Emami v. Bolden et al

Filing 95

OPINION: adopting in part Report and Recommendations re 89 Report and Recommendations.; adopting in full Report and Recommendations re 90 Report and Recommendations; denying 60 Motion for Summary Judgment; denying 65 MOTION to Exclude Pl aintiff's Experts ; denying 69 Motion in Limine.The court ADOPTS Parts I, II, and III.A of the First R&R, REJECTS IN PART and MODIFIES Part III.B of the First R&R, and ADOPTS the Second R&R in full. Accordingly, the Motion for Summary Judgment, ECF No. 60, the Motion to Exclude Plaintiff's Experts, ECF No. 65, and the Motion in Limine, ECF No. 69, are DENIED. Copy of Opinion provided to counsel for the parties. Signed by Chief District Judge Rebecca Beach Smith on 3/10/2017. (bgra)

FILED
DNITED

STATES

DISTRICT

COURT

mar 1 0 2017

EASTERN DISTRICT OF VIRGINIA

Norfolk Division

U;?. O/SI HiCT COURT
NORFfM \t

SAIED EMAMI,

Plaintiff,
CIVIL ACTION NO.

V.

CHARLES

F.

BOLDEN,

2:15cv34

JR.,

In his official capacity as
Admini strator,
National Aeronautics

and

Space Administration,
Defendant.

OPINION

This

matter

comes

before

the

motions. First, on September 29,
Bolden,

Jr.

Judgment
61.

On

("the

2016,

Defendant"),

October 12,
filed

October 17, 2016,
Second,

2016,
a

the

on

three

the Defendant,

filed

and accompanying Memorandum

Plaintiff"},

a

Motion

in Support.

Plaintiff,

Response,

ECF

Charles F.

for

Summary

ECF

Saied
No.

separate

Nos.

Emami
72,

60,
("the

and

on

the Defendant filed a Reply. ECF No. 78.

on October 6,

Exclude

Plaintiff's

Support.

ECF Nos.

65,

66.

filed

Response,

ECF

No.

a

court

2016,

Experts

the Defendant filed a Motion to

and

On
79,

accompanying

October
and

on

20,

2016,

October

Memorandum
the
26,

in

Plaintiff
2016,

the

Defendant filed a Reply. ECF No. 84.
Third,

on October 12,

2016,

the Defendant filed a Motion in

Limine and accompanying Memorandum in Support.

ECF Nos.

69,

70.

The Plaintiff filed a

and
No.

on

Response on October 25,

October 31,

2016,

the

Defendant

2016,

filed

ECF No.

83,

Reply.

ECF

a

86.

On October 24,

2016,

this court referred the above motions

to a United States Magistrate Judge,
of 28 U.S.C.

72(b),

to

and Federal Rule of Civil Procedure

conduct hearings,

necessary,

proposed

§ 636(b)(1)(B)

and

to

findings

siabmit

of

pursuant to the provisions

including evidentiary hearings,
to

fact,

the

if

undersigned

applicable,

and

district

if

judge

recommendations

for the disposition of the motions. ECF No. 81.

Having

conducted

October 31,
Report

2016,

and

addressing
Limine,

No.

87,

Recommendation

the

ECF

another

ECF

hearings

R&R,

Motion

No.

89

for

the

the

above

Magistrate

("R&R")

on

the

"First

Motion

Experts, on the same day. ECF No.

90

motions

Judge

December

Summary Judgment

(hereinafter

addressing

on

and

R&R"),

to

then

a

2016,

Motion

and

Exclude

filed

20,

the

on

in

filed

Plaintiff's

(hereinafter "Second R&R").

In the First R&R,

the Magistrate Judge recommended granting in

part

in

and

denying

part

the

Motion

for

Summary

Judgment,

granting summary judgment on the Plaintiff's retaliation claim,

and directing the parties to proceed to trial on the Plaintiff's
claims

of

intentional

discrimination.

First

R&R

at

28-29.

The

Magistrate Judge also recommended denying in part the Motion in

Liraine,

"to

consider

further

Id.

at 29.

denying
at

the

exclude

evidence

objections

to

In the Second R&R,

Motion

to

of

comparator

comparator

employees,

evidence

trial."

the Magistrate Judge recommended

Exclude

Plaintiff's

Experts.

Second R&R

26.

By copy of
right

to

both R&Rs,

file

written

recommendations

made

by

the

parties

objections

the

were
to

Magistrate

advised of

the

filed an objection to

day,

the

First R&R.

and

See First

Judge.

ECF No.

their

findings

R&R

at 29-30/ Second R&R at 26-27. On January 3, 2017,

No.

at

and

the Plaintiff

91.

On

the

same

the Defendant also filed an objection to the First R&R. ECF
92.

On January 17,

2017,

the Plaintiff filed a

the Defendant's Objection,

ECF No.

filed

Plaintiff's

a

Neither

Response
party

to

the

objected

to

the

93,

Second

Response to

and then the Defendant
Objection.
R&R.

ECF

No.

Accordingly,

94.
these

matters have been fully briefed and are ripe for review.
For the reasons discussed herein,

II,

and III.A of

MODIFIES

the

Part III.B of

First R&R;
the

the

the Motion

reasons

to

Exclude

provided

in

court REJECTS

First R&R;

Second R&R in full. Accordingly,
and

the

the court ADOPTS Parts I,

court ADOPTS

the

the Motion for Summary Judgment

Plaintiff's

Part

and the

IN PART and

III.C

Experts

of

Defendant's Motion in Limine i s also DENIED.

are DENIED.

this

Opinion,

For

the

I.

This

FACTUAL AND PROCEDURAL HISTORY

matter

arises

from

the

Plaintiff's

claims

of

employment discrimination and retaliation iinder Title VII of the

Civil Rights Act
VII"),

of

1964,

against Charles F.

official

42

U.S.C.

Bolden,

§

Jr.

2000e ^

seq.

("the Defendant")/

capacity as Administrator of

("Title
in his

the National Aeronautics

and Space Administration ("NASA").^
The Plaintiff is an engineer who began working for NASA in

2002. Amend. Compl.

38.^ Through 2012, he received ratings of

"Meets or Exceeds Expectations" or "Fully Successful," including
"Exceeds Expectations"

and "Significantly Exceeds Expectations"

for certain job elements. Id. HH 43-57. In 2012, he was placed
on a performance plan,

to which he objected.

Id.

93-96.

Plaintiff worked under this plan and claims that he

The

"performed

all of the tasks assigned to him to the fullest extent possible"

during

the

performance

January 18, 2013,
another

citing

supervisor

year

of

2012-13.

unacceptable

placed

the

Id.

H 97.
Rock

performance.

Plaintiff

on

a

On
and

Performance

^ These claims were initially brought, as well, against the
United States, and additional state tort claims were
brought against the Plaintiff's former supervisor

Kenneth

Rock.

this case.

However,

both parties

have

See Memorandum Order of March 30,

been
2016.

initially
at NASA,
dismissed from
ECF No.

33.

