1 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

__________________________________________ 

) 

OMAR N. BEYAH, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) Civil Action No. 07-109 (ESH) 

 ) 

GENE L. DODARO, ) 

Acting Comptroller General, ) 

U.S. Government Accountability Office, ) 

 ) 

Defendant. ) 

__________________________________________)

MEMORANDUM OPINION

Plaintiff Omar N. Beyah is an African-American male who was previously employed by 

the United States General Accounting Office (“GAO” or “the agency”). He claims that his 

employer discriminated against him on the basis of his race and gender and retaliated against him 

for opposing that discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e et seq. (“Title VII”). Having considered defendant’s motion for summary 

judgment, the record herein, and for the reasons set forth below, the Court will grant the motion.

BACKGROUND

Since approximately 1988, plaintiff worked for the U.S. General Services Administration 

as an architect and a program manager. (See Pl.’s Opp’n to Def.’s Mot. for Summ. J. (“Opp’n”), 

Decl. of Omar N. Beyah (“Beyah Decl.”) ¶ 2.) In April 2003, while attending a Senior Executive 

Fellows program at Harvard University, plaintiff met Mark Goldstein, a director in GAO’s 

Physical Infrastructure (“PI”) team. (See Opp’n, Statement of Genuine Issues and Affirmative 

Statement of Material Facts (“Pl.’s SMF”) at 1-2 ¶ 3.) Goldstein actively recruited plaintiff to 

apply for a position with GAO, and in June, Goldstein met with plaintiff to discuss an 
2 

employment opportunity as a GAO analyst working on PI issues. (See id. at 2 ¶¶ 4-5.) Goldstein 

informed plaintiff about the GAO website’s description of the position, gave him the website 

address for the online application, and encouraged him to apply. (Id. at 2 ¶ 6; Opp’n, 

Attachment 29 (Beyah Dep., Apr. 11, 2008) (“Beyah Dep.”1

) at 49:11-14). Thereafter, plaintiff 

applied for the position, which was at the “Band II” level. (Pl.’s SMF at 2 ¶ 7.) GAO classifies 

employees in one of three “bands” (Bands I, II, and III) instead of using the General Schedule 

(“GS”) pay system; during the relevant period, the pay range for employees at the Band II level 

was approximately equivalent to the salary range covered by the GS-13 and GS-14 grades. 

(Def.’s Mot. for Summ. J. (“Mot.”), Ex. 3 (Decl. of Margaret Braley) (“Braley Decl.”) ¶ 2.) 

Around July 2003, plaintiff interviewed with Goldstein and Terrell Dorn, then an 

assistant director in PI, among other GAO officials. (Pl.’s SMF at 2 ¶ 8.) After interviewing 

plaintiff and other applicants, Goldstein and Dorn decided that plaintiff was the best candidate 

for the Band II “senior analyst” position. (Def.’s SMF ¶ 9.)2

 Consequently, Goldstein and Dorn 

recommended to Mike Gryszkowiec, PI’s managing director, that plaintiff be hired, and plaintiff 

thereafter accepted an offer to join GAO as a Band II Senior Analyst. (Pl.’s SMF at 2-3 ¶¶ 9-

10.) Consistent with GAO regulations at the time, plaintiff was informed on July 23 that he 

 1

 Defendant also submitted excerpts from this deposition as Exhibit 5 to his motion. 

2

 Plaintiff denies that the position was a Band II position (see Pl.’s SMF at 2 ¶ 9), but this 

denial does not comply with Local Civil Rule 7 because it is not supported with a citation to 

record evidence. See Local Civ. R. 7(h) (“An opposition to [a motion for summary judgment] 

shall be accompanied by a separate concise statement of genuine issues setting forth all material 

facts as to which it is contended there exists a genuine issue necessary to be litigated, which shall 

include references to the parts of the record relied on to support the statement.” (emphasis 

added)). As such, plaintiff has not raised any genuine issue with respect to this factual assertion 

by defendant. See Adesalu v. Copps, 606 F. Supp. 2d 97, 103 & n.4 (D.D.C. 2009) (Friedman, 

J.) (declining, in Title VII case, to recognize plaintiff’s denial of defendant’s asserted material 

fact where he failed to comply with Rule 7(h)(1)’s requirement that denials must be supported by 

citation to record evidence). 
3 

would be serving a one-year probationary period. (See id. at 3 ¶¶ 11-12.) 

Plaintiff’s effective start date at GAO was September 21, 2003. (Opp’n, Ex. 1 

(Notification of Personnel Action) at 1.) Dorn served both as plaintiff’s supervisor and his 

Designated Performance Manager (“DPM”), and thus was responsible for monitoring and 

assessing plaintiff’s performance. (Pl.’s SMF at 4 ¶ 18.) Dorn reported to Goldstein, who in 

turn reported to Gryszkowiec. (Id. at 4 ¶ 19.) After plaintiff had completed orientation and 

initial training, Dorn and Goldstein assigned Maria Edelstein, a Band II Senior Analyst on the PI 

team who had been with GAO for approximately 15 years, to be plaintiff’s day-to-day 

supervisor. (See Def.’s SMF ¶ 17; see also Pl.’s SMF at 3-4 ¶ 17.)3

 Plaintiff was told to report 

directly to Edelstein, with whom he worked on “most of” his projects. (Beyah Dep. 115:11-13, 

115:23-116:16.) 

Plaintiff’s first assignment was an internal PI engagement for which he was tasked with 

developing a GAO guidance document regarding the design process (“the Guide”). (See Pl.’s 

SMF at 4-5 ¶ 22; Beyah Dep. at 105; Mot., Ex. 18 (Pl.’s Resps. To Def.’s 1st Interrogs.) at 41.) 

On this engagement, Edelstein was the analyst-in-charge and Dorn was the assistant director. 

(Mot., Ex. 18 at 41.) From October 2003 to February 2004, plaintiff prepared multiple drafts of 

sections of the Guide. (Pl.’s SMF at 5 ¶ 24.) Although the Guide initially focused on the design 

 3

 Although plaintiff denies that Edelstein was his supervisor and cites to his 2009 

declaration as support (see Pl.’s SMF at 3-4 ¶ 17), this denial is expressly contradicted by his 

2008 deposition testimony, which was cited in defendant’s statement of facts. (See Beyah Dep. 

at 115:4-6 (Q: “[W]ould you say that Ms. Edelstein had been your supervisor since day one, 

since when you started?” A: “Yes.”).) “Plaintiff cannot contradict clear answers to unambiguous 

questions given at deposition for the purpose of creating disputed factual issues and thereby 

avoid summary judgment.” See Hendricks v. Paulson, 520 F. Supp. 2d 65, 79 n.17 (D.D.C. 

