Belyakov v. Leavitt ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-2140
IGOR BELYAKOV,
Plaintiff – Appellant,
v.
MICHAEL O. LEAVITT, Secretary,
Defendant – Appellee.
No. 07-2141
IGOR BELYAKOV,
Plaintiff – Appellant,
v.
MICHAEL O. LEAVITT, Secretary, United States Department of
Health and Human Services,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, District Judge.
(8:04-cv-04008-DKC)
Argued: October 29, 2008 Decided: January 21, 2009
Before WILLIAMS, Chief Judge, MICHAEL, Circuit Judge, and John
T. COPENHAVER, Jr., United States District Judge for the
Southern District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Bart Garry, Baltimore, Maryland, for Appellant. Jason
Daniel Medinger, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Dr. Igor Belyakov filed two actions against his former
employer, the Secretary of the U.S. Department of Health and
Human Services (DHHS), under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq. In the first action he
alleged that he was not selected for a new position in DHHS
because of his (Russian) national origin. In the second action
he alleged that he was retaliated against (not retained in his
existing position) because he had filed an administrative claim
alleging national origin discrimination. The district court
entered summary judgment for DHHS in both cases, which have been
consolidated on appeal. We affirm.
I.
Because these cases are before us on appeal from the
grant of summary judgment, we state the facts in the light most
favorable to the non-moving party, Belyakov. See Holland v.
Wash. Homes, Inc., 487 F.3d 208, 210 (4th Cir. 2007). Belyakov
began working in December of 1996 as a senior postdoctoral
fellow at the National Cancer Institute (NCI), a division of the
National Institutes of Health (NIH), which in turn is a part of
DHHS. Specifically, he worked in the Vaccine Branch, Center for
Cancer Research under Branch Chief Dr. Jay Berzofsky. Belyakov
was promoted to a Staff Scientist position in November 2001.
This appointment was for a five-year term that was potentially
3
renewable for a second five-year term. In 2002 two tenure track
positions became available in the National Institute of Dental
and Craniofacial Research (NIDCR), a separate division within
NIH. Both positions were in the Oral Infection and Immunity
Branch headed by Branch Chief Dr. Sharon Wahl. The openings
were for a mucosal immunologist and a molecular immunologist.
Belyakov applied for both positions.
NIH guidelines outline the standard procedures used to
fill tenure track positions within the institutes and centers
that form NIH. The guidelines contemplate the formation of a
search committee that includes among its membership a
chairperson who is an expert in the scientific field, a woman
scientist advisor, a scientist who identifies him- or herself as
an under-represented minority, a representative of the Office of
Equal Opportunity and Diversity Management, and a representative
nominated by NIH’s Deputy Director of Intramural Research.
Additionally, the guidelines contemplate that the Chief of the
Lab or Branch with the open position will serve on the
committee. The search committee has several responsibilities,
the most significant of which is as follows:
The search committee members shall review all
applications received that are judged at least
minimally qualified. Likely candidates are invited
for presentation of a seminar and interviews as
appropriate. These are scheduled so that a majority
of the scientists on the search committee can
participate. A short list (no more than 2 or 3) of
4
highly qualified candidates, [should be] prepared by
the Committee Chair.
J.A. 732.
According to the guidelines, this short list of
candidates is reviewed by the Lab or Branch Chief, who
recommends a candidate to a Selecting Official. The guidelines
contemplate that the Scientific Director of the relevant
institute or center will serve as the Selecting Official unless
he or she serves on the search committee. In that event, the
guidelines indicate that the Director of the institute or center
will serve as the Selecting Official. Finally, the Scientific
Director must forward the name of the selected candidate, for
review and approval, to the Director of the relevant institute
or center and to the Deputy Director for Intramural Research.
The guidelines specifically note that modifications to these
procedures are appropriate in individual cases depending on the
seniority and expertise level desired in the individual
ultimately selected.