' The facts recited here come from the Amended Complaint.
However, these recitations are not presumed to be tixie for the

sake of the court's ruling on the Defendant's Motion for Summary
Judgment. See infra Section II.B.

Improvement

Plan

("PIP"),

requiring

the

Plaintiff

to

submit

quarterly reports on certain aspects of his work. Id. Hf 119-20.
The Plaintiff submitted quarterly reports on February 15, 2013,

and

February

Plaintiff

28,

also

2013.

gave

I^

Rock

H 134.

further

On

March 8, 2013,

submissions

in

the

an effort

to

comply with the PIP. I^ H 139.
On April 12,
the

PIP

was

2013,

claiming that the Plaintiff's work vinder

unacceptable.

Rock

Removal to the Plaintiff.

I^ HH 25,

Deputy Director Damador Ambur
termination.

Id.

termination

to

25,

the

issued

Notice

150.

of

Proposed

On June 21,

2013,

("Ambur") affirmed the Plaintiff's

178.

Merit

a

The

Systems

Plaintiff

Protection

appealed

Board

his

("MSPB"),

alleging discrimination based on national origin and religion,
and

retaliation,

against
became

the

under

Plaintiff

final

on

Title

VII.

Id.

on November 20,

December

25,

2014.

25.

2014,

Id.

The

The

MSPB

and its

(30)

finalized

filed

decision.

ECF

No.

1.

The

Plaintiff

decision

Plaintiff

filed a Complaint in this court within thirty

ruled

timely

days of that
an

Amended

Complaint on April 1, 2015. ECF No. 4.
II.

LEGAL STANDARDS

A. Review of Magistrate Judge's R&Rs
Pursuant

Procedure,

entirety,

to

the

Rule

72(b)

court,

shall make a ^

of

having

the

Federal

reviewed

the

Rules

record

of

in

Civil

its

novo determination of those portions

of the R&R to which a party has specifically objected.

Fed. R.

Civ. P. 72(b). The court may accept, reject, or modify, in whole

or

in

part,

recommit

the

the

recommendation

matter

to

him

of

the

with

magistrate

judge,

instructions.

28

or

U.S.C.

§ 636(b)(1).

B. Hotion for Svunmary Judgment

Under Federal Rule of Civil Procedure 56,

summary judgment

is appropriate when the court, viewing the record as a whole and
in the light most favorsdale to the nonmoving party,

finds that

there is no genuine issue of material fact and that the moving

party is entitled to judgment as a
Liberty

Lobby,

Inc.,

477

summary judgment stage

U.S.

the

matter of law.

242,

judge's

248-50

Anderson v.

(1986).

function

is

"[A]t

the

not himself

to

weigh the evidence and determine the truth of the matter but to

determine

whether

Id. at 249.

A

court

nonmoving party,
to

establish

party's case,

there

should

the

existence

genuine

grant

of

summary

time
an

issue

for

judgment,

for discovery,
essential

trial."
if

the

has failed

element

of

that

on which that party will bear the burden of proof

Celotex Corp.

essence,

the

v.

nonmovant

[trier of fact]

To

a

after adequate

at trial.

Anderson,

is

Catrett,

must

477 U.S.

present

could reasonably find"

317,

"evidence

322

(1986).

on

which

In

the

for the nonmoving party.

477 U.S. at 252.

defeat

a

motion

for

summary

judgment,

the

nonmoving

party must
rely

instead on

show a
see

go beyond

genuine

Inc.,

facts

affidavits,
issue

also M & M Med.

Hosp.,

the

981

for

trial.

160,

in

depositions,

Supplies

F.2d

alleged

the pleadings,

or

other

See Celotex,

& Serv.,

163

Inc.

(4th Cir.

477
v.

and

evidence
U.S.

at

to

324;

Pleasant Valley

1993)

("A motion

for

summaiiy judgment may not be defeated by evidence that is 'merely
colorable'
Anderson,

or

'is

477 U.S.

not
at

sufficiently

249-50)).

specific evidentiary support,
162

F.3d

795,

existence

802

of

a

{4th

(quoting

Conclusory statements,

do not suffice,

Cir.

scintilla

probative.'"

1998),

of

nor

evidence

plaintiff's position." Anderson,

without

Causey v.
does

in

Balog,

«[t]he

support

mere

of

477 U.S. at 252. Rather,

the

"there

must be evidence on which the jury could reasonably find for the
plaintiff." Id.
C.

Plaintiff's Intentional Discrimination Claims
1.

Title

VII

individual

religion,

.

prohibits
.

sex,

.

General Standards

an

because

employer

of

such

or national origin."

from

"discharg[ing]

individual's

42 U.S.C.

§

race,

any

color,

2000e-2(a)(1).

To succeed on a claim of wrongful termination due to intentional
discrimination
burden

Corp.
V.

under

V.

under
the

Green,

Burdine,

Title

framework

411 U.S.

450

U.S.

792
248,

VII,

a

plaintiff

established

(1973) .
252-53

in

must

carry

McDonnell

Douglas

Texas Dep't of Comm.
(1981).

This

his

Affs.

framework

requires,

initially,

that a

of

evidence

a

the

discrimination.

prima

facie

Id.

case

membership

in

performance;

requires

(3)

protected

class."

295

a

of

employment

Md.

the

following:

"(1)

satisfactory

action;

job

and

employees

Ct.

intentional

termination,

the

(2)

situated

preponderance

for

wrongful

class;

Coleman v.

App.,

626

(4)

different

outside
F.3d

187,

the
190

(citing White v. BFI Waste Servs., LLC, 375 F.3d

(4th Cir.

Should

For

case

such proof

similarly

(4th Cir. 2010)

facie

protected

adverse

from

288,

prima

at 252-53.

a

treatment

plaintiff prove by a

2004)).

plaintiff

demonstrate

a

prima

facie

case,

a

defendant must then "rebut the presumption of discrimination by
producing evidence that the plaintiff was rejected,
else was preferred,
Burdine,

450 U.S.

rebuttal,
must

then

proffered
decision."

for a legitimate, nondiscriminatory reason."

at 254.

a plaintiff,
"have
reason
Id.

or someone

If a

who

the
was

defendant provides a

"retains the burden of persuasion,"

opportunity
not

at 256.

sufficient

the

At

true

this

to

demonstrate

reason

final

for

stage,

the
a

that

the

employment

plaintiff

may

ultimately succeed in proving discrimination "either directly by
persuading

the

court

that

a

motivated

the

employer

employer's

proffered explanation is

or

discriminatory reason more
indirectly

by

showing

unworthy of

likely

that

credence."

at 256 (citing McDonnell Douglas, 411 U.S. at 804-805).

the
Id.

2. Standard for Comparator Evidence

"Plaintiffs are not required as a matter of law to point to

a

similarly situated comparator to succeed on a

claim." Haywood v. Locke,

387 F. App'x 355,

(citing Bryant v. Aiken Reg'l Med. Ctrs.,

Cir.

2003)).

the

given

respects."

comparators
Id.

11,

17

(1st
889

a

[were]
same

1992);

Cir.

be

that

Smith v.

1994)

F.2d

showing

evidence

must

(citing Mitchell v.