2007), aff’d sub nom. Hendricks v. Geithner, 568 F.3d 1008 (D.C. Cir. 2009); see also Reetz v. 

Jackson, 176 F.R.D. 412, 414 (D.D.C. 1997) (“‘[A] party’s affidavit which contradicts [her] own 

prior deposition testimony should be disregarded on a motion for summary judgment.’” (quoting 

Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987)).
4 

phase, by January 2004 the focus had shifted to conceptual planning. (Beyah Dep. at 105:3-6.) 

Plaintiff received negative comments on his sentence structure and use of industry terms and 

references, and he was specifically criticized for not connecting the design phase to the 

construction process. (Pl.’s SMF at 5 ¶ 24.) After the Guide was finalized, plaintiff was also 

tasked with “indexing” its contents, a process by which GAO verifies and documents that all 

information contained in a GAO product is supported by source material. (Id. at 5 ¶ 25.) 

Following his first indexing attempt, plaintiff received comments from the index reviewer that 

the index was not consistent with GAO’s indexing rules. (Mot., Ex. 21 (Pl.’s Resps. To Def.’s 

2nd Interrogs.) at 4.) Edelstein subsequently criticized plaintiff’s work and required him to reindex the entire document. (Id. at 4-5.) 

In February 2004, plaintiff was assigned to work on an engagement involving PI issues at 

the John F. Kennedy Center for the Performing Arts (“Kennedy Center”). (Pl.’s SMF at 5-6 ¶ 

27.) Plaintiff’s principal role was to develop an estimate of operations and management 

(“O&M”) costs and draft a section for the report on this issue. (Id. at 6 ¶ 28.) Edelstein was the 

project’s analyst-in-charge. (Beyah Dep. at 117:9-15.) In March, Susan Fleming joined the 

project as the assistant director; she served as plaintiff’s second-level supervisor, setting 

objectives and deadlines, and reported to the project’s director, who was Goldstein until Peter 

Guerrero took over in April. (See Beyah Dep. at 143-45; Mot., Ex. 19 (Fleming EEO Aff., May 

16, 2005) (“Fleming Aff.”) ¶¶ 2-3, 6.) That same month, plaintiff was involved in a dispute with 

a GAO librarian. (See Def.’s SMF ¶ 47.)4

 At another point during plaintiff’s time with GAO, a 

U.S. State Department official called and complained to John Brummet, an assistant director on 

 4

 Plaintiff appears to deny the fact of an argument (see Pl.’s SMF at 9 ¶ 47), but his 

declaration confirms that he had an interaction with the librarian where she supposedly was 

“rude,” “hostile,” and “disrespectful,” and which involved a “miscommunication” for which she 

faulted plaintiff. (Beyah Decl. ¶ 50.)
5 

GAO’s International Affairs and Trade (“IAT”) team, about plaintiff’s confrontational conduct 

while attending a meeting with IAT and State Department officials. (Id. at 9 ¶ 46; see also 

Opp’n, Ex. 8 (Brummet EEO Aff., May 10, 2005) (“Brummet Aff.”) ¶ 3.) 

On April 7, 2004, Fleming and Edelstein met with plaintiff to discuss the expectations for 

his performance on the Kennedy Center engagement. (See Pl.’s SMF at 11 ¶ 56.) During the 

meeting, when Fleming learned that plaintiff was working on seven projects, she “cautioned 

[him] about working on too many jobs,” and they discussed that he had to “be careful to manage 

them to meet job expectations for the Kennedy Center.” (Mot., Ex. 53 (Apr. 7, 2004 Beyah 

mem.) at 1-2.) Following the meeting, plaintiff gave Fleming a memorandum containing his 

minutes of that meeting. (See id.; Pl.’s SMF at 11 ¶ 56.) At plaintiff’s request, he and Fleming 

met again that same day to discuss why expectations were being set for his work. (Pl.’s SMF at 

11 ¶ 56.) On April 16, plaintiff emailed Fleming a memorandum of minutes from that second 

April 7 meeting. (Id. at 12 ¶ 57; see Mot., Ex. 54 (Apr. 16, 2004 Beyah mem. & cover letter).) 

The email explained that plaintiff intended to put in writing “matters that could impact personnel 

actions with or against” him, specifically disagreements involving “observation[s] of behavior” 

that would “impact[] [his] decision making” or his “ability to do work in a supporting 

environment.” (Mot., Ex. 54 at 1.) 

That same month, plaintiff met with Kennedy Center officials on at least two occasions. 

(See Mot., Ex. 17 (Edelstein EEO Aff., May 12, 2005) (“Edelstein Aff.”) ¶ 5.) During one 

meeting, plaintiff asked an official whether the Center might be “wasting money in those 

instances when it does not know what it is spending money on.” (Beyah Decl. ¶ 55.) Fleming 

concluded that the officials were offended because plaintiff inappropriately “informed them that 

they were not following industry standards and best practices and most likely wasting money.” 
6 

(Fleming Aff. ¶ 6.) Edelstein similarly felt that plaintiff made inappropriate recommendations 

and requests that upset the officials. (See Edelstein Aff. ¶ 5.) Fleming and Edelstein told Dorn 

and Goldstein about these concerns and what they perceived to be plaintiff’s defensiveness when 

receiving feedback and his inability “to complete basic paperwork without supervision.” (Mot., 

Ex. 27 (“Dorn DPM Notes”) at 1; see also Fleming Aff. ¶ 6; Edelstein Aff. ¶ 5.) 

On June 9, 2004, Edelstein circulated to the Kennedy Center PI team a timetable for 

completing their work on the report, including a June 18, 2004 deadline for first drafts of each 

section. (Pl.’s SMF at 6 ¶ 31.) On Friday afternoon of June 18, plaintiff emailed Edelstein and 

Fleming what he described to be “[a] working draft of sec. 3,” which was a three-page outline. 

