UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

________________________________ 

 ) 

PHUC N. NGUYEN, ) 

 ) 

 Plaintiff, ) 

 ) Civil Action No. 09-1349 (EGS) 

 v. ) 

 ) 

RAY MABUS,1

 ) 

SECRETARY OF THE NAVY, ) 

 ) 

 Defendant. ) 

 ) 

MEMORANDUM OPINION 

 Plaintiff Phuc Nguyen (“Nguyen”), proceeding pro se, brings 

this action against the Secretary of the Navy, alleging 

discrimination on the basis of race, national origin, and 

retaliation, in violation of Title VII of the Civil Rights Act 

of 1964 (“Title VII”), 42 U.S.C. § 2000e-2 et seq., as well as 

discrimination on the basis of age and hostile work environment, 

in violation of the Age Discrimination in Employment Act 

(“ADEA”), 29 U.S.C. § 631 et seq. Pending before the Court is 

Defendant’s Motion for Summary Judgment. Upon consideration of 

the motion, the opposition and the reply thereto, the applicable 

law, the entire record, and for the reasons stated below, the 

                                                             1

 Pursuant to Fed. R. Civ. P. 25(d), Ray Mabus is 

substituted for the former Secretary of the Navy as the named 

Defendant in this case. 
2 

Court will GRANT IN PART AND DENY IN PART Defendant’s Motion for 

Summary Judgment. 

I. BACKGROUND 

A. Factual Background 

Plaintiff Nguyen was born on July 4, 1948 in Saigon, 

Vietnam. Am. Compl. ¶ 4. Nguyen is a GS-13 equivalent grade 

engineer employed at Naval Sea Systems Command Headquarters 

(“NAVSEA”). Def.’s Statement of Material Facts ¶ 1 (hereinafter 

“Def.’s SMF”); see also Def.’s Mot. for Summ. J. (hereinafter 

“Def.’s MSJ”), Ex. 7, Department of Defense Office of Complaint 

Investigations, Reporter’s Transcript of Proceedings in the 

Investigation of the Discrimination Complaint of Phuc Nguyen, 

Agency Docket No. DON-05-00024-0872, Statement of Phuc Nguyen, 

at 21-22 (Oct. 17, 2005) (hereinafter “2005 Transcript”). 

Nguyen has worked at the same pay grade since 1986, and in the 

same position since 1997. Am. Compl. ¶¶ 7, 9; see also 2005 

Transcript at 21. During the relevant time period, Nguyen 

worked in the management group that oversees the Submarine 

Sensor Program Office (“PMS 435”) of the Program Executive 

Officer for Submarines (“PEOSUB”). Def.’s SMF ¶ 2. PMS 435 

designs, develops, and oversees the construction of Electronic 

Warfare Systems, periscopes, and the Photonics Mast. See Am. 

Compl. ¶ 9; Def.’s SMF ¶ 4. Within PMS 435 are several 

branches, including an Imaging Systems Branch, an Electronic 
3 

Warfare Systems Branch, and the I&EW Branch, which is headed by 

the Chief Engineer. See Def.’s SMF ¶ 6; see also Def.’s MSJ, 

Ex. 10, 2007 Report of Investigation at 47 (hereinafter, “2007 

ROI”). During the relevant time period, Nguyen worked under the 

Chief Engineer and had the working title of Assistant Chief 

Engineer. Def.’s SMF ¶ 9; see also Def.’s MSJ, Ex. 8, 2005 

Report of Investigation at 69 (hereinafter, “2005 ROI”). 

From 1997 through January 2005, Nguyen’s direct supervisor 

was Swarn Dulai, who was the Chief Engineer in PMS 435. Am. 

Compl. ¶ 10. From 1997 through mid-2008, Paul Gross, Deputy 

Project Manager, was Nguyen’s second level supervisor. Am. 

Compl. ¶ 11. With respect to Mr. Gross, Plaintiff alleges -- 

without providing any dates -- that Gross has not assigned 

Nguyen a major area of responsibility, despite other similarly 

situated engineers having clear and substantive areas of 

responsibility; that Gross has stripped Nguyen of substantive 

engineering work relegating him to assignments of stop-gap 

duties and responsibilities; that under Gross’s leadership, 

Nguyen has received one performance award in contrast to regular 

annual awards given to similarly situated Caucasian engineers 

with less experience; and that Gross continues to exclude Nguyen 

from major acquisition program duties and responsibilities, in 

favor of other younger, less experienced, Caucasian engineers. 

See Am. Compl. ¶¶ 14-17. As to Mr. Dulai, Plaintiff alleges 
4 

that on several occasions, Dulai spoke about the Vietnam War and 

told Nguyen that “Vietnamese people ought to be grateful for 

having a job at NAVSEA.” Am. Compl. ¶ 19. According to 

Plaintiff, Dulai also stated that, in contrast to Asians, he 

considered his racial identity to be more like a Caucasian 

person, since he is Sikh. Am. Compl. ¶ 20. Plaintiff alleges 

that on many occasions, Dulai mocked the accent of another 

Vietnamese employee. Am. Compl. ¶ 21. Finally, Plaintiff 

states that in late December 2004, Dulai approached Nguyen 

privately and threatened that the new Chief Engineer would 

target him with harassment. Dulai purportedly recommended that 

Nguyen leave the Assistant Chief Engineer position for a 

position outside PEOSUB, and promised that if Nguyen did so, 

Dulai would provide a positive reference. Am. Compl. ¶ 28. 

1. 2005 EEO Complaint 

Dulai announced his plan to retire in early 2004. Am. 

Compl. ¶ 18. The PMS 435 staffing charts reflect that up to 

Dulai’s retirement, only two individuals were permanently 

assigned to the Chief Engineer Branch: Nguyen and Dulai. Def.’s 

SMF ¶ 10; see also Def.’s MSJ, Ex. 12. From about September 20, 

2004 to September 11, 2005, Dr. Robert LaFreniere2

 was detailed 

to the branch from the Naval Undersea Warfare Center, Newport 

                                                             2

 Plaintiff alleges that LaFreniere is Caucasian and 14 

years younger than Plaintiff. Am. Compl. ¶¶ 24, 27, 32. 
5 

Division, which is a field activity to NAVSEA. Def.’s SMF ¶¶ 

11-12; see also 2005 ROI at 53; Def.’s MSJ, Ex. 12, at 4-7. 

LaFreniere's working title while initially on detail was Deputy 

Chief Engineer/Field Support. Def.’s SMF ¶ 13; 2005 ROI at 69. 

Upon Dulai’s retirement on January 5, 2005, LaFreniere was 

designated Acting Chief Engineer. Def.’s SMF ¶ 14; 2005 ROI at 

53. LaFreniere served in that position until about April 2005, 

when the position was permanently filled upon the selection of 

Steven Stump. See Def.’s SMF ¶ 14; 2005 ROI at 53. Nguyen made 

initial contact with an EEO counselor on February 11, 2005,3

after learning that his name had been omitted from a group award 

nomination. Def.’s SMF ¶ 15; see also 2005 ROI at 1, 6, 14-18, 

82; 2005 Transcript at 89-91 (“I found out about this [award] 

just by mere coincidence after I received an e-mail from 

management showing the letter of recommendation . . . sometime 

around that timeframe when I was thinking about complaining 

about LaFreniere’s assignment as acting chief engineer. I saw 

this e-mail, so I said this is it. I mean this is the last 

straw . . . so I need to go forward with this complaint.”). 

                                                             3

 In Plaintiff’s Amended Complaint, he alleges that he filed 

his EEO complaint on January 4, 2005. See Am. Compl. ¶¶ 34-35. 

The record of investigation reflects that the initial contact 

was made on February 11, 2005, and Plaintiff does not 

subsequently dispute this. Therefore, the Court does not 

construe this as a disputed factual issue, but rather a 

typographical error in Plaintiff’s Amended Complaint. 
6 

In his initial EEO contact, Nguyen alleged discrimination 

on the basis of his race, age, national origin, and reprisal 

because of protected activity. See Def.’s SMF ¶ 16; 2005 ROI at 

15. Nguyen alleged the following claims: 

1. On February 11, 2005 he was denied recognition for his 

contribution to PMS 435 programs (such as initiating 

Patriot radar program and serving as systems engineer 

on it); 

2. As of January 5, 2005 he was denied Chief Engineer 

lead systems engineering assignments; 

3. As of January 2005 he was denied the Acting Chief 

Engineer position; 

4. As of January 5, 2005 the Acting Chief Engineer 

excluded him from Advanced Submarine Support Equipment 

Program (“ASSEP”) budget management deliberations; 

5. As of January 5, 2005, the Acting Chief Engineer “kept 

[Nguyen] in the dark and excluded [Nguyen] from all 

his communications and meetings with coworkers, field 

activities and support contractors.” 

See Def.’s SMF ¶ 16; 2005 ROI at 15–16. Nguyen also alleged the 

following claims in support of a “continuing hostile 

environment”: 

1. On January 5, 2005, Dulai suggested that Nguyen leave 

his job and look for another position to avoid future 

adverse action; 

2. On January 5, 2005 and continuing to the present, 

Management continues to manipulate position 

qualifications and deny Nguyen’s job experience to 

deny him assignments and advancement opportunities in 

favor of less experienced engineers; 

3. Management encourages the community to exclude Nguyen 

from important program reviews, the latest of which 

was the ISIS kick-off meeting at Kollmorgen on 

February 9, 2005. 

See Def.’s SMF ¶ 16; 2005 ROI at 15-16. 
7 

On February 17, 2005, Nguyen was given, and he initialed, a 

notice of his rights and responsibilities. This notice included 

the requirement to contact an EEO counselor within 45 days of an 

alleged discriminatory action, and information on how to allege 

a violation of the ADEA, including use of the ADEA “bypass” 

provision.4

 See Def.’s SMF ¶ 17; 2005 ROI at 20-29. On March 

24, 2005, Nguyen’s attorney filed a formal EEO complaint 

alleging the same claims raised in Nguyen’s initial EEO contact. 

See Def.’s SMF ¶ 18; 2005 ROI at 2-4. 

Plaintiff alleges that, on April 15, 2005, Defendant again 

failed to promote him to Chief Engineer; instead Defendant 

selected Stephen Stump, who is Caucasian and seventeen years 

younger than Nguyen. Am. Compl. ¶¶ 37, 39. 

2. 2007 EEO Complaint 

In about November 2006, Stump vacated the Chief Engineer 

position, and the Deputy Program Manager, Paul Gross, initiated 

the selection process for a new Chief Engineer. See Def.’s SMF 

¶ 19; 2007 ROI at 130. Gross asked Nguyen and two other 

                                                             4

 As an alternative to following the administrative process 

discussed infra, Part III.A.1, a federal employee may bring a 

claim of age discrimination directly to federal court, so long 

as, within 180 days of the allegedly discriminatory act, he or 

she provides the EEOC with notice of his or her intent to sue at 

least 30 days before commencing suit. See 29 U.S.C. § 633a(c), 

(d); Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003); see also 

2005 ROI at 27. 

 
8 

individuals assigned to PMS 435, Riad Sayegh5 and Michael Patton, 

to update their resumes electronically, and Gross provided their 

names to Human Resources as individuals qualified and interested 

in the Chief Engineer position. 2007 ROI at 131. Nguyen and 

Sayegh were the only two candidates interviewed for the 

position. Def.’s SMF ¶ 20; 2007 ROI at 131. The interview 

panel consisted of three individuals: Gross, Dr. Bradley Binder, 

and Scott Greenberg. Def.’s SMF ¶ 21; see also 2007 ROI at 131. 