The search process used to fill the mucosal
immunologist position in the Oral Infection and Immunity Branch
was modified in one significant respect. The guidelines
contemplated that Dr. Henning Birkedal-Hansen as Scientific
Director of NIDCR would act as the Selecting Official unless he
served on the search committee, in which case NIDCR’s director,
5
Dr. Larry Tabak, would serve as the Selecting Official. In this
case, however, Wahl, the Branch Chief, served as the Selecting
Official. The record does not indicate why Wahl served as the
Selecting Official, but it does establish that Wahl assumed that
position at the start of the search process. The procedures
used were otherwise largely unmodified from those suggested by
the guidelines. Wahl initially drafted a list of search
committee members that complied with the criteria specified in
the guidelines. That list was approved by the Scientific
Director, Birkedal-Hansen, and NIH’s Deputy Director of
Intramural Research, Dr. Michael Gottesman. Once formed, the
search committee winnowed down the twelve applicants for the
mucosal immunologist position to two candidates: Belyakov and
Dr. Wanjun Chen.
Belyakov had also been selected as a top candidate for
the molecular immunologist position. The search committee
created for that position had, in fact, already scheduled
Belyakov to present a seminar when the mucosal immunologist
search committee informed Wahl that Belyakov was also one of its
top candidates. On becoming aware that he was a top candidate
for both positions, Wahl suggested to the committees that
Belyakov give a single seminar attended by members of both
search committees. The committees would then separately
interview him.
6
Belyakov’s dual purpose seminar took place March 18,
2003, as did his interviews with the molecular immunologist
search committee and several other individuals. Early in the
afternoon Belyakov met individually with Wahl and then Tabak.
The record does not make clear which position Belyakov’s
interviews with Wahl and Tabak related to or whether the
interviews related to both positions. Belyakov asserts that in
his interview with Tabak, Tabak told him that “there were too
many Russians at NIDCR already.” J.A. 440. Thereafter,
Belyakov presented his dual purpose seminar and answered
questions. Following the seminar Belyakov met with the
molecular immunologist search committee as a group, and then he
met individually with senior investigators working in Wahl’s
laboratory. One of these senior investigators, Nick Ryba, was a
member of the mucosal immunologist search committee, although
there is no indication that he interviewed Belyakov in his
capacity as a member of that search committee.
The molecular immunologist search committee
recommended two candidates (Belyakov was not one of them) to
Wahl, who in turn recommended one of those candidates to
Birkedal-Hansen. NIDCR director Tabak ultimately decided not to
fund a molecular immunologist position in Wahl’s Branch.
The mucosal immunologist search committee proceeded by
interviewing Dr. Wanjun Chen and attending his seminar
7
presentation. The search committee never met as a whole to
interview Belyakov. Nevertheless, several members of the search
committee attended Belyakov’s seminar and one member of the
committee, Ryba, individually interviewed Belyakov following the
seminar. The search committee appears to have had at least one
discussion after both candidates’ seminars. In that discussion
“no-one . . . stood up for [Belyakov] as the better candidate.”
J.A. 565. In a letter dated September 5, 2003, the Chair of the
search committee wrote a letter to Wahl indicating that the
committee considered Belyakov and Chen the top candidates for
the mucosal immunologist position. The letter also said that,
“of the two candidates, Dr. Wanjun Chen was judged to be the
somewhat stronger candidate.” J.A. 544.
On September 23, 2003, Wahl informed Belyakov that the
search committee had recommended Chen for the mucosal
immunologist position and that she and Birkedal-Hansen had
concurred in this recommendation. Two days later Belyakov sent
a letter to Gottesman complaining about inequities in the search
process. Gottesman agreed to look into the matter, noting that
Chen’s appointment could not be finalized without his approval.
His staff began contacting and interviewing members of the
search committee to determine whether there were any
irregularities. On October 10, 2003, Birkedal-Hansen formally
concurred in the recommendation of Chen and sought approval from
8
both Tabak and Gottesman to appoint Chen to the position. By
letter dated January 22, 2004, Gottesman informed Belyakov that
he had completed his inquiry into the search process and had
concluded that Belyakov had been provided a fair opportunity to
compete for the position. Shortly thereafter, Gottesman
formally approved Chen.