(See id. at 6 ¶¶ 32-33; Mot., Ex. 30 (June 18, 2004 draft) at 2-4.) On June 22, plaintiff submitted 

to Edelstein his first revised draft section, which did not contain any O&M cost estimates for the 

proposed Kennedy Center buildings. (Pl.’s SMF at 7 ¶ 34; see Mot., Ex. 33 (June 22, 2004 draft) 

at 14 (estimating O&M costs “to be approximately $X million in 2012”).) When reviewing this 

first revised draft, Edelstein commented that plaintiff needed to better explain and “set up” his 

substantive discussions. (Pl.’s SMF at 7 ¶ 35.) In a June 30 meeting with Dorn and Edelstein, 

plaintiff gave an oral presentation of his section of the report, after which Dorn concluded that 

plaintiff’s work was “unacceptable and could not be supported” because he lacked “backup for 

his work,” used “flawed” methodology, and could not “explain what is behind the numbers he 

[was] using.” (Dorn DPM Notes at 1; see also Pl.’s SMF at 7-8 ¶¶ 36-38.) 

On July 1, 2004, plaintiff gave Edelstein another draft of his section of the report, which 

he titled his “second revised draft.” (Pl.’s SMF at 8 ¶ 39.) This draft did include an O&M cost 

estimate. (See Mot., Ex. 35 (July 1, 2004 draft) at 2 (estimating $4-5 million in O&M costs).)

Edelstein provided substantive comments on this draft. (Pl.’s SMF at 8 ¶ 40.) Dorn also 
7 

requested that plaintiff adjust his O&M calculations to reflect the higher costs associated with the 

Washington, D.C. area. (Id. at 8 ¶ 41; see Beyah Decl. ¶¶ 37-39; Opp’n at 13-14.) On July 5, 

plaintiff submitted another draft that contained the locality-adjusted O&M numbers. (Pl.’s SMF 

at 8 ¶ 41; see Mot., Ex. 37 (July 5, 2004 draft) at 1 (estimating $6-8 million in O&M costs).) In 

his cover email for this third revised draft, plaintiff stated: “I am optimistic that out of the many 

tries to nail down the potential costs in current dollars I think we might have something worth 

your review and consideration.” (Pl.’s SMF at 8 ¶ 41.) Dorn and Fleming then made substantive 

comments on the July 5 draft. (Id. at 8 ¶ 42.) Thereafter, Fleming asked Ron Stouffer, an 

experienced PI employee who was not part of the Kennedy Center engagement team, to meet 

with plaintiff to try to assist him in writing his portion of the report. (See id. at 8-9 ¶ 43; see also 

Beyah Decl. ¶ 45.) On July 7, Dorn met again with plaintiff and discussed plaintiff’s work on 

the Kennedy Center report. (See Pl.’s SMF at 9 ¶ 44.) 

On July 15, 2004, Gryszkowiec conducted a meeting with Dorn, Fleming, Edelstein, 

Guerrero, and Goldstein, to discuss what they perceived to be plaintiff’s performance and 

interpersonal problems. (Def.’s SMF ¶ 49; see also Mot., Ex. 44 (“Gryszkowiec Meeting 

Notes”) at 2.)5

 As PI’s managing director, Gryszkowiec was ultimately responsible for deciding 

whether to recommend the termination of PI employees to GAO’s Human Capital Office. (Pl.’s 

SMF at 9-10 ¶ 48.) GAO regulations at the time stated that a probationary employee should be 

separated from GAO “whenever the employee’s work performance or conduct fails to 

demonstrate the fitness or qualifications for continued GAO employment.” (Id. at 11 ¶ 54.) At 

 5

 Plaintiff denies that his interpersonal problems were discussed at the meeting (see Pl.’s 

SMF at 10 ¶ 49), but the denial is not supported by his citation to the portion of Gryszkowiec’s 

deposition wherein Gryszkowiec states he does not recall whether plaintiff’s interpersonal issues 

were specifically raised. (See Mot., Ex. 43 (Gryszkowiec Dep., Sept. 30, 2008) (“Gryszkowiec 

Dep.”) at 43:11-44:23.) See supra note 2; Local Civ. R. 7(h). Further, Gryszkowiec’s notes 

from that meeting explicitly reference interpersonal issues.
8 

the July 15 meeting, Goldstein, Dorn, Fleming, and Edelstein expressed concerns about 

plaintiff’s performance, with Goldstein and Dorn recommending that plaintiff’s employment be 

terminated. (See id. at 10 ¶¶ 50-51; Gryszkowiec Dep. at 35-36.) Based on the information 

received during the meeting and the applicable GAO regulations, Gryszkowiec decided that 

plaintiff should be terminated for poor performance and problematic interpersonal skills. (See 

Pl.’s SMF at 10 ¶ 52.) 

As a result of Gryszkowiec’s decision, on July 15, 2004, Goldstein informed plaintiff that 

his employment would not be extended beyond his probationary period. (Pl.’s SMF at 10-11 ¶ 

53.) The next day, plaintiff contacted an Equal Employment Opportunity (“EEO”) counselor in 

GAO’s Office of Opportunity and Inclusiveness. (See id. at 12 ¶ 59.) This was his first contact 

with an EEO representative at GAO. (Id.) In early August, plaintiff filed a charge with GAO’s 

Personnel Appeals Board (“PAB”), challenging the actions leading up to and including his 

termination. (See Opp’n, Ex. 25 (“PAB Documents”) at 1.) On August 20, Gryszkowiec sent a 

memorandum to GAO’s Chief Human Capital Officer, Jesse Hoskins, recommending the 

termination of plaintiff’s appointment during his probationary period for unsatisfactory 

performance and interactions, stating that plaintiff had “continued difficulties” in the GAO 

performance competencies of “Achieving Results,” “Presenting Information Orally,” “Presenting 

Information in Writing,” “Representing GAO,” and “Collaborating with Others.” (Pl.’s SMF at 

11 ¶ 55.)6

 On August 23, Hoskins issued a letter to plaintiff notifying him that he would be 

terminated effective September 10, 2004, for unsatisfactory performance. (See Opp’n, Ex. 7 

(“Hoskins Letter”).) On September 9, the PAB granted two ex parte requests by its General 

 6

 The performance competencies describe the level of performance necessary to “Meet 

Expectations” in each competency at each band level, which is the minimum level of acceptable 

performance in GAO’s Competency-Based Performance System. (Pl.’s SMF at 1 ¶ 2.) 
9 

Counsel to stay plaintiff’s termination date, so that the General Counsel could investigate 

whether plaintiff’s terminations arose from “one or more prohibited personnel practices.” (PAB 

Order at 13 n.1.) Plaintiff’s termination was stayed until the end of business on October 18, 

2004. (Id. at 17.) He subsequently exhausted his administrative remedies and timely initiated 

this action on January 17, 2007. 