(6th Cir.

that

333 F.3d 536,

13,

of

the

(1st

employees

to

'dealt

with

conduct

circumstances

(quoting

without

that

such

would

treatment

Mitchell,

of

964

them
F.2d

for

same

.

.

at

their

it.'"

583).

v.

387

40

F.3d

Dartmouth

"would

provides

include

supervisor,

engaged in the

differentiating

distinguish

relevant

Inc.,

the
.

however,

Haywood

comparators

(4th

964 F.2d 577,

Review

1989))).

2010)

545

all

Computer,

Dartmouth
Cir.

similarity

in

Toledo Hosp.,

Stratus

(citing
19

"similar

subject to the same standards and

employer's

359 {4th Cir.

Should a plaintiff rely upon comparators,

583

College,

discrimination

or

mitigating

conduct
F.

Comparators

App'x
need

or

the

at

359

not

be

identical; rather,

they must be similar in all relevant aspects,

"such

performance,

as

Virginia

123442,

conduct,
Dep't

at

*3

App'x at 359).

of

(E.D.

and

Transportation,

Va.

qualifications."
No.

Jan. 12, 2017)

Rayyan

I:15cv01681,

(citing Haywood,

2017

387

v.
WL

F.

D.

P l a i n t i f f ' s Retaliation Claim

Title VII prohibits an employer from discriminating against
an employee

[1]

because

he

has

opposed any practice made

unlawful employment practice by this subchapter,
he

has

any
this

made

manner

a

charge,

in

an

testified,

assisted,

investigation,

subchapter."

42

U.S.C.

§

or

[2]

an

because

or participated in

proceeding,

2000e-3{a).

or

The

hearing

first

under

clause

is

known as the "opposition clause," and the second is known as the
"participation clause." Crawford v.
Davidson Cty.,

claim of
must

555

his

V.

burden

Navy

258

(4th Cir.

the

initial

entails

in

action."

765

a

of

of

under
the

of Nashville &
To

succeed on a

either clause,

McDonnell

Union,

Wash.

(2009) .

424

F.3d

framework,

a

a

plaintiff

Douglas

framework.

397,

Airports Auth.,

establishing

claims,

the

action

"between

the

Am.

2010).

a

following

protected

Mascone v.

(4th Cir.

274

Govt.

405

(2005)

149 F.3d 253,

"a plaintiff bears

prima

facie

case

of

(citing Laughlin, 149 F.3d at 258).

adverse

link

271,

Under that

retaliation

materially
causal

Metro.

burden

proof

"engaged

Credit

1998)).

retaliation." Id.

imder

Fed.

(citing Laughlin v.

For

U.S.

retaliation brought

carry

E.E.O.C.

Tn.,

Metro.

plaintiff's

elements:

activity";

(2)

against"

the

protected

(1)

"the

Inc.,

"Protected activity"

is

facie

the

and
4 04 F.

that

case

plaintiff

employer

plaintiff;

activity

Physical Soc'y,

10

prima

took

a

(3)

a

and
the

adverse

App'x 762,

which

falls

under

the

participation

or

opposition

clauses

of

Title

VII's

retaliation provision. Laughlin, 149 F.3d at 259.

A

materially

adverse

action

is

one

that

"'might

have

dissuaded a reasonable worker from making or supporting a charge
of

discrimination.'"

Burlington N.

& Santa Fe Ry.

"This objective
the

standard

significance

depend

upon

Mascone,

of

the

Hampton Univ.,

(E.D.

Jan.

24,

White,

given

act

App'x

of

J.)

765

53,

'in general

(2006)).

terms

because

will

Context

2014

(quoting

68

retaliation

4:12cvl58,

(Smith,

at

548 U.S.

circumstances.

No.

2014)

F.

phrased

particular

Shetty V.

Va.

v.

is

any

404

often

matters.'"

WL 280448,

at

*13

(quoting Burlington,

548

U.S. at 69).

Temporal proximity can show a causal link,
employer's

knowledge

of

protected

activity

but only if an

and

the

adverse

employment action that follows are very closely related in time.
Pettis V.
Cir.
is

Nottoway Cty.

2014) .
too

For example,

great

to

proximity alone.

Sch.
a

Bd.,

F.

App'x 158,

161

(4th

time period of three to four months

establish

a

See Pascual v.

F. App'x 229, 233

592

causal

link

through

Lowe's Home Centers,

temporal
Inc.,

193

(4th Cir. 2006). A ten-week time period can be

sufficient to establish a prima facie case of retaliation. Silva
V.

Bowie

Temporal

State

Univ.,

172

proximity alone

activity was

a

"but

for"

F.

is

App'x 476,

not

cause
11

enough
of

478

to

adverse

(4th

Cir.

2006) .

show that protected
employment

action.

Staley v. Gruenberg,
see

Simard

at *7 n.3

v.

575 F. App'x 153,

Unify,

Inc.,

No.

156

(4th Cir.

I;15cvl649,

2016

2014) . But
WL 3854451,

(E.D. Va. July 15, 2016) . However, for purposes of the

"less onerous burden" imposed by the third element of the priraa
facie case,

adverse action occurring shortly after the protected

activity is sufficient. Dowe v.

Total Action Against Poverty in

Roanoke

657

Valley,

Foster v.

(4th

Univ.

Cir.

different).

pretext

(4th

Cir.

and

that

1998);

787

F.3d 243,

causation

establishing

a

see

also

250-51

standards

prima

facie

case

for
are

Close temporal proximity is not necessary to show a

can

Inc.,

link.

however;

be

478

inconsistency
causal

653,

(explaining

connection,

sufficient,
Equant

F.3d

of Maryland-Eastern Shore,

2015)

establishing

causal

145

in

used

F.3d

its

to

640,

other
show

650

reasons

Mohammed v.

causal

(4th Cir.

for

Cent.

a

relevant

evidence,

link.

2007).

termination

Driving Mini

if

Lettieri

v.

An employer's

can

establish

Storage,

a

Inc.,

128

case,

the

F. Supp. 3d 932, 951 (E.D. Va. 2015).
Should
burden

a

shifts

retaliation

by

plaintiff
to

that

a

defendant

articulating

action." Laughlin,

burden,

a

demonstrate

a

"to

a

prima

rebut

facie

the

non-retaliatory

149 F.3d. at 258.

presumption

reason

for

of

its

If a defendant carries this

plaintiff then "bears the ultimate burden of proving

[the plaintiff]

has been the victim of

12

retaliation."

Id.

(citing

St.

Mary's

Honor

Ctr.

v.

Hicks,

509

U.S.

502,

506-11

(1993)).
E.

Motion to Exclude and Motion in Limine

Generally,

relevant

evidence

is

admissible.

Fed.

R.

Evid.

402. Relevant evidence is that which "has any tendency to make a
fact

more

or

less

probable

than

it

would

be

without

the

evidence," so long as "the fact is of consequence in determining
the

action."

relevant

Fed.

R.

evidence,

outweighed"

issues,

by

unnecessarily

"if

the

misleading

Evid.

