FDA improperly sought to
collect from Lim an amount above what he actually owed for his salary overpayment.

Such

unjustified collection activities would qualify as an adverse action. Cf Burlington N, 548 U.S. at
72-73 (holding that even a temporary suspension of pay is a sufficiently adverse action under Title
VII). HHS, however, disputes whether this miscalculation actually occurred.
As discussed above, the FDA overpaid Lim $6,281.91 for the two pay periods after his
employment was terminated, and because the FDA owed Lim at least $1,334.26 for his accrued
leave, it deducted that amount from the $6,281.91 and thus determined that Lim owed only
$4,947.65.

Then, on April 27, 2011, Lim paid $5,235.79.

However, because the FDA was

charging interest of approximately 10.875 percent yearly, that payment was no longer enough to
payoff the debt fully, which had increased to approximately $5,431.17. Lim asserts that he then
paid another $288.14 to pay off the debt, but that the FDA continued to treat the debt as unpaid.
However, Lim fails to provide any evidence of this $288.14 payment. The document that he cites
for his claim, a computer printout, does not reflect this additional payment. Notably, his affidavit
refers to the $5,235.79 payment, but not to the $288.14 payment. In the absence of evidence that
Lim fully paid off his debt, the evidence is insufficient to establish that a reasonable jury could
find that the FDA's continued efforts to recoup the money constituted a retaliatory action against
Lim by "creating additional false debt." Cross Mot. Summ. 1. at 6.
In so finding, the Court recognizes that Lim has a legitimate basis to be frustrated by the
Kafkaesque scenario he faced. He was charged over 10 percent interest on a "debt" that was the
result not of any loan taken out by Lim, but of the FDA's own mistakes in paying him for two pay
periods after he was terminated, and its policy of continuing to add such significant interest charges

15

even after he had substantially repaid the money. Although the Government may charge interest
on a debt, see 31 U.S.C.

S 3717(a)(1)

(2018), at the hearing on the Motions, HHS could not explain

how it came to charge Lim interest in the amount of 10.875 percent annually. But because the
evidence does not support a claim of retaliation, the Court will grant summary judgment to HHS
on this claim and deny summary judgment to Lim on this issue.
D.

Bonus Recoupment

.Lim also alleges that the FDA retaliated against him by twice seeking to recoup bonus
payments allegedly paid under the Incentive Agreement.

Where such an action affected Lim's

overall compensation for his work at the FDA, the recoupment of bonus payments constituted a
materially adverse action. Cf Burlington Northern, 548 U.S. at 72-73. Here, there is sufficient
evidence for a reasonable jury to find that the FDA did, in fact, seek to recoup bonus payments
from him on two separate occasions, once on or about August 25, 2009 when the FDA billed Lim
for what it referred to as the "2008 Bonus" ("the First Bonus Recoupment"), and once more on
May 7,2010 when it billed Lim a second time in the same amount, for what the FDA .referred to
as the "2009 Bonus" ("the Second Bonus Recoupment"). Thus, the element of a materially adverse
action has been satisfied.
Likewise, within the context of a prima facie case, there is evidence that the bonus
recoupments were causally linked with Lim's protected activity. Courts have held that at such a
stage, an adverse action's temporal proximity to protected activity can satisfy the causation
requirement.

See, e.g., Waag v. Sotera Def Sols., Inc., 857 F.3d 179, 192 (4th Cir. 2017). Here,

an email chain beginning on July 21, 2009 reveals that the recoupment efforts began no later than
that date, just over one month after Lim initiated his EEO activity in June 2009. Notably, the email
chain included Holden and Kelly Wilkicki, the FDA Commissioner's

