UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
LEROY ALFORD,
Plaintiff, v. Civil Action No. 10-631 (JEB) DEFENSE INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
Pro se Plaintiff Leroy Alford worked as a management analyst for Defendant Defense
Intelligence Agency. After being terminated from his position and subsequently reinstated, he
alleges that the Agency repeatedly retaliated against him. He then filed this suit under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-3(a), and other federal statutes. DIA now
moves for summary judgment on the six remaining counts of Plaintiff’s Complaint, asserting that
his claimed instances of retaliation were not materially adverse employment actions and that,
even if they were, Alford has not shown that the Agency’s asserted reasons were in fact pretexts
for unlawful retaliation. Because the Court finds that Plaintiff has failed to raise a genuine issue
of material fact as to any of the remaining counts, it will grant Defendant’s motion.
I. Background
Plaintiff began his employment with DIA on June 26, 2006, as Deputy Chief of the Force
Structure Management and Compensation Office (FE-3). See Statement of Undisputed Material
Facts (SUMF), ¶¶ 13-14. He was terminated on September 29, 2007, for unsatisfactory
performance. Id., ¶¶ 22, 26. Because Plaintiff had been employed for less than the Agency’s
1 two-year probationary period, he was not given procedural due process. Id., ¶¶ 23-24. Plaintiff
then contacted an EEO Counselor and also appealed his termination to the Merit Systems
Protection Board. Id., ¶¶ 27-28. He was subsequently reinstated by the Agency on April 9,
2008. Id., ¶ 32. Plaintiff alleges that he was then subjected to numerous forms of retaliation for
having filed his EEO and MSPB complaints. See Compl. at 9-11. In April 2010, Alford filed
this lawsuit.
DIA moved to dismiss the case or, in the alternative, for summary judgment in September
2010. Plaintiff then responded by moving for a continuance to conduct discovery under Fed. R.
Civ. P. 56(d). After the case was transferred to this judge, the Court granted Defendant’s motion
in part and denied it in part. See Memorandum Opinion and Order of October 24, 2011 (ECF
No. 22). The Court dismissed Plaintiff’s non-Title VII claims as well as his discrimination-based
Title VII claims, but granted Plaintiff’s Rule 56(d) motion as to his Title VII retaliation claims.
Id. After discovery, DIA brought this Motion for Summary Judgment as to each of Plaintiff’s
remaining causes of action, which the Court now considers.
II. Legal Standard
Summary judgment may be granted if “the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at
248. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, Inc.,
477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is
2 genuinely disputed must support the assertion by citing to particular parts of materials in the
record.” Fed. R. Civ. P. 56(c)(1)(A).
The party seeking summary judgment “bears the heavy burden of establishing that the
merits of his case are so clear that expedited action is justified.” Taxpayers Watchdog, Inc., v.
Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987). When a motion for summary judgment is under
consideration, “the evidence of the non-movant[s] is to be believed, and all justifiable inferences
are to be drawn in [his] favor.” Liberty Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO,
447 F.3d 843, 850 (D.C. Cir. 2006); Aka v. Washington Hospital Center, 156 F.3d 1284, 1288
(D.C. Cir. 1998) (en banc). On a motion for summary judgment, the Court must “eschew
making credibility determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360,
363 (D.C. Cir. 2007).
The nonmoving party’s opposition, however, must consist of more than mere
unsupported allegations or denials and must be supported by affidavits, declarations, or other
competent evidence, setting forth specific facts showing that there is a genuine issue for trial.
Fed. R. Civ. P. 56(e); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The nonmovant is
required to provide evidence that would permit a reasonable jury to find in its favor. Laningham
v. United States Navy, 813 F.2d 1236, 1242 (D.C. Cir. 1987). If the nonmovant’s evidence is
“merely colorable” or “not significantly probative,” summary judgment may be granted. Liberty
Lobby, Inc., 477 U.S. at 249-50.