ANALYSIS 

I. LEGAL STANDARDS 

A. Standard of Review 

 Under Rule 56 of the Federal Rules of Civil Procedure, a motion for summary judgment 

shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and 

affidavits show that there is no genuine issue of material fact, and that the moving party is 

entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 

(1986). “A dispute about a material fact is not ‘genuine’ unless ‘the evidence is such that a 

reasonable jury could return a verdict for the nonmoving party.’” Haynes v. Williams, 392 F.3d 

478, 481 (D.C. Cir. 2004) (quoting Anderson, 477 U.S. at 248). A moving party is thus entitled 

to summary judgment against “a party who fails to make a showing sufficient to establish the 

existence of an element 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)). 

In considering a motion for summary judgment, “[t]he evidence of the non-movant is to 

be believed, and all justifiable inferences 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). The non-moving party’s opposition, however, must consist of more than mere 
10 

unsupported allegations or denials and must be supported by affidavits or other competent 

evidence setting forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. 

P. 56(e); Celotex, 477 U.S. at 324. If the non-movant fails to point to “affirmative evidence” 

showing a genuine issue for trial, Anderson, 477 U.S. at 257, or “[i]f the evidence is merely 

colorable, or is not significantly probative, summary judgment may be granted.” Id. at 249-50 

(internal citations omitted). “While summary judgment must be approached with special caution 

in discrimination cases, 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 WL 164780, at *3 (D.D.C. Mar. 31, 1998), aff’d No. 99-5126, 

1999 WL 825425, at *1 (D.C. Cir. Sept. 27, 1999) (internal citation omitted). 

B. Title VII 

Under Title VII of the Civil Rights Act of 1964, it is an “unlawful employment practice” 

for employers “to discriminate against any individual with respect to his compensation, terms, 

conditions, or privileges of employment, because of such individual’s race, color, religion, sex, 

or national origin.” 42 U.S.C. § 2000e-2(a)(1). It is also unlawful to retaliate against an 

employee because he “has opposed any practice made an unlawful employment practice” by 

Title VII or because she “has made a charge, testified, assisted, or participated in any manner in 

an investigation, proceeding, or hearing” under Title VII. Id. § 2000e-3(a). Traditionally, courts 

have examined Title VII claims for discrimination under the three-step burden-shifting 

framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, 

where an employer has asserted legitimate, non-discriminatory reasons for the actions being 

challenged by the plaintiff, 

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-
11 

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 the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). “[T]hese principles 

apply equally to retaliation claims . . . .” Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 2009). 

A plaintiff has the burden of persuasion to show that a defendant’s proffered nondiscriminatory reason for the challenged action is a pretext. Morgan v. Fed. Home Loan 

Mortgage Corp., 328 F.3d 647, 654 (D.C. Cir. 2003). A plaintiff can carry this burden by 

showing that a non-discriminatory reason offered by a defendant is false, Montgomery v. Chao, 

546 F.3d 703, 707 (D.C. Cir. 2008), or otherwise “presenting enough evidence to allow a 

reasonable trier of fact to conclude that the employer’s proffered explanation is unworthy of 

credence.” Desmond v. Mukasey, 530 F.3d 944, 962 (D.C. Cir. 2008) (internal quotation marks 

omitted). A plaintiff may also “attempt[] to produce evidence suggesting that the employer 

treated other employees . . . more favorably in the same factual circumstances” than the 

employer treated the plaintiff. Brady, 520 F.3d at 495. Where “the employer’s stated belief 

about the underlying facts is reasonable in light of the evidence, however, there ordinarily is no 

basis for permitting a jury to conclude that the employer is lying about the underlying facts,” and 

summary judgment is appropriate. Id.; see also Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 

23, 27-28 (D.C. Cir. 1997) (“[I]f [a plaintiff] is unable to adduce evidence that could allow a 

reasonable trier of fact to conclude that [the defendant’s] proffered reason was a pretext for 

discrimination, summary judgment must be entered against [the plaintiff].”) 

II. DISCRIMINATION

Title VII “establishes two elements for an employment discrimination case: (i) the 

plaintiff suffered an adverse employment action (ii) because of the employee’s race, color, 

religion, sex, or national origin.” Brady, 520 F.3d at 493. “A plaintiff must prove both elements 
12 

to sustain a discrimination claim.” Baloch v. Kempthorne, 550 F.3d 1191, 1196 (D.C. Cir. 

2008). 

Plaintiff alleges that defendant discriminated against him on the basis of his race by not 

hiring him at the Band III level,7

 and that defendant terminated him from his Band II senior 

analyst position because of his race and/or gender. Defendant contends that there were 

legitimate, non-discriminatory reasons for not selecting plaintiff for a Band III position and for 

later terminating him from his Band II position. (Mem. of P. &. A. in Supp. of Def.’s Mot. for 

Summ. J. (“Mem.”) at 2.) The Court finds that plaintiff has failed to “produce sufficient 

evidence that his employer’s asserted legitimate non-discriminatory reason[s] . . . [were] not the 

actual reason[s] and that [plaintiff] suffered discrimination on an impermissible ground.” 

Baloch, 55 F.3d at 1197. Accordingly, summary judgment shall be granted with respect to 

plaintiff’s discrimination claims. 

A. Count IV: Non-Selection 

 Plaintiff alleges that defendant discriminated against him on the basis of his race by 

hiring him as a Band II analyst, because this position was at a band or salary “lower than those 

levels at which [the agency] appointed similarly situated, Caucasian members of the Physical 

Infrastructure Team who held positions comparable to plaintiff’s[.]” (Compl. ¶ 67.) As 

evidence of discrimination, he points to the fact that a Caucasian applicant, Bradley James, 

joined the agency at the Band III level in a temporary three-year Comptroller General 

appointment dedicated to construction issues related to the U.S. Capitol Visitor’s Center. (Opp’n 

at 5; see Opp’n, Ex. 11 (Decl. of Bradley James) (“James Decl.”) ¶¶ 1-2.) Even if the supposed 

failure to consider plaintiff for the position on the Visitor’s Center project constituted an adverse 

 7

 The pay range for the Band III level was approximately equivalent to the salary range 

covered by the GS-15 grade. (Braley Decl. ¶ 2.) 
13 

action,8 defendant has proffered the legitimate, non-discriminatory reason that James was the 

more qualified applicant, and based on the undisputed evidence, the Court concludes that 

plaintiff has failed to create a reasonable inference that this was not the true reason for his 

supposed non-selection. 

