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)

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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

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