III. Analysis
At this stage, six counts of the Complaint remain. Each cites a specific instance in which,
in violation of Title VII, Defendant allegedly retaliated against Plaintiff for engaging in a variety
of protected activities, including filing complaints with Defendant’s Equal Employment and
3 Discrimination Office and the Merit Systems Protection Board. Count II complains of his
reinstatement without supervisory duties; Count III alleges that he was “not [given] work
assignments, duties and responsibilities that were previously assigned [to him] as Deputy” upon
his return. See Compl., ¶¶ 52-53. Plaintiff further contends that he was denied overtime (Count
VI), placed on a Performance Improvement Plan (PIP) (Count VII), denied the opportunity to
serve as acting chief of the office (Count VIII), and given a poor performance review (Count IX).
As to Counts III, VI, and IX, Defendant is entitled to summary judgment because Plaintiff has
not alleged a materially adverse employment action. Defendant is entitled to summary judgment
on Counts II, VII, and VIII, moreover, because Alford cannot show that DIA’s reasons were in
fact pretexts for retaliation. The Court will address each in turn.
A. Material Adversity
Like its sister circuits, the D.C. Circuit “analyz[es] . . . retaliation claim[s] . . . us[ing] the
burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” Smith v. District of Columbia, 430 F.3d 450, 455 (D.C. Cir. 2005)
(collecting cases). “Under this framework, the plaintiff must establish three elements of a prima
facie case of retaliation: first, that [he] ‘engaged in a protected activity’; second, that [he] ‘was
subjected to adverse action by the employer’; and third, that ‘there existed a causal link between
the adverse action and the protected activity.’” Smith, 430 F.3d at 455 (quoting Jones v. Wash.
Metro. Area Transit Auth., 205 F.3d 428, 433 (D.C. Cir. 2000)). “[A] ‘materially adverse’ action
for purposes of a retaliation claim is one that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’” Gaujacq v. EDF, Inc., 601 F.3d 565, 577
(D.C. Cir. 2010) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
4 Defendant argues that the actions underlying Counts II, III, VI, VIII, and IX were not
materially adverse. See Mot. at 8-14. The Court, however, finds that only Counts III, VI, and IX
fail to meet this threshold. As the remaining counts will be dismissed for lack of evidence of
pretext, see Section III.B, infra, the Court need not discuss their material adversity.
1. Count III
Count III alleges that Defendant retaliated against Plaintiff after he was reinstated by “not
[giving him] work assignments, duties and responsibilities that were previously assigned [to him]
as Deputy.” See Compl., ¶ 53. Mary Goodwin, Chief of FE-3, however, testified without
contradiction that to the extent that Alford’s duties changed when he returned, they were still
“the same kinds of things that [Goodwin herself] was doing.” See Mot., Exh. 16 (Excerpts from
Transcript of January 24, 2011, Merit Systems Protection Board Hearing) at 27.
While Alford offers very little in the way of specific evidentiary examples of changes to
his duties upon his return, he did testify that his being required to report back to his supervisors
after attending meetings on behalf of the office was an example of a retaliatory change. See
Mot., Exh. 5 (EEOC Testimony of Leroy Alford) at 87, 100-101. Goodwin testified, however,
that this requirement was merely “intended to provide a record of what [Plaintiff did] as a
representative of the organization, particularly . . . [at] . . . senior level meetings . . . to know
what those results were, what are the implications, what homework assignments [were given].”
Id. (EEOC Testimony of Mary Goodwin) at 237.
Plaintiff fails to show how this requirement rises to the level of an adverse employment
action that would have “dissuade[d] a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 57. Though he may have been frustrated by it, Alford
points to no evidence that this requirement was inappropriate for his grade or position, or that
5 “[his] work hours or [his] pay were affected by the [requirement].” Sewell v. Chao, 532 F. Supp.
2d 126, 136 (D.D.C. 2008). As this Court previously held in Bailey v. Wash. Metro. Area
Transit Auth., 810 F. Supp. 2d 295 (D.D.C. 2011), “[W]hile Plaintiff may well have found
[reporting back to his supervisors] uncomfortable . . . this is the type of work typical employees
are required to do every day. Even if [it] were not, such ‘petty slights [and] minor annoyances’
do not rise to the level of a materially adverse employment action.” Id. at 301 (quoting
Burlington Northern, 548 U.S. at 68). Defendant is accordingly entitled to summary judgment
on Count III.
