UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) KARL HAMPTON, ) ) Plaintiff, ) ) v. ) Civil Action No. 07-2221 (ESH) ) TOM VILSACK, Secretary, 1 ) United States Department of Agriculture, ) ) Defendant. ) )

MEMORANDUM OPINION Plaintiff Karl Hampton was te rminated from his position as a Foreign Service Officer for the United States Department of Agriculture (“ USDA”) and has now sued his former employer, claiming discrimination on the basis of his race, retaliation for e ngaging in protected activity, and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . Before the Court is defendant’s moti on for summary judgment. For the reasons set forth below, defendant’s motion will be granted in part and denied in part. BACKGROUND I. FACTUAL HISTORY A. Background Plaintiff is an African-American male w ho was hired by the USDA in its foreign agriculture service (“FAS”) in 1987. (Plaintiff’ s Deposition [“Pl.’s Dep.”] at 13:6-13.) In 1991, plaintiff was a member of a class action alle ging racial discrimination in FAS promotions,

1 Tom Vilsack, current Secretary of the United States Department of Agriculture, is substituted for his predecessor. Fed. R. Civ. P. 25(d).2 rotations, and training. ( Id. at 14:12-15:10.) This case ul timately settled in the 1990s. ( Id. ) While serving abroad as the Agri cultural Attache to Brazil in 1996, Plaintiff again participated in protected employment activity by filing an EEO co mplaint against his then supervisor regarding “discriminating disparate statements in [his] performance assessment.” ( Id. at 16:14-20:13.) This case settled prior to 2000. ( Id. ) Upon returning from Brazil in 1996, plaintiff’s first-line supe rvisor was Dale Miller, a Caucasian USDA employee. ( Id. at 20:14-17.) Plainti ff alleges his relationship with Miller at this time was marked by occasional “animosity,” particularly when plainti ff was not selected for a requested promotion. ( Id. at 22:3-25:6.) From March through June 2002, plaintiff was detailed to the Executive Office of the President. ( Id. at 25:7-10.) In reference to plaintiff’s detail and his particip ation in an executive development program, plaintiff alleges that Mille r told Patricia Perkins, one of plaintiff’s African-American co-workers, that plaintiff was “thinking that he’s a nigger from California instead of a nigger from Missi ssippi.” (EEOC Testimony of Patricia Perkins, Sept. 18, 2007 [“Perkins Testimony”] at 644:19-20; 673:20-22.) Miller denies ma king this comment. (Dale Miller Deposition [“Mi ller Dep.”] at 125:8-15.)
B. 2002 Printing of Sexually Explicit Emails On April 26, 2002, a male employee named Tim Powers informed Miller that he had found sexually explicit materials onone of the USDA printers. (Miller Dep. at 77:8-14; 80:21- 81:5.) Miller retrieved the materials and aske d the Human Resources Division what he should do about them. ( Id. at 79:3-6.) Miller was informed that he should take the printed materials to the Computer Security Office, which he did. ( Id. at 79:17-80:7.) Human Resources and the Computer Security Office then indicated they would handle the matter from that point forward and would conduct an investigation to dete rmine who had printed the materials. ( Id. at 80:18-3 81:22; Lolla Smith Deposition [“Smith Dep.”] at 28- 33.) The investigation (which Miller did not take part in) traced the electroni c printer logs, and determined that the sexually explicit materials were printed from plaintiff’s com puter. (Smith Dep. at 31:20-32:1.) On July 12, 2002, Miller sent a letter to pl aintiff proposing a two-week suspension for plaintiff based on “Misuse of a U.S. Government colo r printer to print sexually explicit pictures.” (Def. Mot. Ex. 5 at 1.) 2 Miller was not the deciding official for the matter and had no role in the ultimate decision on the suspension. (Miller Dep. at 95:15-96:9.) The deciding official was the then administrator, Ellen Terp stra, and Miller had no communications with Terpstra about his proposal or her decision. ( Id. ) In addition, the recommendation for the 14-day suspension originally came from Ms. Lolla Smith, an empl oyee relations specialist, and was “based on the normal practices” within the office at the time. (Smith Dep. at 79:4-6.) Plaintiff responded in writing to the proposed suspension. In his letter, plaintiff did not deny having printed sexually explicit materials to the USDA color printer—and indeed, admitted that he “did access these [sexually explicit] sites and . . . did mi sjudge the situation and printed off some pictures.” (Def. Mot. Ex. 6 at 48.) Plaintiff argued, however, that he did not print sexually explicit materials dur ing the exact peri ods of time specified by USDA. ( Id. at 47-49 ( e.g. , “I did not print off over 218 pages of such material during the hours of midnight and 5 am on April 2, 2002.”).) Plaintiff further challe nged the length of his proposed suspension as excessive. ( Id. at 50, 55.) Administrator Terpstra noted that while FAS ha d not had a prior case of computer misuse related to sexually explicit materials, the propos ed 14-day suspension was consistent with prior