Binder, the Chief Engineer for Surface Electronic Warfare 

Systems, worked outside of the Team Sub organization and had no 

prior knowledge of any of the applicants. Greenberg had served 

as the Chief Engineer for Towed Systems. See Def.’s SMF ¶¶ 22-

23; 2007 ROI at 131. The panel members reviewed Nguyen’s and 

Sayegh’s resumes and interviewed both applicants. All three 

panel members believed Sayegh to be the better candidate, and he 

was selected for the position. See Def.’s SMF ¶¶ 24-25; 2007 

ROI at 132, 134, 136. 

Nguyen made initial contact with an EEO counselor via email 

on April 24, 2007. See Def.’s SMF ¶ 26; 2007 ROI at 5, 13-18. 

In his initial contact, Nguyen alleged discrimination on the 

basis of race, national origin, age, and reprisal due to the 

“[c]ontinuing failures by PMS 435 to promote [Nguyen] to PMS 435 

                                                             5

 Plaintiff alleges that Sayegh is Caucasian and twenty-four 

years younger than Nguyen. Am. Compl. ¶ 42. 
9 

Chief Engineer position between Jan[uary] 2005 [and] the 

present.” 2007 ROI at 18. On July 27, 2007, Nguyen filed a 

formal administrative complaint, again alleging discrimination 

based on Defendant’s continuing failure to promote him to Chief 

Engineer; in particular, Nguyen complained of his non-selection 

for the Chief Engineer position on three occasions: (1) January 

4, 2005, (2) April 15, 2005, and (3) March 19, 2007. Def.’s SMF 

¶ 27; 2007 ROI at 2-3. On August 28, 2007, the EEO Officer sent 

Nguyen a notice of acknowledgment for investigation and partial 

dismissal. The EEO Officer informed Nguyen that his claim of 

non-selection for the Chief Engineer position on March 19, 2007 

was accepted for investigation. Def.’s SMF ¶ 27; 2007 ROI at 

40. However, Nguyen was informed that the EEO Officer was 

dismissing his other two non-selection claims: the April 15, 

2005 non-selection claim was dismissed for failure to contact an 

EEO counselor within 45 days, and the January 2005 claim was 

dismissed because the same claim was pending before an EEO 

administrative judge. See Def.’s SMF ¶ 27; 2007 ROI at 41-42. 

3. Post-April 24, 2007 Allegations 

Nguyen alleges that Sayegh, as Chief Engineer, has 

transferred management duties and responsibilities for the Small 

Business Innovative Research (“SBIR”) projects away from Nguyen. 

Am. Compl. ¶ 48. Further, Nguyen alleges that Sayegh has not 

assigned new SBIR projects to Nguyen as other projects reach 
10 

their successful ends, and thus, Sayegh has virtually eliminated 

Nguyen’s duties and responsibilities in this area. Am. Compl. ¶ 

49. In November 2008, Nguyen was made Acting Chief Engineer. 

However, according to Nguyen, Mr. Gross split the duties 

normally carried out by one Chief Engineer among three different 

Acting Chief Engineers, two of whom had not previously served 

under a Chief Engineer. Am. Compl. ¶ 50. Finally, Nguyen 

asserts that in November 2008, November 2009, and July 2009, 

Defendant failed to promote him to the high-grade PMS 435 

Imaging Sensor Assistant Program Manager position; instead, 

Defendant selected three different Caucasian applicants who were 

substantially younger than Nguyen.6

 Am. Compl. ¶¶ 51, 55-57. 

Plaintiff does not dispute that he never contacted an EEO 

counselor or filed an EEO complaint regarding these post-April 

24, 2007 allegations. 

B. Procedural Background 

Nguyen filed his initial Complaint in this action on July 

21, 2009. He filed an Amended Complaint on December 31, 2009. 

In the Amended Complaint, Nguyen alleges that Defendant’s 

failure to promote him constitutes discrimination on the basis 

                                                             6

 Those applicants were: Matthew Severson, who Plaintiff 

alleges is Caucasian and over twenty-four years younger than 

Plaintiff, Am. Compl. ¶ 51; Ray Desautel, who Plaintiff alleges 

is Caucasian and eighteen years younger than Plaintiff, id. ¶ 

55; and Joseph Brunner, who Plaintiff alleges is Caucasian and 

substantially younger than Plaintiff, id. ¶ 57. 
11 

of race, national origin, and age, in violation of Title VII and 

the ADEA. See Am. Compl. ¶¶ 59-79. In addition, Nguyen alleges 

that after he contacted an EEO counselor in 2005, Defendant 

retaliated against him by cutting ASSEP funding from Nguyen’s 

programs and continuing to prohibit Nguyen from participating in 

ASSEP funding decisions, which stripped Nguyen of substantive 

job responsibilities. Am. Compl. ¶¶ 80-85. Nguyen filed a 

separate action on June 18, 2010. Compl., Nguyen v. Mabus, No. 

10-1030 (June 18, 2010), Docket No. 1. The three-page complaint 

in that action makes largely similar claims but provides much 

less detail. Without alleging separate causes of action, 

Plaintiff claims: 

This action arises out of the Agency continually 

discriminating against Phuc N. Nguyen, based on race (Asian 

Pacific), national origin (Viet Nam), and retaliat[ing] 

against Nguyen based on prior Equal Employment Opportunity 

(EEO) activity in violation of Title VII . . . . In 

addition, the Defendant discriminated against Nguyen and 

created a hostile work environment based on age (57 years 

as of January 2005) in violation of the [ADEA]. 

Id. at 2. On January 4, 2011, the Court consolidated case 

number 10-1030 with this action. See Minute Order, Nguyen v. 

Mabus, No. 10-1030 (Jan. 4, 2011). On October 17, 2011, 

Defendant filed a Motion for Summary Judgment. That motion is 

ripe for determination by the Court. 
12 

II. STANDARD OF REVIEW 

Summary judgment should be granted only if the moving party 

has shown that there are no genuine issues of material fact and 

that the moving party is entitled to judgment as a matter of 

law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 

U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d 

989, 991 (D.C. Cir. 2002). “A fact is material if it ‘might 

affect the outcome of the suit under the governing law,’ and a 

dispute about a material fact is genuine ‘if the evidence is 

such that a reasonable jury could return a verdict for the 

nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. 

Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986)). The moving party bears the initial burden of 

demonstrating the absence of genuine issues of material fact. 

See Celotex, 477 U.S. at 323. In determining whether a genuine 

issue of material fact exists, the Court must view all facts in 

the light most favorable to the non-moving party. See 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 

587 (1986); Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C. 

Cir. 2004). 

The non-moving party’s opposition, however, must consist of 

more than mere unsupported allegations or denials; rather, it 

must be supported by affidavits or other competent evidence 

setting forth specific facts showing that there is a genuine 
13 

issue for trial. See Fed. R. Civ. P. 56(c)(1); Celotex, 477 

U.S. at 324. Moreover, “although summary judgment must be 

approached with special caution in discrimination cases, a 

plaintiff is not relieved of [his] obligation to support [his] 

allegations by affidavits or other competent evidence showing 

that there is a genuine issue for trial.” Adair v. Solis, 742 

F. Supp. 2d 40, 50 (D.D.C. 2010), aff’d, 473 F. App’x 1 (D.C. 

Cir. 2012) (internal quotation marks and citations omitted). 

“The mere existence of a scintilla of evidence in support of the 

[non-movant]’s position will be insufficient; there must be 

evidence on which the jury could reasonably find for the [nonmovant].” Anderson, 477 U.S. at 252. 

Where, as here, a plaintiff is proceeding pro se, “the 

Court must take particular care to construe the plaintiff’s 

filings liberally, for such [filings] are held ‘to less 

stringent standards than formal pleadings drafted by lawyers.’” 

Cheeks v. Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C. 

2010) (quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972)). 

III. ANALYSIS 

A. Claims of Discrimination Under Title VII and ADEA 

1. Exhaustion of Administrative Remedies 

a. Legal Standard for Exhaustion 

Before bringing suit under either Title VII or the ADEA, an 

aggrieved party is required to timely exhaust his or her 
14 

administrative remedies. See Harris v. Gonzales, 488 F.3d 442, 

443 (D.C. Cir. 2007); Washington v. Wash. Metro. Area Transit 

Auth., 160 F.3d 750, 752 (D.C. Cir. 1998). These exhaustion 

requirements are not jurisdictional, but rather operate as a 

statute of limitations defense. Artis v. Bernanke, 630 F.3d 

1031, 1034 n.4 (D.C. Cir. 2011) (citation omitted). “Because 

untimely exhaustion of administrative remedies is an affirmative 

defense, the defendant bears the burden of pleading and proving 

it.” Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir. 

1997) (citation omitted). 

An employee of the federal government who believes he or 

she has been subject to discrimination is first required to 

“initiate contact” with an EEO counselor within forty-five days 

of the allegedly discriminatory action. 29 C.F.R. § 

1614.105(a)(1); see Steele, 535 F.3d at 693. The forty-five day 

period begins to run when an employee has a “reasonable 

suspicion” of a discriminatory action. Adesalu v. Copps, 606 F. 

Supp. 2d 97, 102 (D.D.C. 2009). If the matter is not resolved 

informally, the counselor shall inform the employee in writing 

of the right to sue, and the employee must file a formal 

complaint of discrimination with the agency. See 29 C.F.R. §§ 

1614.105(d), 1614.106(a)-(c); Bowie v. Ashcroft, 283 F. Supp. 2d 

25, 33 (D.D.C. 2003). The agency must then investigate the 

matter, after which the complainant may demand an immediate 
15 

final decision from the agency or a hearing before an EEOC 

administrative judge. See 29 C.F.R. §§ 1614.106(e)(2), 

1614.108(f). A complainant may file a civil action within 

ninety days of receiving a final decision from the agency or 

after a complaint has been pending before the EEOC for at least 

180 days. See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407; 

Price v. Bernanke, 470 F.3d 384, 389 (D.C. Cir. 2006). 

Importantly, an employee must exhaust the administrative 

process for each discrete act for which he seeks to bring a 

claim. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 

113-14 (2002). In Morgan, the Supreme Court held that “discrete 

discriminatory acts are not actionable if time barred, even when 

they are related to acts alleged in timely filed charges. Each 

discrete discriminatory act starts a new clock for filing 

charges alleging that act. The charge, therefore, must be filed 

within the [45]-day time period after the discrete 

discriminatory act occurred.” Id. at 113. 

b. Application to Plaintiff’s Claims 

It is undisputed that Nguyen only made contact with an EEO 

counselor regarding the claims in the instant suit on two 

occasions: February 11, 2005 and April 24, 2007. Defendant thus 

argues that the following acts of alleged discrimination were 

not timely exhausted because they did not occur within fortyfive days of that contact: 
16 

1. August 2004 Denial of Promotion to GS-14/Deputy Chief 

Engineer Position; 

2. December 2004 Dulai threat; 

3. April 15, 2005 Non-Selection for the Chief Engineer 

Position -- Steven Stump selected; 

4. November 2008 Non-Selection for Imaging Sensor 

Assistant Program Manager (“APM”) position -- Matthew 

Severson selected; 

5. November 2009 Non-Selection for APM position -- Ray 

Desautel selected; 

6. July 10, 2009 Non-Selection for APM position -- Joseph 

Brunner selected; 

7. Undated ASSEP Funding Cuts. 

See Def.’s MSJ at 12.7

 Nguyen does not directly dispute that he 

failed to exhaust the above claims. Rather, he argues that the 

non-exhausted claims were “part of a history of continuing 

discriminatory non-assignment practices and selections for 

                                                             7

 In addition, Defendant argues that to the extent any of 

the acts discussed above are alleged acts of age discrimination, 

Plaintiff cannot avail himself of the ADEA “bypass” provision 

because he did not, within 180 days of the allegedly 

discriminatory act, file notice with the EEOC at least 30 days 

before commencing suit, in accordance with 29 U.S.C. § 633a. 

