Nagpal v. Keisler

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
LlLlMA NAGPAL,
KRISHEN NAGPAL,
Civil Action N0. 07-02()32 (JDS)
Plaintiffs,
V.
§/£§/\/\./&\f\)§£§/£
ERIC H. H()LDER, MEMORANDUM OPINION
Attorney General, GRANTING DEFENDANT’S
U.S. Department of Justice, MOTIONS FOR SUMMARY
JUDGMENT
Defendant.
)
Introduction
Presently before the Court are the Federal Bureau of Investigation’s
(Defendant) Motions for Summary Judgment as to Plaintiffs Lilima Nagpal (Mrs.
Nagpal) [Doc. N0. 23] and Dr. Krishen Nagpal (Dr. Nagpal) [Doc. N0. 25]. Plaintiffs
are naturalized citizens of lndian national origin, practitioners of the Hindu religion,
and over 70 years of age. Plaintiffs’ claims arise under Title VII of the Civil Rights
Act of 1964, as arnended, 42 U.S.C. Section 2000e-l6, and the Age Discrimination
in Employrnent Act, as amended, 29 U.S.C. Section 621 et. seq. (ADEA).
Specifrcally, Dr. Nagpal alleges discrimination on the basis of age, religion, and
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national origin. Further, Dr. Nagpal alleges retaliation for engaging in protected EEO
activity. Dr. Nagpal points to certain statements made by his supervisors which, he
argues, denote discrimination. Dr. Nagpal also argues that the statements
demonstrate the pre-textual nature of the proffered non-discriminatory reasons for his
terrnination.
Similarly, Mrs. Nagpal alleges discrimination based upon her national origin
and religion. Mrs. Nagpal alleges that the FBI retaliated against her for complaining
that her husband had been terminated for discriminatory reasons.
The parties were joined permissibly in a single action. The Defendant filed
separate motions and briefs with respect to each Plaintiff. Plaintiffs responded with
a single brief. Because the nexus of facts and legal standards for both Plaintiffs are
essentially the same, the Court shall address both motions in this Memorandum
Opinion and Order.
Factual Summary
Dr. Nagpal
Dr. Nagpal is a scientist with a PhD in organic chemistry. Defendant’s
Statement of Undisputed Material Facts, Doc. N0. 25-2 11 20. Dr. Nagpal moved to
the United States from India in 1970 and spent much of his career working for the
United States Army as a physical scientist. Id, at 23, 24. From 2002 to 2003, Dr.
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Nagpal worked for the FBI as a part-time contract translator. ld. at 31. While working
as a contract translator, Dr. Nagpal’s supervisor Peter Sursi (Mr. Sursi) found him
to be a slow but competent translator. Ia'. at 32, 33. On November 29, 2004, Dr.
Nagpal was hired as a GS-l3 FBI Intelligence Analyst in the agency’s Weapons of
Mass Destruction Counterterrorism Unit (WMDCU), subject to a one year
probationary period. Id. at 45. In late 2004 or early 2005, Mr. Muller became unit
chief of the WMDCU. Id. at 56. In February 2005, Supervisory Special Agent Amy
Willeke (SSA Willeke) became Dr. Nagpal’s first-line supervisor. Ia’. at 62. SSA
Willeke perceived and documented many deficiencies with Dr. Nagpal’s work,
including taking an inordinate amount of time to complete assignments and preparing
inadequate intelligence reports. See Id. at 83-143.
ln May of 2005, Dr. Nagpal met with an Equal Employment Opportunity
(EEO) Counselor and complained that he was not being included in certain meetings,
training and other work. Id. at 144, l45. Some time after May 13, 2005, the EEO
Counselor met with SSA Willeke to discuss Dr. Nagpal’s concems.
At a meeting on September l9, 2005 with Ms. Felder, the Unit Chief for the
CTD Administrative l\/Ianagement Support Unit, Mr. Muller, and SSA Willeke, Dr.
Nagpal was presented with a letter terminating his employment. Id. at 148. Dr.