2 While Miller was officially the proposing official for plaint iff’s suspension and signed the suspension letter, the letter it self was drafted by the Employee Relations Division. (Miller Dep. at 90:1-91:18.)4 incidents at the USDA. (Def. Mot. Ex. 2 at 5.) Terpstra ultimately sust ained two of the three allegations against plaintiff and redu ced his suspension to one week. ( Id. ) C. Alleged Conflict of Interest in Connect ion with Personal Business Venture On June 30, 2003, Ms. Lolla Davies of the Employee and Labor Relations branch of FAS’s human resources department opened an investigation into allegations that plaintiff had created a conflict of interest and had attempted to abuse his position for personal gain. (Def. Mot. Ex. 8 at 1.) Plaintiff had sought to ope n a sweet potato processing plant called Syrisia Foods by incorporating the company in 1998 an d having a feasibility study done by Sparks Company. (Pl.’s Dep. at 134:8-13.) Plaintiff paid $66,000 of his own money for the feasibility study ( id. at 136:3-13), and the study c ontained plaintiff’s represen tation that he was a USDA employee. (Def. Mot Ex. 10.) Before having this feasibility study done, however, plaintiff successfully applied for a grant from the USDA. (Pl.’s Dep. at 137:22-138: 12.) Plaintiff did not disclose his affiliation with the USDA as a part of this grant application, although apparently he was not required to disclose this informati on as part of the application process. ( Id. at 143:16- 144:14.) Plaintiff also failed to disclose his financial interest in Syrisia Foods to the USDA as required by USDA ethics regula tions. (Def. Mot Ex. 11 [Proposed Removal Letter, January 27, 2005] at 10.) In October 2003, plaintiff disc ussed his financial interest in Syrisia Foods with a FAS Ethics Officer, who recommended th at plaintiff adjust his disclo sure forms to include Syrisia Foods. (Plaintiff’s Declaration [“Pl.’s Decl.”] ¶ 15.)
D. Investigation into Plai ntiff’s Hotel Receipts5 In early 2004 plaintiff submitted a hotel receipt for reimbursement. A new employee, Christine Lipscomb, processed plaintiff’s receipts for reimbursement. 3 (Miller Dep. at 176:21- 179:21.) Following procedure, Lips comb asked plaintiff for the or iginal hotel receipt, having originally been provide d only with a copy. ( Id. ) When plaintiff submitted what he purported to be the original receipt, Lipscomb noted that it seemed to contai n handwritten changes, so she contacted the hotel for the original receipts. (Id. ) Based on her review, she concluded that plaintiff’s receipts ha d been altered. ( Id. ) Lipscomb contacted Miller, who upon looking at the documents took them to his supervisor, Mr. Roy Henwood. ( Id. ) Mr. Henwood in turn believed the matter should be investigated by Compliance Review Staff (“CRS”). ( Id. ) Mr. Miller concurred, and took the receipts to FAS S ecurity Officer Richard Maxwell. ( Id. ) Maxwell, an Army criminal investigator for 25 years before joining the USDA, conducted an investigation into whether plaintiff had submitted additiona l altered travel receipts for reimbursement. 4 Maxwell’s investigation concluded that num erous hotel bills submitted by plaintiff had been altered. (Def. Mot. Ex. 11.) These altera tions indicated that plaintiff had spent additional nights at hotels, thereby increa sing the reimbursement amount s upposedly owed to plaintiff. ( Id. ) Some receipts had been altered by pen, a nd printed bills had been changed. ( Id. at 2-3.) Others were typed in a format that did not resemble genuine bills provided by the hotels, such as, different fonts, missing account numbers, misalig ned columns, or missing signature lines. ( Id. at 2-7.) Some receipts contained changed dates that did not match a hotel’s file copy of the bill. ( Id. at 3.) Some receipts indicated that plaintiff’ s Visa credit card was used to pay for charges. The credit card statements, however, contained no corresponding charges (or contained charges

3 Plaintiff did not, and does not know Ms. Lipscomb. (Pl.’s Dep. at 249:14-17.)

4 Plaintiff did not know Maxwell prior to meeting w ith him as part of the investigation. (Pl.’s Dep. at 249:7-13; Richard Maxwell De position [“Maxwell Dep.”] at 36:1-3.)6 for smaller amounts.) ( Id. at 3-6.) Plaintiff became aware of this investigation on January 29, 2004, when he was contacted by Maxwell, who th en met with plaintiff the following day to discuss his government travel, conf licts of interest, and possible ethi cs violations. (Pl.’s Decl. ¶ 16.) At this time in mid-2004, plaintiff was unde r investigation by CRS for both possible conflicts of interest related to the Syrisia sweet potato plant, as well as for allegations that he had altered hotel receipts that he had submitted for reimbursement. In addition, plaintiff was due for “periodic reinvestigation,” which is a backgroundinvestigation that must be conducted every five years for all individuals who hol d top secret security clearances, as plaintiff did at that time. (Martin Brumback Deposition [“Brumback Dep.”] at15:7-16:12.) The fa ct that plaintiff’s periodic reinvestiga tion occurred at this time was not connected to the ongoing CRS investigations. ( Id. at 41:11-42:1.) Martin Brumback, th e Chief of the Personnel and Document Security Division and the official in charge of USDA security clearan ces, received a call from CRS notifying him that CRS was investigating a llegations of misconduct that had been made against plaintiff. ( Id. at 9:13-10:3; 16:20-17: 17.) Such notification is required when CRS investigates allegations that w ould adversely reflect on a person’ s eligibility to hold a national security clearance. ( Id. at 17:18-18:3.) Brumback review ed a packet of information that contained both the allegations against pl aintiff, as well as his response. ( Id. at 20:5-18.) Pursuant to his normal practice, Brumback suspe nded plaintiff’s security clearance on June 30, 2004, and held in abeyance his office’s decision on plaintiff’s eligibility for a renewed clearance pending resolution of the misconduct charges. (P l. Opp. Ex. 12; Brumback Dep. at 28:9-29:1.)7 On June 20, 2004—the same day his security clearance was suspended—plaintiff filed an EEO complaint alleging that th e investigation into his misconduc t was discriminatory. (Pl.’s Decl. ¶ 19.) In October 2004, plaintiff was denied a prom otion from FS-03 to FS-02. (Compl. ¶ 16; Pl.’s Decl. ¶ 20.) In November 2004, plaintiff was denied a fo reign assignment by FAS. (Compl. ¶ 18; Pl.’s Decl. ¶ 22.) Later that month, plainti ff alleges that FAS Deputy Administrator Lyle Sebranek told Sheila Bruce, a Personnel Ma nagement Specialist in Human Resources, that plaintiff was not being sent overs eas because of his EEO complaint. 5 (Affidavit of Sheila Bruce, Pl.’s Opp. Ex. 15 at 2-3.) Sebranek denies maki ng this statement. (Lyle Sebranek Deposition [“Sebranek Dep.” ] at 55:16-60:12.)
E. Plaintiff’s Proposed Termination The results of the investigation into plai ntiff’s hotel reimbursement requests were ultimately forwarded to Lacy Muir, a USDA empl oyee relations specialist, who had had no prior interactions with plaintiff. (Lacy Muir Depos ition [“Muir Dep.”] at 9:11-13; 12:17-19.) After examining the results of the inve stigation, Muir believed that pl aintiff should be terminated. ( Id. at 41:15-42:13.) Muir then discussed the matte r with Miller, and she drafted a proposal of removal ultimately signed by Miller and de livered to plaintiff on January 27, 2005. ( Id. at 43:2- 10; 44:12-46:2; Def. Mot. Ex. 11.) Plaintiff was subsequently placed on paid administrative leave. ( Id. )