See Def.’s MSJ at 12. According to Defendant, the EEOC has no 

record of Plaintiff filing any notice of intent to file an age 

discrimination claim in federal court. See Def.’s MSJ at 12 

(citing Def.’s MSJ, Ex. 13, Barkley Decl. ¶ 3). In response, 

Nguyen argues that because he filed his two civil actions 90 

days after the EEOC granted him “right to sue” on his 2005 and 

2007 EEO complaints, the ADEA bypass provision was rendered 

moot. Pl.’s Mem. of P&A in Opp’n to Def.’s Mot. Summ. J. at 10 

(“Pl.’s Opp’n”). However, Plaintiff misunderstands that 

Defendant’s argument regarding the ADEA bypass provision was 

related to all of the acts that did not occur within the 45-day 

period before the 2005 and 2007 complaints. As discussed in 

more detail below, Nguyen failed to exhaust his administrative 

remedies for those discrete acts. Because Nguyen never 

alternatively filed a notice of intent to sue with the EEOC 

within the requisite time period, he cannot have exhausted his 

administrative remedies via this route. 
17 

promotions that started in 1997 and throughout the time period 

between 1997 to the present[.]” Pl.’s Opp’n at 3-4. The Court 

construes this argument as a reference to the continuing 

violation theory. 

Under that theory, a plaintiff may recover for allegedly 

discriminatory conduct falling outside the applicable charging 

period if that conduct forms part of one indivisible 

discriminatory practice and at least one act in furtherance of 

that practice took place within the applicable charging period. 

See Coghlan v. Peters, 555 F. Supp. 2d 187, 203 (D.D.C. 2008); 

see also Adesalu, 606 F. Supp. 2d at 101. However, since the 

Supreme Court’s decision in Morgan, the continuing violation 

theory is restricted to claims akin to hostile work environment 

claims because those violations -- unlike a discrete act such as 

firing or failing to promote an employee -- “cannot be said to 

occur on any particular day.” Coghlan, 555 F. Supp. 2d at 203 

(citing Morgan, 536 U.S. at 115, 117). Morgan makes clear that 

courts should not treat individual incidents of alleged 

discrimination as part of a discriminatory pattern for 

exhaustion purposes: “[d]iscrete acts such as termination, 

failure to promote, denial of transfer, or refusal to hire are 

easy to identify. Each incident of discrimination . . . 

constitutes a separate actionable ‘unlawful employment 

practice.’” 536 U.S. at 114. 
18 

The Court therefore finds that all of Plaintiff’s nonselection/denial of promotion claims -- which include the August 

2004 Denial of Promotion to GS-14/Deputy Chief Engineer 

Position; the April 15, 2005 Non-Selection for the Chief 

Engineer Position; and the November 2008, July 2009, and 

November 2009 Non-Selections for the Imaging Sensor APM position 

-- are discrete acts of alleged discrimination. Because none of 

these acts occurred within forty-five days of Nguyen’s EEO 

contact, they were not timely exhausted and they are therefore 

procedurally barred.8

 The Court construes the December 2004 

Dulai threat as part of Plaintiff’s hostile work environment 

claim and therefore addresses it in Part III.C, infra. Finally, 

because Plaintiff only alleged the issues related to ASSEP 

funding in the context of his retaliation claim, the Court 

considers those undated actions in Part III.B, infra. 

Accordingly, the only discrete claims of discrimination that 

Plaintiff timely exhausted are (1) the January 2005 designation 

of Dr. Robert LaFreniere as Acting Chief Engineer,9

 and (2) the 

March 19, 2007 selection of Riad Sayegh as Chief Engineer. 

                                                             8

 In addition, Nguyen concedes that he never applied for the 

November 2008, July 2009, and November 2009 Imaging Sensor APM 

positions. See Def.’s Reply, Ex. 5, Transcript of Nguyen Dep. 

at 122-24. Thus, Defendant could not have discriminated against 

Nguyen by not selecting him for those positions. 

9

 In his initial contact and formal EEO complaint in 2005, 

Nguyen also alleged the following claims: 
19 

2. Plaintiff’s Discrimination Claims 

a. Legal Framework for Claims Under Title VII 

and the ADEA 

Title VII makes it unlawful for a federal government 

employer to discriminate “based on race, color, religion, sex, 

or national origin.” 42 U.S.C. § 2000e-16(a). The ADEA 

provides that “[a]ll personnel actions affecting employees or 

applicants for employment who are at least 40 years of age . . . 

in executive agencies . . . shall be made free from any 

discrimination based on age.” 29 U.S.C. § 633a(a). 

In the absence of direct evidence of discrimination, Title 

VII and ADEA claims are assessed under the burden-shifting 

framework set out by the Supreme Court in McDonnell Douglas 

                                                                                                                                                                                               

1. On February 11, 2005 he was denied recognition for his 

contribution to PMS 435 programs (such as initiating 

the Patriot radar program); 

2. As of January 5, 2005 he was denied Chief Engineer 

lead systems engineering assignments; 

3. As of January 5, 2005, LaFreniere “kept [Nguyen] in 

the dark and excluded [Nguyen] from all his 

communications and meetings with coworkers, field 

activities and support contractors.” 

2005 ROI at 15–16. However, Nguyen has not alleged these 

claims, even in passing reference, in either his initial 

Complaint or Amended Complaint in this action, or his Complaint 

in case number 10-1030. Therefore, the Court assumes that 

Nguyen has abandoned these claims, and alternatively, the Court 

finds that Nguyen has failed to allege sufficient facts to 

support a cause of action for discrimination based upon these 

claims. See Douglas-Slade v. LaHood, 793 F. Supp. 2d 82, 97 

(D.D.C. 2011) (finding that where plaintiff had asserted claims 

of race and sex discrimination in her EEO complaint but then not 

mentioned them in her civil complaint, the claims failed). 
20 

Corp. v. Green, 411 U.S. 792 (1973). See Barnette v. Chertoff, 

453 F.3d 513, 515 (D.C. Cir. 2006); Lathram v. Snow, 336 F.3d 

1085, 1088 (D.C. Cir. 2003). Pursuant to that framework, the 

plaintiff has the initial burden of proving, by a preponderance 

of the evidence, a prima facie case of discrimination. Tex. 

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). 

To establish a prima facie case, the plaintiff must show that 

(1) he or she is a member of a protected class; (2) he or she 

suffered an adverse employment action; and (3) the unfavorable 

action gives rise to an inference of discrimination. See Wiley 

v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007); Barnette, 453 

F.3d at 515. 

Once the plaintiff has established a prima facie case, “the 

burden shifts to the defendant ‘to articulate some legitimate, 

nondiscriminatory reason for the [action in question].’” Wiley, 

511 F.3d at 155 (quoting Burdine, 450 U.S. at 253). In 

asserting a legitimate, non-discriminatory explanation, the 

defendant “need not persuade the court that it was actually 

motivated by the proffered reasons. It is sufficient if the 

defendant’s evidence raises a genuine issue of fact as to 

whether it discriminated against the plaintiff.” Burdine, 450 

U.S. at 254 (internal citation omitted). The burden then shifts 

back to the plaintiff to demonstrate that the asserted reason is 

pretextual. Id. at 253; Barnette, 453 F.3d at 516. The 
21 

plaintiff at all times retains the burden of persuasion. 

Burdine, 450 U.S. at 253. 

At the summary judgment stage, once the defendant provides 

a legitimate, non-discriminatory explanation, “the district 

court need not -- and should not -- decide whether the plaintiff 

actually made out a prima facie case under McDonnell Douglas.” 

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C. 

Cir. 2008).10 Rather, the sole inquiry becomes whether the 

plaintiff produced “sufficient evidence for a reasonable jury to 

find that the employer’s asserted non-discriminatory reason was 

not the actual reason and that the employer intentionally 

discriminated against the [plaintiff] on [a prohibited basis].” 

Id.; see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir. 

2009). In other words, the McDonnell Douglas burden-shifting 

framework essentially disappears and the only remaining issue is 

whether the employer discriminated against the employee. In 

evaluating whether the plaintiff defeats summary judgment, the 

Court considers all the relevant circumstances in evidence, 

including the strength of the prima facie case, any direct 

evidence of discrimination, any circumstantial evidence that 

defendant’s proffered explanation is false, and any properly 

                                                             10 Although Brady involved a race discrimination claim, the 

D.C. Circuit also applies Brady’s framework to retaliation 

claims, see Jones v. Bernanke, 557 F.3d 670, 678-79 (D.C. Cir. 

2009), and to ADEA claims, see Lurie v. Mid-Atl. Permanente Med. 

Grp., P.C., 729 F. Supp. 2d 304, 316 n.2 (D.D.C. 2010). 
22 

considered evidence supporting the employer’s case. See Jones, 

557 F.3d at 679. 

b. Plaintiff’s Non-Selection Claims 

Nguyen alleges that Defendant’s failure to select him for 

the Acting Chief Engineer position in January 2005 and the Chief 

Engineer position in March 2007 constituted discrimination on 

the basis of race, national origin, and age. In particular, 

Nguyen alleges that he was better qualified for these positions 

than the individuals selected. 

The law does not dictate which candidate an employer should 

choose when making a promotion decision. Indeed, an “employer 

has discretion to choose among equally qualified candidates, 

provided the decision is not based upon unlawful criteria.” 

Burdine, 450 U.S. at 259. As the D.C. Circuit has stated, “[w]e 

have consistently declined to serve as a super-personnel 

department that reexamines an entity’s business decisions.” 

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal 

quotation marks and citation omitted); see also Fischbach v. 

D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“Title 

VII liability cannot rest solely upon a judge’s determination 

that an employer misjudged the relative qualifications of 

admittedly qualified candidates.”). 

In Aka v. Washington Hospital Center, however, the D.C. 

Circuit concluded that a fact-finder could infer discrimination 
23 

if the evidence showed that a reasonable employer would have 

found the plaintiff significantly better qualified for the job, 

and that there was other evidence calling the employer’s 

explanation into question. See 156 F.3d 1284, 1294-95 (D.C. 

Cir. 1998). In order to survive a motion for summary judgment, 

“[a] plaintiff attacking a qualifications-based explanation” may 

also raise an inference of discrimination by “seek[ing] to 

expose other flaws in the employer’s explanation,” including, 

inter alia, “show[ing] that the employer’s explanation misstates 

the candidates’ qualifications.” Id. at 1295. However, a 

plaintiff’s subjective assessment of his own qualifications is 

not enough. See Waterhouse v. Dist. of Columbia, 124 F. Supp. 

2d 1, 7 (D.D.C. 2000), aff’d, 298 F.3d 989 (D.C. Cir. 2002). 

“In a close case, a reasonable juror would usually assume that 

the employer is more capable of assessing the significance of 

small differences in the qualifications of the candidates, or 

that the employer simply made a judgment call.” Aka, 156 F.3d 

at 1294. In order to justify an inference of discrimination, 

the qualifications gap must be great enough to be “inherently 

indicative of discrimination.” Jackson v. Gonzalez, 496 F.3d 

703, 707 (D.C. Cir. 2007) (citation omitted). 

Defendant has alleged a non-discriminatory reason for each 

non-selection, and Plaintiff has argued that these asserted 
24 

reasons are mere pretext for discrimination. The Court will 

explore each non-selection in turn. 