Nagpal telephoned Mrs. Nagpal who instructed him not to sign the letter. Doc. N0.
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33-4 11 4. When she arrived at the meeting, Mrs. Nagpal was reprimanded by Ms.
Felder for speaking to Dr. Nagpal in Hindi. At that point, Mrs. Nagpal made several
telephone calls to FBI officials, including the head of the EEO office, to complain
of Dr. Nagpal’s discriminatory removal. [d. at 6. Mrs. Nagpal then contacted Mr.
Sursi, Dr. Napal’s former supervisor, showed him the removal letter, and asked if
there was anything that he could do. Id. at 7. At that point, Mr. Sursi met privately
with Ms. Felder and Ms. Willeke. Id. At that meeting they contacted the Section
Chief of Language Services to determine if permanent full time positions were
available for Dr. Nagpal. Id. at 8. The Section Chief expressed concem that the
agency had an interest in keeping competent Urdu speakers with a top secret security
clearance. Id. at 9. Dr. Nagpal was told he could come to work in the Language
Services Division and was transferred to a position as a GS-l2 Language Analyst, one
grade level below his position as an intelligence analyst. Ia’. at 12. The Language
Analyst position was not posted and Dr. Nagpal did not apply for the position. Doc.
N0. 23-2 1111 64, 65.
After Dr. Nagpal’s termination and rehire, Ms. Felder entered his termination
into the FBI computer system but that information was removed. Id. at 72. The
termination was entered a second time and was again removed without Ms. F e1der’s
input or knowledge. Id. at 73. Later it was discovered that Bridget Class had
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administratively input Dr. Nagpal into the system as having been transferred to the
Language Services Unit. Ia'. at 74.
On October 6, 2005, Dr. Nagpal complained to an EEO counselor that his
termination was based on his age and national origin Doc N0. 25-2 1150 On
january 28, 2006, Dr. Nagpal filed an EEO Complaint in which he alleged
discrimination based on age, national origin and retaliation SSA Willeke had raised
previous security concems regarding Dr. Napal which resulted in an investigation of
him. See Id. at l54-l60. The investigation was later closed and ultimately did not
affect Dr. Nagpal’s security clearance. Ia’.
Mrs. Nagpal
Mrs. Nagpal practices the Hindu religion and was bom in 193l. Doc. 23-2 11
l. She worked in human resources for the United States Army, Navy and Air Force
from l977- l 997. Id. at 2. ln 1997, she was hired by the FBI as a GS- l 3 classification
specialist. Ia’. at 3. The FBI changed Mrs. Nagpal’s job title to human resource
specialist in 2000 or 2001. Ia'. at 5. From 1999-2005, the FBI employed a two tier
evaluation system classifying each employee as having met or not having met
expectations during the evaluation period. Id. at ll. Each year Mrs. Nagpal met
expectations during the tenure of that system. Id. at 12. Mrs. Nagpal was promoted
to a GS-l4 in 2004. ld. at 26. In 2006, the FBI implemented a five tier evaluation
system under which employees were rated as unacceptable, minimally successful,
successful, excellent and outstanding. Id. at 13. Mrs. Nagpal’s immediate
supervisor, Ms. Foskey, initially rated Mrs. Nagpal and her colleagues outstanding
but later changed all the ratings to excellent. Id. at 18-23. Mrs. Nagpal continued to
eam "excellent" ratings and performed well as a GS-l4 human resource specialist.
Id. at 24, 25. Beginning in 2005, Mrs. Nagpal applied for, but did not obtain, at
least three GS-l5 positions in the FBl. Id. at 27, 29, 38.
On September 2 l , 2005, SSA Willeke finalized an electronic communication
(EC) with the Security Division, which expressed security concerns involving Dr.