After contacting an Equal Employment Opportunity (EEO)
counselor on February 23, 2004, Belyakov filed a complaint with
the Equal Employment Opportunity Commission (EEOC) alleging that
his non-selection for the mucosal immunologist position was due
to national origin discrimination and age discrimination. The
EEOC dismissed his complaint as untimely, but DHHS has since
conceded that the complaint was timely filed. Belyakov filed a
complaint in district court against DHHS on December 23, 2004.
Belyakov’s complaint alleged national origin discrimination
under Title VII, 42 U.S.C. § 2000e-2, and a violation of the Age
Discrimination in Employment Act of 1967, 29 U.S.C. § 623. He
later withdrew his age discrimination claim. DHHS filed a
motion for summary judgment on March 14, 2007.
While pursuing his EEO action, Belyakov continued
working in the Vaccine Branch of the Center for Cancer Research
under Branch Chief Dr. Jay Berzofsky. Their relationship grew
increasingly strained. Berzofsky claims that Belyakov
9
became more and more confrontational and antagonistic
not only with me, but with the other scientists in the
Branch and some outside collaborators. Dr. Belyakov
several times refused to follow my direct orders and
would become overly insubordinate. . . . As time went
on the problems with him started becoming more and
more frequent, reaching a crescendo in May 2005 when I
was forced to issue Dr. Belyakov an official reprimand
in writing.
J.A. 259-60. Belyakov alleges that Berzofsky treated him
inequitably by limiting his resources, access to equipment,
authorship opportunities, and sick leave. During this time
Berzofsky informally rebuked Belyakov at least once for ignoring
his instructions. He wrote an email to Belyakov on April 20,
2005, indicating that he was “very concerned and displeased” to
learn that Belyakov had contacted a publication to question why
it had rejected his submission, even though Berzofsky had
explicitly told Belyakov not to contact the publication. J.A.
283.
Berzofsky issued an official reprimand to Belyakov in
May 2005. Although the reprimand referred to one incident in
September 2002 in which Belyakov was allegedly “insubordinate in
refusing to include data from a collaborator” in a study, J.A.
285, the bulk of the incidents referred to in the reprimand took
place between February and May 2005. The reprimand asserts that
Belyakov refused to make changes to jointly authored manuscripts
that Berzofsky requested as the senior author; that Belyakov
objected to scheduling changes in a manner that was disruptive
10
and that undermined Berzofsky’s authority; and that Belyakov
lost his temper over several decisions Berzofsky made with
respect to Belyakov’s collaborations with other scientists. In
November 2005 Berzofsky informed Belyakov that his appointment
would not be renewed when it expired the following year.
Belyakov filed a complaint with the EEOC on January
13, 2006, alleging that the decision not to renew his position
in the Vaccine Branch was in retaliation for prior EEO activity
and because of national origin discrimination. On April 4,
2006, Belyakov further submitted an affidavit to the EEOC in
which he asserted that Berzofsky had treated him inequitably in
various ways and had issued him an official reprimand. The
affidavit suggests that at least some of Berzofsky’s conduct was
in retaliation for Belyakov’s prior EEO activity and because of
Belyakov’s national origin. The EEOC issued a final decision
denying Belyakov’s claims on August 20, 2006. Belyakov filed a
complaint against DHHS on November 11, 2006. He alleges illegal
retaliation under Title VII, 42 U.S.C. § 2000e-3. Belyakov also
filed a motion to commence discovery. DHHS filed a motion to
dismiss or, in the alternative, for summary judgment on January
22, 2007.
On September 6, 2007, the district court granted DHHS
summary judgment in both cases. The court also denied
Belyakov’s motion to commence discovery in the retaliation case.
11
Belyakov timely appealed those determinations, and the two cases
have been consolidated.
II.
We first address Belyakov’s claim that his rights
under Title VII were violated when he was not selected for the
mucosal immunologist position in the Oral Infection and Immunity
Branch of NIDCR because of national origin discrimination. We
review de novo the district court’s grant of summary judgment to
DHHS on this issue. Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 283 (4th Cir. 2004). “Summary judgment is
appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Id. at 283 (quoting Fed. R. Civ.
P. 56(c)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The court must construe the evidence in the record in
the light most favorable to the nonmoving party and draw all
reasonable inferences in his favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). But, there must be “sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party. If the evidence is merely colorable, or
is not significantly probative, summary judgment may be
granted.” Id., at 249-50 (internal citations omitted).