1) 2005 Non-Selection 

Defendant’s asserted legitimate, non-discriminatory reason 

for its selection of Dr. LaFreniere over Nguyen for the 2005 

Acting Chief Engineer position is that LaFreniere’s 

qualifications exceeded those of Nguyen. See Def.’s MSJ at 15-

21. First, Defendant states that LaFreniere’s academic 

credentials are superior to Nguyen’s because LaFreniere has a 

Master’s degree in Mechanical Engineering and a Ph.D. in Applied 

Mechanics, while Nguyen holds a Bachelor’s degree in Engineering 

Science. See id. at 15. In addition, Defendant asserts that 

LaFreniere had impressive program management and engineering 

experience, including his experience in the periscope program 

for ten years, two of which were as Program Manager. See id. at 

16-21. According to Defendant, before LaFreniere was detailed 

to PMS 435, he was the Chief Engineer for the periscope program. 

Id. at 21. In approximately August 2004, LaFreniere’s 

supervisor nominated him for, and he was selected to receive, an 

accretion of duties promotion to the equivalent of GS-14. Thus, 

at the time of his selection for the Acting Chief position, 

LaFreniere was a GS-14 grade equivalent, while Nguyen was a GS13 grade equivalent. Id. at 20. Finally, Deputy Program 

Manager Paul Gross testified that Defendant appointed LaFreniere 
25 

Acting Chief Engineer over Plaintiff not only because of 

LaFreniere’s exceptional experience and academic credentials, 

but also because “he’s actually had real-life experience in the 

field touching and feeling the systems that we deal with, 

actually doing and developing tasking that we review here at 

headquarters. So he’s actually got a lot of hands-on experience 

that Mr. Nguyen doesn’t have.” Def.’s MSJ at 20 (citing 2005 

Transcript at 150-53). 

The Court finds that Defendant has produced legitimate, 

non-discriminatory reasons for the selection of LaFreniere over 

Plaintiff. See, e.g., Holcomb, 433 F.3d at 896 (concluding that 

defendant had met its burden of producing a legitimate, nondiscriminatory reason for selection of one applicant where 

selecting official provided affidavit explaining that she chose 

the selectee because she was more qualified for the position 

than the plaintiff); Oliver v. Napolitano, 729 F. Supp. 2d 291, 

301 (D.D.C. 2010) (finding that defendant’s selection of another 

employee based upon the interviewers’ assessment that the other 

employee was “more qualified” was a legitimate nondiscriminatory explanation). Accordingly, Nguyen now bears the 

burden of showing that “a reasonable jury could conclude from 

all of the evidence that the adverse employment decision was 

made for a discriminatory reason.” Lathram, 336 F.3d at 1088. 
26 

Nguyen argues that two issues of material fact preclude 

summary judgment: first, whether LaFreniere’s degrees are the 

“right qualifications” for the Chief Engineer position; second, 

whether the nature and extent of LaFreniere’s management 

experience, “exists and is suitable for the Chief Engineer 

position.”11 Pl.’s Opp’n at 11. 

With respect to the first issue, Nguyen argues that 

LaFreniere’s degrees in mechanics and mechanical engineering are 

“not suitable for the PMS 435 Chief Engineer position because 

the degrees are in a totally different field of engineering from 

‘knowledge of the theories and practices of electrical 

engineering’[] that is required for managing antennas, 

electrical systems, and electronic receivers and systems, under 

PMS 435 Chief Engineer’s cognizance.” Id. Nguyen produces no 

evidence to support his conclusory assertions that LaFreniere’s 

                                                             11 Plaintiff also points to a third purported issue of 

material fact: “whether ‘outstanding interpersonal 

communication’ claimed for LaFreniere is business necessity or 

nothing more than a pretext for discrimination against a nonnative English speaker like Plaintiff.” Pl.’s Opp’n at 11. 

Because Defendant never contended that LaFreniere’s “outstanding 

interpersonal communication” was the reason for LaFreniere being 

designated Acting Chief Engineer, the Court need not address 

this argument. Defendant did provide the testimony of Mr. 

Gross, who opined that LaFreniere was a very good manager, while 

Plaintiff was only an average manager. Def’s MSJ at 20 (citing 

2005 Transcript at 151). However, Defendant did not purport to 

base its selection on LaFreniere’s or Nguyen’s management 

skills. Nor has Plaintiff submitted evidence demonstrating or 

even raising an inference that Gross’s evaluation of their 

relative management skills was false or pretextual. 
27 

degrees are not suitable, and therefore the Court finds that 

Nguyen has not raised a genuine issue of fact regarding 

LaFreniere’s academic credentials.12 See Hastie v. Henderson, 

121 F. Supp. 2d 72, 77 (D.D.C. 2000), aff’d, No. 00-5423, 2001 

WL 793715 (D.C. Cir. 2001) (“To defeat a motion for summary 

judgment, a plaintiff cannot create a factual issue of pretext 

with mere allegations or personal speculation, but rather must 

                                                             12 Nguyen also contends that Defendant has misstated his 

academic credentials: 

Contrary to Defendant’s erroneous claim for the purpose of 

trivializing Plaintiff’s academic education in comparison 

with that of LaFreniere, . . . Plaintiff holds a 

professional Bachelor of General Engineering (which is, in 

the strictest sense of the term, well-rounded multiple 

engineering discipline training) from Dartmouth College 

(Graduate) Thayer School of Engineering since May 1978. 

Thayer School’s Bachelor of General Engineering degree 

requires schooling in Mathematics, Physics, Mechanical and 

Electrical Engineering disciplines in the undergraduate 

curriculum, and is conferred as a graduate diploma only to 

graduate students having held a Bachelor of Arts majoring 

in Engineering Sciences. 

 

Pl.’s Opp’n at 18. Plaintiff provides no evidence that his 

degree, which he himself characterizes as a Bachelor’s degree, 

is equivalent to a graduate degree. The Court therefore cannot 

discern any way in which Defendant made a misstatement when it 

asserted that Nguyen holds a Bachelor’s degree. The Court also 

finds no basis for concluding that Defendant’s comparison of 

Nguyen’s degree with LaFreniere’s was “for the purpose of 

trivializing” Plaintiff’s academic credentials or in any other 

way improper. The Court has no doubt that Mr. Nguyen is highly 

educated; that he does not possess a Master’s or Doctorate 

degree, however, appears to be undisputed. See Def.’s MSJ at 

15; 2007 ROI at 114-16 (Nguyen’s Resume). 
28 

point to ‘genuine issues of material fact in the record.’” 

(citation omitted)). 

As to the second issue, Nguyen argues that LaFreniere’s 

mechanical engineering management experience is “not the same as 

management of electronic or electrical systems. LaFreniere 

cannot claim to have extensive experience in electronics program 

management[.]” Pl.’s Opp’n at 12. Defendant provided an 

explanation for why it believed LaFreniere’s mechanical 

engineering background did not limit his ability to be Acting 

Chief Engineer: 

[I]f you look at his experience, a lot of the systems that 

we deal with are mechanical engineering-type systems. 

Periscopes are highly mechanical; they require an 

understanding of optical systems, digital electronics and 

digital cameras, hydraulics, material sciences. . . . So he 

has an extensive amount of experience and training in these 

areas. So I don’t think that was limiting factor. He had 

experience in [] electronic warfare, although not as 

extensive as Mr. Nguyen. But he had practical experience 

because of his experience with the imaging systems that we 

deal with. 

Def.’s MSJ at 20-21 (citing ROI Transcript at 152-53). The 

Court will not second-guess Defendant’s conclusion that 

LaFreniere’s mechanical engineering experience was relevant and 

sufficient for the Acting Chief Engineer position. An agency’s 

“decision not to consider certain qualifications . . . while 

emphasizing other qualifications, such as hands-on experience, 

when ranking candidates is within its discretion. Even if a 

court suspects that a job applicant was victimized by poor 
29 

selection procedures, which is not the case here, it may not 

second-guess an employer’s personnel decision absent 

demonstrably discriminatory motive.” Madan v. Chow, No. 02-2016 

(ESH), 2005 WL 555414, *6 (D.D.C. Mar. 8, 2005) (citing 

Fischbach, 86 F.3d at 1183). Nguyen has failed to present any 

evidence that Defendant’s preference for LaFreniere’s 

professional experience was pretextual. 

In this regard, Nguyen also argues that Defendant misstated 

LaFreniere’s professional experience, see Pl.’s Opp’n at 24-28; 

Pl.’s Statement of Genuine Issues ¶¶ 22-23, but Nguyen has not 

provided any evidentiary support for these assertions.13 

                                                             13 Nguyen purports to cite to several documents to support 

these misstatements. See, e.g., Pl.’s Opp’n at 27 (“Defendant 

made yet another false claim for LaFreniere’s ‘involvement . . . 

with multi-discipline engineering teams and managers, . . . in 

[producing] composite materials required for the Submarine 

Satellite Information eXchange System (SSXIS) antenna . . . and 

[delivering] the SSXIS antenna[.]’ SSIXS [sic] is NOT an 

antenna, according to a retired SPAWAR communication U.S. Navy 

officer and a retired U.S. submarine radio man. E-mail to 

Plaintiff dated Nov 3, 2011 on the subject SSXIS. Furthermore, 

an antenna cannot be made of composite materials. Canceled ECP 

No. N18-277, Title: Type 18B Periscope Set with ADF Installed, 

SSIXS Implementation, dated 94-12-30.”); id. at 28 (“To show 

that LaFreniere had prior experience managing Imaging sensors, 

Defendant also made the false claim that LaFreniere was the 

‘chief engineer’ of an Office of Naval Intelligence-classified 

Imaging ‘Top Gate’ program. . . . Actually, Top Gate is NOT a 

classified PROGRAM managed or engineered by LaFreniere. ONI’s 

Topgate project is a ‘Vision 1’ camera-and-WIN-NT workstation 

system put ‘on board’ by APL for ONI without LaFreniere[’s] 

involvement, much less management. Meeting minutes at ONI-34 of 

19 January 2000. Plaintiff was an attendee at this meeting but 

not LaFreniere. LaFreniere’s OPF SF52 Request for Personnel 

Action.”). However, Nguyen did not attach the documents he 
30 

Plaintiff’s mere assertions that Defendant made false claims -- 

with no support for his assertions -- is insufficient under Rule 

56(c)(1) to raise a genuinely disputed factual issue. See 

Hastie, 121 F. Supp. 2d at 77. Nguyen has therefore not raised 

a genuine issue of material fact as to whether LaFreniere’s 

experience “exist[ed]” or was suitable for the Acting Chief 

Engineer position. Even if Defendant had misstated LaFreniere’s 

experience, Plaintiff “cannot create a genuine issue for trial 

by demonstrating that only one of [Defendant’s] reasons for 

[his] non-[selection] was false; []he can only create a genuine 

dispute if []he can make this demonstration with respect to all 

of [Defendant’s] reasons.” Hicks v. Gotbaum, 828 F. Supp. 2d 

152, 162 (D.D.C. 2011). 

Nguyen also points to the fact that LaFreniere “competed 

for the same position” in April 2005 but was not selected, in 

favor of “another 39 year old Caucasian who is less degreed and 

                                                                                                                                                                                               

purports to rely on or provide any guidance as to their location 

in the record; the Court was unable to locate the documents on 

its own. This does not comport with Local Civil Rule 7(h)(1), 

which requires that “[a]n 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.” LCvR 7(h)(1). 