5 The Court notes that Bruce’s affidavit is somewhat at odds with plaintiff’s complaint, which states that Sebranek told Bruce that plaintiff “was not being sent overseas because of his suspended security clearance and his EEO complaint.” (C ompl. ¶ 19 (emphasis added).)8 As plaintiff’s second-line supervisor, the decidi ng official for plain tiff’s removal was Mr. Roy Henwood, a political appointee and the then Director of Exte rnal Affairs and Confidential Assistant to the Administrato r. (Roy Henwood Deposition [“ Henwood Dep.”] at 6:21-7:7.) Plaintiff responded to his proposed removal inwriting and at a hearing in March 2005. (Def. Mot. Ex. 16; Pl.’s Dep. at 203:9-17.) Plai ntiff, Henwood, and Muir were present at the hearing. (Pl.’s De p. at 203:18-21.) At least one hotel manager ha d already indicated to CRS investigators that he was unwilling to release the original r eceipts without a court order or a letter of authorization from plaintiff. (Henwood Dep. at 39: 9-14; Def. Mot. Ex. 17.) He nwood therefore requested that plaintiff sign a release allowing th e hotel to release th e records. (Henwood Dep. at 38:4-40:4.) Plaintiff refused. ( Id. ) In addition (and unbeknownst to USDA) , plaintiff had contacted the hotel manager first by telephone in August 2004 and later in a letter date d March 8, 2005, and he threatened legal action should the manager di sclose further information to the USDA. 6 (Def. Mot. Exs. 18, 24.)
F. Henwood Requests Additional Details On May 3, 2005, Henwood sent a letter to Maxwell requesting that CRS undertake additional investigation in orde r to clarify several “reasonable questions” raised by plaintiff regarding some of the charges against him. (Def. Mot. Ex. 17.) Specifically, Henwood wanted to see if it was possible to obtain the original hotel bills at issue (not withstanding plaintiff’s

6 Plaintiff’s March 8, 2005 letter also accused th e hotel manager of having already violated plaintiff’s rights. ( See Def. Mot. Ex 18.) Plaintiff request ed that the manager provide him with “a signed statement that [the manager] did not discuss or provide any information to Mr. Maxwell or anyone regarding [plaintiff’s] record s/file for [his] stay with [the] hotel.” ( Id .) Plaintiff then threatened legal action agains t the hotel manager in the event that any prior disclosure resulted in his termination. ( Id. )9 earlier refusal to authorize the re lease of these records) in orde r to determine “the extent of alteration, if any, made to the copies submitted for reimbursement” ( Id. ) These originals had not been submitted by plaintiff, nor could they be obtained during the course of the initial investigation. ( Id. ) Alternatively, Henwood requested th at Maxwell “supplement the record with confirmation that each recei pt in question is identified by the manager [of the hotel in question] as fraudulent,” preferably by means of sworn statements. (Id. ) Compliance Review Staff conduc ted a follow-up investigation by re-interviewing several hotel managers and employees in mid-July 2005. (Def. Mot. Ex. 24.) Th is investigation was completed on July 29, 2005. (Def. Mot. Ex. 19.) The reinvestigation rev ealed the legal threats plaintiff had made against the hotel manager s hould he cooperate with the CRS investigation. (Def. Mot. Ex. 24; Henwood Dep. at 27:2-15.) In addition, the reinvestigation revealed the opinion of the employees of each of the hotels in question that the receipts submitted by plaintiff for reimbursement were not valid or legitimat e invoices used by the hot els during plaintiff’s alleged stays. ( Id. ) Plaintiff was again denied promotion and ove rseas assignment in October and November of 2005. (Pl.’s Decl. ¶ 27.) Plaintiff remained on a leave-with-pay status at this time. (Compl. ¶ 33.) On April 25, 2006, Henwood issued his decisi on recommending that plaintiff be separated for cause. (Pl.’s Opp. Ex. 19; Pl.’s Decl. ¶ 28.) In reachi ng this decision, Henwood sustained the allegations that plaintiff had: (1) submitted false documents for travel claims; (2) failed to properly remit to USDA a credit issuedby a hotel to his governme nt-issued credit card; (3) failed to report his development and ownershi p of Syrusia Foods as required on his financial disclosure forms from 1998-2002; and (4) provided false information to CRS when questioned10 during an official investigation. (Pl.’s Opp. Ex. 19.) In conc luding that plaintiff should be suspended for cause, Henwood’s April 25, 2006 letter focused particularly on the allegations involving plaintiff’s government -issued charge card. ( Id. ) The next day plaintiff was placed on leave-without-pay. (Pl.’s Dep. at 225:12-18.) On May 4, 2006, USDA notified the Foreign Se rvice Grievance Board (“FSGB”) that it intended to separate plaintiff for cause. (Com pl. ¶ 39; Pl.’s Decl. ¶ 28.) On April 30, 2007, the FSGB issued its initial decision finding that that the USDA presented sufficient cause for plaintiff’s separation. (Compl. ¶ 41.) On May 1, 2007, FAS issued plaintiff Standard Form SF50 noting his termination. (Compl. ¶ 42; Pl.’s Decl. ¶ 29.) On June 6, 2007, the FSGB released its final recommendation recommending plain tiff’s termination. (Compl. ¶ 44.) Plaintiff filed a formal complaint of di scrimination with the USDA on June 11, 2007. USDA issued its final order regarding this co mplaint on October 22, 2007. Plaintiff filed the instant suit on December 6, 2007. Defendant re sponded by moving to dismiss certain counts for untimeliness and failure to exhaust. This Court denied defendant’s motion on June 25, 2008. Hampton v. Schafer , 561 F. Supp. 2d 99 (D.D.C. 2008). Defendant now moves for summary judgment. ANALYSIS I. LEGAL STANDARDS A. Summary Judgment A motion for summary judgment “should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no ge nuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247 (1986). There is a “genuine issue” of material fact if a “r easonable jury could return a verdict for the nonmoving party.”11 Galvin v. Eli Lilly & Co. , 488 F.3d 1026, 1031 (D.C. Cir. 2007) (quoting Anderson , 477 U.S. at 248). A moving party is thus enti tled to summary judgment against “a party who fails to make a showing sufficient to establish the existence of anelement essential to that party’s case, and on which that party will bear the burden of proof at trial.” Waterhouse v. District of Columbia , 298 F.3d 989, 992 (D.C. Cir. 2002) (quoting Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986)). When considering a motion for summary judgme nt, “[t]he evidence of the non-movant is to be believed, and all justifiable infe rences are to be drawn in his favor.” Anderson , 477 U.S. at 255; see also Wash. Post Co. v. U.S. Dep’t of Health and Human Servs ., 865 F.2d 320, 325 (D.C. Cir. 1989). However, the non-moving party “may not rely merely on allegations or denials in its own pleading.” Fed. R. Civ. P. 56(e)(2). “While summary judgment must be approached with special caution in discrimination cas es, a plaintiff is not relieved of her obligation to support her allegations by affidavits or other competent evidence showing that there is a genuine issue for trial.” Calhoun v. Johnson , No. 95-2397, 1998 U.S. Dist. LEXIS 22376, at *3 (D.D.C. Mar. 31, 1998), aff’d No. 99-5126, 1999 U.S. App. LEXIS 25165 (D.C . Cir. Sept. 27, 1999) (internal citation omitted).
B. Discrimination Based on Race Under Title VII, it is an “unlawful employment practice for an employer . . . to discriminate against any individual with resp ect to his compensation, terms, conditions, or privileges of employment, because of such indi vidual’s race [or] color.” 42 U.S.C. § 2000e-2. The “two essential elements” of a discrimination claim under this section are “that (i) plaintiff suffered an adverse employment action (ii) because of the race [or] color” Baloch v. Kempthorne , 550 F.3d 1191, 1196 (D.C. Cir. 2008). “A plai ntiff must prove both elements to sustain a discrimination claim.” Id.12 Under the framework first set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802-05 (1973), plaintiff “must [first] estab lish a prima facie case of discrimination .” Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 142 (2000). A plaint iff establishes a prima facie case of discrimination by showing that “(1) []he is a member of a protected class; (2) []he suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Wiley v. Glassman , 511 F.3d 151, 156 (D.C. Cir. 2007). Once plaintiff makes out a prima facie case, the burden shifts to defendant, who mu st “articulate some legitimate, nondiscriminatory reason” for the adverse action . McDonnell Douglas , 411 U.S. at 802; see Reeves , 530 U.S. at 142. If the defendant satisfies its burden, “the McDonnell Douglas framework — with its presumptions and burdens — disappear[s], and the sole remaining issue [is] discrimination vel