401.

its

risk

the

of

court

probative

unfair

jury,

presenting

A

undue

cumulative

can

exclude

value

is

prejudice,

delay,

substantially

confusing

wasting

evidence.

otherwise

Fed.

the

time,
R.

or

Evid.

403.

"A

motion

in

limine

to

exclude

evidence

.

.

.

should

be

granted only when the evidence is clearly inadmissible on all
potential grounds." United States v. Verges, No.
WL 559573,

at *3

(E.D.

Verification Sys.,
WL

1518099,

at

*9

Va.

LLC v.
(E.D.

Feb.

2014);

Microsoft

Corp.,

Va.

31,

Intelligent Verification Sys.,

App'x 767

12,

Mar.

LLC v.

(Fed. Cir. 2016) .

13

I:13cr222,

2014

see also Intelligent
No.

2015),

2:12cv525,

2015

aff'd

nom.

sub

Majesco Entm't Co.,

628 F.

III.

ANALYSIS

A. Plaintiff's Objection to the First R&R

The

Plaintiff

objects

recommendation in the

on the basis that

credibility

the Magistrate Judge

determination.

Dr.

the

Emami's

Magistrate

First R&R to dismiss his

argues instead that "[a]
whether

to

Pl.'s

Obj.

Judge's

retaliation claim

improperly relied on a

at

1-2.

The

Plaintiff

genuine issue of fact in this matter is

assertions

and

discussions

Office constitute protected activity."

Id.

at 2.

with

the

EEO

The Plaintiff

also objects to the Magistrate Judge's conclusion that there is
no

evidence

of

a

causal

connection

between

the

Plaintiff's

protected activity and the adverse action taken against him. Id.
at

2-6.

1, Protected Activity

To

the

extent

Judge did not
the

find

Plaintiff's

Magistrate
might

the

in his

first

Judge

conclude

that

favor

part

specifically
[the

Plaintiff

of

alleges

the

Magistrate

regarding protected activity,
the

found

Plaintiff]

Objection

that

had

"a

is

moot.

reasonable

engaged

in

The

juror

protected

activities by complaining to NASA's EEOC officials about Rock's
treatment of him."
found m

First R&R at 27.

Thus,

the Magistrate Judge

favor of the Plaintiff on this issue,

determining that

the Plaintiff has satisfied the first prong of his prima facie
case by demonstrating that he engaged in protected activity. See
14

id.

In

doing

so,

the

Magistrate

Judge

determination in favor of the Defendant,

made

no

credibility

having wholly resolved

the first prong in the Plaintiff's favor.
However,
Judge

"either

protected

the

Plaintiff

overlooked

activity.

also

or

Pl.'s

objects

ignored"

Obj.

that

the

particular

at

2.

Magistrate

instances

These

instances

of

of

allegedly protected activity merit discussion because they share
a

closer

employment

temporal
actions

relationship
discussed

with

below

impacting the causation analysis.

the

in

alleged

Part

adverse

III.A.3,

thus

The Plaintiff identifies "two

crucial pieces of evidence that were submitted to Rock prior to
his placement on the PIP and his termination." Pl.'s Obj, at 3
(citing

Pl.'s

Exs.

28,

53).

The

first

piece

of

evidence

is

Exhibit 28 to the Plaintiff's Response to the Motion for Summary

Judgment,

which contains an email from the Plaintiff to Nicole

Smith,

a

human

Bynum,

an EEO specialist,

the

Plaintiff

resources

and

Rock.

specialist,

with

a

copy

to

Andrea

forwarding an email exchange between
See

Pl.'s

Ex.

28,

ECF

No.

72-28.

The

second piece of evidence is an email exchange between Rock and
the

Plaintiff,

the

presence

wherein Rock denies
of

evaluation

meeting.

Plaintiff

alleges

an

EEO

See

that

the

Plaintiff's

representative

Pl.'s

these

15

Ex.

53,

email

at

ECF

a

No.

exchanges

request

for

performance

72-53.

The

constitute

protected

activity.

Each

of

these

email

exchanges

will

be

addressed in turn.
The

content

of

the

first

email

between

the

Plaintiff

Rock includes the following language from the Plaintiff,

and

via an

attached statement to Rock:

However,
the Laws of Equal Employment Opportunity
(EEO) protecting an individual could be violated when
the foregoing promotion standards/methods are used
selectively to promote the interest of all employees
in the branch while at the same time excluding another
employee from the same standard of promotion.
Pl.'s Ex.

Plaintiff

28,

ECF No.

also

72-28,

writes

at

2.

to

Rock

In that same statement,

that

"an

unknown

the

promotion

standard of topsy-turvy and amorphous nature has been applied to
me

as

compared

to

others,

inflicting great

harm

to my career

over past many years." Id.

The

Plaintiff

demonstrates

he

argues

was

that

the

"clearly opposing

statement
a

in

the

violation of

email

the

EEO

laws, providing specific examples of employees not being treated

in a

similar way,"

and that

it constitutes protected activity

under Title VII. Pl.'s Obj. at 4. Moreover, the Plaintiff argues
that this protected activity,
placement

on

a

falling within six months of his

Performance

Improvement

Plan

{"PIP"),

is

temporally proximate enough to an adverse employment action for
survival of the Defendant's Motion for Summary Judgment.

email to Rock is dated July 12,

16

2012,

and that

Id.

The

forwarded email

to Smith and Bynum is dated August 1,

2012. ECF No.

72-28, at 1,

The Plaintiff was placed on his first PIP on January 18,
See Compl.

J.,

ECF

118-22;

No.

Pl.'s Ex.

72-15.

Based

No.

on

15,

this

Resp.

to Mot.

temporal

2013.

for Summ.

proximity,

Plaintiff argues that "[t]he court incorrectly claims

.

.

the

. that

there was at least a year between Dr. Emami's complaints and his
changes to his performance plan or termination." Pl.'s Obj. at 4
{citing First R&R at 28).

The second piece of evidence, Exhibit 53 to the Plaintiff's
Response
exchange

to

the

Motion

between

the

Plaintiff's request
in

a

discussion

performance
request,

Judgment,

and

Rock

"two additional people

between

See

was

Summary

Plaintiff

for

review.

which

for

the

Pl.'s

sent

on

Plaintiff

Ex.

53,

January

and

ECF
14,

No.

2013,

is

an

email

involving

the

to participate"
Rock

regarding

72-53.
the

In

the

Plaintiff

specifically asks for an EEO representative to be one of these
participants. Id.
Neither

email

was

referenced

in

the

First

R&R.

question the emails present is whether they include

activity"

under

the

first

prong of

Emami's

prima

The

first

"protected

facie

case.

"Protected activity" is that which falls under the participation
or

opposition

Lauqhlin,

clauses

of

149 F.3d at 259.

Title

VII's

In this case,

retaliation

provision.

the conduct would have

to satisfy the opposition clause, under which "behavior need not
17

rise

to

the

Armstrong

1981)

v.

level
Index

of

Journal

(citing Sias v.

694-96

(9th

clause

has

Cir.
been

formal

647

of

F.2d

discrimination."