Moreover, it is incumbent on the nonmovant who asserts such a 

fact to provide depositions, affidavits, or other competent 

evidence in support of the factual assertion if he is to defeat 

summary judgment. The Court advised Plaintiff as much in its 

Order directing Plaintiff to respond to Defendant’s Motion for 

Summary Judgment. See Order (Oct. 18, 2011), Docket No 36.
31 

less experienced than himself” (Stephen Stump). Pl.’s Opp’n at 

13. Nguyen thus contends that another issue of fact is whether 

the selection criteria were changed for the same position 

between August 2004 and January 2005. Id. Nguyen points to no 

evidence from which the Court can infer that Defendant altered 

the selection criteria for the Acting Chief Engineer or Chief 

Engineer positions at any time. Furthermore, the Court is 

unable to draw an inference that the selection criteria for the 

two positions were ever the same, such that the fact that 

LaFreniere was selected Acting Chief, but then not selected 

Chief Engineer, would raise an inference of pretext. Nguyen’s 

mere conclusory allegation that the selection criteria were 

altered -- with no support for the statement -- is insufficient 

to raise a genuine issue of fact regarding the selection 

criteria or Defendant’s alteration thereof. 

Furthermore, Nguyen’s conclusory assertion that 

LaFreniere’s non-selection for the Chief Engineer position in 

April 2005 raises an inference that his prior selection for 

Acting Chief was pretextual is not supported by the record. 

According to Defendant, the panel that ranked candidates for the 

April 2005 selection “scored Plaintiff’s application (with 25 

out of 40 points) lower than LaFreniere’s (with 33 out of 40 

points).” Def.’s Reply at 9. The interview panel thus found 

the top candidates to be LaFreniere and Stephen Stump. Id. The 
32 

fact that LaFreniere was selected as Acting Chief Engineer but 

was later not selected as Chief Engineer does not raise a 

genuine issue of material fact as to whether Defendant’s 

selection of LaFreniere for Acting Chief over Nguyen was 

pretextual.14

Finally, Nguyen argues at length that he was better 

qualified than LaFreniere because he has more extensive academic 

and professional training, the requisite professional 

experience, and actual accomplishments for performing the duties 

and responsibilities of Chief Engineer. See Pl.’s Opp’n at 16-

34. In order for Nguyen to raise an inference of discrimination 

on this basis, however, he must demonstrate that he was 

“substantially more qualified” than LaFreniere. Holcomb, 433 

F.3d at 897; see also Aka, 156 F.3d at 1299. In Aka, for 

                                                             14 Nguyen alleges that “[a]nother issue of fact” is that 

“Defendant never entrusted budget management to Plaintiff but it 

did [to] LaFreniere . . . .” Pl.’s Opp’n at 12. It is unclear 

how this issue is a disputed issue of fact that is material to 

Plaintiff’s discrimination claim. It appears that Plaintiff and 

Defendant do not dispute that Nguyen was not responsible for 

budget management because that responsibility belonged to the 

Chief Engineer, or Acting Chief Engineer. See 2005 ROI at 54 

(“The overall budgetary management of the ASSEP program is the 

responsibility of the Chief Engineer. . . . The overall 

management of these efforts was not the responsibility of Mr. 

Nguyen.”); 2005 Transcript at 42-45 (NGUYEN: “The ASSEP program 

budget is a key component of the chief engineer’s 

responsibilities and functions.”). Nguyen may have believed 

that he was capable of performing budget management; however, 

that he was not given this responsibility is not a disputed 

issue of fact or an allegation that would raise an inference of 

pretext on the part of Defendant. 
33 

example, the D.C. Circuit determined the evidentiary record was 

sufficient for a reasonable jury to conclude that the plaintiff, 

who was denied a pharmacy technician job, was “markedly more 

qualified” than the applicant selected. 156 F.3d at 1299. 

There, the plaintiff had presented undisputed evidence that he 

had nineteen years of experience as a hospital assistant as well 

as Bachelor’s and Master’s degrees; the other applicant did not 

have a college degree, had worked in the hospital laundry for 

slightly over a year, and had spent only two months as a 

pharmacy volunteer. Id. at 1295-96. Here, Plaintiff 

extensively details his own experience and, as noted above, 

avers that LaFreniere’s experience was overstated or misstated 

by Defendant. See Pl.’s Opp’n at 16-34. However, “plaintiff’s 

perception of [him]self,” and of his qualifications, “is not 

relevant. It is the perception of the decisionmaker which is 

relevant.” Waterhouse, 124 F. Supp. 2d at 7 (internal citation 

and quotation marks omitted). 

Even viewing all of the evidence in the light most 

favorable to Nguyen, the Court is not persuaded that Nguyen was 

substantially better qualified than LaFreniere. Plaintiff’s 

resume reflects that he began employment at NAVSEA in 1983, see 

2007 ROI at 115, while Dr. LaFreniere has been employed at the 

Naval Undersea Warfare Center (“NUWC”) since 1985, with the 

exception of two years in private industry, see Def.’s MSJ, Ex. 
34 

17, LaFreniere Decl. ¶¶ 5,8. As noted above, Plaintiff holds a 

Bachelor’s degree in General Engineering, while LaFreniere holds 

a Master’s and Ph.D. in Mechanical Engineering. Finally, 

Plaintiff has approximately twelve years of experience on the 

Sea Wolf program and approximately five years serving as the 

Assistant Chief Engineer in PMS 435, see Pl.’s Statement of 

Genuine Issues ¶ 20, while LaFreniere has approximately seven 

years’ experience as an Engineering Program Manager in NUWC and 

approximately five years of experience as the Program Manager 

and Chief Engineer of the Night Owl program, see Def.’s MSJ at 

16-20. Although the Court does not doubt that Nguyen’s 

qualifications are impressive, Nguyen has failed to demonstrate 

that he was substantially more qualified than LaFreniere to 

allow a jury to infer discrimination. Cf. Holcomb, 433 F.3d at 

897-98; Stewart v. Ashcroft, 352 F.3d 422, 429-31 (D.C. Cir. 

2003). Moreover, Nguyen has provided no evidentiary support for 

his assertions that Defendant misstated either Nguyen’s or 

LaFreniere’s qualifications. Therefore, the Court concludes 

that Nguyen has not produced sufficient evidence to satisfy his 

burden of showing that Defendant’s asserted reasons for its 

selection of LaFreniere were pretext. 

2) 2007 Non-Selection 

Nguyen also alleges that he was better qualified for the 

Chief Engineer position than Riad Sayegh, and that Defendant’s 
35 

failure to select him was discriminatory. Defendant argues, 

however, that its legitimate, non-discriminatory reason for 

selecting Sayegh is that the interview panel believed Sayegh to 

be the better qualified candidate. See Def.’s MSJ at 21-29. 

Defendant asserts that a selection panel, composed of Gross and 

two individuals outside of PMS 435, Dr. Binder and Mr. 

Greenberg, reviewed the applications of five eligible candidates 

and rated Nguyen and Sayegh as the top two candidates based on 

their resumes. Id. at 24 (citing 2007 ROI at 117-19).15 

Nguyen’s total rating was 11.5, while Sayegh’s total rating was 

11.75. Id. (citing 2007 ROI at 117-18). The panel then 

interviewed both Nguyen and Sayegh on the same day and asked the 

two candidates the same six interview questions. Id. at 24-25 

(citing 2007 ROI at 118, 131).16 Based on the applications and 

                                                             15 The Knowledge and Skills used by the panel to rank the 

candidates’ applications were: 

1. Knowledge of Submarine Electronic Warfare technology 

and systems; 

2. Knowledge of Imaging and Electronic Optics Systems; 

3. Knowledge of Systems Engineering and Test & Evaluation 

processes; 

4. Ability to manage R&D projects; 

5. Ability to develop specification. 

2007 ROI at 118. 

16 Those questions were as follows: 

1. After reading the brief description of the vacant 

Imaging and EW Chief Engineer position, please 

describe how you are qualified to perform the duties? 
36 

the interviews, the panel unanimously recommended selecting 

Sayegh. The panel explained their selection as follows: 

During the interview Mr. Sayegh demonstrated a broad 

understanding of both I&EW systems and their acquisition. 

He provided examples of current work experience that were 

relevant and germane to skills he would have to use as the 

I&EW Chief Engineer (CE) whereas Mr. Nguyen provided 

examples that were dated and not as relevant to the CE 

position. Mr. Sayegh provided examples of his understanding 

of the Systems Engineering process and its importance in 

the acquisition and the life cycle management of systems. 

He also has in depth experience in acquiring software and 

managing it over its life cycle. Mr. Nguyen didn’t provide 

good examples of his understanding of the Systems 

Engineering process and didn’t appear to have as good an 

understanding and experience with the processes as Mr. 

Sayegh. He also didn’t mention any experience he had in 

acquiring and managing software. . . . Mr. Sayegh also 

demonstrated experience managing both the imaging and EW 

upgrade and improvement R&D efforts for Photonics. Mr. 

Sayegh and Mr. Nguyen both have knowledge and experience in 

managing submarine I&EW technology. Overall, Mr. Sayegh on 

both his resume and during the interview demonstrated 

                                                                                                                                                                                               

Why do you think you have the ability to lead and 

coordinate the activities of a diverse group of 

government and industry personnel? 

2. Please describe what experience you have in the 

financial management and contracting process. What 

functions have you performed during your career and 

what have been your roles in planning and executing 

financial management and the contracting process? 

3. Do you have any experience in the systems engineering 

discipline, including software acquisition and 

management processes? If so, explain. 

4. What relevant knowledge of submarine modernization and 

life cycle management do you possess? 

5. Please explain the role of the systems engineer within 

the Program Office. 

6. Do you have a TS security clearance? If not, is there 

anything in your background that would prevent you 

from obtaining a TS security clearance? 

2007 ROI at 118. 
37 

broader and more in depth experience in the skills required 

to perform the job. 

2007 ROI at 119. Mr. Greenberg, one of the panel members, 

specifically stated: 

During the interviews, I remember Mr. Nguyen’s answers were 

very good, but Mr. Sayegh’s were outstanding. For instance, 

Mr. Sayegh handled research and development programs 

applicable to the Chief Engineer position and understood 

how those responsibilities fit into the overall program. . 

. . Mr. Sayegh had managed a research and development 

program within PMS 435. I don’t remember Mr. Nguyen 

explaining his research and development experience 

applicable to PMS 435. In addition, Mr. Sayegh’s responses 

to interview question four were plainly superior. 

Specifically, Mr. Sayegh described in detail his experience 

with the Virginia class submarine. The Virginia class 

submarine program is of particular importance to the Navy 

and plays a pivotal role in the future of undersea warfare. 

By contrast, Mr. Nguyen described his experience with the 

Seawolf class submarine. This description was helpful, but 

Seawolf class submarines were delivered in the late 1990s. 

Because Mr. Sayegh’s response discussing the Virginia class 

submarine program was especially current demonstrating an 

understanding of the modernization process employed by the 

program, I found his experience more applicable to the 

Chief Engineer position. 

2007 ROI at 136. 

The Court concludes that Defendant provided legitimate, 

non-discriminatory reasons for its selection of Sayegh over 

Nguyen. See, e.g., Holcomb, 433 F.3d at 896; Oliver, 729 F. 

Supp. 2d at 301-03 (finding that defendant’s selection of other 

employees for two vacancies based upon the interviewers’ 

assessment that the other employees performed better in the 

interview was a legitimate non-discriminatory explanation). 
38 

Therefore, Nguyen now has the burden of demonstrating that this 

explanation was pretextual. 

Similar to his arguments regarding LaFreniere, Plaintiff 

argues that Sayegh was not qualified for the Chief Engineer 

position because he is a mechanical engineer by training and 

does not have sufficient relevant experience. See Pl.’s Opp’n 

at 34-43. However, Nguyen has not provided the Court with any 

evidentiary support for his assertions, and therefore, the Court 

finds that he has not demonstrated that either of these issues 

are genuine issues of material fact that would bar summary 

judgment.17 Moreover, as the Court noted above, an employer is 

afforded discretion to choose between equally qualified 

applicants, and the Court should not second-guess an employer’s 

personnel decision absent a demonstrably discriminatory motive. 

