Darvishian v. Geren , 404 F. App'x 822 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1672
ALI DARVISHIAN,
Plaintiff - Appellant,
v.
PETE GEREN, Secretary of the Department of the Army,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:08-cv-00009-TSE-TCB)
Argued: September 21, 2010 Decided: December 14, 2010
Before GREGORY and KEENAN, Circuit Judges, and James C. DEVER
III, United States District Judge for the Eastern District of
North Carolina, sitting by designation.
Affirmed by unpublished opinion. Judge Keenan wrote the
opinion, in which Judge Gregory and Judge Dever joined.
ARGUED: Gary M. Gilbert, LAW OFFICES OF GARY M. GILBERT, PC,
Silver Spring, Maryland, for Appellant. Leslie Bonner
McClendon, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee. ON BRIEF: Thomas J. Gagliardo, Silver
Spring, Maryland, for Appellant. Dana J. Boente, United States
Attorney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:
Ali Darvishian, a 23-year civil servant of Iranian descent,
appeals the district court’s entry of summary judgment in favor
of his former employer, the Secretary of the Army (Secretary),
on claims brought under the Civil Rights Act of 1964 (Title
VII), as amended, 42 U.S.C. § 2000e et seq. (2006). Darvishian
alleged that the Secretary violated Title VII by removing him
from federal employment because he is Iranian and Muslim, and
because he filed discrimination claims against his superiors
with the Equal Employment Opportunity Commission (EEOC).
The district court dismissed these claims, holding that
Darvishian presented insufficient evidence that the Secretary’s
nondiscriminatory and nonretaliatory reasons for his removal
were “pretext for discrimination.” See Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981). The district
court also affirmed a final decision of the Merit Systems
Protection Board (the Board) upholding Darvishian’s removal from
federal service.
We review the summary judgment decision on Darvishian’s
Title VII claims de novo, applying the same standard as the
district court. See Fed. R. Civ. P. 56(c); Holland v.
Washington Homes, Inc., 487 F.3d 208, 213 (4th Cir. 2007).
Under that standard, summary judgment is appropriate when “there
is no genuine issue as to any material fact.” Fed. R. Civ. P.
2
56(c)(2); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d
289, 295 (4th Cir. 2010). Therefore, summary judgment may be
granted when there is insufficient evidence for a jury to return
a verdict in favor of the nonmoving party. See Holland, 487
F.3d at 213.
In our separate review of the Board’s decision, we must
affirm the Board unless the decision is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7703(c). Upon
our review of the record, we affirm the district court’s
judgment in both the Title VII action and the court’s review of
the Board’s decision.
I.
We present the facts in the light most favorable to
Darvishian, and draw all reasonable inferences in his favor.
Holland, 487 F.3d at 213. The record before us shows that
before his removal from the federal service on July 7, 2006,
Darvishian was a General Engineer at the level of GS-14 working
for the Army Contracting Agency (the Agency), Capital District
Contracting Center (CDCC). In November 2005, Acting CDCC
Director Lieutenant Colonel Craig DeDecker announced an office-
3
wide reorganization intended to streamline CDCC operations.
DeDecker sent an email to all CDCC employees providing a broad
outline of this plan. He told employees that a new
organizational division, Construction and Engineering (C&E), was
being created and that William E. Campbell would become “Chief”
of the division. The email identified three employees,
including Darvishian, who were scheduled to be assigned to C&E.
DeDecker attached to the email an organizational chart.
The chart identified both Campbell and Darvishian as GS-14 level
employees, and a line extended horizontally across the chart
from Campbell’s name to Darvishian’s name. Underneath
Campbell’s name, the chart stated, “Chief, Team 1.”
One component of this reorganization involved placing all
contract specialists on a single floor of the CDCC building. As
a consequence, certain employees, including Darvishian, were
required to relocate their offices to another space in the
building.
DeDecker left his position with the CDCC before the
reorganization was completed. However, his successor, Christine
Thompson, continued to implement the changes when she became the
permanent director of the CDCC in December 2005.