12
Title VII makes it unlawful for an employer “to fail
or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Belyakov, who was
born in Russia, argues that DHHS failed or refused to hire him
in a new position because of his national origin. Belyakov may
prove this alleged violation of Title VII in either of two ways:
(1) by “using any direct or indirect evidence relevant to and
sufficiently probative” of discriminatory purpose or (2) by
using the burden-shifting approach outlined in McDonnell Douglas
Corporation v. Green, 411 U.S. 792 (1973). Rhoads v. FDIC, 257
F.3d 373, 391-92 (4th Cir. 2001). Belyakov argued to the
district court that there was sufficient direct evidence of
discrimination to withstand summary judgment and, in the
alternative, that he was able to succeed under the McDonnell
Douglas burden-shifting approach. The district court rejected
both arguments. On appeal Belyakov argues only that summary
judgment was not appropriate in light of sufficient direct
evidence of discrimination.
To overcome summary judgment by proving direct
evidence of discriminatory purpose, Belyakov must point to
“evidence of conduct or statements that both reflect directly
13
the alleged discriminatory attitude and that bear directly on
the contested employment decision.” Brinkley v. Harbour
Recreation Club, 180 F.3d 598, 607 (4th Cir. 1999) (quoting
Fuller v. Phipps, 67 F.3d 1137, 1142 (4th Cir. 1995)).
Discriminatory purpose need not be the sole reason for the
employment decision, but it must play a motivating role in the
decision. 42 U.S.C. § 2000e-2(m); Baird v. Rose, 192 F.3d 462,
470 (4th Cir. 1999).
Belyakov argues that Dr. Tabak’s statement that “there
were too many Russians at NIDCR already” constitutes direct
evidence of discrimination. When this statement is construed in
the light most favorable to Belyakov, it reflects discriminatory
animus. Discriminatory animus is not enough by itself, however;
there must also be a showing that Tabak was responsible for the
decision not to hire Belyakov. “[T]he plaintiff [must]
present[] sufficient evidence to establish that [the person
allegedly acting pursuant to a discriminatory animus] was the
one ‘principally responsible’ for, or the ‘actual decisionmaker’
behind, the action.” Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 288-89 (4th Cir. 2004) (citing Reeves v.
Sanderson, 530 U.S. 133, 151-52 (2000)). The district court
concluded that the actual decisionmaker in this case was Deputy
Director Gottesman whose approval was required in order to
14
finalize Chen’s appointment to the mucosal immunologist
position.
Belyakov agues that Gottesman may have been the actual
decisionmaker with respect to the decision to hire Chen, but not
with respect to the non-selection of Belyakov. Belyakov had
already been eliminated from the search process by the time the
decision reached Gottesman. Certainly, a search process that
eliminates candidates because of discriminatory animus is not
insulated under Title VII by virtue of the fact that non-
discriminatory personnel decisions are later made with respect
to remaining candidates. In this case, however, there is no
evidence that Tabak, who was allegedly acting with
discriminatory animus, was responsible for the decision not to
select Belyakov. Tabak attended Belyakov’s seminar and
interviewed Belyakov the morning of the seminar. But a number
of NIDCR scientists who were not part of the search process
attended the seminar. Participation and questioning from the
scientific community appears to have been expected and required
so that the search committee members present had an opportunity
to see Belyakov answer questions and interact with scientists in
the pertinent field of research. Five senior scientists
unaffiliated with the molecular immunologist search committee
interviewed Belyakov that day. There is no suggestion that
these scientists were involved in any search committee
15
decisions. Thus, the fact that someone participated as an
interviewer does not prove that he or she also participated in
search committee decisions.
Tabak was not on the search committee, and there is no
evidence that Tabak influenced the committee in its decision not
to select Belyakov. The search committee chair sent a
recommendation letter to Wahl indicating that both Belyakov and
Chen “were excellent young scientists with very considerable
promise,” but that, “of the two candidates, Dr. Wanjun Chen was
judged to be a somewhat stronger candidate.” J.A. 544-45. It
made clear that the committee “considered Dr. Wanjun Chen as the
top candidate.” J.A. 545. Belyakov fails to establish that
Tabak had any responsibility over the decision not to select
him.