non .” Reeves , 530 U.S. at 142-43 (internal quotations and citations omitted); see also Brady v. Office of Sgt. at Arms , 520 F.3d 490, 494 n.2 (D.C. Cir. 2008) (“In a Title VII disparatetreatment suit where an employee has suffered an adverse employment action and an employer has asserted a legitimate, non-disc riminatory reason for the decisi on, the district court need not — and should not — decide whether the plaintiff actually made out a prima facie case under McDonnell Douglas .”); Baloch , 550 F.3d at 1197 n.2. “[I]n considering an employer’s motion for su mmary 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 reasonabl e jury to find that the employer’s asserted non-discriminatory reason was not the actual reason and that the em ployer intentionally discriminated against the employee on the basis of race, color, religion, sex, or national origin?” Brady , 520 F.3d at 494; Lathram v. Snow , 336 F.3d 1085, 1088 (D.C. Cir. 2003) (to “survive13 summary judgment the plai ntiff must show that a reasonable ju ry could conclude from all of the evidence that the adverse employment decision wa s made for a discriminatory reason.”). The evidence to consider includes (1) the plaintiff’s prima facie case, (2) any evidence the plaintiff presents to attack the employer’s proffered explanation, and (3) any further evidence of discrimination that may be av ailable to the plaintiff. Waterhouse v. Dist. of Columbia , 298 F.3d 989, 992-93 (D.C. Cir. 2002) (citing Aka v. Wash. Hosp. Ctr. , 156 F.3d 1284, 1290 (D.C. Cir. 1998) (en banc)).). However, the plaintiff need not present evidence in ea ch of these categories to avoid summary judgment. Aka , 156 F.3d at 1289. Rather, the court should assess the plaintiff’s challenge to the employer’s explanation “in light of the totality of the circumstances of the case,” keeping in mind that “[i]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.” Reeves , 530 U.S. at 147 (“[O]nce the employer’s justification has been eliminated, discriminati on may well be the most likely alternative explanation, es pecially since the employer is in the best position to put forth the actual reason for its decision.”). A Title VII plaintiff may, however, bypass the McDonnell Douglas framework and rely instead on so-called “direct evidence”—expressi ons by the decision maker that are evidence of discriminatory or retaliatory intent. The existe nce of such evidence in itself defeats the motion for summary judgment and takes the case to the jury. Swierkiewicz v. Sorema N.A. , 534 U.S. 506, 511 (2002) (“The McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination.”) (quoting Trans World Airlines, Inc. v. Thurston , 469 U.S. 111, 121 (1985)); McGill v. Munoz , 203 F.3d 843, 845 (D.C. Cir. 2000) (“A plaintiff may always prove a claim of discrimination [or reta liation] by introducing direct evidence of discriminatory [or retaliatory] intent.”).14 C. Retaliation Under Title VII, it is an “unl awful employment practice for an employer to discriminate against any of his employees or applicants for employment . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated inany manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 20 00e-3(a). The “two essential elements” of a retaliation claim under this section are that plaintiff has “suffe red (1) a materially adverse action (2) because he or she had brought or threat ened to bring a disc rimination claim.” Baloch , 550 F.3d at 1198. The same McDonnell-Douglas burden-shifting framework app lies to claims of retaliation. Gaujacq v. EDF, Inc. , 601 F.3d 565, 577 (D.C. Cir. 2010). Plai ntiff establishes a prima facie case of retaliation by showing “that he engaged in a statutorily protecte d activity; (2) that he suffered a materially adverse action by his em ployer; and (3) that a causal link connects the two.” Jones v. Bernanke , 557 F.3d 670, 677 (D.C. Cir. 2009). Again, once plaintiff makes out a prima facie case, the burden shifts to the employer “to articulate some legitimate, non[retaliatory] reason” for the adverse action. McDonnell Douglas , 411 U.S. at 802 ; see Reeves , 530 U.S. at 142. If the employer satisfies that burden, “the burden-shifting framework disappears, and a court reviewi ng summary judgment looks to whether a reasonable jury could infer retaliation from all the evidence.” Jones , 557 F.3d at 677.
II. PLAINTIFF’S NON-PROMOTION AN D NON-SELECTION FOR FOREIGN ASSIGNMENT (COUNTS ONE, TWO, FIVE AND SIX) Defendant argues that it had a legitimate , non-discriminatory reason for failing to promote plaintiff or select him for a foreign assignment: namely, thatplaintiff engaged in misconduct, which ultimately trigge red an investigation into this misconduct. This investigation15 affected his ability to be promotedand led to the suspension of his security clearance. (Def. Mot. at 23-27.) Plaintiff argues that de fendant’s proffered reasons for its actions are in fact a pretext for discrimination and retaliation. 7 (Pl.’s Opp. at 21-36.) Wi th respect to plaintiff’s nonpromotion, the record supports the legitimate, non -retaliatory nature of defendant's explanation, and plaintiff has failed to demonstr ate that it is pretextual. Plaintiff appears, however, to have raised a material dispute of factregarding his non-selection for foreign assignment, and the Court will, therefore, deny defendant’s motion for summary judgment as to Count Five only. A. Dale Miller’s Alleged Remarks Plaintiff focuses a significant portion of hi s Opposition on his first-line supervisor, Dale Miller, accusing him of having “cons tantly made jokes [about him] as an African American male from the south,” telling plaintiff in 1996 that he “had skill sets th at [he] should not have because if [his] race,” and having told one of plaintiff’ s co-workers in 2002 that plaintiff acted like “he’s a nigger from California instead of a nigger fr om Mississippi.” (Perkins Testimony at 644:19- 20; 673:20-22.) Plaintiff argues that a reasonable factfinder could conclude that USDA’s reasons for taking action against him are pretextual b ecause “each allegation of plaintiff’s misconduct was initiated by Dale Miller.” (Pl.’s Opp. at 22.) Plaintiff’s argument suffers from several fatal flaws. While Miller, plaintiff’s first-line supervisor, officially “initiated” the investigations into his conduct, th e investigations were triggered as a result of other individuals reporting this conduct to Miller. For example, the

