USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-2127
CHARLES K. GATEBE,
Plaintiff - Appellant,
v.
BILL NELSON, NASA Administrator,
Defendant - Appellee,
and
UNIVERSITIES SPACE RESEARCH ASSOCIATION,
Defendant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paula Xinis, District Judge. (8:18-cv-00182-PX)
Submitted: January 25, 2024 Decided: March 5, 2024
Before THACKER and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Stephanie Rapp-Tully, TULLY RINCKEY PLLC, Washington, D.C., for Appellant. Erek L. Barron, United States Attorney, Tarra DeShields-Minnis, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 2 of 8
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 3 of 8
PER CURIAM:
Charles K. Gatebe appeals the district court’s orders excluding his proposed expert
witness and granting summary judgment for his employer, the National Aeronautics and
Space Administration (NASA), on his claims raised under Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. §§ 2000e to 2000e-17. Specifically, Gatebe
claimed that his nonselection for a position as a Research Physical Scientist in Climate and
Radiation Studies (“the Climate Position”) was based on his race, and that his subsequent
nonselection for a position as a Research Physical Scientist in Earth Sciences Remote
Sensing (“the Hydrology Position”) was based on his race and in retaliation for prior
protected activity. Finding no reversible error, we affirm.
“We review a district court’s decision on expert evidence for an abuse of discretion.”
United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 318 (4th Cir. 2018). Rule
702 of the Federal Rules of Evidence provides that “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion” if (1) “the expert’s . . . specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue”; (2) “the testimony is based on
sufficient facts or data”; (3) “the testimony is the product of reliable principles and
methods”; and (4) “the expert has reliably applied the principles and methods to the facts
of the case.” 1 Under Rule 702, a district court acts as a gatekeeper to ensure “that the
1 Rule 702 was amended in December 2023. We have quoted the pre-amendment version that was in effect when the district court issued its decision.
3 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 4 of 8
expert opinions rest on a reliable foundation and are relevant to the task at hand.” Ancient
Coin Collectors Guild, 899 F.3d at 318 (brackets and internal quotation marks omitted).
“The Supreme Court has explained that relevance—or what has been called fit—is a
precondition for the admissibility of expert testimony, in that the rules of evidence require
expert opinions to assist the trier of fact to understand the evidence or to determine a fact
in issue.” Id. (internal quotation marks omitted).
We conclude that the district court did not abuse its discretion in excluding the
proposed expert’s testimony, which asserted that Gatebe, a Black man, was more qualified
than the white candidates who ultimately filled the Climate and Hydrology Positions.
Gatebe’s proposed expert was his former colleague, and Gatebe has not cited a single case
in which a federal court has allowed a plaintiff’s former coworker to testify as an expert
witness in a Title VII case. We have repeatedly rejected Title VII plaintiffs’ reliance on
their coworkers’ opinions about their job performance. See, e.g., King v. Rumsfeld, 328
F.3d 145, 149 (4th Cir. 2003); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000);
DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). In addition, Gatebe’s
proposed expert chose his own criteria to judge the candidates, and he did not focus
primarily on what the relevant decisionmakers were looking for—experience in radiative
transfer for the Climate Position and snow water equivalent (“SWE”) for the Hydrology
Position. Nor was the proposed expert’s method reliable, as his method of scoring the
candidates was subjective. And he did not even apply his own criteria—when discussing
the importance of publications, he explained that it was necessary to read the publications,
4 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 5 of 8
yet he did not read any of the candidates’ publications. Accordingly, we discern no abuse
of discretion in the district court’s exclusion of this testimony.
Turning to the district court’s grant of summary judgment in favor of NASA, we
review a district court’s summary judgment ruling de novo, “applying the same legal
standards as the district court and viewing all facts and reasonable inferences in the light
most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349
(4th Cir. 2020). “Summary judgment is warranted ‘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.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine question of material fact exists
where, after reviewing the record as a whole, a court finds that a reasonable jury could
return a verdict for the nonmoving party.” J.D. ex rel. Doherty v. Colonial Williamsburg
Found., 925 F.3d 663, 669 (4th Cir. 2019) (internal quotation marks omitted). In
conducting this inquiry, courts may not “weigh conflicting evidence or make credibility
determinations.” Id. But “the nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one inference upon another, or the mere
existence of a scintilla of evidence.” Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation marks omitted).
Gatebe proceeded under the familiar burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). To establish a prima facie failure-
to-hire claim under McDonnell Douglas, a plaintiff must show “that he (1) is a member of
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USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 1 of 8
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 22-2127
CHARLES K. GATEBE,
Plaintiff - Appellant,
v.