441,

448

City Demonstration Agency,

1978)).
held

Co.,

charges

to

On

the

contrary,

encompass

Cir.

588 F.2d 692,

"[t]he

informal

(4th

opposition

protests,

such

as

voicing complaints to employers or using an employer's grievance
procedures." Id.

The

Plaintiff's

opportunity

ECF

No.

to

email

in

the most

at

72-28,

reference
origin,

laws

first

2.

invokes

general

However,

discrimination

sense.

while

based

equal

on

See

there

employment

Pl.'s Ex.

28,

is

no

specific

religion

or

national

the Plaintiff's reference to anti-discrimination laws in

general, especially in the context of the whole statement, would
place

a

reasonable

reader

on

notice

that

the

Plaintiff

was

concerned that his employer could be discriminating against him,
in

violation

statement

in

of

the

anti-discrimination

email

constitutes

laws.

Therefore,

"protected activity"

the

under

the first prong of the Plaintiff's prima facie case.^

' Although the Plaintiff states that Rock was aware of the
entire protected communication, see Pl.'s Obj. at 4, the exhibit
reveals that Rock was not necessarily aware of the Plaintiff's
subsequent forwarding of the email exchange to human resources
staff, as Smith and Bynum were the only recipients of the
forwarded message. See Pl.'s Ex. 28, ECF No. 72-28. Regardless,
the

exhibit

does

show

that

Rock

himself

was

aware

of

the

statement, which suffices for the first prong of the Plaintiff's
prima facie case.
18

The

second email,

viewed in the context of

the

situation,

also invokes equal employment laws. The Plaintiff requested that
an EEO representative participate
Pl.'s Ex.

53,

statement

ECF No.

at

the

in the Research Directorate.

72-53. Also noteworthy is the Plaintiff's
conclusion

of

the

email:

affirmatively waive my *Right of Privacy'
event."

Id.

This

is

ECF

reasonable

that

for the aforementioned

in order to move forward in the EEO

he needed to waive his right to anonymity.

No. 72-26,

his

at

reader

I

significant because an EEO Specialist had

informed the Plaintiff that,

process,

"Further,

15:11-17.
on

notice

employer

could

reasonable

be

juror

This
that

email

the

would

Plaintiff

imlawfully

Bynum Dep.,

also
was

place

a

concerned

discriminating

against

him.

A

might

conclude

that

the

Plaintiff

engaged in protected activity when he sent the July 12, 2012 and
January 14,

2013

emails.

Accordingly,

the

court will

consider

these emails for purposes of evaluating the alleged causal link
between

the

protected

activity

and

the

adverse

employment

action. The Plaintiff's Objection that the aforementioned emails
were instances of protected activity is SUSTAINED.
2. Materially Adverse Action

Additionally,

because

the

temporal

proximity

of

the

materially adverse action to protected activity is an essential

matter for

resolving the

third prong of
19

the

Plaintiff's prima

facie

case—^which

was

the

basis

for

the

Magistrate

recommendation to dismiss the retaliation claim,

subject of

the

Plaintiff's Objection—the

Judge's

as well as the

court must

determine

when the Plaintiff first suffered a materially adverse action in

this

case.

The general

Plaintiff's

prima

fulfillment of

facie

case

is

the second prong of

not

in

dispute,

parties agree that the Plaintiff was terminated.

at 27.

Nevertheless,

the

because

the

See First R&R

the parties do contest when the Plaintiff

first suffered a materially adverse action.'*
Some of this disagreement may stem from a misunderstanding
of

the

controlling

standard

for

retaliation

claims.

Numerous
action,"

courts

have

incorrectly

stated

"adverse

employment

rather

than

"materially

adverse

action,"

as

standard

for

the

second prong

of

the

the

retaliation

controlling
prima

face

case.® See Hinton v. Virginia Union Univ., 185 F. Supp. 3d 807,
827-28

(E.D.

Va.

No. 3:15CV569,

Defendant cites

standard.

2016),

2016

WL

3922053

to

(E.D.

certify

Va.

Emami

materially adverse

ECF No.

raises

actions,

61,

only
the

as

at 23.

will

20,

the

denied.

2016).

The

controlling

The Defendant did

termination

court

appeal

July

"adverse employment action"

Mem. in Supp.,

^ Because

motion

and

the

PIP

only address

as

these

actions.

® The
standard,
of

the

Magistrate

Judge

see First R&R at 27,
First

R&R

to

ultimately

applied

the

correct

and the court MODIFIES Part III.B

eliminate

employment action" standard.

20

references

to

the

"adverse

not address

the

PIP as

Plaintiff's Objection,
termination.®

an adverse action in responding to the

instead focusing only on the Plaintiff's

The Plaintiff contends that the PIP is sufficient

for satisfying the second prong.

"adverse employment action"
important here.
of employment,
action";
adverse

Thus,

and

the distinction between

"materially adverse action"

is

If the PIP did not alter the terms or conditions
i t could not be considered an "adverse employment

however,
action"

the

PIP

even

if

conditions of employment.

can
it

be

does

considered
not

See Hinton,

"a

alter

185 F.

materially

the

Supp.

terms

or

3d at 830-31

{citing Burlington, 548 U.S. at 64-65).

The Supreme Court has not resolved the issue of whether a

negative performance plan or placement on a
materially adverse action.

Moreover,

PIP constitutes a

the Fourth Circuit has not

categorically held that a negative performance plan or placement
on

a

PIP

adverse

action.

plaintiff
because

The

failed
the

"reasonably
plaintiff

constitutes,

Fourth

in

question

an

pled

in

a

a

constitute,

did

facts

not

showing

for

a

materially

held

that

discrimination
permit

employment

Memorandum

a

recently

plausible

adverse

no

to

Circuit

state

infer"

® However,

fails

to

PIP

had

or

the

action,

harm.

claim

court
where

Jensen-Graf

previous

motion,

a

to
the
v.

the

Defendant stated that placement on a PIP "cannot be considered
an adverse employment action." Mem. in Supp. of First Mot. for
Summ. J., ECF No. 12, at 18 n.8. This is not a
of law, as the court explains below.
21

correct statement

Chesapeake Employers'
2015).

In

that

Ins.

Co.,
the

case,

616 F. App'x 596,
plaintiff's

598

"complaints

additional requirements being placed on her as a
PIP amount [ed]
or

that

to nothing more than

aspect

actionable

of

adverse

Hamilton,

Inc.,

District

of

[her]

work'

action."

Id.

368

F.3d 371,

Virginia

court

result of the

fail[ed]

(citing James
(4th Cir.

has

about

'dissatisfaction with this

that

377

(4th Cir.

held

to

v.

an

Booz-Allen

2004)).

that

allege

a

&

An Eastern

"rescinded,

unimplemented performance improvement plan" did not constitute a
materially adverse action. Hill v.
WL 12871178, at *15

Panetta,

(E.D. Va. Oct. 4,

V. Hagel, 561 F. App'x 264

No. I:12cv350,

2012

2012), aff'd sub nom. Hill

(4th Cir. 2014). However, there is no

authority in the Fourth Circuit that holds that a PIP cannot be
a materially adverse action.