Nagpal, and also concemed Mrs. Napal and others who took part in the intervention
in Dr. Napal’s termination and subsequent transfer to the Language Services
Division. Doc. 33-4 1]14. On October 6, 2005 , Mrs. Nagpal sought EEO counseling
and filed an informal complaint of discrimination against Ms. Felder, SSA Willeke,
and Mr. Muller. Id. at 13. Thereafter, the FBI’S Office of Professional Responsibility
(OPR) initiated an investigation into whether Mrs. Nagpal misused her position for
the benefit or advantage of her husband. Id. at l5. Mrs. Nagpal leamed of the
investigation on April 18, 2006. Id. Mrs. Nagpal and other targets of the
investigation complained of increased stress and anxiety as a result of the
investigation Ia’. at 16. Mrs. Nagpal’s supervisors and co-workers leamed about the
charges against her. Id. at 17. An OPR investigation triggers a flag placed in the
FBI’s Critical Case Tracking System. Ia’. at 22. Once an employee is flagged, the
Administrative Services Division is required to check with the OPR prior to
proceeding with any personnel action, including promotions. Ia’.
Mrs. Nagpal alleges two materially adverse employment actions resulted from
the investigation First, she argues that she was excluded from interviews and was
passed over for a promotion Second, she was downgraded from and "outstanding "
rating to "excellent."
Standard of RevieW
Summary judgment, "should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law."
Fed.R.Civ P. 56(0); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986); Holcomb v. Powell, 433 F.3d 889, 895
(D.C.Cir.2006). "A fact is ‘material’ if a dispute over it might affect the outcome of
a suit under the goveming law; factual disputes that are ‘irrelevant or unnecessary’
do not affect the summary judgment determination" Id. at 895 quoting Anderson at
248. An issue is "genuine" if the evidence could provide for a reasonable jury
returning a verdict for the nonmoving party. See Id. When considering a motion for
summary judgment, "the evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor." Ia'. at 255. On a motion for
summary judgment the Court should, "eschew making credibility determinations or
weighing the evidence." Czekalski v. Peters, 475 F.3d 360, 363 (D.C.Cir.2007).
However, a party opposing summary judgment must set forth more than mere
unsupported allegations or denials and the opposition must be supported by affidavits,
declarations or other competent evidence, demonstrating specific facts showing that
there is a genuine issue for trial. See Fed.R.Civ P. 56(e); Celotex Corp. v. Catrett, 477
U.S. 317, 324, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
If the opposing party’s evidence is "merely co1orable" or "not significantly
probative," summary judgment may be granted. Anderson at 249-50; see also Scott
v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007) ("[w]here the
record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is ‘no genuine issue for trial. ’ ") (quotz``ng Matsushita Electric
lndus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538(1986)). To successfully defend a motion for summary judgment, a party must have
more than "a scintilla of evidence to support his claims." Freedman v. MCI
Telecommunications Corp., 255 F.3d 840, 845 (D.C.Cir.2001).
Discussion
I. Dr. Nagpal
A. Exhaustion of Administrative Remedies
At the outset, Defendant argues that the Court ought to dismiss Dr. Nagpal’s
claim of religious discrimination because he failed to exhaust his administrative
remedies . Specifically, Defendant states that while Dr. Napal alleged national origin,
age and retaliation at the administrative stage in his EEO complaint, he failed to
allege religious discrimination and certain other aspects of his claim. Defendant
argues that this omission forecloses Dr. Nagpal’s present assertion of discrimination
based on his religion
Title VII requires that a plaintiff exhaust administrative remedies prior to
bringing a civil action in federal court. Park v. Howard Universitv, 71 F.3d 904, 907
(D.C.Cir. 1995 ). To exhaust administrative remedies, a plaintiff must file a claim with
the agency and "allow the agency time to act on the charge." Ia’. A lawsuit in federal
court is "limited in scope to claims that are ‘like or reasonably related to the
allegations’ " in the administrative charge. Ia'. (quoting Cheek v. Westem and
Southem Life1ns. Co., 31 F.3d 497, 500 (7th Cir.1994)). The claims "must arise from
‘the administrative investigation that can reasonably be expected to follow the charge
of discrimination.’ " Ia’. (quotin g Chisho1m v. U.S. Posta1 Service, 665 F.2d 482, 491
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(4th Cir.1981)).