2. Count VI
In Count VI, Plaintiff alleges that he was denied overtime in retaliation for his protected
activity. See Compl., ¶ 56. Alford testified that this denial occurred when a meeting appeared
likely to run past his normal departure time, and he asked his supervisor whether he would
receive compensatory time if he remained. See Alford EEOC Testimony at 105-106. His
supervisor instructed him to leave at his normal time, indicating that compensatory time would
not be approved. See Goodwin EEOC Testimony at 252.
Plaintiff does not demonstrate any tangible harm associated with this incident, nor does
he explain how such an incident would have “dissuade[d] a reasonable worker from making or
supporting a charge of discrimination.” Burlington Northern, 548 U.S. at 57. It is certainly
plausible that Alford was disappointed by his supervisor’s decision and felt aggrieved at that
moment. Our Circuit, however, notes that “not everything that makes an employee unhappy is
an actionable adverse action.” Broderick v. Donaldson, 437 F.3d 1226, 1233 (D.C. Cir. 2006)
(internal citations and quotation marks omitted). Given the complete absence of tangible injury
over and above any “[p]urely subjective injuries, such as . . . dissatisfaction,” the Court is unable
6 to find that Alford experienced an adverse employment action for purposes of his retaliation
claim in this instance. Forkkio v. Powell, 306 F.3d 1127, 1130 (D.C. Cir. 2002). Summary
judgment is thus also warranted as to Count VI.
3. Count IX
Count IX alleges that DIA retaliated against Plaintiff by issuing him a poor performance
appraisal in May 2008. See Compl., ¶ 59. The Agency argues that, as there were no objectively
discernible consequences resulting from the performance appraisal, the appraisal itself cannot
constitute a materially adverse employment action as a matter of law. See Mot. at 14. The
Agency’s position is consistent with clear governing law.
In this Circuit, a “thick body of precedent . . . refutes the notion that formal criticism or
poor performance evaluations are necessarily adverse actions.” Brown v. Brody, 199 F.3d 446,
458 (D.C. Cir. 1999). Rather, because “job-related constructive criticism . . . ‘can prompt an
employee to improve [his] performance’. . . performance reviews typically constitute adverse
actions only when attached to financial harms.” Baloch v. Kempthorne, 550 F.3d 1191, 1199
(D.C. Cir. 2008) (internal citations omitted); see also Taylor v. Small, 350 F.3d 1286, 1293 (D.C.
Cir. 2003) (“‘[F]ormal criticism or poor performance evaluations are [not] necessarily adverse
actions’ and they should not be considered such if they did not ‘affect[ ] the [employee’s] grade
or salary.’”) (internal citations omitted).
Indeed, even the cases Plaintiff relies on here are readily distinguishable. In support of
his position, Plaintiff cites Weber v. Battista, 494 F.3d 179 (D.C. Cir. 2007), Burke v. Gould,
286 F.3d 513 (D.C. Cir. 2002), and Russell, 257 F.3d at 815. See Opp. at 11-12. In each case,
the D.C. Circuit held that a poor performance evaluation could be materially adverse where the
plaintiffs “sufficiently alleged loss of a ‘tangible, quantifiable award’ which had been received
7 ‘nearly every year’” prior to the plaintiffs’ protected activity. Weber, 494 F.3d at 185 (quoting
Burke, 286 F.3d at 522). Alford, on the contrary, presents no evidence that he is similarly
situated to these individuals. Even as his Opposition cites these cases, Plaintiff neither shows
that he suffered a tangible harm of any kind from his poor evaluation nor presents evidence of
the kind of history of strong performance (and receipt of concomitant performance awards) that
typified the Weber, Burke, and Russell plaintiffs. As a result, the Court is again unable to find
that Plaintiff experienced a materially adverse employment action in the form of his May 2008
performance review and will thus grant summary judgment to DIA on Count IX.
B. Pretext
As to Counts II, VII, and VIII, the Court holds that, even assuming Plaintiff has
successfully alleged a materially adverse employment action, Defendant is still entitled to
summary judgment because it has successfully asserted legitimate, nonretaliatory reasons for its
actions, and Plaintiff has adduced no evidence that these reasons are in fact pretexts for
retaliation. Where “an employee has suffered an adverse employment action and an employer
has asserted a legitimate, non[retaliatory] reason for [its employment] decision,” the McDonnell
Douglas framework “‘drops out of the picture,’” and the Court deploys a simpler analysis:
[I]n considering an employer's motion for summary judgment or judgment as a matter of law in those circumstances, the district court must resolve one central question: Has the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted non-discriminatory reason was not the actual reason and that the employer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?