See Barnette, 453 F.3d at 517 (“[C]ourts must defer to the 

employer’s decision as to which qualities required by the job . 

. . it weighs more heavily.”); Fischbach, 86 F.3d at 1183; 

Reshard v. Peters, 579 F. Supp. 2d. 57, 71 (D.D.C. 2008). 

Indeed, Defendant provided testimony that the panel who 

                                                             17 Nguyen also contends -- without support -- that Defendant 

cannot justify having scored Sayegh higher than Nguyen based on 

the factors it listed for consideration of candidates. Pl.’s 

Opp’n at 41-42. However, Nguyen’s subjective assertion that he 

should have been rated higher than Sayegh, without more, does 

not provide sufficient evidence from which the Court could infer 

that this rating was pretext for discrimination. 
39 

interviewed Sayegh believed he had more than sufficient relevant 

experience. See Def.’s MSJ at 25-26 (“[Sayegh] provided 

examples of current work experience that were relevant and 

germane to skills he would have to use as the I&EW Chief 

Engineer . . . . He also has in depth experience in acquiring 

software and managing it over its life cycle. . . . Mr. Sayegh 

also demonstrated experience managing both the imaging and EW 

upgrade and improvement R&D efforts for Photonics.”). Nguyen 

therefore has not demonstrated a genuine issue of material fact 

as to Sayegh’s qualifications or experience. 

Nguyen also argues generally that he was more qualified 

than Sayegh because he had extensive R&D management experience 

and training. See Pl.’s Opp’n at 34-41.18 Again, however, 

Nguyen has offered nothing more than his own subjective 

assertions, which are insufficient to demonstrate that he was 

significantly better qualified than Sayegh. Even viewing the 

evidence in the light most favorable to Nguyen, the Court cannot 

conclude that Nguyen was significantly better qualified than 

Sayegh. Defendant asserts that Sayegh has a Master’s Degree in 

                                                             18 Nguyen also asserts that Sayegh failed to meet the 

requirement of membership in the Defense Acquisition 

Professional Corps (“APC”) and was thus not qualified for the 

Chief Engineer position. See Am. Compl. at ¶¶ 43-45. However, 

Sayegh has been a member of the Defense Acquisition Corps, 

formerly the APC, since March 15, 2007. Def.’s MSJ, Ex. 18, 

Sayegh Decl. ¶ 7. 
40 

Mechanical Engineering, as compared to Nguyen’s Bachelor’s 

degree. See Def.’s MSJ at 22. In addition, despite the fact 

that Nguyen has more total years of experience than Sayegh, 

Defendant provided evidence that Sayegh had more relevant recent 

experience, including with the Virginia class submarine program. 

See id. at 22-26; 2007 ROI at 136. Finally, the interview panel 

contemporaneously rated Sayegh’s relevant knowledge and skills 

the highest of all of the applications. See Def.’s MSJ at 24. 

At best, the evidence demonstrates that Nguyen was merely 

one of several qualified candidates for the job, and not that he 

was substantially more qualified than Sayegh. See Ford v. 

Mabus, 629 F.3d 198, 202-03 (D.C. Cir. 2010) (concluding that 

despite having twenty more years of experience, plaintiff had 

not demonstrated that he was significantly better qualified than 

the selected candidate in order to raise an inference of age 

discrimination); Jackson, 496 F.3d at 708-09 (affirming grant of 

summary judgment for the defendant because the plaintiff and the 

selectee were both qualified for the promotion and there was no 

evidence that the plaintiff was a “discernibly better” candidate 

than the selectee). Accordingly, the Court concludes that 

Nguyen has not met his burden of producing evidence upon which a 

reasonable fact-finder could conclude that Defendant’s 

preference of Sayegh’s qualifications and interview performance 

was mere pretext for discrimination. 
41 

B. Retaliation Claims 

Nguyen has alleged that Defendant retaliated against him in 

two different ways: (1) following his 2005 EEO complaint, 

Defendant began to cut ASSEP funding from Nguyen’s programs and 

continued to prohibit him from participating in ASSEP funding 

decisions, see Am. Compl. ¶¶ 83-85; and (2) Defendant failed to 

select Nguyen for the Chief Engineer position in April 2005 soon 

after his February 2005 EEO contact, see Compl., No. 10-1030, at 

¶¶ 6-7.19 

Employers are forbidden “from discriminating against an 

employee or job applicant because that individual opposed any 

practice made unlawful by Title VII or made a charge, testified, 

assisted, or participated in a Title VII proceeding or 

investigation.” Burlington N. & Santa Fe Ry. Co. v. White, 548 

U.S. 53, 56 (2006) (internal alterations and quotation marks 

                                                             19 Defendant construes Plaintiff’s Complaint in case number 

10-1030 as alleging that Plaintiff’s non-selection as Acting 

Chief Engineer in January 2005 was retaliation based upon 

Plaintiff’s EEO activity in approximately 1997 or 1998. See 

Def.’s MSJ at 13-14. The Court finds no basis for construing 

Plaintiff’s Complaint to make this allegation. Indeed, the 

Complaint specifically states that Defendant “continued to deny 

Nguyen GS-14 position shortly after Nguyen contested Defendant’s 

decision to appoint LaFreniere to the Acting PMS 435 Chief 

Engineer in an EEO complaint . . . . On April 15, 2005, Agency 

again failed to promote Nguyen to GS-14 and PMS 435 Chief 

Engineer position after his EEO complaint of January 5, 2005.” 

Compl., No. 10-1030, at ¶¶ 6-7 (emphasis added). Therefore, the 

Court need not address Defendant’s argument that Plaintiff 

cannot establish a prima facie case of retaliation concerning 

the selection of LaFreniere as Acting Chief Engineer. 
42 

omitted); see also 42 U.S.C. § 2000e-3(a). The same ban on 

retaliation applies under the ADEA. Gomez-Perez v. Potter, 553 

U.S. 474, 479, 491 (2008). Retaliation claims also follow the 

McDonnell Douglas framework set forth above, whereby the 

plaintiff must first establish a prima facie case of 

retaliation; the defendant must then articulate a legitimate, 

non-discriminatory reason for its action; and the plaintiff must 

then demonstrate that this explanation is mere pretext. See 

Jones, 557 F.3d at 677. To establish a prima facie case of 

retaliation, the plaintiff must show that (1) he engaged in 

statutorily protected activity; (2) he suffered a materially 

adverse action by his employer; and (3) a causal connection 

existed between the two. Id.; see also Tomasello v. Rubin, 167 

F.3d 612, 619 (D.C. Cir. 1999) (“[T]he test for determining 

retaliation under the ADEA and Title VII is identical”). A 

plaintiff has engaged in a protected activity if he or she has 

“opposed any practice made an unlawful employment practice” by 

Title VII or the ADEA. Gilbert v. Napolitano, 670 F.3d 258, 262 

(D.C. Cir. 2012). Filing a formal complaint of discrimination 

constitutes a protected activity. See Holcomb, 433 F.3d at 902. 

1. Exhaustion 

As noted supra, Part III.A.1, after the Supreme Court’s 

decision in Morgan, this Court has required plaintiffs to 

exhaust their administrative remedies with respect to each 
43 

discrete act of discrimination. Several courts in this 

District, however, have distinguished retaliation claims that 

arise after a plaintiff has filed an administrative complaint, 

holding that separate exhaustion is not required for those later 

acts of retaliation that would have come within the “scope of 

any investigation that reasonably could have been expected to 

result from [the] initial [administrative] charge of 

discrimination.” Hazel v. Wash. Metro. Area Transit Auth., No. 

02-1375, 2006 WL 3623693, *8 (D.D.C. Dec. 4, 2006) (relying on 

Wedow v. Kansas City, 442 F.3d 661, 673-74 (8th Cir. 2006) and 

Lane v. Hilbert, No. 03-5309, 2004 WL 1071330, *1 (D.C. Cir. May 

12, 2004)); see also Jones v. Bernanke, 685 F. Supp. 2d 31, 37 

(D.D.C. 2010); Thomas v. Vilsack, 718 F. Supp. 2d 106, 121 

(D.D.C. 2010); Smith-Thompson v. Dist. of Columbia, 657 F. Supp. 

2d 123, 137 (D.D.C. 2009); Lewis v. Dist. of Columbia, 535 F. 

Supp. 2d 1, 6-8 (D.D.C. 2008).20 The D.C. Circuit has declined 

to weigh in on this split. See Payne v. Salazar, 619 F.3d 56, 

65 (D.C. Cir. 2010) (“We need not decide whether Morgan did in 

fact overtake that line of cases [that permits federal employees 

                                                             20 But see Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139, 

148-49 (D.D.C. 2005) (requiring plaintiffs to separately exhaust 

every discrete act of discrimination or retaliation regardless 

of whether it was “like or reasonably related” to claims in the 

administrative complaint); Coleman–Adebayo v. Leavitt, 326 F. 

Supp. 2d 132, 137-38 (D.D.C. 2004) (dismissing postadministrative complaint retaliation claim where the plaintiff 

failed to exhaust).
44 

to litigate unfiled retaliation claims that are like or 

reasonably related to claims they did file with the agency].”). 

The courts in this District that have followed this line of 

reasoning have required claims of retaliation to be 

administratively exhausted unless they were (1) related to the 

claims in the initial administrative complaint, and (2) 

specified in that complaint to be of an ongoing and continuous 

nature. See, e.g., Thomas, 718 F. Supp. 2d at 121; Lewis, 535 

F. Supp. 2d at 7-8. Because exhaustion of administrative 

remedies is an affirmative defense, Defendant bears the burden 

of pleading and proving it. Bowden, 106 F.3d at 437. Notably, 

Defendant does not address the relevant split in legal authority 

whatsoever. 

With respect to Nguyen’s claim regarding ASSEP funding 

issues, Defendant argues that Nguyen did not make any contact 

with an EEO counselor regarding ASSEP funding cuts in either his 

2005 or 2007 EEO complaints. See Def.’s MSJ at 29; see also 

Def.’s MSJ, Ex. 16, Dyson Decl. ¶ 7. In his February 2005 EEO 

contact, however, Plaintiff alleged that “[a]s of 5 Jan 2005 and 

continuing to present the de facto new Chief Engineer excluded 

me from ASSEP budget management deliberations/decisions in favor 

of support contractors and other co-workers, and reduced me to 

an outsider’s role.” 2005 ROI at 16. These allegations are not 

substantially similar to the claim that Defendant cut ASSEP 
45 

funding to Nguyen’s programs, but they are similar to his 

allegation that Defendant continued to exclude him from ASSEP 

funding decisions. In addition, they are clearly specified to 

be of an ongoing and continuous nature. 

Defendant does not address Nguyen’s April 2005 nonselection claim, and for this reason alone, the Court finds that 

Defendant has not met its burden of proving that Plaintiff 

failed to exhaust this claim. Even had Defendant addressed this 

claim, the Court finds that it is at least plausible that the 

April 2005 non-selection claim is sufficiently related to the 

claims in Nguyen’s 2005 administrative complaint that Defendant 

had denied Nguyen the Acting Chief Engineer position. See 

Hazel, 2006 WL 3623693, at *8 (finding that allegations of two 

subsequent retaliatory non-selections and termination were of a 

similar kind to the history of harassment and discrimination 

alleged in the EEO charges, which included a retaliatory nonselection and attempts to set the plaintiff up for termination). 