The Magistrate Judge stated that the Plaintiff
disciplined and eventually terminated," and that,
to his complaints of discrimination,
'dissuaded
charge

of

actions."
In

so

a

reasonable

worker

discrimination'
First R&R at 27

finding,

constituted a

the

and

making
thus

Judge

materially adverse action.

object to this finding.

22

or

supporting

materially

(quoting Burlington,

Magistrate

" [i]f related

either of these might have

from
are

"was first

a

adverse

548 U.S. at 68) .

implied

that

the

PIP

The Defendant did not

The

court

Plaintiff's

agrees

with

being

"first

materially adverse

action,

the

Magistrate

disciplined"
satisfying

could

the

review,

alone,

further

or

a

explanation.

placement

on

PIP was

actually

which his

failure

implemented,
to

and

it

led

Indeed,

on

its

Plaintiff

meet

his

PIP

job.

Further,

face,
the

and

the

"Needs

PIP

Improvement"

Position

by virtue of

imposed

Description,

a

does

conditions

to

78, at 7-8.

requirement

ECF

with

termination of

ECF No.

level

not

the Plaintiff's

imposed

employment. See Def.'s Reply to Pl.'s Resp.,

the

performance

alone,

Here,

comply ultimately

a

Id. at 27. However,

PIP,

constitute a materially adverse action.

the

constitute

A negative

a

that

second prong of

Plaintiff's prima facie case of retaliation.

the point deserves

Judge

that

in order

No.

61-1,

to

the
keep

at

1.

the Plaintiff's placement on the PIP,

he

became "sxabject to reduction in grade or removal action without
being afforded another PIP."

Id.

These conditions,

in light of the requirements imposed by the PIP,

a

reasonable employee

from making a

particularly

could dissuade

charge of discrimination.

Resolving all factual disputes in the Plaintiff's favor,

he has

presented sufficient evidence for a reasonable juror to conclude
that his placement on the PIP was a materially adverse action.
3.

The

Plaintiff's

Causal Connection

objection

also

challenges

the

Magistrate

Judge's finding that the Plaintiff's retaliation claim fails on
23

the

third prong of

connection

his

facie

case,

the

between

prima

regarding

first

two

prongs

of

causal

engagement

protected activity and a materially adverse action.
at 3-6. On this third prong,

a

in

Pl.'s Obj.

the Magistrate Judge concluded that

the Plaintiff "has not produced any evidence from which jurors
could conclude the first

First

R&R

"[e]ven

at

27.

The

accepting

two elements were causally connected."

Magistrate

[the

Judge

Plaintiff's]

further

statements

complained of discrimination to NASA's H.R.
evidence

that

modified

Rock

knew

Emarai's

termination."

of

such

performance

Id.

{citing Bynum Dep.

or

proximity

generally
alone

is

summary judgment."
Energy Proj.

Cir.

prior

Rock's

to

the

The

his

insufficient

Id.

at 27-28

& Servs. Grp.,

2015)).

beyond

preceded

Inc.,

Magistrate

allegedly

Plaintiff's

the

ECF No.

their

Emami's

statements

termination,

the

time

he

his

61-18).

temporal

burden

on

Constellation

629 F. App'x 466,

noted,

he

"[a]1though Emami's

(citing Jones v.

Judge

hostile

meet

that

recommended

termination,
to

that,

there is no

at

18:10-19,

The Magistrate Judge ultimately found that
complaints

staff,

complaints

plan,

found

469-70

(4th

additionally,

that

at

year

least

Plaintiff

one

"has

not

identified any other evidence of discriminatory animus by Rock

after
burden

his
to

alleged

reporting

show

retaliatory

a

to

Bynum which might
motive

24

despite

this

sustain his
passage

of

time." Id. at 28
650

(4th Cir.

The

for

the

(citing Lettieri v. Equant,

Inc.,

478 F.3d 640,

2007)).

Plaintiff

court

to

raises

consider

only

two

materially adverse

in evaluating any causal

actions

link:

placement on the PIP and his termination of employment.

his

In his

Objection, the Plaintiff points out that the July 12, 2012 email
was

sent

Obj.

six months prior to his placement

at 4.

on

the

PIP.

Pl.'s

While the Plaintiff is correct that six months is a

shorter time period than the year-long period discussed in the
First

R&R,

six

months

is

still

insufficient,

on

infer a causal link based on temporal proximity.
II.D. However,

own,

to

See supra Part

the Plaintiff further objects that only four days

elapsed between the January 14,
the PIP.

its

2013 email and his placement on

Id. This time period is short enough that a

reasonable

juror could infer a causal link between an instance of protected
activity

and

a

materially

temporal proximity.
the

January 14,

adverse

Accordingly,

2013

email

was

employment

temporally proximate

causal

The

July

Objection

that

based

on

the Plaintiff's Objection that

his placement on the PIP to infer a

Plaintiff's

action

the

enough

to

link is SUSTAINED.

12,

2012

email

was

sufficiently temporally proximate to his placement on the PIP to
infer a

causal link i s OVERRULED.

25

4. Non-retaliatory Reason for Materially Adverse Action
The

Defendant

reason for

does

not

specifically

raise

a

the Plaintiff's placement on the PIP,

legitimate

having relied

on the assumption that the only adverse employment action that
has taken place is the Plaintiff's ultimate termination.

Resp.

to

Pl.'s

Obj.,

ECF

No.

94,

at

3.

Still,

the

Def.'s

Defendant

makes apparent that the rationale for placing the Plaintiff on
the PIP is the same as the rationale for termination:
poor performance. Mem.

9.

in Supp. of Summ. J.,

ECF No.61,

at 2,

5,

Rock clearly communicated to the Plaintiff that he was being

placed on the PIP because his

expectations.

indicate

on

the

that

placement

declarations

poor

the

Ferlemann Decl.,
rebutted

"performance was failing to meet"

PIP and Position Description,

Additionally,

has

allegedly

performance

PIP.

Rock

ECF No.

the

of

was

Decl.,

61-4,

H 7.

presumption of

both

the

ECF

ECF No.
Rock

and

reason

No.

61-1,

Ferlemann

for

61-3,

Accordingly,

at 1.

Emami's

flU

8-11;

the Defendant

retaliation by articulating a

non-retaliatory reason for the materially adverse action.
5.

Pretext

Because the Defendant has met his burden of articulating a

non-retaliatory

reason

for

the

materially

adverse

action,

the

burden shifts to Plaintiff to show that the reason proffered by
the

Defendant

is

pretext.

See

supra

Part

argues that Rock "set Emami up to fail"
26

II.D.

The

Plaintiff

by making demands with

which the Plaintiff could not possibly comply,

must
was

produce

publishable,

compromised.

the Plaintiff,
requirements

peer-reviewable

Pl.'s Resp.,

ECF No.

court

that

could

not

have

finds

that

a

was

the

actual

termination.

The

court

REJECTS

of

R&R as

discussed

Summary

Judgment

Motion

First

for

72,

been

at

from
31.

data

that

According to

juror

reason
IN

met.