Brady v. Office of Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (quoting St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 510 (1993)).
8 Though Brady itself concerned a Title VII discrimination claim, its streamlined
framework applies to retaliation claims as well. See Jones v. Bernanke, 557 F.3d 670, 678 (D.C.
Cir. 2009) (Brady “principles apply equally to retaliation claims”). As to the remaining counts,
therefore, this Court “need not—and should not—decide whether the plaintiff actually made out
a prima facie case under McDonnell Douglas.” Brady, 520 F.3d at 494 (emphasis in original);
see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000) (when
defendant offers evidence that plaintiff was terminated for legitimate, nondiscriminatory reason,
sole remaining issue is “discrimination vel non”) (citing United States Postal Service Bd. of
Governors v. Aikens, 460 U.S. 711, 714 (1983)).
Instead, the Court’s task here is to determine whether Alford has produced sufficient
evidence for a reasonable jury to find that Defendant’s asserted reasons for each action were
mere pretexts for illegal retaliation. See Brady, 520 F.3d at 494; see also Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). As the D.C. Circuit has held,
however, “‘[E]ven if [the employee] show[s] that [the asserted reason] was not the actual reason
for his [adverse employment action], he still would have to demonstrate that the actual reason
was a . . . discriminatory [or retaliatory] reason.’” Gilbert v. Napolitano, 670 F.3d 258, 261
(D.C. Cir. 2012) (quoting Brady, 520 F.3d at 496 n.4) (alterations in original); see also Cones v.
Shalala, 199 F.3d 512, 519 (D.C. Cir. 2000) (evidence must be sufficient for a reasonable jury
“to conclude that [the asserted] rationale was not just pretext, but pretext for discrimination”)
(emphasis in original). That is, Plaintiff’s burden of “demonstrat[ing] that the proffered reason
was not the true reason . . . merges with the ultimate burden of persuading the court that [he] has
been the victim of intentional [retaliation].” Burdine, 450 U.S. at 256. Defendant is entitled to
summary judgment only if the evidence, viewed in the light most favorable to Plaintiff and
9 drawing all reasonable inferences in his favor, is such that “no reasonable jury” could find that
Defendant’s asserted reasons were in fact pretexts for retaliation. See Hamilton v. Geithner, 666
F.3d 1344, 1351 (D.C. Cir. 2012) (citing Jones v. Bernanke, 557 F.3d 670, 674, 681 (D.C. Cir.
2009)).
1. Count II
Count II alleges that Defendant retaliated against Plaintiff after he was reinstated by
depriving him of supervisory duties. See Compl., ¶ 52. The Agency argues that any such
changes in Alford’s day-to-day job duties – to the extent any occurred – were the result of a
reorganization of the FE-3 office that took place following his original termination, rather than
any unlawful retaliation. See Mot. at 15. During the period he was gone, Alford’s position as
Deputy went unfilled, and FE-3’s two “branches” were re-designated as “divisions,” with their
respective supervisors reporting directly to the Chief of FE-3, Mary Goodwin. See SUMF, ¶¶
33-34. Joseph Fasching, the Agency’s Chief Financial Officer, testified that “when [Alford]
came back . . . it was [Fasching’s] decision . . . to keep the supervisory structure that was intact
before he came back . . . because [he thought] that was the proper structure for the office.” See
id., ¶ 35; see also Mot., Exh. 6 (EEOC Testimony of Joseph Fasching) at 27-28. Likewise,
Goodwin testified that to the extent that Alford’s duties changed when he returned, they were
still “the same kinds of things that [she] was doing.” See MSPB Hrg. at 27.
In response, Plaintiff offers only his own testimony that it was “obvious” that the Agency
retaliated against him. See Mot., Exh. 14 (Excerpts from the Deposition Testimony of Leroy
Alford) at 59. It is not enough for Plaintiff to simply testify that he was retaliated against. In this
Circuit, “‘there is no rule of law that the testimony of a discrimination plaintiff, standing alone,
can never make out a case . . . that could withstand a summary judgment motion.’” Desmond v.