Belyakov notes that Tabak approved the decision of the
search committee and recommendation of Wahl to select Chen.
Tabak’s approval simply meant that the ultimate decision was
referred to Gottesman. Gottesman did not approve Chen’s
selection in a perfunctory way. Rather, he responded to
Belyakov’s concerns about the propriety of the search process by
conducting an independent review. Gottesman’s staff interviewed
every member of the search committee to determine whether
Belyakov had a fair opportunity to apply for the position and,
if not, whether to re-open the process. The extent of this
16
inquiry suggests that Gottesman was truly the final
decisionmaker, and there is no evidence that he bore
discriminatory animus toward Russian-born applicants. For these
reasons, the award of summary judgment to DHHS was appropriate
on Belyakov’s national origin discrimination claim.
III.
We next consider Belyakov’s claims that Dr. Berzofsky
took adverse employment actions against Belyakov in retaliation
for Belyakov’s prior EEO activity. Belyakov filed a complaint
with the EEOC in January 2006 alleging that Berzofsky had
declined to renew Belyakov’s Staff Scientist position in
retaliation for Belyakov’s prior EEO activity. Belyakov later
claimed, and asserts in his complaint filed in district court,
that Berzofsky also retaliated in the following ways: he took
away projects, took away resources, prevented training,
eliminated funding for projects, eliminated authorship
opportunities on projects, prevented job applications from
proceeding, made false accusations of sabotage, and issued an
official reprimand. Belyakov claims that these adverse actions
were also taken in retaliation for his prior EEO activity.
Belyakov never amended his EEO complaint to add these additional
claims. He did, however, file an affidavit on April 7, 2006,
which, he says, covers these additional claims. The district
court dismissed the additional claims on the ground that
17
Belyakov failed to administratively exhaust them. The court
then granted summary judgment to DHHS on the remaining claim
that Belyakov’s Staff Scientist position was not renewed due to
retaliation. Belyakov appeals these rulings.
A.
“Before filing suit under Title VII, a plaintiff must
exhaust h[is] administrative remedies by bringing a charge with
the EEOC.” Smith v. First Union Nat’l Bank, 202 F.3d 234, 247
(4th Cir. 2000). The administrative charge does not strictly
delimit the claims a plaintiff may later make in federal court.
“[R]ather, the scope of the civil action is confined only by the
scope of the administrative investigation that can reasonably be
expected to follow the charge of discrimination.” Chisholm v.
U.S. Postal Serv., 665 F.2d 482, 491 (4th Cir. 1981).
Belyakov’s formal complaint alleged that his Staff Scientist
position was not renewed in reprisal for prior EEO activity. He
argues that his other claims of retaliation -- that Berzofsky
took away projects, resources, and training; eliminated
authorship opportunities on projects; prevented job applications
from proceeding; made false accusations of sabotage; and
formally issued Belyakov an official reprimand -- were
administratively exhausted because they fall within the scope of
a reasonable administrative investigation.
18
We agree that administrative investigation of the
official reprimand Berzofsky issued to Belyakov could reasonably
be expected to occur in light of Belyakov’s complaint. This
reprimand was a prelude to the non-renewal of his appointment;
Berzofsky issued it in anticipation of terminating or declining
to renew Belyakov’s appointment. Indeed, the EEOC’s final
decision letter discusses the official reprimand in detail.
Belyakov thus exhausted the claim that the official reprimand he
received was the result of retaliation.
The district court correctly dismissed the remaining
claims of retaliation, however. The claims that Berzofsky took
away projects, resources, training, funding, and authorship
opportunities, hindered job applications, and made false
accusations of sabotage are outside the scope of the major
employment decisions that a reasonable administrative
investigation would have covered in light of Belyakov’s EEO
complaint.
Belyakov also argues that the affidavit he submitted
to the EEOC on April 7, 2006, was sufficient to administratively
exhaust the claims he failed to raise in his original complaint.