Dr. Nagpal argues that Defendant was constructively put on notice of his
religious discrimination claim by virtue of his other claims based on national origin
and age. Defendant counters that filing one discrimination claim does not put the
agency on notice of another. Defendant points out that in the seven page single
spaced narrative attached to his EEO complaint, Dr. Nagpal never mentioned religion
The Court agrees with Defendant that Plaintiff has failed to exhaust
administrative remedies in terms of religious discrimination Therefore, that claim,
with respect to Dr. Nagpal, shall be dismissed.
B. ADEA and Title VII Claims
When a plaintiff lacks direct evidence of discrimination the Supreme Court has
established a burden-shifting approach that applies to discrimination in employment.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973). The D.C. Circuit applies the same rationale to Title VII cases
and ADEA cases. See, e.g., Baloch v. Kempthome, 550 F.3d 1191, 1196-97 (D.C.
Cir. 2008).
Traditionally, to demonstrate a prima facie case for discrimination a plaintiff
must have shown that , "(l) she is a member of a protected class; (2) she suffered an
adverse employment action; and (3) the unfavorable action gives rise to an inference
..]O_
of discrimination" Stella v. Mineta, 284 F.3d l35, 145 (D.C.Cir.2002)(citation
omitted). Once those criteria were established, the burden shifted to the employer
to, "articulate some legitimate, nondiscriminatory reason" for its action. Paguin v.
Fannie Mae, 119 F.3d 23, 26, (D.C.Cir. 1997). Finally, a plaintiff must have proven
by a preponderance of the evidence that the reasons proffered by the employer were
a pretext for discrimination or retaliation See McDonnell Douglas 41 1 U.S. 792, 804
(1973).
Presently, the D.C. Circuit has made clear that where the employer has asserted
a legitimate, nondiscriminatory reason for the decision at issue, "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 Sergeant at Arrns, 520 F.3d
490, 494 (D.C. Cir. 2008) (emphasis in original). Rather, according to Bldy, "the
district court must resolve one central question: Has the employee produced sufficient
evidence for a reasonable jury to find that the employer’s asserted nondiscriminatory
reason was not the actual reason and that the employer intentionally discriminated
against the employee...?" ld.
ln this case, Dr. Nagpal alleged that he suffered an adverse employment action
and Defendant has asserted a legitimate non-discriminatory reason for his
termination Accordingly, the Court’s analysis rests with the final prong of the
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McDonnell Douglas framework. ln other words, the Court must consider whether
Dr. Nagpal provided sufficient evidence for a reasonable jury to find that the
Defendant’s stated non-discriminatory reasons, namely his work performance, is a
pretext. See Br_ady, 520 F.3d 490 at 494.
Defendant argues that summary judgment is appropriate because Dr. Nagpal
cannot establish that the reason for his termination was his age or national origin
Defendant asserts that Dr. Nagpal’s primary rebuttal to its proffered reasons for his
termination are his subjective assessments of his own performance. Defendant
suggests that Dr. Nagpal’s opinions of his performance cannot, in and of themselves,
establish pretext sufficient to defeat summary judgment,
Predictably, Dr. Nagpal’s interpretation of his performance differs
significantly. Dr. Nagpal argues that the reasons for his termination are a pretext to
discrimination ln support of this inference, Dr. Nagpal states that SSA Willeke
introduced herself to him by asking if he was "one of those Hindi guys," and told him
that she used to be a border patrol agent and had dealt with people like him before.
See Plaintiff" s Statement of Genuine lssues Doc. N0. 33-3 11 4. Further, Dr. Nagpal
states that SSA Willike remarked to him that foreigners like him deprive U. S. citizens
"jobs that legitimately belong[] to us." ld. at 11 5. Dr. Nagpal alleges that when he
expressed an interest in certain meetings, SSA Willeke responded that she preferred
young employees to represent the FBl. Further, Dr. Nagpal alleges SSA Willeke said
that the younger employees are better able to network with their "own kind."