In addition, Nguyen’s initial EEO complaint specified that his 

non-selection claim was continuous and ongoing. See 2005 ROI at 

16 (“As of January 2005 and continuing to Present, PMS 435 

denies me the Acting Chief Engineer position . . . .”). It is 

therefore plausible that Nguyen’s non-selection claim would have 

fallen within the scope of the investigation that reasonably 
46 

could have been expected to result from Nguyen’s initial charge 

of discrimination. 

 Accordingly, Defendant has not met its burden of proving 

that Plaintiff failed to exhaust his administrative remedies 

related to his two retaliation claims. 

2. Plaintiff’s Claims 

a. Cuts to ASSEP Funding and Exclusion from 

Funding Decisions 

Even assuming Nguyen exhausted his claim regarding cuts in 

ASSEP funding and his exclusion from ASSEP funding decisions, he 

has not established a prima face case of retaliation regarding 

these purported actions. Although it is undisputed that Nguyen 

engaged in a protected activity when he filed his 2005 EEO 

complaint, Nguyen has not demonstrated that the actions related 

to ASSEP funding were materially adverse. 

 Under the Supreme Court’s decision in Burlington, a 

materially adverse action in the retaliation context is one that 

could “dissuade a reasonable worker from making or supporting a 

charge of discrimination.” 548 U.S. at 57; see also Steele, 535 

F.3d at 696. Thus, the term “adverse action” in the retaliation 

context “encompass[es] a broader sweep of actions than those in 

a pure discrimination claim.” Baloch v. Kempthorne, 550 F.3d 

1191, 1198 n.4 (D.C. Cir. 2008). The D.C. Circuit has, however, 

established some limits to what constitutes an adverse 
47 

employment action. Although “‘purely subjective injuries,’ such 

as dissatisfaction with a reassignment, public humiliation, or 

loss of reputation, are not adverse actions, the threshold is 

met when an employee ‘experiences materially adverse 

consequences affecting the terms, conditions, or privileges of 

employment or future employment opportunities such that a 

reasonable trier of fact could find objectively tangible harm.’” 

Holcomb, 433 F.3d at 902 (quoting Forkkio v. Powell, 306 F.3d 

1127, 1130-31 (D.C. Cir. 2002)). 

In Holcomb, the D.C. Circuit concluded that the plaintiff 

had suffered an objectively tangible harm where, even though she 

never suffered a reduction in grade, pay, or benefits, she 

experienced: 

[A]n extraordinary reduction in responsibilities that 

persisted for years . . . . The record includes 

uncontroverted testimony that her duties dramatically 

declined in both quantity and quality. Most tellingly, the 

. . . desk audit revealed [plaintiff] was performing tasks 

commensurate with a Grade 5 position -- six grades below 

[plaintiff’s position]. 

433 F.3d at 902. Here, Nguyen alleges that following his 

protected activity, he suffered cuts to ASSEP funding, and 

Defendant “continu[ed]” to prohibit him from participating in 

ASSEP funding decisions, which stripped him of substantive job 

responsibilities. Am. Compl. ¶¶ 83-85. These allegations are 

not sufficient to rise to the level of a materially adverse 

action like the one found in Holcomb. First, there is no 
48 

indication from the record that Defendant ever made any cuts to 

the funding of Nguyen’s programs whatsoever or excluded him from 

funding decisions. Nor does Nguyen allege that the purported 

cuts to ASSEP funding or exclusion from funding decisions led to 

any material changes in the terms, conditions, or privileges of 

his employment or future employment opportunities. Indeed, 

Nguyen appears to have conceded that ASSEP funding decisions 

were the responsibility of the Chief Engineer, not the Assistant 

Chief Engineer. See 2005 Transcript at 42-45 (NGUYEN: “The 

ASSEP program budget is a key component of the chief engineer’s 

responsibilities and functions.”). Nguyen has therefore not 

shown how the purported cuts to ASSEP funding and exclusion from 

funding decisions amounted to a tangible harm to his employment 

that would have dissuaded a reasonable worker from making a 

charge of discrimination. 

 Accordingly, the Court concludes that Nguyen has not 

succeeded in establishing a prima facie case of retaliation on 

this claim.

b. Non-selection for Chief Engineer, April 2005 

It is undisputed that Nguyen engaged in a protected 

activity when he filed his EEO complaint. In addition, Nguyen’s 

non-selection for the Chief Engineer position constitutes a 

materially adverse action. See Stewart, 352 F.3d at 427 

(“[F]ailing to select an employee for a position with 
49 

substantially greater supervisory authority is an adverse 

employment action.”); Cones v. Shalala, 199 F.3d 512, 521 (D.C. 

Cir. 2000) (holding that refusal to allow employee to compete 

for higher level Director position constituted materially 

adverse action). In order to establish a prima facie case then, 

Nguyen must finally demonstrate that his non-selection for Chief 

Engineer in April 2005 was causally connected to his protected 

EEO activity. 

A causal connection may be established by showing that “the 

employer had knowledge of the employee’s protected activity, and 

. . . the adverse personnel action took place shortly after that 

activity.” Holcomb, 433 F.3d at 903 (citations omitted). For 

purposes of establishing a prima facie case of retaliation, 

temporal proximity between the protected EEO activity and 

adverse action can support an inference of causation, but only 

when the two events are “very close” in time. Woodruff v. 

Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (quoting Clark Cnty. 

Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)); see also 

Singletary v. Dist. of Columbia, 351 F.3d 519, 525 (D.C. Cir. 

2003) (“[T]his circuit has held that a close temporal 

relationship may alone establish the required causal 

connection.”). Although the Supreme Court has suggested that in 

some instances a three-month period between the protected 

activity and the adverse employment action may, standing alone, 
50 

be too lengthy to raise an inference of causation, neither the 

Supreme Court nor the D.C. Circuit has established a bright-line 

three-month rule. See Clark Cnty. Sch. Dist., 532 U.S. at 273-

74; Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C. Cir. 

2012). Instead, courts in this Circuit have evaluated the 

specific facts of each case to determine whether inferring 

causation is appropriate. See Hamilton, 666 F.3d at 1358-59 

(measuring time between filing of formal EEO complaint and 

adverse employment action, which was just under three months, 

and finding that a pattern of antagonism leading up to the 

adverse action supported inference of causation). 

Here, the time between Nguyen’s initial EEO contact 

(February 11, 2005) and his non-selection for the Chief Engineer 

position (April 15, 2005) was approximately two months. 

Further, the time between Nguyen’s formal EEO complaint (March 

24, 2005) and the non-selection was less than one month. This 

close temporal proximity is, therefore, sufficient for the Court 

to infer a causal connection. In addition, there is, at the 

very least, a genuine issue of material fact as to whether any 

member of the panel that selected Stephen Stump for the Chief 

Engineer position in April 2005 was aware of Nguyen’s EEO 

activity. The record reflects that the panel involved in rating 

candidates for the selection included Paul Gross, although it 

does not appear that Gross was involved in interviewing any of 
51 

the candidates. See Def.’s Reply, Ex. 4, at 1. Mr. Gross was, 

however, listed as the ultimate selecting official. See id. at 

2. The record also reflects that Mr. Gross was interviewed in 

connection with Nguyen’s 2005 EEO complaint, thus making it 

plausible that Gross was aware of the complaint before the April 

2005 selection of Stump. See 2005 Transcript at 150-57. The 

Court therefore concludes that there is sufficient evidence in 

the record to infer a causal connection between Nguyen’s 

protected activity and his non-selection for the Chief Engineer 

position in order to demonstrate a prima facie case. See Cones, 

199 F.3d at 521. 

Because Nguyen has demonstrated a prima facie case of 

retaliation, the burden thus shifts to Defendant to assert a 

legitimate, non-discriminatory reason for its action. As noted 

above, Defendant did not construe Nguyen’s Complaint as alleging 

retaliation based upon the selection of Stump as Chief Engineer. 

Therefore, Defendant did not address this claim at all, let 

alone offer any legitimate, non-discriminatory reason for its 

action. Accordingly, the Court finds that summary judgment is 

not appropriate as to this claim. 

C. Hostile Work Environment Claims 

In both his Amended Complaint and his Complaint in case 

number 10-1030, Plaintiff alleges only in passing that Defendant 

“created a hostile work environment based on age” in violation 
52 

of the ADEA. Am. Compl. ¶ 1; see also Compl., No. 10-1030, at 

2. Throughout his Amended Complaint, however, Plaintiff alleges 

acts that can only be read as part of a hostile work environment 

claim based on Plaintiff’s race and national origin, in addition 

to age. See, e.g., Am. Compl. ¶¶ 14-17 (alleging that Gross has 

not assigned Nguyen a major area of responsibility, has stripped 

Nguyen of substantive engineering work, has given Nguyen fewer 

performance awards than other similarly situated Caucasian 

engineers with less experience, and continues to exclude Nguyen 

from major duties and responsibilities); id. ¶¶ 19-21, 28 

(regarding Chief Engineer Dulai’s comments about Vietnamese 

people and his threat that Nguyen should look for a different 

position). Nguyen also alleges that Defendant has repeatedly 

denied Nguyen promotions to higher grade positions for which he 

was qualified, in favor of substantially younger, Caucasian 

employees. See, e.g., id. ¶ 22. Because Plaintiff is 

proceeding pro se, the Court construes the allegations in his 

complaints liberally to include claims for hostile work 

environment based on race, national origin, and age. The Court 

concludes that Nguyen’s allegations do not rise to the level of 

a hostile work environment on any of those bases. 

1. Exhaustion and Unrelated Allegations 

Defendant argues that Nguyen failed to exhaust many of his 

hostile work environment claims and that other allegations 
53 

raised for the first time in his civil complaint are not 

reasonably related to his administrative claims. 

Whatever impact Morgan may have had on other types of Title 

VII claims, there appears to be no confusion as to its holding 

regarding hostile work environment claims: plaintiffs may 

incorporate non-exhausted allegations into a hostile work 

environment claim so long as some allegations were exhausted and 

all of the allegations together form one hostile environment 

claim. See Morgan, 536 U.S. at 115 (holding that for purposes 

of exhaustion, “[h]ostile environment claims are different in 

kind from discrete acts” because “[t]heir very nature involves 

repeated conduct”); Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107 

n.10 (D.D.C. 2005). 

In his 2005 EEO contact, Nguyen alleged the following as 

the basis of his continuing hostile work environment claim: 

1. On January 5, 2005, Dulai suggested that Nguyen leave 

his job and look for another position to avoid future 

adverse action; 

2. On January 5, 2005 and continuing to the present, 

Management continues to manipulate position 

qualifications and deny Nguyen’s job experience to 

deny him assignments and advancement opportunities in 

favor of less experienced engineers; 

3. Management encourages the community to exclude Nguyen 

from important program reviews, the latest of which 

was the ISIS kick-off meeting at Kollmorgen on 

February 9, 2005. 

See Def.’s SMF ¶ 16; 2005 ROI at 15-16. In his 2007 contact, 

however, Nguyen did not allege a hostile work environment claim, 
54 

nor did he include any facts that could support such a claim. 