See

PART

could

for

Having

AND

the

conclude

the

the

Plaintiff's

that

Plaintiff's

MODIFIES

herein and DENIES

on

id.

Plaintiff objected de novo,

reasonable

retaliation

the

work

he was placed on the PIP after he failed to meet

reviewed the portion to which the
the

such as that he

Part

III.B

Defendant's

retaliation

claim.

B. Defendant's Objection to the First R&R

The Defendant objected to the First R&R, arguing that NASA
employee Troy Middleton should not be deemed a
requesting the court

comparator and

"to exclude the comparison of Middleton's

work product, performance plans, and performance evaluations,
those of the Plaintiff." Def.'s Obj., ECF No.

If a

evidence,
hinges

92, at 1.

plaintiff's discrimination claim hinges on comparator

the

validity

on

"whether

situated."

Perrin v.

*9

to

(E.D. Va. Mar.

2,

of

those

that

plaintiff's

comparators

Fennell,

No.

I:10cv810,

2011). Accordingly,

show "that the comparators

are

prima
in

fact

facie

case

similarly

2011 WL 837008,

at

such a plaintiff should

'engaged in the same conduct without
27

such

differentiating

distinguish

their

for it.'" Id.

or

mitigating

conduct

or

the

circumstances

employer's

that

treatment

would

of

them

(quoting Haywood, 387 F. App'x at 359).

Haywood is often cited for its explanation of comparators.

Notably, this frequently relied upon statement from Haywood is a
quotation from a Sixth Circuit case,

F. App'x at 359
Circuit

later

(quoting Mitchell,
clarified

the

Mitchell.

405,

has

413-14

{6th Cir.

noted,

a

387

964 F.2d at 583) , The Sixth

standard

explaining that the comparator factors

nor automatically applicable.

See Haywood,

set

out

in

Mitchell,

were neither inflexible

See McMillan v.

Castro,

405 F.3d

2005). Additionally, as the Sixth Circuit

"common misapplication"

of McDonnell Douglas

"is

the tendency to push all of the evidence into the prima facie
stage and ignore the purpose for and application of the three
stages."

Provenzano v.

(6th Cir.

2011).

should be

aware

context,

"the

appropriate
material

LCI

Holdings,

Accordingly,
of

the

danger

that,

burden-shifting

Id.

663

the

analysis

there

"[W]hether

in

prima

determine.

at *5

facie
Garrett

(E.D.

Va.

stage,

a

806,

exists

the

question

a

813

genuine

for

is,

the

Woody,

No.

3:07cv286,

Mar.

21,

2008),

report

issue

presented

the

of
are

at least after
fact

2008

and

judgment

obfuscate

comparators

v.

28

summary

can

similarly situated in all relevant respects"
the

F.3d

courts applying McDonnell Douglas

question—whether

fact."

Inc.,

finder
WL

to

1902488,

recommendation

adopted

in

part,

No,

3:07cv286,

2008

WL

1766760

(E.D.

Va.

Apr. 17, 2008).

Viewing
Plaintiff,
the

the

facts

the

Plaintiff engaged in the

differential

most

favorable

same conduct without

circumstances

treatment

the

the

summary

judgment

the Plaintiff's supported identification of

"at least

is

statement

The

justify

for

comparator"

them.

would

the sort of

agrees

Judge's

of

that

that,

sufficient.

First

R&R

at

reviewed the portion to which the Defendant
the

to

court

Magistrate
purposes,

light

a reasonable juror could conclude that Middleton and

differentiating

one

in

court

Defendant's

ADOPTS

Part

Motion

III. A

for

Summary

of

the

20-21.

the

Having

objected de novo,

R&R

Judgment

with

on

and

DENIES

the

the

Plaintiff's

Intentional Discrimination claim.

C.

Hotion in Limine

1. Troy Middleton

As

discussed above

in Part

III.B of

this

Opinion,

having

reviewed the portion to which the Defendant objected de novo,
the

court

agrees

with

the

Magistrate

Middleton is an appropriate comparator.
the

Magistrate

regard

thereto,

Judge's
and

recommendation

DENIES

the

Middleton.

29

Motion

Judge's

Thus,
in
in

the

conclusion

that

the court ADOPTS
First

Limine

R&R,

as

to

with
Troy

2. Robert Baurle, Jeffrey Balla, and David Witte

The Magistrate Judge did not evaluate the admissibility of
additional comparator evidence,
the trial judge,
may

be

"best

Accordingly,

and instead left the matter for

noting that considerations of cumulative proof

evaluated

the

at

trial."

additional

First

comparator

R&R

at 21,

evidence

n.7.

related

to

Robert Baurle, Jeffrey Balla, and David Witte must be addressed.
The issue before the court,
Motion

in

Limine,

plans,

performance

is

whether

for purposes of the Defendant's
"the

evaluations,

work

and any

product,

testimony

those documents as to NASA employees Jeff Balla,

Troy Middleton,
Mot.

and David Witte"

in Limine,

ECF No.

performance

relevant

to

Robert Baurle,

are clearly inadmissible.

See

69, at 1. The Defendant moves to exclude

this evidence because "these individuals are not comparators, by
law,

and

this

information

should

therefore

not

be

before

the

jury." See Mem. in Supp. of Mot. in Limine, ECF No. 70, at 1.
There

is

no

rule

that

would

exclude

evidence

of

other

employees simply because the Plaintiff has not proven that they
qualify

as

comparators

"[rjelevance

and

determined

in

particular

case,

per

379,

se

under

prejudice

the

context

and

thus

McDonnell

under

of
are

the

(2008).

Rules

facts

401

and

generally not

rules." Sprint/United Mgmt.

387

Douglas.

Co.

v.

and

Indeed,
403

arguments

amenable

Mendelsohn,

30

in

to

a

broad

552

As the Fourth Circuit has acknowledged,

are

U.S.

"other

employee

evidence

'is

neither

inadmissible.'" Calobrisi

App'x

207,

209

(4th

at 381), Generally,
a

v.

Cir.

per

Booz

2016)

se

Allen

admissible

(quoting

se

660

F.

Mendelsohn,

552

U.S.

the way other employees have been treated by

defendant in an employment discrimination case

to the issue of

per

Inc.,

Hamilton,

nor

"'is relevant

the employer's discriminatory intent.'" Id.

210

(quoting Spulak v.

Cir.

1990)).

If

adverse

protected

and

treatment

class

Mendelsohn

K Mart Corp.,

as

the

Calobrisi,

of

894 F.2d 1150,

at

employees

plaintiff
it

that

would

follows

that

1156

(10th

the

same

share

be

relevant

better

vinder

treatment

of

employees who do not share that protected class would also be
relevant. After all,

notion of

"the very term 'discrimination'

treating two persons differently on the basis of a

certain characteristic that only one possesses."
Exp. Corp.,
demands

invokes the

703 F.3d 713, 719

consideration

of

Laing v.

Fed.

(4th Cir. 2013). Simply put, logic

differently

treated

persons

in

a

discrimination case.