7 The Court finds that plaintiff’s prior protected ac tivity as a member of a class action that settled in the 1990s cannot form the basis for a retaliation claim. At least four years had elapsed between plaintiff’s prior activity and the allegatio ns against him in this case, and plaintiff has offered no additional evidence suggesting a causal relationship between the two. See, e.g. , Taylor v. Solis , 571 F.3d 1313, 1322 (D.C. Cir. 2009) (two-a nd-a-half month lapse between prior protected activity and allegedly materially advers e action insufficient to show a relation between the two); Brown v. Mills , 674 F. Supp. 2d 182, 193 (four-year delay between EEO claims and adverse action did not suggest causation).16 investigation into plaintiff’ s hotel reimbursement requests was triggered when Christine Lipscomb noted handwritten changes to plaintif f’s hotel bills and concluded that plaintiff’s receipts had been altered in some fashion. (M iller Dep. at 176:21-179:21.) Presented with this evidence, Miller asked CRS to open an investigation. ( Id. ) Plaintiff has put forward no evidence suggesting that Ms. Lipscomb, a new employee at the time, bore any discriminatory animus toward him. Indeed, the two have never met. (Pl.’s Dep. at 249:14-17.) And no reasonable jury could conclude that Miller’s de cision to at least investigate such serious charges of wrongdoing was so unreasonable as to itself suggest pretext for discrimination. Rather, plaintiff argues that Miller’s racially-tinged remarks—the most recent of which allegedly occurred more than a year before, outside plaintiff’s presence, and had no relation to any allege d misconduct by plaintiff— automatically taint any and all actions taken by Mill er from that date forward. This is not the law. “‘[S]tray remarks,’ even those made by a supervisor, are insufficient to create a triable issue of discrimination where, as here, they are unrelated to an employment decision involving the plaintiff.” Simms v. United States GPO , 87 F. Supp. 2d 7, 9 (D.D.C. 2000). See also Sewell v. Chao , 532 F. Supp. 2d 126, 139 (D.D.C. 2008), aff’d sub nom