Complaint 11 22. Dr. Nagpal alleges that when he asked about certain training
opportunities SSA Willeke said she prefers to train the younger employees first and
older employees are trained last or not at all. ld. at 23. Dr, Nagpal alleges that SSA
Willeke stated that as a seventy-year-old man, he had no chance of receiving training
ld. at 24. SSA Willike also allegedly expressed frustration about how foreigners
came the United States and made more money than citizens. ld.
In tum, Defendant denies most of the statements, dismisses others as
nonsensical stray remarks and counters that Dr. Nagpal cannot directly dispute his
documented poor performance. Defendant argues that the alleged statements have
no nexus to the adverse employment decision Defendant also points to other
supervisors who had concems about Dr. Napal’s work performance as an Intelligence
Analyst with the WMDCU.
At this stage, since Defendant has provided a legitimate non-discriminatory
reason for his termination Dr. Nagpal’s burden is to demonstrate that the reason for
his termination was a pretext for discrimination See McDonnell Douglas, 41 1 U.S.
at 802, 93 S. Ct. 1817. When examining allegations of pre-text it is well established
in the D.C. Circuit that courts should not, "second-guess an employer's personnel
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decision absent demonstrably discriminatory motive." Milton v. Weinberger, 696
F.2d 94, 100 (D.C.Cir.1982). Rather, once an employer offers a non-discriminatory
reason for its decision the ultimate issue is whether," the employer honestly believes
in the reasons it offers." Fischbach v. D.C. Dep‘t of Corr., 86 F.3d 1180, 1183
(D.C.Cir. 1996) (quoting citation omitted).
Considering Dr. Napal’s allegations of disparate treatment together with the
alleged discriminatory remarks, the Court finds Dr. Nagpal has not presented
evidence sufficient to rebut Defendant’s proffered legitimate reasons for his
termination Specifically, the Court agrees with Defendant that Dr. Nagpal’s
subjective views of his performance do not adequately rebut the inference that his
supervisors honestly believed that his performance was deficient. In terms of SSA
Willike’s documented deficiencies, Dr. Nagpal’s rebuttal is based largely on his
perception of his performance‘. However, a plaintif "cannot establish pretext simply
based on [his] own subjective assessment of [his] own perforrnance, for ‘plaintiff‘s
perception of himself, and of his work performance, is not relevant. lt is the
‘ Dr. Nagpal also asserts that he was denied training and advice on what his job duties
encompassed which explain the deficiencies. However, the record reflects that Dr. Nagpal was
provided training and materials. Doc. N0. 25-2 11 67-73. Further, Defendant adequately supplied
evidence that Dr. Nagpal was ineligible for certain training by virtue of his seniority and position
rather than for discriminatory reasons. The Court notes that Dr. Nagpal billed himself as a "one
stop intelligence" analyst for the GS-13 position rather than an entry level employee requiring
training Consequently, the Court finds Dr. Nagpal’s complaints conceming denied training
opportunities unavailing ld. at 1[ 37.
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perception of the dccision[]maker which is relevant."’ Waterhouse v. District of
Columbia, 124 F. Supp. 2d 1, 7 (D.D.C.2000) (abrogated on other grounds by l\_/IastLo
v. Potomac Electric Power Co., 447 F.3d 843, 851 (D.C.Cir.2006) (quoting l
Chamber of Commerce of the United States, 645 F. Supp. 604, 608 (D.D.C.1986)).
Defendant provides convincing evidence that Dr. Nagpal’s other supervisors
shared concems about his performance as an intelligence analyst. ln addition to the
performance deficiencies noted by SSA Willike, Defendant presents evidence that
other supervisors had similar concems. Specifically, Dr. Nagpal’ s former supervisor,
Peter Sursi, did not recommend him for the GS- 13 position and opined that he would
be a disaster as an intelligence analyst, citing deficiencies in pace and computer
literacy. Doc. N0. 25-2 11 32-35. Mr. Krueger, Dr. Nagpal’s first-line supervisor in
2004, had concems that Dr. Nagpal was not well suited to the WMDCU. Doc. 25-2
11 50. After giving Dr. Nagpal a Chemical industry Handbook to review, it appeared
to the Unit Chief, Brit Johnson, that Dr. Nagpal lacked an understanding of the
WMDCU’s mission ld. 1111 51-55. Prior to his departure as Unit Chief, Brit Johnson
briefed the incoming Unit Chief that Dr. Nagpal, "was having difficulties with the
pace of the unit and struggling with many of the elementary requirements of the job."
ld. at 5 8.