 “[A]n ‘employer has discretion to choose among equally qualified candidates, provided 

the decision is not based upon unlawful criteria.’” Porter v. Fulgham, 601 F. Supp. 2d 205, 

219 (D.D.C. 2009) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 259 (1981)). 

Here, the undisputed facts show that the plaintiff did not even meet the standard of being 

“equally qualified.” Plaintiff had approximately 14 years of experience as an architect and held 

no professional license, while James was a licensed professional engineer with over 29 years of 

experience as a civil engineer for the Army Corps of Engineers. (Pl.’s SMF at 3 ¶¶ 14-15.) 

Thus, even assuming that plaintiff was qualified to fill the Visitor’s Center position,9

 the fact that 

James was more experienced than plaintiff undercuts any possible inference of discrimination. 

 8

 The Court need not resolve defendant’s alternative contention that plaintiff cannot 

establish the necessary element of an adverse action because he did not apply for a Band III 

position. (Mem. at 34.) However, plaintiff has admitted that he “never applied” for James’s 

position. (Pl.’s SMF at 3 ¶ 13.) Further, Dorn had no authority to hire anyone for a permanent 

Band III position (Mot., Ex. 15 (Decl. of Terrell Dorn) (“Dorn Decl.”) ¶ 10), and there is no 

indication that plaintiff – who had been recruited for permanent employment – expressed an 

interest in a temporary position during his recruitment or subsequent interviews. (See Beyah 

Dep. at 64; Beyah Decl. ¶¶ 9-11.) 

9

 Plaintiff has not established that he was qualified to fill the position on the Visitor’s 

Center project. He argues that James “engaged in the type of work that [plaintiff] was qualified 

to perform” (Opp’n at 8), but his sole support for this claim is his observation that James did “[a] 

lot of the kinds of work that [plaintiff] did for construction projects at GSA . . . .” (Beyah Dep. 

at 76:19-77:11.) Because plaintiff denied ever seeing the description of James’s position or ever 

working on the project with James (see id. at 76:16-18, 77:20-22), there is no basis to conclude 

that James’s responsibilities were limited to the activities that plaintiff observed. Indeed, 

Goldstein explained that James’s position was “not at all similar” to plaintiff’s position because 

“[t]hey performed differen[t] functions and were hired under a different hiring authority.” (Mot., 

Ex. 12 (Goldstein EEO Aff., May 24, 2005) (“Goldstein Aff.”) ¶ 13.) 
14 

See Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (“In order to justify an inference of 

discrimination, the qualifications gap must be great enough to be inherently indicative of 

discrimination.”); accord Porter, 601 F. Supp. 2d at 219.10 The Court will therefore grant 

summary judgment as to Count IV.

 B. Counts I and II: Termination 

Plaintiff also alleges that the agency terminated his employment because of his race or 

gender. (Compl. ¶¶ 39-54.) In response, defendant explains that plaintiff was terminated 

because his performance as a probationary employee was unsatisfactory, based on his 

supervisors’ “reasonabl[e] and sincere[] belie[f]” that he lacked the performance skills and 

interpersonal abilities necessary for the position. (Mem. at 36.) Given the evidence, the Court 

agrees with defendant’s argument that plaintiff has not “produced evidence sufficient for a 

reasonable jury to find that [his] employer’s stated reason [for terminating him] was not the 

actual reason and that the employer intentionally discriminated against [him] based on his race” 

or gender. Brady, 520 F.3d at 495. 

 With respect to plaintiff’s performance skills, defendant asserts that plaintiff’s 

supervisors perceived “that he often completed his work in an untimely fashion,” “that he 

struggled to complete his work in a manner consistent with GAO guidelines,” “that his written 

work was unorganized and failed to cite adequate support or background,” and “that his oral 

presentation skills were deficient on at least one occasion . . . .” (Mem. at 36.) The facts 

underlying these perceptions are supported by the record. For example, plaintiff admits that his 

 10 Any inference that Goldstein and Dorn’s decision to hire plaintiff at the Band II level 

instead of the Band III level was motivated by racial animus is further undermined by the fact 

that Goldstein personally recruited plaintiff to join the agency. Cf. Waterhouse v. District of 

Columbia, 124 F. Supp. 2d 1, 13 (D.D.C. 2000) (noting that allegation of discriminatory 

termination was “undercut[]” by the fact that “the same individuals hired and terminated 

plaintiff”), aff’d, 298 F.3d 989, 996 (D.C. Cir. 2002). 
15 

work on the conceptual planning guide was criticized for his sentence structure, use of industry 

terminology, failure to link important concepts, and failure to comply with GAO indexing rules. 

(See Pl.’s SMF at 5 ¶¶ 24-25; Pl.’s Resps. To Def.’s 2nd Interrogs. at 4-5.) Dorn also concluded 

that “[i]t simply took [plaintiff] too many iterations of the draft Guide and too long to produce a 

final draft that met GAO standards.” (Mot., Ex. 15 (Decl. of Terrell Dorn) (“Dorn Decl.”) ¶ 3.) 

In addition, it is not disputed that when working on the Kennedy Center engagement, plaintiff 

missed the deadline for submitting the final draft of his section of the report; his initial draft 

lacked O&M cost estimates and its analyses were criticized as insufficiently substantiated; he 

prepared two more drafts which were also deemed inadequate; following plaintiff’s oral 

presentation of his section of the report, Dorn concluded that plaintiff was overly formal, 

scripted, and unable to recover when interrupted; and Dorn also concluded that plaintiff’s section 

of the report was poorly written, unsupported, based on flawed methodology, and lacking a basic 

understanding of the need to employ locality adjustments when estimating costs for high-cost 

areas. (See Pl.’s SMF at 6 ¶¶ 31-35, 8-9 ¶¶ 39-44; Beyah Decl. ¶¶ 41-42 (noting Dorn and 

Edelstein’s criticisms); Dorn DPM Notes at 1-2; Mot., Ex. 13 (Dorn EEO Aff., May 16, 2005) 

(“Dorn Aff.”) ¶ 6; Fleming Aff. ¶ 7; Edelstein Aff. ¶¶ 4-6; Mot., Ex. 25 (Fleming Dep., Sept. 11, 

2008) at 85-91.) 