Belyakov argues that such an affidavit should shape the scope of
a reasonable EEOC investigation. See Ihekwu v. City of Durham,
129 F. Supp. 2d 870, 886 (M.D.N.C. 2000). Even if we were to
adopt this principle, the affidavit was not sufficient to
19
require an expansion of the scope of the administrative
investigation to include Belyakov’s additional claims. The ten-
page affidavit describes a number of perceived inequities and
specific disagreements between Belyakov and Berzofsky. A
reasonable EEOC investigation here would not have included a
reorientation of efforts to sift through Belyakov’s numerous
additional allegations against Berzofsky.
Moreover, the affidavit was filed four months after
the original EEOC charge. By that time, the EEOC investigation
was well under way. Affidavits had already been solicited and
received from Berzofsky and Employee and Labor Relations
Specialist Maria Gorrasi. Deputy Director of the Center for
Cancer Research, Douglas Lowy, had also substantially completed
an affidavit. Even assuming that a complainant’s affidavit
might affect the scope of a reasonable administrative
investigation, an affidavit filed late in the process, after an
administrative investigation has substantially advanced, cannot
be expected to significantly expand its scope. We thus conclude
that Belyakov failed to administratively exhaust all but two of
his claims. While he did exhaust his claim that DHHS failed to
renew his appointment and issued him an official reprimand in
violation of Title VII, the remaining claims were properly
dismissed on the ground that they were not administratively
exhausted.
20
B.
We proceed to consider whether the claims that
Belyakov did administratively exhaust were nevertheless properly
rejected on summary judgment. Here, we use the burden-shifting
framework suggested in McDonnell Douglas Corporation v. Green,
411 U.S. 792, 803-05 (1973), for evaluating claims of
retaliation under Title VII. Under this framework the plaintiff
must establish a prima facie case of discrimination. “If a
prima facie case is presented, the burden shifts to the employer
to articulate a legitimate nondiscriminatory reason for the
adverse employment action.” Hill v. Lockheed Martin Logistics
Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004). If the employer
meets this burden of production, “the burden shifts back to the
plaintiff to prove by a preponderance of the evidence that the
employer’s stated reasons ‘were not its true reasons, but were a
pretext for discrimination.’” Id. at 285 (citing Reeves v.
Sanderson Plumbing Prods., Inc., 330 U.S. 133, 143 (2000)).
To establish a prima facie case of retaliation, a
plaintiff must show (1) that he engaged in protected activity;
(2) that an adverse employment action was taken against him; and
(3) that there was a causal link between the protected activity
and the adverse employment action. Laughlin v. Metro. Wash.
Airports Auth., 149 F.3d 253, 258 (4th Cir. 1998). Belyakov’s
prior EEO complaint constitutes protected activity. See Price
21
v. Thompson, 380 F.3d 209, 212 (4th Cir. 2004). Issuing an
official reprimand and declining to renew Belyakov’s appointment
are adverse employment actions; both would dissuade “a
reasonable worker from making or supporting a charge of
discrimination.” Lettieri v. Equant Inc., 478 F.3d 640, 650 n.2
(4th Cir. 2007) (quoting Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 57 (2006)). Finally, evidence that an
employer acted only after becoming aware that an employee filed
a discrimination charge is sufficient to establish the causal
connection required under the third element of a prima facie
case. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th
Cir. 1989). Belyakov offers evidence suggesting that Berzofsky
became aware of his EEO activity in or shortly prior to an
August 6, 2004, meeting with scientists who had served on the
mucosal immunologist search committee. Belyakov issued the
official reprimand May 27, 2005, and it mostly refers to
incidents that occurred on or after February 17, 2005. Belyakov
was informed on November 7, 2005, that his appointment would not
be renewed when it expired the following year. There is thus
evidence that allows some loose inference of causality. “While
this proof far from conclusively establishes the requisite
casual connection, it certainly satisfies the less onerous
burden of making a prima facie case of causality.” Id. at 457.
22
When the plaintiff carries his burden of showing a
prima facie case of retaliation, the burden shifts to the
defendant to articulate a legitimate, non-retaliatory
justification for the adverse employment action. See Reeves,
530 U.S. at 143. DHHS meets this burden. Berzofsky said that
Belyakov became increasingly confrontational and insubordinate
and that he ignored direct orders and criticized Berzofsky in
private and in public. Even Belyakov acknowledges that he
criticized Berzofsky and suggested that Berzofsky was unethical.