BILL NELSON, NASA Administrator,
Defendant - Appellee,
and
UNIVERSITIES SPACE RESEARCH ASSOCIATION,
Defendant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paula Xinis, District Judge. (8:18-cv-00182-PX)
Submitted: January 25, 2024 Decided: March 5, 2024
Before THACKER and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Stephanie Rapp-Tully, TULLY RINCKEY PLLC, Washington, D.C., for Appellant. Erek L. Barron, United States Attorney, Tarra DeShields-Minnis, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 2 of 8
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 3 of 8
PER CURIAM:
Charles K. Gatebe appeals the district court’s orders excluding his proposed expert
witness and granting summary judgment for his employer, the National Aeronautics and
Space Administration (NASA), on his claims raised under Title VII of the Civil Rights Act
of 1964 (Title VII), as amended, 42 U.S.C. §§ 2000e to 2000e-17. Specifically, Gatebe
claimed that his nonselection for a position as a Research Physical Scientist in Climate and
Radiation Studies (“the Climate Position”) was based on his race, and that his subsequent
nonselection for a position as a Research Physical Scientist in Earth Sciences Remote
Sensing (“the Hydrology Position”) was based on his race and in retaliation for prior
protected activity. Finding no reversible error, we affirm.
“We review a district court’s decision on expert evidence for an abuse of discretion.”
United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 318 (4th Cir. 2018). Rule
702 of the Federal Rules of Evidence provides that “[a] witness who is qualified as an
expert by knowledge, skill, experience, training, or education may testify in the form of an
opinion” if (1) “the expert’s . . . specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue”; (2) “the testimony is based on
sufficient facts or data”; (3) “the testimony is the product of reliable principles and
methods”; and (4) “the expert has reliably applied the principles and methods to the facts
of the case.” 1 Under Rule 702, a district court acts as a gatekeeper to ensure “that the
1 Rule 702 was amended in December 2023. We have quoted the pre-amendment version that was in effect when the district court issued its decision.
3 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 4 of 8
expert opinions rest on a reliable foundation and are relevant to the task at hand.” Ancient
Coin Collectors Guild, 899 F.3d at 318 (brackets and internal quotation marks omitted).
“The Supreme Court has explained that relevance—or what has been called fit—is a
precondition for the admissibility of expert testimony, in that the rules of evidence require
expert opinions to assist the trier of fact to understand the evidence or to determine a fact
in issue.” Id. (internal quotation marks omitted).
We conclude that the district court did not abuse its discretion in excluding the
proposed expert’s testimony, which asserted that Gatebe, a Black man, was more qualified
than the white candidates who ultimately filled the Climate and Hydrology Positions.
Gatebe’s proposed expert was his former colleague, and Gatebe has not cited a single case
in which a federal court has allowed a plaintiff’s former coworker to testify as an expert
witness in a Title VII case. We have repeatedly rejected Title VII plaintiffs’ reliance on
their coworkers’ opinions about their job performance. See, e.g., King v. Rumsfeld, 328
F.3d 145, 149 (4th Cir. 2003); Hawkins v. PepsiCo, Inc., 203 F.3d 274, 280 (4th Cir. 2000);
DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998). In addition, Gatebe’s
proposed expert chose his own criteria to judge the candidates, and he did not focus
primarily on what the relevant decisionmakers were looking for—experience in radiative
transfer for the Climate Position and snow water equivalent (“SWE”) for the Hydrology
Position. Nor was the proposed expert’s method reliable, as his method of scoring the
candidates was subjective. And he did not even apply his own criteria—when discussing
the importance of publications, he explained that it was necessary to read the publications,
4 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 5 of 8
yet he did not read any of the candidates’ publications. Accordingly, we discern no abuse
of discretion in the district court’s exclusion of this testimony.
Turning to the district court’s grant of summary judgment in favor of NASA, we
review a district court’s summary judgment ruling de novo, “applying the same legal
standards as the district court and viewing all facts and reasonable inferences in the light
most favorable to the nonmoving party.” Ballengee v. CBS Broad., Inc., 968 F.3d 344, 349
(4th Cir. 2020). “Summary judgment is warranted ‘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.’” Id. (quoting Fed. R. Civ. P. 56(a)). “A genuine question of material fact exists
where, after reviewing the record as a whole, a court finds that a reasonable jury could
return a verdict for the nonmoving party.” J.D. ex rel. Doherty v. Colonial Williamsburg
Found., 925 F.3d 663, 669 (4th Cir. 2019) (internal quotation marks omitted). In
conducting this inquiry, courts may not “weigh conflicting evidence or make credibility
determinations.” Id. But “the nonmoving party must rely on more than conclusory
allegations, mere speculation, the building of one inference upon another, or the mere
existence of a scintilla of evidence.” Humphreys & Partners Architects, L.P. v. Lessard
Design, Inc., 790 F.3d 532, 540 (4th Cir. 2015) (internal quotation marks omitted).