Furtherrnore, the record reflects that Dr. Nagpal’s termination was not finalized
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by SSA Willeke alone. lndeed, Mr. Muller and Ms. Felder were also present. Dr.
Nagpal has offered no compelling evidence of discriminatory animus attributable
other supervisors which were critical of his work perforrnance. In view of the
evidence supplied by Defendant supporting its non-discriminatory reasons for Dr.
Nagpal’s termination the Court finds that no reasonable jury could find pretext and
Defendant’s motion for summary judgment on Dr. Nagpal’s claims of discrimination
is granted.
C. Retaliation Claims
Defendant argues that Dr. Nagpal’s retaliation claims fail because there is no
causal connection between his protected activity and his termination Specifically,
Defendant reasons that the allegations of retaliatory action lack "temporal proximity"
to his termination to establish causation Defendant cites cases which suggest that
three months is the outer limit for the temporal proximity requirement. See Baker v.
fla 294 F. Supp. 2d 33, 40 (D.D.C.,2003) (finding that two month gap between
protected activity and adverse employment action insufficient to demonstrate
temporal proximity to establish a causal connection). Dr. Nagpal’s termination
occurred four months subsequent to his protected activity.
The federal government is prohibited from retaliating against an employee for
engaging in action protected by Title Vll. 42 U.S.C. § 2000e-3(a); Steele v. Schafer,
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535 F.3d 689, 695 (D.C.Cir.2008). A plaintiff must show that a causal connection
existed between the protected activity and the adverse personnel action. See McKenna
v. Weinberger, 729 F.2d 783, 790 (D.C.Cir.l984). A causal connection " may be
established by showing that the employer had knowledge of the employee's protected
activity, and that the adverse action took place shortly after that activity."
(Emphasis supplied) Mitchell v. Baldrige, 759 F.2d 80, 86 ( D.C. Cir1985).
ln examining temporal proximity, the Supreme Court determined that, "[t]he
cases that accept mere temporal proximity between an employer's knowledge of
protected activity and an adverse employment action as sufficient evidence of
causality to establish a prima facie case uniformly hold that the temporal proximity
must be ‘very close,’ O'Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (C.A. 10
2001). See, e.g., Richmond v. ONEOK, Inc., 120 F.3d 205, 209 (C.A.10 1997)
(3-month period insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-1175
(C.A.7 1992)( 4-month period insufficient)." Clark Countv School Dist. v. Breeden,
532 U.S. 268, 273-274 (2001).
Even assuming the period of time was smaller, Defendant provides evidence
that SSA Willeke had begun the process to terminate Dr. Nagpal prior to her
knowledge of him engaging in any protected activity. See Doc. N0. 42,p.192. Absent
other compelling evidence of causation the Court must conclude that in the D.C.
Circuit the four month gap between protected activity and the adverse employment
action lacks the temporal proximity necessary to establish a causal connection
Consequently, Defendant is entitled to summary judgment on Dr. Nagpal’s retaliation
claim as a matter of law.
II. Mrs. Nagpal
A. Discrimination Claims
Defendant argues that summary judgment is appropriate for Mrs. Nagpal’s
discrimination claims. Specifically, Defendant reasons that there is no issue of
material fact concerning her disparate treatment claims because the FBI did not
investigate her on the basis of her national origin or religion ln addition Defendant
argues that the FBI did not subject her to an "adverse employment action" in
conducting the investigation
Mrs. Nagpal counters that SSA Willeke’s disparaging comments conceming
national origin and religion to Dr. Nagpal ought to extend to her in terms of
2 On April 29, 2005 SSA Willeke emailed Ms. Felder and Ms. Deloach conceming Dr.
Nagpal indicating that his performance may warrant removal. Doc. N0. 33-7 pp. 2,3. ln that
email, SSA Willeke specifically asks if any of the noted deficiencies could be used to terminate
his employment. Dr. Nagpal’s protected activity (contacting an EEO Counselor) did not occur
until May of 2005.