 Plaintiff does not dispute the factual basis for many of these criticisms. He argues instead 

that there were mitigating circumstances surrounding his failure to meet various deadlines and 

comply with GAO document guidelines. Regarding the Guide engagement, he asserts that the 

project’s focus changed in January 2004, with the purported effect of rendering “all” of his prior 

work “useless,” and that he missed two other deadlines because he was required to prioritize his 

responsibilities on the Kennedy Center engagement. (Beyah Decl. ¶¶ 21, 24; see Opp’n at 10-
16 

11.) He also asserts that although GAO gave him some training on how to index materials when 

he first joined the agency, “he never received more specific training from PI on how to index a 

document.” (Opp’n at 11.) Similarly, regarding the Kennedy Center engagement, he attributes 

his inability to timely develop O&M cost estimates to the fact that Kennedy Center officials “did 

not produce this information,” and he argues that the final draft of his section of the report was 

delayed because he had to seek clarification of his supervisors’ sometimes contradictory 

comments. (See id. at 12-17.) These explanations do not assist plaintiff, because “plaintiff’s 

perception of himself, and of his work performance, [are] not relevant.” Smith v. Chamber of 

Commerce of the United States, 645 F. Supp. 604, 608 (D.D.C. 1986). “It is the perception of 

the decisionmaker which is relevant,” id., and plaintiff “cannot establish pretext simply based on 

[his] own subjective assessment of [his] own performance . . . .” Waterhouse, 124 F. Supp. 2d at 

7, aff’d, 298 F.3d at 995; accord Talavera v. Fore, No. 07-CV-720, 2009 WL 2731275, at *15 

(D.D.C. Aug. 31, 2009) (Bates, J.). 

 Plaintiff does, however, challenge the factual basis for the criticisms of his written work. 

He has submitted a report by William Lawson, “an expert in the fields of buildings and real 

estate” (Opp’n at 2), which concludes that plaintiff’s written work for the Guide and Kennedy 

Center engagements consisted of “well written drafts for their level of development,” and that 

plaintiff properly employed BOMA standards when calculating O&M costs for the Kennedy 

Center engagement. (Mot., Ex. 50 (“Lawson Report”) at 1.) Lawson’s opinion about the quality 

of plaintiff’s writing is not based upon expert knowledge or special familiarity with GAO 

practices and requirements. In fact, Lawson never worked at GAO or previously evaluated the 

performance of a GAO Band II analyst. (See Lawson Report at 13-14 (Lawson c.v.); Mot., Ex. 

49 (Lawson Dep., Feb. 10, 2009) (“Lawson Dep.”) at 58.). Nor could Lawson say what 
17 

deadlines or oral feedback plaintiff was given, how many drafts he had written, or how many 

drafts would have been acceptable for GAO employees in plaintiff’s situation. (See Lawson 

Dep. at 40-41, 45-46, 49-50, 54.) Defendant also notes that Lawson evaluated plaintiff’s writing 

abilities based upon the incorrect premise that plaintiff was responsible for nearly all of the final 

draft of the Kennedy Center report (see id. at 82-84), when in fact, plaintiff was only responsible 

for one section. (See also Mot., Ex. 22 (Decl. of Maria Edelstein) ¶ 8.) Because Lawson’s 

opinion about the quality of plaintiff’s written work merely second-guesses the subjective 

judgments of plaintiff’s supervisors, it cannot be relied upon to create any triable issues of fact. 

See Sykes v. Napolitano, 634 F. Supp. 2d 1, 7 (D.D.C. 2009) (striking report by plaintiff’s expert 

in Title VII case where “[plaintiff’s expert’s] opinion is not ‘expert’” but rather “merely the 

conclusion of a lay person who reviewed limited information on behalf of a person with an 

interest in the outcome”); Nance v. Librarian of Congress, 661 F. Supp. 794, 796 (D.D.C. 1987) 

(finding that plaintiff’s expert in Title VII case had “no probative value” where he “had no 

experience” rating defendant agency’s employees, was unfamiliar with actual responsibilities 

position in question, and “made inaccurate assumptions as to what qualities the job entailed”). 

 Arguably, Lawson’s conclusion that plaintiff’s use of BOMA standards when estimating 

O&M costs “is considered a normal industry practice” (Lawson Report at 1) would be competent 

evidence. But even this does not aid plaintiff. First, the accuracy of plaintiff’s Kennedy Center 

cost estimations were merely one factor among many that his supervisors considered when 

evaluating his performance. Second, to the extent that plaintiff contends that he was criticized 

for his decision to use the BOMA standards (see Pl.’s SMF at 16 ¶ U), the evidence he relies 

upon shows that his supervisors did not object to the choice of BOMA standards per se. As 

Edelstein explained, “[u]sing the BOMA information was not a concern. [The concern] was . . . 
18 

applying the information correctly so it was applicable to the local area.” (Opp’n, Attachment 32 

(Edelstein Dep., July 15, 2008) at 69:10-13.)11 Plaintiff similarly explains in his declaration that 

Dorn did not criticize him for using the BOMA standards but for supposedly failing to include a 

locality adjustment when employing those standards. (Beyah Decl. ¶¶ 37-39.) While plaintiff 

asserts that his original BOMA-based calculations did account for the locality adjustment (id. ¶¶ 

35, 38), Lawson stated that “reasonable people [can] disagree about whether the proper standard 

was used,” and that the choice of standard is ultimately a question of “professional judgment.” 