See 2007 ROI at 2-3, 18 (claiming continuing failure by PMS 435 

to promote him to Chief Engineer position on three specific 

occasions). Therefore, only allegations that form a part of the 

claims in Nguyen’s 2005 complaint will survive. The Court 

construes any allegations related to (1) Dulai’s statements to 

Nguyen, (2) management’s denial of assignments and advancement 

opportunities to Nguyen, and (3) exclusion of Nguyen from 

meetings/events to form part of those claims.21

By contrast, Plaintiff’s allegations that, after being 

selected as Chief Engineer in 2007, Sayegh has not assigned 

additional SBIR projects to Nguyen, see Am. Compl. ¶ 49, cannot 

be said to form part of the same hostile work environment, nor 

are they “like or reasonably related to” the allegations raised 

in Nguyen’s administrative complaint, Akridge v. Gallaudet 

Univ., 729 F. Supp. 2d 172, 180-81 (D.D.C. 2010) (finding that 

plaintiff had not exhausted his administrative remedies with 

respect to his hostile work environment claim because it was not 

“like or reasonably related to” the single claim of 

discrimination for non-selection that plaintiff alleged in his 

administrative complaint). In addition, because the 

administrative complaint described management’s denial of 

                                                             21 Nguyen does not appear to allege that exclusion from any 

meetings or events forms the basis of the claims in either his 

Amended Complaint or his Complaint in case number 10-1030. 
55 

assignments and advancement opportunities as comprising “January 

5, 2005 . . . to the present,” the claims were insufficient to 

put the agency on notice that Nguyen was alleging a hostile work 

environment claim that encompassed decisions Gross may have made 

in 1998. See Grosdidier v. Broad. Bd. of Governors, 774 F. 

Supp. 2d 76, 99 (D.D.C. 2011) (“[Plaintiff’s] formal complaint 

listed the dates of discriminatory conduct as extending from 

January 2007 to the present, meaning that the agency would not 

have had a basis to investigate [plaintiff’s] claims . . . that 

occurred before January 2007.”); Patterson v. Johnson, 391 F. 

Supp. 2d 140, 146 (D.D.C. 2005) (finding that untimely acts 

committed by supervisor were not related to claim of retaliatory 

reassignment by the same supervisor). These allegations are 

thus untimely and cannot form part of Nguyen’s hostile work 

environment claims. 

2. Plaintiff’s Claims 

To prevail on a hostile work environment claim, “a 

plaintiff must show that his employer subjected him to 

‘discriminatory intimidation, ridicule, and insult’ that is 

‘sufficiently severe or pervasive to alter the conditions of the 

victim’s employment and create an abusive working environment.’” 

Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc., 

510 U.S. 17, 21 (1993)); Hussain v. Nicholson, 435 F.3d 359, 366 

(D.C. Cir. 2006). To determine whether a hostile work 
56 

environment exists, the Court “looks to the totality of the 

circumstances, including the frequency of the discriminatory 

conduct, its severity, its offensiveness, and whether it 

interferes with an employee’s work performance.” Baloch, 550 

F.3d at 1201 (citing Faragher v. Boca Raton, 524 U.S. 775, 787-

88 (1998)); see also Lester v. Natsios, 290 F. Supp. 2d 11, 22 

(D.D.C. 2003) (“The key terms, then, are ‘severe,’ ‘pervasive,’ 

and ‘abusive,’ as not just any offensive of discriminatory 

conduct rises to an actionable hostile work environment.”). The 

Supreme Court has made clear that the “conduct must be extreme 

to amount to a change in the terms and conditions of 

employment.” Faragher, 524 U.S. at 788. By adhering to these 

standards, the Court thereby “ensure[s] that Title VII does not 

become a general civility code” that involves courts in policing 

“the ordinary tribulations of the workplace, such as the 

sporadic use of abusive language, gender-related jokes, and 

occasional teasing.” Faragher, 524 U.S. at 788 (internal 

quotation marks and citations omitted); see also Clark Cnty. 

Sch. Dist., 532 U.S. at 271 (holding that “simple teasing, 

offhand comments, and isolated incidents (unless extremely 

serious)” are insufficient (citation omitted)). In addition, 

Courts in this District have routinely held that “hostile 

behavior, no matter how unjustified or egregious, cannot support 

a claim of hostile work environment unless there exists some 
57 

linkage between the hostile behavior and the plaintiff’s 

membership in a protected class.” Na’im v. Clinton, 626 F. 

Supp. 2d 63, 73 (D.D.C. 2009) (citing Baloch, 550 F.3d at 1201). 

Plaintiff makes allegations regarding two potential sources 

of a hostile work environment: (1) insensitive statements made 

by Chief Engineer Dulai, and (2) management’s denial of higherlevel assignments and advancement opportunities to Nguyen, in 

favor of less experienced, Caucasian engineers. The Court will 

address each in turn. 

a. Statements Made by Dulai 

Nguyen alleges that, “[o]n several occasions, Dulai spoke 

about the Viet Nam War and told Nguyen that Vietnamese people 

ought to be grateful for having a job at NAVSEA.” Am. Compl. 

¶ 19. Nguyen states that these comments revealed Dulai’s 

prejudice towards Vietnamese people and were very upsetting to 

Nguyen. Id. According to Nguyen, Dulai made these comments “on 

and off” around the year 2001, and Nguyen believed he made these 

comments less than ten times. See Def.’s MSJ, Ex. 11, Nguyen 

Dep. at 33-35. In addition, Nguyen alleges that Dulai stated 

that, “in contrast to Asians, [Dulai] considered his racial 

identity [Indian Sikh] to be more like that of a Caucasian 

person.” Am. Compl. ¶ 20. Nguyen asserts that “on many 

occasions,” Dulai mocked the accent of another Vietnamese 

employee, and Dulai would contrast his own manner of speaking, 
58 

which had less of an accent. Id. ¶ 21. Finally, according to 

Nguyen, in December 2004, Dulai “approached Nguyen privately and 

threatened that the new Chief Engineer will target him with 

harassment, lest Nguyen leaves his Assistant Chief Engineer 

position for another position outside PEOSUB.” Id. ¶ 28. Dulai 

also offered to provide Nguyen a positive reference if he 

applied for an outside position. Id. 

These allegations are insufficient to establish a hostile 

work environment. Allegations of disparaging remarks and other 

negative comments do not sufficiently demonstrate a significant 

level of offensiveness. See, e.g., Harris, 510 U.S. at 21 

(“[M]ere utterance of an . . . epithet which engenders offensive 

feelings in a[n] employee does not sufficiently affect the 

conditions of employment to implicate Title VII.” (internal 

quotation marks and citation omitted)); George v. Leavitt, 407 

F.3d 405, 416-17 (D.C. Cir. 2005). In George, the D.C. Circuit 

held that statements by three employees over a six-month period 

telling a plaintiff to “go back where she came from,” separate 

acts of yelling and hostility, and allegations that the 

plaintiff was not given the type of work she deserved, were 

isolated instances that did not rise to the level of severity 

necessary to find a hostile work environment. 407 F.3d at 408-

09, 416-17. Here, the Court cannot infer that Dulai’s 

statements that “Vietnamese people should be grateful for having 
59 

a job at NAVSEA” and his mocking of another Vietnamese 

individual’s accent were so extreme and pervasive that they 

altered the conditions of Nguyen’s employment.22 Instead, they 

constitute isolated incidents that simply do not rise to the 

level of a hostile work environment. See George, 407 F.3d at 

416-17; Badibanga v. Howard Univ. Hosp., 679 F. Supp. 2d 99, 

103-04 (D.D.C. 2010) (finding allegations that plaintiff’s 

accent was criticized in front of others on more than one 

occasion, he was told he was easy to replace with an American, 

and was told that his supervisor would not hire other Africans 

were insufficiently severe and pervasive to constitute a hostile 

work environment). 

Further, Nguyen offers no evidence from which a reasonable 

fact-finder could infer that Dulai’s statement advising that 

Nguyen look for another job was hostile. According to Nguyen’s 

                                                             22 Moreover, when asked about Dulai’s comparison of himself 

to Caucasians, Nguyen responded, “I don’t recall the situation, 

but it stuck in my mind that throughout he behaved like ‘Yeah, 

I’m superior to you Vietnamese and people like that.’” Def.’s 

MSJ, Ex. 11, Nguyen Dep. at 41. According to Nguyen, “[Dulai] 

said . . . his culture is like the Greek culture, that he has 

white complexion people [sic], that he -- at one time, I believe 

we were talking about the -- some Greek wedding movie. And then 

he said ‘[y]eah. We do the same thing. We have dances, unlike 

the Asian, other Asian people. They don’t have dances and things 

like that.’” Id. Nguyen’s testimony about this conversation 

reveals only his subjective interpretation that Dulai’s 

statements contained discriminatory animus. Without more, this 

comment is insufficient to establish a severe or pervasive 

environment. See Ramey v. Potomac Electric Power Co., 468 F. 

Supp 2d. 51, 58 (D.D.C. 2006). 
60 

testimony, sometime in December 2004, Dulai called Nguyen aside 

and said: “Let me be a friend to you. If you want to avoid any 

hardship later on, any harassment later on, if I were you I 

would move to another job, I would apply for another job.” 2005 

Transcript at 78. Dulai purportedly added that he would write 

Nguyen a good recommendation so that he could get hired 

somewhere else. Id. At most, this statement amounts to an 

“offhand comment[] [or] isolated incident[],” which did not 

amount to a discriminatory change in the terms and conditions of 

Nguyen’s employment. Faragher, 524 U.S. at 788. Therefore, no 

reasonable jury could find that Dulai’s statements were 

sufficiently severe that Nguyen’s workplace was “permeated with 

discriminatory intimidation, ridicule, and insult.” Harris, 510 

U.S. at 21 (internal quotation marks and citation omitted). 

b. Denial of Assignments and Advancement 

Opportunities 

Nguyen also alleges that management, in particular Mr. 

Gross, denied him desirable assignments and job advancement 

opportunities in favor of younger, Caucasian employees. See Am. 

Compl. ¶¶ 17, 22; see also Pl.’s Opp’n at 5. 

Nguyen points to no evidence suggesting that these denials 

were connected to Nguyen’s race, national origin, or age. Most 

importantly, Nguyen does not present sufficient evidence that 

these denials created a workplace that was “permeated with 
61 

‘discriminatory intimidation, ridicule, and insult.’” Harris, 

510 U.S. at 21 (citation omitted); see also Nurriddin v. Bolden, 

674 F. Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of 

important assignments, lowered performance evaluations, and 

close scrutiny of assignments by management [cannot] be 

characterized as sufficiently intimidating or offensive in an 

ordinary workplace context.”); Bell v. Gonzales, 398 F. Supp. 2d 

78, 92 (D.D.C. 2005) (finding that actions such as exclusion 

from the informal chain of command, close monitoring of work, 

missed opportunities for teaching, travel, and high-profile 

assignments, and reassignment to another work unit did not 

amount to a hostile work environment because “they cannot fairly 

be labeled abusive or offensive”). 

Even construing the facts in the light most favorable to 

Plaintiff, the Court finds that no reasonable jury could 

conclude that the actions Plaintiff alleges were “sufficiently 

severe or pervasive to alter the conditions of [his] employment 

and create an abusive working environment.” Baloch, 550 F.3d at 

1201 (quoting Harris, 510 U.S. at 21). Accordingly, summary 

judgment in favor of Defendant is appropriate with respect to 

Nguyen’s hostile work environment claim. 

IV. CONCLUSION 

For the foregoing reasons, the Court hereby GRANTS IN PART 

AND DENIES IN PART Defendant’s Motion for Summary Judgment. 
62 

Defendant’s Motion for Summary Judgment is hereby GRANTED as to 

Plaintiff’s discrete claims of discrimination under Title VII 

and the ADEA, Plaintiff’s hostile work environment claims, and 

Plaintiff’s retaliation claim as it applies to ASSEP funding. 

However, Defendant’s Motion for Summary Judgment is DENIED as to 

Plaintiff’s retaliation claim based upon his April 2005 nonselection for the Chief Engineer position. An appropriate Order 

accompanies this Memorandum Opinion. 

SIGNED: Emmet G. Sullivan 

 United States District Court Judge 

 September 30, 2012