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demonstrating discriminatory animus.
Under Title Vii, "the two essential elements of a [disparate treatment] claim are
that (i) the plaintiff suffered an adverse employment action (ii) because of the
plaintiff s" national origin or religion Baloch V.Kempthorne, 550 F.3d 1l91, 1196
(D.C. Cir. 2008).
The Court finds that SSA Willeke’s comments taken alone, as they relate to
Mrs. Nagpal, are insufficient to create the inference that the OPR investigation was
undertaken on the basis of religion or national origin discrimination This finding is
buttressed by the fact that Bridget Class, who is neither Hindi nor from india, was a
subject of the investigation as well. The record reflects that while she may have
played a role, SSA Willeke was not ultimately responsible for initiating the
investigation indeed, it was Mr. Harrington the Deputy Assistant Director to the
Counter Terrorism Division, who referred Mrs. Nagpal for the investigation due to
his concems over Dr. Nagpal’ s termination and immediate reinstatement. Harrington
Dep. P. 31. There is no evidence before the Court that Mr. Harrington displayed
discriminatory animus towards Hindus or persons from lndia. Additionally, it is
undisputed that a referral to the initial Processing Unit does not necessarily result in
an investigation Doc. 33-2 11 5. Defendant presented evidence from other officials
that document the reasonable possibility of misconduct which emanated from the
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unorthodox termination and rehire of Dr. Nagpal. Doc. 23-2 at 1111 77, 78, 87.
in sum, the Court agrees with Defendant that there is insufficient evidence to
create a genuine issue of material fact with which a jury could find the investigation
was undertaken on the basis of Mrs. Nagpal’s national origin or religion Therefore,
the Court grants summary judgment to Defendant on Mrs. Nagpal’s Claims of
discrimination based on religion and national origin
B. Retaliation Claims
Defendant argues that Mrs. Nagpal’s retaliation claims fail because the FBI did
not investigate her on the basis of engaging in protected activity. Defendant further
argues that mere referral to the inspection Division did not result in an adverse
personnel action.
Mrs. Nagpal insists that she was referred to the inspection division for
participating in protected EEO activities. in support, Mrs. Nagpal points out that Mr.
Harrington forwarded the EC dated September 29, 2005 only after the Nagpals
engaged in protected activity. Mrs. Nagpal asserts that, contemporaneously with Dr.
Nagpal’ s termination both Dr. and Mrs. Nagpal alleged discrimination and she called
the EEO office. Moreover, Mrs. Nagpal argues that the timing of the referral to the
inspection Division demonstrates retaliatory animus. Specifically, Mrs. Nagpal states
that Mr. Harrington held onto the September 29, 2005 EC for a period of three
months and forwarded it only after an unsuccessful mediation conceming their
informal EEO complaints. Doc. N0. 33 p. 42.
The parties do not dispute that Mrs. Nagpal engaged in protected activity.
When considering an "adverse employment action" the Supreme Court determined
that the, "language of the substantive [anti-discrimination] provision differs from that
of the anti-retaliation provision in important ways Title Vii's substantive provision
and its anti-retaliation provision are not coterminous " Steele v. Schafer, 535 F.3d
689, 695 (D.C. Cir. 2008) (quoting Burlington Northem & Santa Fe Railwav Co. v.
Whlite, 548 U.S. 53, 61, 67, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006)). in terms of
the standard for finding a materially adverse employment action the Supreme Court
adopted the following, "a plaintiff must show that a reasonable employee would have
found the challenged action materially adverse, which in this context means it well
might have dissuaded a reasonable worker from making or supporting a charge of
discrimination" Burlington Northem, 548 U.S. at 68 (intemal quotation marks
omitted).