Gatebe proceeded under the familiar burden-shifting framework of McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). To establish a prima facie failure-
to-hire claim under McDonnell Douglas, a plaintiff must show “that he (1) is a member of
a protected class; (2) applied for the position in question; (3) was qualified for the position;
and (4) was rejected for the position under circumstances giving rise to an inference of
5 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 6 of 8
unlawful discrimination.” Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 189 (4th
Cir. 2004), abrogated on other grounds by Green v. Brennan, 578 U.S. 547 (2016). To
establish a prima facie case of retaliation, a plaintiff is required to “show (1) that []he
engaged in protected activity; (2) that h[is] employer took an adverse action against h[im];
and (3) that a causal connection existed between the adverse activity and the protected
action.” Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 578 (4th Cir. 2015) (brackets
and internal quotation marks omitted). If Gatebe makes these showings, NASA then must
proffer a legitimate, nondiscriminatory and nonretaliatory reason for Gatebe’s
nonselection. Id.; Worden v. SunTrust Banks, Inc., 549 F.3d 334, 341 (4th Cir. 2008).
Finally, Gatebe has the burden to show that NASA’s legitimate reason was, in fact, a
pretext for intentional discrimination or retaliation. Jacobs, 780 F.3d at 578; Worden, 549
F.3d at 341.
We conclude that the district court correctly found that a reasonable jury could not
find NASA’s reasons for not selecting Gatebe were pretextual. Although the plaintiff need
not have been the better-qualified candidate for the position, he nevertheless must show
“evidence which indicates that [the employer’s] stated reasons . . . were a pretext for
discrimination.” Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 269 (4th
Cir. 2005). We “assess relative job qualifications based on the criteria that the employer
has established as relevant to the position in question.” Heiko v. Colombo Sav. Bank,
F.S.B., 434 F.3d 249, 259 (4th Cir. 2006). A plaintiff “cannot establish pretext by relying
on criteria of h[is] choosing when the employer based its decision on other grounds.”
Anderson, 406 F.3d at 271.
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While Gatebe had strong credentials, so did the other candidates selected for the two
positions. A review of their resumes shows that they both had the relevant experience that
NASA’s job description highlighted and the decisionmakers sought—namely, radiative
transfer for the Climate Position and SWE for the Hydrology Position. While Gatebe tries
to rely on the alleged preselection of a candidate for the Climate Position, the relevant
decisionmaker did not conduct the initial screen of the applicants and thus it was not
guaranteed that his preferred candidate would be referred for an interview. But even if we
credited Gatebe’s argument, preselection by itself does not show an intent to discriminate.
See id.
We also conclude that Gatebe cannot establish a causal connection based on
temporal proximity to support his retaliation claim. Gatebe notified the decisionmaker in
January 2018 that he engaged in protected activity, and the other candidate for the
Hydrology Position was hired in May 2018. We have rejected shorter gaps as insufficient
to establish causation based on temporal proximity alone. See Roberts v. Glenn Indus.
Grp., Inc., 998 F.3d 111, 127 (4th Cir. 2021); King, 328 F.3d at 151 n.5. Moreover, as the
district court correctly recognized, the fact that the decisionmaker recommended hiring a
different candidate (who ultimately declined the job offer) over Gatebe the fourth time the
Hydrology position was posted—which occurred before the decisionmaker learned of
Gatebe’s protected activity—further demonstrated that the decisionmaker did not act with
7 USCA4 Appeal: 22-2127 Doc: 25 Filed: 03/05/2024 Pg: 8 of 8
a retaliatory animus. 2 Cf. Baqir v. Principi, 434 F.3d 733, 748 (4th Cir. 2006) (recognizing
a plaintiff must “show that the relevant [decisionmakers] were aware of his [protected
activity] at the time the alleged retaliation occurred”).
Therefore, we affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
court and argument would not aid the decisional process.
AFFIRMED
2 NASA had difficulty filling the Hydrology position. Gatebe applied the fourth and fifth times the job was posted; his claim only relates to the fifth posting—the only time a candidate was ultimately hired.