16

Fellowship Program

Coordinator, both of whom were present at the June 5, 2009 meeting at which Lim was fired and
wrote on the termination memorandum that he intended to file a discrimination lawsuit against the
FDA. Where two of the FDA officials who made or participated in the decision relating to the
bonus recoupment were aware of Lim's protected activity, the causation element of the primafaeie
case is satisfied. Consequently, with respect to the FDA's recoupment efforts, Lim has stated a
prima facie case of retaliation.
Indeed, HHS does not contest Lim's claim on this front. Instead, it claims that the FDA
had a legitimate, non-retaliatory reason for recouping the incentive payment. As to First Bonus
Recoupment, it claims that the FDA properly sought to collect the bonus payment because Lim
"actually owed" the FDA that debt, as he was terminated for cause and thus did not complete the
two-year term as a Fellow. Mot. Summ. 1. at 12. As to the Second Bonus Recoupment, it claims
that the imposition of a second debt for failure to repay the bonus was merely a "clerical error"
that led it to "duplicate[] the debt for the prorated portion of Lim's incentive bonus." Id. at 13 nA.
1.

First Bonus Recoupment

HHS has adduced substantial evidence that Lim owed the FDA the amount that it sought
to recover through the First Bonus Recoupment.

Lim admitted during his deposition that he

actually receiv~d a $7,500 incentive bonus. The Incentive Agreement providing for the $7,500
bonus, signed by Lim, provides that if the bonus recipient is "separated for cause," the recipient
will be entitled only to a prorated portion of the $7,500 based on the number of full months of
employment completed; the remainder will be a debt owed to the United States. J.R. 80. The
personnel records reflect that Lim worked for only seven months, meaning that the FDA was
entitled to recoup the bulk of the $7,500. On August 25, 2009, the FDA sent Lim a letter seeking
recoupment of $5,208.90.

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Lim challenges whether he owed this amount on two grounds. First, he claims that the
Incentive Agreement is "void on fraud" because the FDA did not provide him with employment
on the terms they originally represented.

Opp'n Mot. Summ. 1at 11-13, ECF No. 107. The

Incentive Agreement; however, contains no guarantees regarding the bonus recipient's terms and
conditions of employment:

the only commitment that the FDA undertakes under the Incentive

Agreement is to pay the recipient $7,500, which it did. Second, Lim argues that he was not
"separated for cause" within the meaning of the Incentive Agreement and so was not required to
repay any of the bonus. lR. 80. Specifically, Lim relies on the DLLR's determination that Lim
was not discharged for "gross misconduct or misconduct connected with the work," l.R. 92, and
further argues that based on the DLLR decision HHS is collaterally estopped from arguing that he
was terminated for cause under the Incentive Agreement.
Lim is correct that a state agency decision can have collateral estoppel effect in a
subsequent federal proceeding if the state agency was "acting in a judicial capacity" and resolved
"disputed issues of fact properly before it which the parties have had an adequate opportunity to
litigate."

See Univ. of Tenn. v. Elliott, 478 U.S. 788, 799 (1986). However, this general rule of

preclusion does not extend to subsequent federal proceedings brought under Title VII. Id at 796
("Congress did not intend unreviewed state administrative proceedings to have preclusive effect
on Title VII claims."); see Rao v. Cty. of Fairfax, 108 F.3d 42, 45 (4th Cir. 1997) ("Following
Elliott, circuit courts have uniformly held that unreviewed administrative agency findings can
never be afforded preclusive effect in a subsequent Title VII action." (citations omitted)).
Consequently, even if collateral estoppel would otherwise apply, Lim cannot argue in this case
that HHS is precluded from claiming that he was terminated for cause. Further, collateral estoppel
would not apply because the issue of fact before the DLLR, whether Lim was discharged for "gross

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misconduct

or misconduct

connected with the work" under the Maryland law governing

unemployment benefits, IR. 92, is different from the issue whether he was "separated for cause"
within the meaning of the Incentive Agreement, l.R. 80.
Thus, HHS has adequately stated a legitimate, non-retaliatory reason for the FDA's effort
to recoup the 2008 bonus. The burden therefore shifts back to Lim to show that this reason was
mere pretext.