10 Mukasey, 530 F.3d 944, 964 (D.C. Cir. 2008) (quoting George v. Leavitt, 407 F.3d 405, 414
(D.C. Cir. 2005)). That said, “Although, as a rule, statements made by the party opposing a
motion for summary judgment must be accepted as true for the purpose of ruling on that motion,
some statements are so conclusory as to come within an exception to that rule.” Greene v.
Dalton, 164 F.3d 671, 675 (D.C. Cir. 1999). The problem for Plaintiff, then, is not that he is the
one asserting that it is “obvious” he was retaliated against, but that “[a]bsent supporting facts –
and [he has] provided none – a jury would be in no position to assess [his] claim” that the
Agency had in fact retaliated against him. Id. “Accepting such conclusory allegations as true,
therefore, would defeat the central purpose of the summary judgment device, which is to weed
out those cases insufficiently meritorious to warrant the expense of a jury trial.” Id.; see also
Harding v. Gray, 9 F.3d 150, 154 (D.C. Cir. 1993) (discrimination plaintiff asserting superior
qualifications “must support his allegations . . . with facts in the record; a mere unsubstantiated
allegation of superior qualifications creates no genuine issue of fact and will not withstand
summary judgment”).
In fact, when asked for particulars in his deposition, Alford testified that the retaliation
must have occurred because, “for example,” the Agency [did not] follow proper guidelines when
placing him on the PIP. See Alford Depo. at 59. Of course, placing him on the PIP has nothing
to do with deprivation of his supervisory duties. Any organizational change that took place
while he was not employed by the Agency, furthermore, could not have been retaliatory.
Because no reasonable jury could conclude from Plaintiff’s naked, conclusory allegations of
retaliatory motive that Defendant’s asserted reasons were in fact pretexts for unlawful retaliation,
the Court will grant summary judgment as to Count II.
11 2. Count VII
In Count VII, Plaintiff alleges that DIA retaliated against him by placing him on a PIP.
See Compl., ¶ 57. In response, Defendant argues that Plaintiff was placed on the PIP for the
simple reason that his performance in fact needed improvement. See Mot. at 20. According to
the PIP memorandum, Alford “exhibited a pattern of failing to adequately complete assignments
. . . by the scheduled due date,” submitted “written communications contain[ing] numerous
errors,” failed to “demonstrate[] critical thinking skills or engage[] and collaborate[]
constructively with others,” and failed to “demonstrate[] technical proficiency in manpower and
force structure.” See Mot., Exh. 1 (Excerpts from Report of EEO Investigation) at 236-37.
Plaintiff does not appear to contest that this reason, if believed, would be plainly non-
retaliatory. Instead, he offers only his bare assertions that his work was satisfactory and that the
“wrong criteria were used” in placing him on the PIP. See Opp. at 14. In addition, he alludes to
inconsistencies between Goodwin’s deposition testimony and other documents in the record. See
Opp. at 14-16. The first two of these assertions are insufficient to demonstrate pretext; the third
is simply off point.
As discussed in Part III.B.1, supra, while a discrimination plaintiff’s own deposition
testimony may create a genuine issue of material fact sufficient to survive summary judgment,
Alford fails to meet this standard. He offers only his deposition testimony that his performance
was adequate – a statement that, once again, is “so conclusory as to come within an exception to
[the] rule” that the nonmovant’s statements must be accepted as true. Greene, 164 F.3d at 675.
Record evidence of Plaintiff’s satisfactory performance might have supported this assertion and
created a triable issue, but Plaintiff has failed to provide any such evidence.
12 Plaintiff’s assertion that “the wrong criteria were used,” see Opp. at 14, is similarly
unavailing. Plaintiff appears to be referring to a typographical error in the PIP memorandum
itself: the reference line of the document refers to “DIA Instruction 1404.001, Performance
Appraisal System.” See Mot. at 22; EEO Investigation Report at 235. At the time the PIP
memorandum was written, the correct title of DIA Instruction 1404.001 was “Performance
Management for the Defense Civilian Intelligence Personnel System.” See Mot. at 22. The
Agency asserts that the typographical error occurred because this change in title occurred only
one week before the PIP memorandum was issued. See Mot., Exh. 15 (Performance
Management for the Defense Civilian Intelligence Personnel System).