(Lawson Dep. at 36:5-9.)12 

 Given this record, it is not the Court’s job to second-guess Dorn and Edelstein’s decisions 

to instruct plaintiff to include a locality adjustment. (See Beyah Decl. ¶¶ 37-38.) “Once the 

employer has articulated a non-discriminatory explanation for its action, as did the [agency] here, 

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. Dist. of Columbia Dep’t of Corr., 86 

F.3d 1180, 1183 (D.C. Cir. 1996) (quoting McCoy v. WGN Continental Broad. Co., 957 F.2d 

368, 373 (7th Cir. 1992) (brackets and ellipses omitted). In other words, a district court judge 

 11 The portions of Goldstein’s deposition cited in plaintiff’s statement of facts establish 

only that there were criticisms of plaintiff’s “estimation of the O&M costs for the Kennedy 

Center engagement . . . .” (Opp’n, Attachment 34 (Goldstein Dep., Sept. 5, 2008), at 116:19-

117:6.) Similarly, the cited portions of Dorn’s deposition show only that Dorn criticized 

plaintiff’s perceived misuse of the “Means Cost Guide” standards, not the BOMA standards. 

(See Opp’n, Attachment 30 (Dorn Dep., July 17, 2008) at 152:20-153:1 (“The estimate that I was 

working with Omar on or had a problem with Omar on was based upon the Means Cost Guide, 

not on the BOMA Experience Exchange Report.”); accord Dorn Aff. ¶ 6 (“[Plaintiff] was to 

provide cost estimates using the MEANS book [a reference book that all professionals in the 

construction field use]. He failed at this miserably . . . . He told me that he called someone who 

works for the MEANS Company and they told him that he did not have to consider some very 

basic factors.”).) 

12 Lawson also stated that he did not know whether plaintiff’s calculations had originally 

included a locality adjustment. (Lawson Dep. at 62:18-22.) 
19 

does not sit as a “‘super-personnel department that reexamines an entity’s business decisions.’” 

Id. at 1183 (quoting Dale v Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986); accord 

Adeyemi v. District of Columbia, 525 F.3d 1222, 1227 (D.C. Cir. 2008). 

 As for plaintiff’s interpersonal problems, defendant asserts that plaintiff’s supervisors 

perceived that he was “at times confrontational in team meetings,” “that he had problems 

interacting in a professional and cordial manner with coworkers,” and “that he was unsuccessful 

in appropriately representing GAO to outside persons, including other agencies . . . .” (Mem. at 

36.) The record establishes that plaintiff’s supervisors indeed concluded that he had difficulty 

accepting constructive criticism or input from others and that he had negative or otherwise 

inappropriate interactions with a number of other GAO teams and employees, including a GAO 

librarian and John Brummet of the IAT team. (See Goldstein Aff. ¶ 20; Dorn Decl. ¶¶ 5-6, 18; 

Fleming Aff. ¶¶ 9-10, Edelstein Aff. ¶¶ 3, 8-10, 12; Brummet Aff. ¶ 4 (offering first-hand 

opinion that plaintiff had been “abrasive”); see also Edelstein Aff. ¶¶ 5-6 (describing plaintiff’s 

inappropriate email tone and body language during meetings).) Plaintiff’s supervisors also 

received complaints or concluded from personal observations that plaintiff had confrontational or 

otherwise inappropriate interactions with officials from the State Department and Kennedy 

Center. (See Dorn Aff. ¶¶ 5, 14, 18; Dorn DPM Notes at 1; Fleming Aff. ¶ 6; Edelstein Aff. ¶ 5; 

Brummet Aff. ¶ 3 (describing call from State Department contact who complained about 

plaintiff).) 

 Again, plaintiff does not challenge the fact that he was involved in a dispute with the 

librarian; that the State Department client complained about him; or that his supervisors on the 

Guide and Kennedy Center engagements had concerns about his interpersonal abilities based on 

incidents they observed or learned about. Rather, he counters that the librarian dispute was not 
20 

his fault; that the employee who previously informed Dorn about the State Department’s 

complaints later concluded that no further action was warranted; and that different GAO 

employees with whom plaintiff worked on other projects had positive views of or interactions 

with him. (See Opp’n at 19-21.) This does nothing to undermine defendant’s contention that 

those who worked with and supervised plaintiff on the Guide and Kennedy Center projects – his 

two “most important assignments” (Opp’n at 2) – reasonably and sincerely believed that that his 

interpersonal abilities were a source of concern. See Singh v. U.S. House of Representatives, 300 

F. Supp. 2d 48, 59 (D.D.C. 2004) (finding that statements about quality of plaintiff’s work by 

individuals “who did not supervise . . . or work closely enough” with her were insufficient to 

defeat summary judgment where plaintiff’s supervisors held different view). 

 In sum, “[t]he critical issue here is not whether [plaintiff’s] work . . . was actually 

deficient,” but whether the agency’s “decision-makers on personnel issues[] were of that opinion 

when they terminated [him]. There is no evidence that they were not.”13 Singh, 300 F. Supp. 2d 

at 59. (See, e.g., Goldstein Aff. ¶ 20 (“I felt that after the training and time here at GAO, 

management, myself included, had not seen enough growth in his ability to think conceptually, 

to write, or to get his work accomplished.”).) The fact that Goldstein personally recruited 

plaintiff and that he and Dorn recommended plaintiff’s hiring also seriously undercuts any 

 13 In addition, the Court notes that “probationary employees may be terminated for 

problems even if those problems would not be good cause for terminating a permanent 

employee.” George v. Leavitt, 407 F.3d 405, 415 (D.C. Cir. 2005). The decision to terminate 

plaintiff was made while he was a probationary employee and would originally have been 

effective on September 10, 2004, shortly before the one-year anniversary of his effective GAO 

start date. (See Hoskins Letter at 1.) 

Although the PAB extended the termination’s effective date to October 18, this was due 

to plaintiff’s administrative appeal and not the decisions of his supervisors. There is therefore no 

merit to plaintiff’s argument that the agency improperly terminated him as a probationary 

employee instead of as a permanent employee. (See Opp’n at 36.) 
21 

inference that their recommendation to terminate plaintiff, less than one year later, was 

motivated by discriminatory animus. See Waterhouse, 298 F.3d at 996 (finding that probative 

value of allegedly discriminatory statements by supervisor “was seriously undercut by the 

undisputed fact that [the supervisor] approved the decision to hire [the plaintiff] earlier that same 

year,” and citing supportive cases from other circuits). “Moreover, [Goldstein and Dorn were] 

not the only one[s] to complain of [plaintiff’s] deficiencies,” id., as plaintiff’s performance on 

projects besides the Guide and Kennedy Center was also criticized. (See, e.g., Goldstein Aff. ¶ 

22 (citing criticism by Band III Assistant Director Kathleen Turner); Gryszkowiec Meeting 

Notes at 1, 3-4 (citing timeliness or other criticisms on projects involving “electronic waste,” 

D.C. jail, and USDA’s Natural Resources and Environment mission area).) 