The

Fourth

Circuit

comparator evidence"
favorably-treated,

when it

reiterated

similarly

situated

«'especially relevant'"
McDonnell Douglas,

the place

clarified

to a

411 U.S.

from which this

"the

that

significance

evidence of

employees

showing of pretext.

at 804).

be

(quoting

It is worthwhile to examine

"especially relevant"
31

more

would

Id.

of

language

came:

it

was

used

employees

to

describe

involved

seriousness

.

.

in

.

McDonnell Douglas,

such evidence as

would-be

acts

were

evidence

against

showing

petitioner

nevertheless

"especially relevant";

of

retained

411 U.S. at 804. Notably,

"that

white

comparable

or

rehired."

the Court described

that

language does not

lend itself to an interpretation that such a

similarly-situated

status is necessary to be relevant a^ all.
There
evidence

On

is

nothing

Defendant

the contrary,

has

before
moved

the
to

court

exclude

there are numerous

indicating

would

factors

be

that

the

inadmissible.

that point to its

relevance. The Plaintiff worked "as an Aerospace Engineer in the

Hypersonic Air-Breathing Propulsion Branch ("Branch") within the
Research Directorate
Base in Hampton,
83,

at 2.

("Directorate")

Virginia."

Baurle,

Balla,

at

Pl.'s Resp.

the

to Mot.

the Plaintiff and Middleton.

this

list,

the

names

of

("IDRL")

Research Team,

Baurle,

Witte,

Plaintiff are all marked with an asterisk,

in Limine,

ECF

Research Team

ECF No.

Middleton,

72-7.
and

On
the

indicating membership

in the Hypersonic Airbreathing Propulsion Branch."' Id.
Baurle's, witte's,

Force

and Witte are all listed as members of

the same Isolator Dynamics Research Lab
as

Langley Air

and Middleton's performance plans,

Further,

which were

Balla's name is marked indicating membership in the
Advance Sensing & Optical Measurements Branch. Research Team,
ECF No.

72-7,

at 1.

32

filed under seal,

indicate that all of them shared the job title

of aerospace engineer and that all were part of the Hypersonic
Airbreathing

Balla was
Limine,

Propulsion

not

indicated that

86,

at

Baurle,

the Plaintiff,

Dep.,

The

supervised by Rock.

ECF No.

subordinates,

Branch.

1.

Reply

Still,

Balla,

Defendant

to

points

Resp.

during his

Witte,

out

to Mot.

deposition.

ECF No.

they

72-4,

liked working with

at

78:5-22.

in

Rock

and Middleton worked with

and that he would have asked each of them,

how

that

the

as his

Plaintiff.

Balla described himself

Rock
as

an

experimentalist, and he acknowledged that he worked in the IDRL.
Balla Dep.,
that

ECF

Balla

No.

was

51-3,

a

at

15:15-16:12.

researcher.

Rock

Rock also

Dep.,

ECF

indicated
No.

72-4,

a t 83:7-10.

The

Defendant

focuses

on

the

distinction

between

supervisory and reporting requirements of the Plaintiff, who was
a GS-13 employee,
ranks

of

GS-13

and

GS-14
a

and the proposed comparators,

and GS-15,

GS-14

to

comparing

those

the

"between

a

who held higher

differences
legal

between a

assistant

and

a

senior attorney." ECF No. 51 at 6.® The Defendant also compares
the

differences

between

GS-13

and

GS-15

Research

Aerospace

Engineers to the differences between an Assistant United States

® The Defendant incorporated its Opposition to Plaintiff's
Motion to Compel Production of Documents Relevant to Comparator
Job Performance, ECF No. 51, into its Memorandum in Support of
Defendant's Motion in Limine.

ECF No.
33

70 a t

2.

Attorney and the United States Attorney General.

analogies

strain

mentions

the

situated,"

credulity.

requirement

Although

that

the

the

Id. at 9. These

Defendant

comparators

repeatedly

be

"similarly

the Defendant's argument appears to be based on the

assumption that the comparators must be identical not only in
order

to

be

Douglas,

were

considered

comparators

for

purposes

of

McDonnell

but also to be considered admissible evidence.

an

employee

responsibilities,

who

had

the

same

exact

and supervisor as the Plaintiff,

If there

GS

rating,

that employee

would be identical, not merely similar.
Moreover,
requirements

some
of

evidence

GS-13

and

different. Diego Capriotti,

project

with

researcher

the

Capriotti Dep.,

GS-14

have

the

ECF No.

that

the

researchers

duties

were

not

and
very

a NASA employee who had worked on a

Plaintiff,

would

indicates

testified
same

72-9,

that

reporting

at 31:1-2.

"[a]

GS-13

or

requirements."

14
See

Baurle testified that

he had no supervisory duties of any sort as a GS-14, nor did he
have any

job duties

researcher.
indicated

Baurle
that

between the

that were
Dep.,

he

was

duties

of

ECF

distinct
No.

unsure

a

51-4,

he

GS-13

states

Dep.,

that

ECF

the

No.

aerospace

72-40,

allowance

at

could

aerospace engineer and stated that
Middleton

from

of

34

the

at

those of a
23:8-14.

tell

the

Middleton
difference

engineer and

work would be

70:17-71:1.

evidence

The

related

GS-13

a

GS-14

similar.
Defendant
to

these

individuals

"will only serve

to confuse and mislead the

jury,

creating mini-trials within the trial and needlessly consume the

time

and resources

Limine,

ECF No.

of

70,

the

at 3.

[c]ourt."
The

Mem.

in Supp.

Defendant does

not

such evidence would confuse or mislead the jury,

it would be so confusing that

of Mot.

in

explain how

let alone how

it would substantially outweigh

the probative value of the information.

The

comparator

issue

in

this

case

and peppered with factual disputes,

is

and to rule on i t now would

require factual findings best reserved for a
at

this

juncture,

Limine.

If

would be

it

the

court

later becomes

irrelevant,

DENIES

the

apparent

cumulative,

exceedingly complex

jury. Accordingly,

Defendant's

that

confusing,

Motion

in

comparator evidence
or misleading,

the

issue can be revisited at that time.

D.

There

were

no

Motion to Exclude

objections

to

the

Second

R&R.

The

court

hereby ADOPTS the Second R&R in full and DENIES the Defendant's
Motion to Exclude.
IV.

The
REJECTS

ADOPTS

court ADOPTS
IN

the

PART

I,

and MODIFIES

Second

Summary Judgment,

Parts

R&R

in

ECF No.

CONCLUSION

II,
Part

full.

60,

and

III.A of

III.B

of

the

Accordingly,

the

First R&R,

First

the

R&R,

and

Motion

for

the Motion to Exclude Plaintiff's

35

Experts,

ECF No.

65,

and the Motion in Limine,

ECF No.

69,

are

DENIED.

The

Clerk

is DIRECTED

to

send a

copy of

this

counsel for the parties.

IT IS SO ORDERED.

Ig

Rebecca Beach Smith

-m-

Chief Judge

REBECCA BEACH SMITH
CHIEF JUDGE

March )0 / 2017

36

Opinion to