Laing v. Fed. Exp. Corp., 703 F.3d 713, 721 (4th Cir. 2013). In showing that a

defendant's proffered reason is pretextual, comparator evidence is "particularly probative." Id. at
719. In McDonnell Douglas itself, "the Court explained that 'especially relevant' to a showing of
pretext would be evidence that other employees who were similarly situated to the plaintiff (but
for the protected characteristic) were treated more favorably." Id. (quoting McDonnell Douglas,
411 U.S. at 804).
Commissioner's

To this end, Lim has testified that Dr. Blaise Peterson, another FDA

Fellow, abruptly resigned about two months before Lim's employment was

terminated but was not required to return a prorated portion of his bonus. Because, under the terms
of the Incentive Agreement, Fellows who voluntarily resign are also required to repay a prorated
share of their bonus, Lim 'lTgues that where he and Peterson are identically situated except for
Lim's protected activity, the fact that the FDA declined to recoup Peterson's bonus payment
reveals that the FDA did not always seek recoupment even when it was entitled to do so under the
Incentive Agreement, such that the First Bonus Recoupment constituted unlawful retaliation. HHS
provides no response to Lim's claim on this front and acknowledged at the hearing on the Motion
that there is no evidence in the record that explains why Peterson was treated differently.

Where

Lim has offered uncontested circumstantial evidence that the FDA's reason for recouping his
bonus was pretextual, "the case must be decided by a trier of fact and cannot be resolved on
summary judgment." Haynes v. Waste Connections, Inc., 922 F.3d 219, 225 (4th Cir. 2019) (citing

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EEOC v. Sears Roebuck & Co., 243 F.3d 846, 852-53 (4th Cir. 2001)). The Court will therefore
deny summary judgment to HHS on Lim's claim that the FDA retaliated against him by pursuing
the First Bonus Recoupment.

However, as a reasonable jury could still find that the recoupment

was not pretextual, the Court will also deny summary judgment to Lim on this claim.
2.

Second Bonus Recoupment

'

HHS has acknowledged that the Second Bonus Recoupment, through which the FDA
recorded a second debt against Lim in the same amount as the First Bonus Recoupment, was
improper.

Indeed, there is no evidence that Lim was paid a second bonus under the Incentive

Agreement, so there is no justification for the Second Bonus Recoupment. HHS has not provided
evidence of a legitimate, non-retaliatory reason for that improper debt collection effort, which
resulted in Lim paying several thousand dollars. By way of explanation, HHS merely states in a
letter to Lim and in its brief on its Motion for Summary Judgment, without any citation to the
record, that the FDA "discovered that it duplicated the debt for the prorated portion of Dr. Lim's
incentive bonus" and that "Dr. Lim has adduced, and the Agency has discovered, no evidence to
suggest that this inadvertent duplication was the result of retaliation or anything other than a
clerical error."

Mot. Summ. J. at 13 n.4. HHS gets the burden at this stage of the McDonnell

Douglas framework exactly backward:

once the plaintiff has established a prima facie case of

retaliation, as Lim has here, the burden shifts to the defendant to "produce evidence that it acted
for a legitimate, non-retaliatory reason."

Westmoreland v. TWC Admin. LLC, 924 F.3d 718, 725

(4th Cir. 2019) ("When an employee has established a prima facie case, the burden shifts to the
employer to rebut th(is] presumption of discrimination."

(citation omitted)).

But HHS has

provided no evidence whatsoever to support counsel's conclusory statement that the imposition of
a second debt was a clerical error and not something more nefarious.

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Significantly, the record

includes April 2011 emails showing that Holden was aware that Lim had paid back the First Bonus
Recoupment but was being charged the Second Bonus Recoupment, yet she apparently took no
action to rectifY this error. See lR.

140, 239. Where Holden was aware of Lim's protected

activity, and where HHS has proffered no evidence of a legitimate, non-retaliatory reason for the
Second Bonus Recoupment, the Court must deny HHS's Motion as to Lim's retaliation claim on
this issue.

See id. At the same time, where "Title VII retaliation claims require proof that the

desire to retaliate was the but-for cause of the challenged employment action," Villa v. CavaMezze
Grill, LLC, 858 F.3d 896, 900 (4th Cir. 2017) (citation omitted), and these records are subject to
more than one interpretation, the Court will also deny Lim's Cross Motion on this claim.
E.

Referral to Debt Collectors

Lim also claims that the referrals of his debts from HHS to Treasury and the IRS, which in
tum used private contractors to seek to collect the debts, were additional acts of retaliation for his
protected activity. However, even assuming that Lim has provided sufficient evidence to establish
a prima facie case of retaliation based on these referrals, HHS has provided evidence of a
legitimate, non-retaliatory reason for these referrals.