. Sewell v. Hugler , 2009 U.S. App. LEXIS 4136 (D.C. Cir., Feb. 25, 2009) (quoting Ayala-Gerena v. Bristol Myers-Squibb
Co. , 95 F.3d 86, 96 (1st Cir. 1996) (“Stray remarks in the workplace, particularly those made by nondecisionmakers or statements made by decisi onmakers unrelated to the decisional process itself,” do not constitute evidence of discrimination.).
B. Merits of Underlying Allegations Plaintiff argues that defendant’s articulated legitimate reas ons for not promoting him or selecting him for foreign assignment are pretex tual because “the Agency’s allegations of misconduct are without merit.” (Pl.’s Opp. at 23.) Plaintiff expends consid erable effort arguing, variously, that: he did no t violate USDA policies ( id. at 24), he had legitimate reasons for failing17 to disclose his employer on his grant application ( id. ), he has repeatedly denied submitting inaccurate hotel receipts ( id. at 25), the investigation into hi s hotel receipts was insufficiently “persuasive” and therefore defendant failed to “prove” that the receipts were falsified ( id. at 26). Each and every one of these cha llenges must fail. “[W]hether [plaintiff’s] supervisors were ultimately correct in their belief that plaintiff wa s violating the policies is totally irrelevant.” Velikonja v. Gonzales , 501 F. Supp. 2d 65, 75 (D.D.C. 2007), aff’d sub nom. Velikonja v. Mukasey , 2008 U.S. App. LEXIS 22465 (D.C. Cir., Oct. 27, 2008). “Once the employer has articulated a non-discriminatory reason for its ac tion, . . . the issue is not the correctness or desirability of the reasons offered, but whether the employer honestly believes in the reasons it offers.” Fischbach v. D.C. Dep’t of Corrs. , 86 F.3d 1180, 1183 (D.C. Cir. 1996) (internal quotation marks, modifications, and ellipses omitted); Brady , 520 F.3d at 496 (“The question is not whether the underlying . . . incident occurre d; rather, the issue is whether the employer honestly and reasonably believed that the underlying . . . incident occurred.” (emphasis in original)). C. “Neutral Bodies” Determination of Underlying Merits Plaintiff additionally argues that defendant’s investigation lacked merit because “several neutral bodies had determined that [his] conduct did not warrant further investigation” (Pl.’s Opp. at 24), thereby bolstering an inference of pretext. These claims do not withstand scrutiny. Plaintiff argues that in January 2004, the Offi ce of the Inspector General (“OIG”) and the Department of Justice (“DOJ”) concluded that the USDA grant matter was not “appropriate for prosecution under conflict of interest statutes.” ( Id . Ex 8.) Similarly, plaintiff notes that OIG and DOJ also declined to pros ecute plaintiff for the travel-re lated allegations as well. ( Id. at 25.) The fact that OIG and DOJ declined to bring criminalcharges against plaintiff, however, has no bearing on the underlying merits of the charges th emselves, particularly when coupled with the18 testimony of Robert Huttenlocker (the USDA Director of Investigative and Enforcement Services) that OIG and DOJ declined to prosecu te because the amount at issue “was not of sufficient magnitude to warrant prosecution.” 8 (Robert Huttenlocker Deposition [“Huttenlocker Dep.”] at 109:16-22.)
D. Alleged Procedural Defects in Suspensio n of Plaintiff’s Security Clearance Plaintiff claims that USDA failed to follow its own policies when it held his security clearance in abeyance pending comple tion of the investigation into his conduct. (Pl.’s Opp. at 28-29.) The record is to the contrary. In s upport of his position, plain tiff cites section 4429 of volume three of the U.S. State Department’s Fo reign Affair’s Manual, which provides, “The agency will use its best endeavor s to expedite security clearanc e procedures whenever necessary to assure a fair and prompt resolution of a grie vance.” Plaintiff does not allege how defendant’s procedures regarding his security clearance viol ate this provision, and it is the uncontroverted testimony of Martin Brumback, the Chief of th e Personnel and Document Security Division and the official in charge of USDA security clearances, that it is his normal practice to suspend the determination of eligibility for a security cleara nce in cases where allegations have been made against an employee that would have a bearing on that determination. (Brumback Dep. at 26:12- 28:15.) Defendant’s ac tions were therefore consistent with its standard practice and therefore do demonstrate pretext.
E. Lyle Sebranek’s Statement to Sheila Bruce Plaintiff alleges that he wa s denied a foreign assignment because of his EEO complaint filed in June 2004, notwithstanding the ongoing inves tigation into his conduc t and the suspension of his security clearance the very day plaintiff filed his complain t. (Pl.’s Opp. at 16-17; Pl.’s

8 Defendant cites portions of Maxwell’s depos ition supporting Huttenloc ker’s recollection of events (Def. Reply at 3), but failed to submit this testimony to the Court.19 Decl. ¶ 19.) Plaintiff offers dire ct evidence in support of this claim: namely, a sworn affidavit by Sheila Bruce, a Personnel Management Special ist in Human Resources, stating that she was informed by FAS Deputy Administrator Lyle Sebran ek that plaintiff was not being sent overseas in November 2004 because of his EEO complaint. (Pl.’s Opp. Ex. 15 at 2-3.) While Sebranek denies making this statement (Sebranek Dep. at 55:16-60:12), Bruce’s statement creates a genuine issue of material fact as to the issue of direct evidence of retali ation against plaintiff for his June 2004 EEO activity. See Swierkiewicz , 534 U.S. at 511 (“The McDonnell Douglas test is inapplicable where the plaintiff presents di rect evidence of disc rimination.”) (quoting Trans World Airlines , 469 U.S. at 121). Even such direct evidence of retaliation, however, could be negated at the summary judgment stage if defendant were able to dem onstrate that it would have reached the same decision absent the prohibited discrimination. See Beckford v. Geithner , 661 F. Supp. 2d 17, 25 (D.D.C. 2009) (suggestion that re taliation was merely “among” the factors motivating adverse action is insufficient as a matter of law to defeat summary judgment); Pennington v. City of Huntsville , 261 F.3d 1262 (11th Cir. 2001) (“mixed-mo tive” theory not available to prove retaliation claim under Title VII); Speedy v. Rexnord Corp. , 243 F.3d 397 (7th Cir. 2001) (same); Matima v. Celli , 228 F.3d 68 (2d Cir. 2000) (same); Norbeck v. Basin Elec. Power Coop. , 215 F.3d 848 (8th Cir. 2000) (same); Kubicko v. Ogden Logistics Servs. , 181 F.3d 544 (4th Cir. 1999) (same); Woodson v. Scott Paper Co. , 109 F.3d 913 (3d Cir. 1997) (same); Tanca v. Nordberg , 98 F.3d 680 (1st Cir. 1996) (same). Here, the burden shifts to USDA to prove that it would have denied plaintiff’s request for an overseas assignment regardless of any allegedly retaliatory animus.20 Defendant argues that as a result of the CRS investigation into allegations of misconduct, plaintiff’s security clearance was suspended in June 2004, pending reso lution of the misconduct charges. (Pl. Opp. Ex. 12; Brumback Dep. at 28: 9-29:1.) Brumback testified at his deposition that this suspension was his normal practice wh ere allegations have been made that would adversely reflect on a person’s elig ibility to hold a national securi ty clearance. (Brumback Dep. at 17:18-18:3.) Defendant’s position is that it s suspension of plaintiff’s security clearance precluded FAS from assigning him abroad. (Def. Mo t. at 17, 24; Def. Statement of Undisputed Facts ¶ 33.) Defendant’s sole evidence in s upport of this position is an excerpt of Lyle Sebranek’s deposition 9 : Q. Were there ever any instances where someone was perhaps considered ineligible for assignm ent at the time that you all met? A. Yes. Q. What kind of instance s would those have been? A. Would have lost their security clearance. (Sebranek Dep. at 23:11-18.) In the absence of so mething more (i.e., a regulation or rule), this exchange is insufficient to establish the existence of a per se rule precluding plaintiff’s assignment overseas. Furthermore, Brumback hi mself testified later in his deposition that various agencies within USDA had differentpolicies for dealing with employees whose clearances had been suspended, including “detail[i ng] them to other positi ons that don’t require a