 “Because [plaintiff] did not contravene – and in fact admitted – many of the deficiencies 

the defendants cited concerning [his] performance, [he] failed to establish that [his] employer’s 

proffered explanation was unworthy of credence. At best, [his] responses constitute[] an 

argument that, notwithstanding those failings, the [agency] should not have terminated [him] 

because there were extenuating circumstances and there were some positive attributes to [his] 

performance. But courts are without authority to second-guess an employer’s personnel decision 

absent demonstrably discriminatory motive. And [plaintiff’s] responses offer[] no grounds for a 

rational juror to conclude that the reason [he] was fired was racial [or gender-based] 

discrimination rather than poor performance.”14 Waterhouse, 298 F.3d at 995 (internal quotation 

 14 Plaintiff’s argument that discrimination should be inferred from his “replacement” by a 

female analyst, Maureen Luna-Long, is unpersuasive because she was not similarly situated. 

(See Opp’n at 25.) “Employees are ‘similarly situated’ when ‘all of the relevant aspects’ of their 

employment situations are ‘nearly identical.’” McFadden v. Ballard, Spahr, Andrews & 

Ingersoll, LLP, 580 F. Supp. 2d 99, 109 (D.D.C. 2008) (quoting Neuren v. Adduci, Mastriani, 

Meeks, & Schill, 43 F.3d 1507, 1514 (D.C. Cir. 1995)). It is undisputed that the PI team had 

different subgroups including a facilities group, in which plaintiff worked, and a transportation 
22 

marks, brackets, and citations omitted). Accordingly, the Court shall grant summary judgment 

on Counts I, II, and IV. 

IV. RETALIATION 

 “To prove retaliation, the plaintiff generally must establish that he or she suffered (i) a 

materially adverse action (ii) because he or she had brought or threatened to bring a 

discrimination claim.” Baloch, 550 F.3d at 1198. Plaintiff contends that he was terminated 

because he documented his April 7, 2004 meetings with Fleming and Edelstein, during which 

they set performance expectations for him. (Opp’n at 23.) He argues that this was protected 

“opposition” to discrimination15 because he separately informed Fleming “that he documented 

their discussions because he believed that his race and sex motivated the setting of the 

expectations,” and later informed Dorn and Goldstein that he submitted the memorializing 

document to Fleming.16 (Id.) Because the Court has already concluded that plaintiff has not 

produced evidence that would cast doubt upon defendant’s proffered reason for terminating him, 

 

group. (See Beyah Dep. at 131:23-132:2.) Luna-Long was hired by different GAO officials to 

fill a transportation specialist’s position that arose two months before plaintiff’s termination had 

been proposed. (See Reply at 15-16; id., Ex. F-H (vacancy announcements and Luna-Long 

application).) The most relevant aspect of Luna-Long’s employment – namely, the position she 

was hired to fill – is therefore not “nearly identical” to plaintiff’s position. 

15 The Court notes that plaintiff cannot base his retaliation claim on a theory that he 

“participated” in statutorily protected activity. First, his statement that he “participated in 

protected activity” by “inform[ing] his supervisors that he was documenting their discriminatory 

behavior” (Opp’n at 4) does not fall under the statutory definition of participating in an EEO 

“investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). Second, he failed to oppose 

defendant’s argument that his retaliation claim cannot be based upon EEO participation because 

he only contacted an EEO counselor after he learned that his supervisors recommended his 

termination. (See Mem. at 40.) Plaintiff has thus conceded any argument based on Title VII’s 

“participation clause.” See Franklin v. Potter, 600 F. Supp. 2d 38, 60 (D.D.C. 2009) (citing 

authorities and treating defendant’s argument in motion for summary judgment as conceded 

where plaintiff failed to address it in his opposition).

16 The April 7 meeting memoranda did not reference race or gender. (See generally Mot., 

Exs. 53 & 54.) 
23 

the Court grants summary judgment on his retaliation claim.17

CONCLUSION

For the foregoing reasons, the Court grants defendants’ motion. A separate Order will 

accompany this Memorandum Opinion. 

 /s/ 

 ELLEN SEGAL HUVELLE 

 United States District Judge 

Date: October 26, 2009 

 17 In the alternative, the Court agrees with defendant that plaintiff’s actions did not 

constitute “opposition” to discrimination on the basis of race or gender. Title VII provides that it 

is unlawful to retaliate against an employee “because he has opposed any practice made an 

unlawful employment practice by this subchapter . . . .” 42 U.S.C. § 2000e-3(a) (emphasis 

added). “To come within the opposition clause of Section 2000e-3(a), one must demonstrate an 

objectively reasonable belief that the practice ‘opposed’ actually violated Title VII; otherwise, 

the activity . . . was not statutorily protected activity.” Burton v. Batista, 339 F. Supp. 2d 97, 114 

(D.D.C. 2004). Section 2000e-2(a) defines unlawful practices as (1) discrimination “against any 

individual with respect to his compensation, terms, conditions, or privileges of employment, 

because of such individual’s race, color, religion, sex, or national origin,” or (2) classification of 

an employee that would “adversely affect his status as an employee, because of such individual’s 

race, color, religion, sex, or national origin.” Id. § 2000e-2(a)(1). 

Plaintiff has not demonstrated that he had an objectively reasonable belief that merely 

setting expectations for a probationary employee’s performance can constitute discrimination in 

the terms and conditions of employment or an adverse effect upon employment status. See also 

Taylor v. Small, 350 F.3d 1286, 1293 (D.C. Cir. 2003) (“An ‘adverse employment action’ within 

the meaning of McDonnell Douglas is ‘a significant change in employment status, such as hiring, 

firing, failing to promote, reassignment with significantly different responsibilities, or a decision 

causing significant change in benefits.’” (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 

742, 761 (1998). Nor would it be objectively reasonable to hold such a belief. “An employer 

should be entitled to discuss and even critique employees about legitimate job performance 

problems without being subjected to suit, because Title VII’s anti-retaliation provision was not 

intended to immunize insubordinate, disruptive, or nonproductive behavior at work.” Rattigan v. 

Holder, 604 F. Supp. 2d 33, 49 (D.D.C. 2009) (internal quotation marks and citations omitted).