William Darracott, the Chief of the Debt

Servicing Section within HHS and the official who forwarded Lim's debts from HHS to Treasury
for collection, has stated in an affidavit that if debts referred to his office, like those owed by Lim,
"remain delinquent for more than 180 days, they are required to be forwarded to Treasury for
collection action."
organization's

J.R. 246.

Evidence that an adverse action was in accordance with an

non-retaliatory policies is sufficient to demonstrate a legitimate, non-retaliatory

reason, Barnette v. Cher/off, 453 F.3d 513,516 (D.C.Cir. 2006), so the burden shifts back to Lim
to show that this reason was pretextual. Lim fails to do so: none of his arguments about pretext
relate to Darracott and the referral of Lim's debts for collection. The Court will therefore grant

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summary judgment to HHS and deny summary judgment to Lim on Lim's claim of retaliation
based on the referral of his debts for collection.

III.

Discovery
As discussed above, the Court will deny summary judgment on the issues of retaliation

because there are genuine issues of material fact on whether (l) FDA falsely told DLLR that Lim
had resigned in order to cause him to lose unemployment benefits; (2) FDA treated Lim less
favorably than a comparator, Peterson, on the issue of whether FDA would seek to recoup the
incentive payment upon the Fellow's early departure, such that the pursuit of the First Bonus
Recoupment against Lim was a form of retaliation; and (3) the Second Bonus Recoupment, which
HHS now concedes was entirely unjustified, was a form of retaliation.

On these issues, HHS's

position appears to be that (l) although there was clear internal documentation that Lim was
terminated, including the June 5, 2009 termination memorandum that he refused to sign, either
Lim or an FDA Human Resources official mistakenly told DLLR, or DLLR mistakenly concluded,
that Lim had voluntarily resigned; (2) where only two FDA Fellows left the program early and
were subject to a bonus recoupment, the deCision to waive the recoupment as to Peterson and to
press for the recoupment as to Lim was entirely unrelated to Lim's protected activity; and (3) the
imposition of the entirely unjustified Second Bonus Recoupment was a pure clerical error, even
though Holden was made aware of it in 2011, and her failure to take action then to rescind it, such
that FDA continued to pursue Lim for the debt with compounding interest for another nine years,
had nothing to do with retaliation. Anyone of these decisions and outright errors arguably could
be chalked up to an honest mistake.

But where these actions all happened together after Lim

engaged in protected activity, and they were all significantly detrimental to Lim, collectively they
could support an inference of retaliation that precludes summary judgment at this time.

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Nevertheless, Lim still bears the substantial burden of demonstrating that retaliation was a
but-for cause of these actions, Foster, 787 F.3d at 252, and the evidence available to him remains
limited. Consideration ofthese Motions has revealed that although discovery has closed, it did not
provide a complete record on the issues that remain in dispute, likely because Lim was selfrepresented. For example, little to no discovery was taken relating to Peterson, in part because, as
Lim reported at the hearing on the Motion, Peterson declined to provide an affidavit, and neither
party 'issued a subpoena to him. Likewise, the Second Bonus Recoupment was not even identified
as an issue until the briefing on the Motions. Accordingly, the Court will re-open discovery for
the limited purpose of completing the record on the three issues identified above. See Ardrey v.
United Postal Serv., 798 F.2d 679, 682 (4th Cir. 1986) ("[A] district court has wide latitude in
controlling discovery. "). No discovery will be permitted on the discrimination or retaliation claims
already dismissed. Where the litigation of this matter has extended for approximately three years
and the issues have now been narrowed and focused, the Court will also require the parties to
participate in a mediation session before discovery reopens.
CONCLUSION
For the foregoing reasons, HHS's Motion for Summary Judgment will be GRANTED IN
PART and DENIED IN PART, and Lim's Cross Motion for Summary Judgment will be DENIED.
A separate Order shall issue.

Date: February 28, 2020
THEODORE D. CHUA
United States District Ju

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