9 Defendant initially cited the deposition of Martin Brumback (Def. Mot. at 17, 24; Def. Statement of Undisputed Facts ¶ 33), but, after receivi ng notification by the C ourt of its error, it notified the Court and counsel that it had actually intended to c ite to the deposition transcript of Lyle Sebranek. (Dkt. #36.)21 clearance.” 10 (Brumback Dep. at 29:2-12.) The Court is therefore leftwithout sufficient evidence to support what would otherwise be a persuasive argument th at the suspension of plaintiff’s security clearance would have prec luded an overseas assignment regardless of his EEO complaint. Given this record, the Court has no choice but to deny defendant’s motion for summary judgment as to Count Five.

III. PLAINTIFF’S LEAVE-WITHOUT-PAY STATUS AND TERMINATION (COUNTS TWO, THREE, NINE, AND TEN) Defendant again argues that plaintiff’s misconduct motivated its decision to place him on leave-without-pay and ultimately to terminate h im for cause. (Def. Mot. at 23-27.) Plaintiff likewise argues that defendant’s proffered legiti mate reasons for its actions are a pretext for discrimination and retaliation. (Pl.’s Opp. at 21- 36.) With respect to plaintiff’s placement on leave-without-pay and his ultimate terminati on, the record amply supports the legitimate, nonretaliatory nature of defendant's explanation, and plaintiff has failed to re but this explanation. The Court will therefor e grant defendant’s motion for summary judgment as to Counts Two, Three, Nine, and Ten. A. Dale Miller As previously argued, plaintiff contends thata reasonable factfinder could conclude that USDA’s reasons for placing him on leave-without-pay and terminati ng his employment are pretextual due to Dale Miller’s involvement in in itiating the investigations against him. (Pl.’s Opp. at 29, 31-32.) Specifically, plaintiff assert s that because Henwood did not sustain two of the six charges against him, “a reasonable fact-f inder would almost have to conclude that the allegation[s] w[ere] pretext for discrimination and retaliation. (Pl.’s Opp. at 30-31.) Because