In certain cases, an agency’s failure to follow its own regulations or established
procedure can provide sufficient evidence of pretext to withstand summary judgment. See, e.g.,
Lathram v. Snow, 336 F.3d 1085, 1093-94 (D.C. Cir. 2003) (holding that unexplained
inconsistency between hiring process used for alleged discriminatory hire and that used for other
comparable positions created at the same time “[could] justify an inference of discriminatory
motive”); Cones, 199 F.3d at 519-20 (holding that jury could have concluded that agency claim
that it was downsizing, while it promoted three of the black plaintiff’s white peers, was pretext
for discrimination). The alleged inconsistency here, however, is a far cry from those cases. The
Agency appears to have made a typographical error following the issuance of a new instruction,
and it does not appear that this error was made only as to Plaintiff’s PIP or that this procedural
deficiency singled him out in any way. No reasonable jury could conclude pretext for
discrimination from the presence of a mere typo.
Finally, Alford alleges that Goodwin’s testimony is inconsistent with other documents in
the record in this case. See Opp. at 14-16. Even if there were an inconsistency, however – and
13 the Court can find none here – it would be irrelevant to the question of whether Plaintiff has
shown sufficient evidence of pretext on this claim. Plaintiff’s alleged “inconsistencies” concern
Goodwin’s testimony regarding his reinstatement without supervisory duties – a decision in
which he acknowledges Goodwin did not even participate – and have nothing to do with his
being placed on a PIP. While the Court appreciates the need to construe Plaintiff’s pro se filings
liberally, it sees no evidence here from which a jury could find that Defendant’s assertion that he
was placed on the PIP because his performance was inadequate was in fact a pretext for unlawful
retaliation. The Court, accordingly, will grant summary judgment for Defendant as to Count VII.
3. Count VIII
In Count VIII, Plaintiff alleges that DIA retaliated against him by denying him the
opportunity to serve as acting chief of the office while his supervisor was on vacation, from
August 18-22, 2008. See Compl., ¶ 58; Alford EEOC Testimony at 117-18. In response, the
Agency argues that it could not have designated Alford as acting chief at the time because he had
just been placed on a PIP. See SUMF, ¶ 45; Mot. at 23-24. Plaintiff does not appear to contest
that this reason, if believed, would be plainly nonretaliatory.
Alford argues instead that the Agency’s asserted reason is “circular” because “he should
not have been on a PIP in the first place.” See Opp. at 16. This argument is once again
unavailing. First, the Court has just found that the PIP was justified and not an act of retaliation.
In any event, accepting Plaintiff’s argument would contravene this Circuit’s clear precedent. In
Brady, the plaintiff sought to debunk his employer’s purported reason for disciplining him – an
allegation that he had sexually harassed a colleague – by “conten[ding] that the underlying
sexual harassment incident never occurred.” 520 F.3d at 496. The D.C. Circuit rejected his
argument, holding that the plaintiff “misunderst[ood] the relevant factual issue. The question is
14 not whether the underlying sexual harassment incident occurred; rather, the issue is whether the
employer honestly and reasonably believed that the underlying sexual harassment incident
occurred.” Id. (emphasis in original). Where there was evidence that the employer did so
believe, “summary judgment for [the defendant] was proper.” Id. To have held otherwise would
have “allow[ed the plaintiff] to end-run summary judgment” and “mean that every employee
who is disciplined . . . for alleged misconduct could sue for employment discrimination . . . and –
merely by denying the underlying allegation of misconduct – automatically obtain a jury trial.”
Id. (emphasis in original). As in Brady, the Agency reasonably believed Plaintiff was
appropriately on a PIP, as explained in Section III.B.2, supra. Allowing Plaintiff to survive
summary judgment based on his argument would put this Court in the position of “micro-
manag[ing] an employer’s . . . policies when resolving a claim of [retaliation].” Id. The Court
will thus grant Defendant’s Motion as to Count VIII of the Complaint.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment as to all remaining counts of the Complaint. A separate Order consistent with this
Opinion will be issued this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge
Date: December 12, 2012