Mrs. Nagpal’s colleagues leamed of the investigation While a referral to the
inspection Division does not necessarily trigger an investigation an investigation
results in an employee being flagged in the FBi’s Critical Case Tracking System.
This requires the Administrative Services Division to check with the OPR prior to
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proceeding with a personnel action.
The Court concludes that, when applying the Burlington Northem standard,
referral to the inspection Division alone, and the potential consequences thereof,
could indeed dissuade a reasonable worker from complaining of discriminatory
activity.
The remaining question is whether, in view of the reasons offered by
Defendant, a reasonable jury could infer from evidence supplied by Mrs. Nagpal that
the referral to the investigatory unit was a response to her engaging in protected
activity rather than a result of the legitimate, non-retaliatory non-discriminatory
reasons. See Patterson v. Johnson, 505 F.3d 1296, 1299 (D.C. Cir. 2007) (citation
omitted).
To rebut Defendant’s proffered reasons for the referral, Mrs. Nagpal advances
two theories which she argues infer retaliation First, she argues that the timing of
the agency’s actions demonstrates a retaliatory animus. Second, that the Defendant’s
stated reasons are false.
in terms of timing, Defendant counters that Mr. Harrington was not aware of
any EEO activity by Dr. or Mrs. Nagpal until after he forwarded the EC to the
inspection division See Harrington Affidavit p. 5, Doc. N0. 41-1. Thus, his referral
could not have been retaliatory. Further, Defendant points out that there is no
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allegation that Mr. Harrington discriminated against either plaintiff. Therefore,
Defendant reasons, he would have no motive to retaliate against Mrs. Nagpal.
Finally, Defendant explains that it took time to have the EC reviewed and approved
by the entire chain of command. Accordingly, Defendant submits that the fact that
Mr, Harrington waited to forward the EC does not support an inference of reta1iation.
The Court agrees, and the record supports, that Mr. Harrington’s handling of
the EC, right or wrong, still could not support the inference of retaliation based on the
absence of any evidence suggesting retaliatory or discriminatory animus on his part.
The Court finds Mrs. Nagpal’s attempt to demonstrate pretext by showing the
Defendant’s reasons for its action against her were false is also unavailing As
discussed supra, under the circumstances there was a reasonable basis for members
of the WMDCU to believe the matter should be referred to the investigatory unit.
For the reasons discussed above with respect to her discrimination claims Mrs.
Nagpal’s retaliation claims also fail. indeed, Defendant presented compelling
evidence that supervisors may well have been remiss had the unusual circumstances
surrounding the contemporaneous termination and rehire of Dr. Nagpal not been
referred to the investigatory unit3. The initial Processing Unit of the investigatory
3 The FBI requires employees to report possible misconduct to the agencies inspection
division Doc. 23-2 11 80.
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division to which no retaliatory or discriminatory animus is attributed, found that the
circumstances surrounding Dr. Nagpal’s termination and rehire presented a
"substantive possibility of misconduct" sufficient to warrant an investigation Doc.
23-2 11 86. Essentially, Dr. Nagpal was hired for a position in the FBI which he
neither applied for nor was posted. in addition Dr. Nagpal’s termination was
repeatedly removed from the FBI computer system by Ms. Class. Doc. N0. 23-2 at
11 74.
The inclusion of another employee (l\/is. Class) in the investigation who did
not engage in protected activity, further supports Defendant’s legitimate non-
retaliatory reason for the referral. Mrs. Nagpal did not submit any direct evidence
that her complaint of Dr. Nagpal’s termination as discriminatory was the reason for
her referral to the investigatory unit. Therefore, based on the evidence of record, the
Court finds that no reasonable jury could conclude that the referral of Mrs. Nagpal
to the investigatory division was made on the basis of her engaging in protected
activity.
Conclusion
F or the foregoing reasons, Defendant’s Motion for Summary Judgment [Doc.
N0. 251 is GRANTED and Defendant’s Motion for Summary Judgment [Doc. N0.
23] is GRANTED.
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DONE and DATED this 4th day of November, 2010.
/s/ Jack D. Shanstrom
Jack D. Shanstrom
Senior United States District Judge
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