10 It is unclear from Brumback’s deposition tr anscript whether any foreign assignments are among the “other positions that don’t require a clearance.”22 these two charges were not sustained, howev er, they did not formally support Henwood’s decision to place plaintiff on leave-without-pay or his decision to ultimately terminate him for cause. (Def. Mot. Ex. 19.) Moreover, plaintiff’s i nvocation of Miller is irrelevant to the issue of plaintiff’s leave-without-pay status and te rmination, because Henwood—not Miller—was the deciding official. See Hall v. Giant Food, Inc. , 175 F.3d 1074 (D.C. Cir. 1999) (supervisor’s discriminatory remarks cannot be considered as evidence of discrimination where decision to dismiss the employee was made not by the supervis or, but a different indi vidual or department who “made an independent assessm ent” of challenged conduct); accord Holbrook v. Reno , 196 F.3d 255, 260-261 (D.C. Cir. 1999). And although pl aintiff has claimed that Henwood’s actions were likewise motivated by discriminatory animus, ( see, e.g. , Pl’s Opp. at 9; Pl’s Dep. at 212:8- 1), he has put forward no evidence what soever to support this allegation.
B. Merits of Underlying Allegations Plaintiff also rehashes his arguments regard ing the merits of the underlying allegations against him by arguing that his fail ure to reconcile his travel vouc hers was an honest mistake. (Pl.’s Opp. at 30.) Henwood, however, concluded to the contrary, noting that he found plaintiff’s explanation “less than credulous” inlight of the evidence. (Def. Mot. Ex. 19 at 3.) Plaintiff may not re-litigate the underlying misconduct charges agains t him in this fashion: the only question is whether Henwood honestly and reasonably believedthe reasons he gave for his decision, not whether this decision was ultimately correct. Brady , 520 F.3d at 496. C. Procedural Flaws Finally, plaintiff cites a number of minor procedural flaws regarding his termination. (Pl.’s Opp. at 33-35.) Specificall y, plaintiff complains that the wrong official’s name appeared on the form notifying him that he would be terminat ed, that this form was issued after the initial decision by the Foreign Service Grievance Board instead of one month later after the final23 decision by the Board, and that he has not receiv ed a “decision in writing” informing him of what he already knew: that USDA had terminated him as a result of the FSGB’s decision. ( Id. ) While “a plaintiff can . . . discredit the empl oyer’s [stated] reason [for adverse action] by,” inter alia , “pointing to the employer's failure to fo llow established proce dures or criteria,” Houston v. SecTek, Inc. , 680 F. Supp. 2d 215, 221 (D.D.C. 2010) (i nternal citation and quotation marks omitted), “to show pretext, a plaintiff ‘must s how both that the reason was false, and that discrimination . . . was the real reason.’” Id. (quoting Weber v. Battista , 494 F.3d 179, 186 (D.C. Cir. 2007) (internal citation omitte d). The “procedural errors” cited by plaintiff are immaterial, occurred after Henwood’s final decision to termin ate plaintiff, and are simply” not enough from which to reasonably infer that [USDA’s] true motivation for [its] treatment of [plaintiff] was racially discriminatory.” Id.Plaintiff’s alleged “procedural errors” committed by USDA when it placed him on leavewithout-pay are frivolous. Pl aintiff claims that 3 FAM 4364.3( d) required his first-line supervisor, Miller, to place plai ntiff on leave-without-pay, where in fact plaintiff was placed on this status by Henwood, his second -line supervisor. In fact, this provision of the Foreign Affairs Manual states that where, as here, the first-line supervisor’s decision is to recommend that an employee be separated for cause, an employee sh ould be placed on leave without pay status at that time , pending final decision. In other words, US DA’s deviation from the FAM resulted in plaintiff being placed on leave with pay status for over a year wh en he should have been placed on leave-without-pay. Needless to say, such a “deviation” hardly supports any inference of pretext.24 IV. HOSTILE WORK ENVIRONMENT (COUNTS SEVEN AND EIGHT) Plaintiff argues that the investigations in to his conduct were not only pretexts for defendant’s direct discrimination and retaliation against him, but se parately constituted a hostile work environment. (Pl.’s Opp. at 36-39.) To establish a claim of a hostile work envi ronment, “plaintiff must show that his employer subjected him to ‘discriminatory intimidation, ridicule, and insult’ that is ‘sufficiently severe or pervasive to alter th e conditions of the victim’s employment and create an abusive working environment.’” Baloch , 550 F.3d at 1201 (quoting Harris v. Forklift Sys. , 510 U.S. 17, 21 (1993) (internal citation omitted)); accord Pantazes v. Jackson , 366 F. Supp. 2d 57, 71 (D.D.C. 2005) (quoting Harris ). To determine whether a hostile work environment exists, courts should consider “the totality of the circumstances , including the frequency of the discriminatory conduct, its severity, its offensiveness, and wh ether it interferes with an employee’s work performance.” Baloch , 550 F.3d at 1201. Plaintiff cannot sati sfy this test, because none of the acts that he alleges, whether considered alone or cumulatively, meets “the demanding standards” for a hostile work environment claim. Sewell , 532 F. Supp. 2d at 141-42. Plaintiff complains that Miller’s jokes about plaintiff’s race, his 1996 comment that plaintiff “had skill sets that [he] should not havebecause if [his] race,” and his having told one of plaintiff’s co-workers in 2002 that plaintiff had acted like “he’s a nigger from California instead of a nigger from Mississi ppi” are sufficiently severe to constitute a hostile work environment. (Pl.’s Opp. at 37; Perkins Testimony at 644:19-20; 673:20-22.) Even when abusive behavior is “‘motivated by discriminatory animus,’” it may not be actionable, especially where, as here, much of the conduct occurred many years earlier. Stewart v. Evans , 275 F.3d 1126, 1133 (D.C. Cir. 2002) (quoting Barbour v. Browner , 181 F.3d 1342, 1347 (D.C. Cir. 1999). The conduct complained of “must be extreme to amount to a cha nge in the terms and25 conditions of employment.” Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998) (emphasis added). This standa rd is designed to be “suffici ently demanding” so that antidiscrimination statutes do not become “‘general civility code[s].’” Id. (quoting Oncale v. Sundowner Offshore Servs. , 523 U.S. 75, 80 (1998). See also Vickers v. Powell , 493 F.3d 186, 198-201 (D.C. Cir. 2007) (noting that district co urt correctly conclude d that a hostile work environment was not created solely by three inci dents that involved being “singled out for a requirement to provide inordinate amounts of medical information to support requests for leave,” poor performance evaluations, supervisor’s “angr y threats,” and derogatory comments about minorities). In short, the acts that plainti ff complains about are simply notthe type of “discriminatory intimidation, ridicule, and insult’ that are ‘suffici ently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.’” Baloch , 550 F.3d at 1201 (quoting Harris , 510 U.S. at 21). This is particularly true where, as here, Mill er’s alleged use of a racial slur was not made in plaintiff’s pres ence, but rather was relayed to him by another employee. See Manson v. General Motors Corp. , 66 Fed. Appx. 28, 33 (7th Cir. 2003) (unpublished) (“[A]lthough [plaintiff] claimed th at another co-worker had told him that derogatory language had been used in refere nce to him, such thir d-hand allegations are insufficient to create a ho stile work environment.”); Black v. Zaring Homes, Inc. , 104 F.3d 822, 826 (6th Cir. 1997) (the fact thatcomments were not directed at plaintiff herself contributed to conclusion that they were merely "offens ive" rather than objectively hostile). The remainder of plaintiff’s hostile work environment claims merely restates his underlying discrimination and retali ation claims, alleging a hostil e work environment resulted from defendant’s “continual investigations” into plaintiff’s misconduct. (Pl.’s Opp. at 38.)26 Plaintiff cannot, however, rely on the discrete acts upon which he bases his discrimination and retaliation claims to suppor t a hostile work enviro nment claim. “Because plaintiff’s allegedly ‘hostile’ events ‘are the very employment actions he claims are retaliatory[,] he cannot so easily bootstrap alleged retaliatory incidents into a broader hostile work environment claim.’” Franklin
v. Potter , 600 F. Supp. 2d 38, 76 (D.D.C. 2009) (quoting Keeley v. Small , 391 F. Supp. 2d 30, 51 (D.D.C. 2005)); accord Smith v. Jackson , 539 F. Supp. 2d 116, 138 (D.D.C. 2008) (“[I]nsofar as Plaintiff attempts to base his hostile wo rk environment claim on his [compressed work schedule] revocation and AWOL charge, he cannot simply re gurgitate his disparate treatment claims in an effort to flesh out a hostile wo rk environment claim.”). “Cobbling together a number of distinct, disparate acts will not create a hostile work environmen t, because ‘[d]iscrete acts constituting discrimination or retaliation claims . . . are different in kind from a hostile work environment claim . . . .’” Franklin , 600 F. Supp. 2d at 77 (quoting Lester v. Natsios , 290 F. Supp. 2d 11, 33 (D.D.C. 2003)); accord Wada v. Tomlinson , 517 F. Supp. 2d 148, 211 (D.D.C. 2007), aff’d , 296 F. App’x 77 (D.C. Cir. 2008). “‘[T]he dangers of allowing standard disparate treatment claims to be converted into a cont emporaneous hostile work environment claim are apparent. Such an action would significantly blur the distinctions between both the elements that underpin each cause of action and the kinds of harm each cause of action was designed to address.’” Rattigan v. Gonzales , 503 F. Supp. 2d 56, 82 (D.D.C. 2007) (quoting Parker v. State Dep’t of Pub. Safety , 11 F. Supp. 2d 467, 475 (D. Del. 1998)). The Court will therefore gran t defendant’s motion for summary judgment as to Counts Seven and Eight.27 CONCLUSION For the foregoing reasons, the Court grants defendant’s motion for summary judgment as to Counts One through Four and Six through Ten and denies defendant’s motion for summary judgment as to Count Five. A separate order accompanies this Memorandum Opinion.

/s/ ELLEN SEGAL HUVELLE United States District Judge Date: January 13, 2011