Berzofsky’s dissatisfaction with this confrontational behavior
and how it affected relevant professional relationships is a
legitimate, non-retaliatory reason for issuing an official
reprimand to Belyakov and, later, declining to renew his
appointment. DHHS thus satisfies its burden of production.
The burden shifts back to Belyakov to demonstrate that
the non-retaliatory justifications offered by DHHS were not its
true reasons, but pretext for retaliation. Id. at 143. We
conclude that Belyakov fails to put forth sufficient evidence to
show that the legitimate, non-retaliatory reasons proffered by
Berzofsky were false. The evidence that Belyakov instigated
arguments and disobeyed instructions as Berzofsky describes is
unrebutted. And, nothing in the record suggests that Berzofsky
did not believe that Belyakov was confrontational,
insubordinate, and disruptive. See Holland v. Wash. Homes Inc.,
23
487 F.3d 208, 215 (4th Cir. 2007). In short, Belyakov fails to
provide evidence that “the defendant’s explanation is unworthy
of credence.” Reeves, 530 U.S. at 147. We therefore conclude
that there is insufficient evidence of pretext to withstand
summary judgment.
Belyakov also argues that summary judgment was not
appropriate in the retaliation case because there was not
adequate time for discovery. The district court declined to
permit Belyakov the opportunity to engage in discovery prior to
the entry of summary judgment. We review that determination for
abuse of discretion. Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002). “Generally speaking,
‘summary judgment [must] be refused where the nonmoving party
has not had the opportunity to discover information that is
essential to his opposition.’” Id. at 244 (quoting Anderson v.
Liberty Lobby, Inc. 477 U.S. 242, 250 n.5 (1986)). The party
opposing summary judgment must make clear, however, that
discovery is essential to his opposition. Shafer v. Preston
Mem’l Hosp. Corp., 107 F.3d 274, 282 (4th Cir. 1997).
If a party believes that more discovery is necessary
for it to demonstrate a genuine issue of material
fact, the proper course is to file a Rule 56(f)
affidavit stating “that it could not properly oppose a
motion for summary judgment without a chance to
conduct discovery.” . . . Indeed, “the failure to file
an affidavit under Rule 56(f) is itself sufficient
grounds to reject a claim that the opportunity for
discovery was inadequate.”
24
Harrods Ltd., 302 F.3d at 244 (quoting Evans v. Techs.
Applications & Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996). We
have recognized that there may be circumstances when the
opposing party fails to file a Rule 56(f) affidavit, and yet it
is appropriate for a court to conclude that summary judgment is
premature. Even in those circumstances, however, the nonmoving
party must “adequately inform[] the district court that the
motion is premature and that more discovery is necessary.”
Harrods Ltd., 302 F.3d at 244.
Belyakov argues that an affidavit filed by his counsel
is a Rule 56(f) affidavit and that the district court abused its
discretion by failing to deny summary judgment in light of the
affidavit. The affidavit Belyakov refers to seeks discovery on
“the issues of a causal connection between the protected
activity and adverse actions, as well as the issue of pretext.”
J.A. 427. While the district court did not mention the
affidavit in its decision, the affidavit was in no event
sufficient to put the district court on notice that summary
judgment was premature. Nothing in the affidavit invokes Rule
56(f) or suggests that a summary judgment decision should have
been deferred. In fact, the affidavit states that “Plaintiff
has presented enough evidence to defeat summary judgment.” J.A.
427. It simply discusses the need for additional discovery in
order “to prove its case for trial.” J.A. 427. Belyakov did
25
not adequately inform the district court that summary judgment
was premature and that additional discovery was necessary. As a
result, Belyakov fails in his argument that inadequate discovery
made summary judgment inappropriate. See Shafer, 107 F.3d at
282. Because we conclude that Belyakov did not offer sufficient
evidence to create a material issue of fact with respect to
pretext, we affirm the district court’s grant of summary
judgment to DHHS on Belyakov’s claims of retaliation in
violation of Title VII.
IV.
The orders awarding summary judgment to DHHS in both
cases are
AFFIRMED.
26