On February 22, 2006, the Deputy Director of the CDCC,
Brenda Jackson-Sewell, approached Darvishian in his office to
discuss a work-related matter. Darvishian asked her about a
4
“rumor” circulating in the office that Darvishian would have to
move from his fixed office space to a cubicle. Jackson-Sewell
told Darvishian that this information was “not a rumor.”
That same day, Campbell personally directed Darvishian to
relocate to a cubicle so that a new division chief could move
into his office. Darvishian told Campbell that he would not
move, because he did not think that Campbell was “his boss.” 1
After he left Darvishian’s office, Campbell sent the following
email to Darvishian: “As your supervisor[,] it is not required
that any additional direction to mine be given. Therefore you
are directed to move to the last cubical [sic] in room 204.
This move has to [be] completed by [the close of business] 1
March 2006.” Campbell sent a carbon copy of this email to
Thompson and to Jackson-Sewell.
The following day, February 23, 2006, Darvishian approached
Thompson to express his concerns about Campbell’s order to move
Darvishian’s office. The parties dispute the details of this
conversation, but it is clear from the record that Thompson
confirmed to Darvishian that he needed to vacate his office.
Darvishian later lodged various complaints against
DeDecker, Campbell, and Thompson by sending an email, stating a
subject of “Discrimination,” to the head of the Agency. In the
1
Before this encounter, Campbell spent little or no time
supervising Darvishian because, in Campbell’s words,
“[Darvishian] was a senior civil servant and he knew his job.”
5
email, Darvishian expressed his concern that he was being
marginalized by his superiors and, under the guise of being
ordered to move his office, actually was being pressured to
leave the CDCC. Darvishian provided the following examples of
his superiors’ conduct toward him.
Darvishian explained that Thompson’s predecessor had sought
Darvishian’s advice in planning the layout of cubicles and
office spaces. Darvishian stated that Thompson, however, had
excluded him from similar planning, and had carried out the
office reorganization without consulting him.
Darvishian recounted an incident in November 2005 when
DeDecker made certain inappropriate comments about people of
Middle Eastern descent. Darvishian recalled that DeDecker
bragged that he would be able to kill Muslims during his
upcoming deployment to Iraq. During the same encounter,
Darvishian alleged, DeDecker asked, “Why [are you] all radical
Muslims[?]” Darvishian also accused DeDecker of threatening
Darvishian that if he “wasn’t gone” before DeDecker left the
CDCC, Jackson-Sewell and Bill Campbell would “finish[] the job”
for him. 2 Finally, Darvishian alleged that DeDecker improperly
had promoted a friend to a GS-14 level position.
2
Darvishian also described “rumors” that confirmed his
suspicion that he was being pressured to leave the CDCC.
According to these “rumors,” Darvishian was being ordered from
6
Darvishian next accused Campbell of improprieties in
awarding Army contracts. Darvishian complained that even though
Campbell was not his superior, Jackson-Sewell and Thompson had
confirmed Campbell’s order that Darvishian relocate from his
office to a cubicle. Darvishian maintained that Thompson had
“backed [Campbell] up” without considering Darvishian’s “side of
the story.”
On receipt of the email, the Director of the Agency for the
Northern Region initiated an investigation of Darvishian’s
allegations. The assigned investigator observed an ambiguity in
CDCC hiring procedures, but otherwise concluded that
Darvishian’s allegations lacked merit. The investigator also
concluded that DeDecker’s reorganization was “based on sound
reasoning with no malicious intent,” and that “Darvishian had a
responsibility to comply with the lawful orders of his
superiors,” including DeDecker, Thompson, and Campbell. Based
on Darvishian’s complaints, the investigator recommended certain
changes to internal operating procedures, including that all
supervisors should meet with their new employees on the
effective date of any reorganization to prevent future
“communication gap[s].”
his office to “degrade” him and to make him “so unhappy that
[he] would want to leave.”
7
On March 2, 2006, Campbell went to Darvishian’s office
purportedly to deliver a memorandum prepared by the human
resources department at Thompson’s request. The memorandum
characterized Darvishian’s failure to move from his office by
March 1, 2006, as “insubordination,” and stated that Campbell
was proposing a penalty of suspension for this misconduct. The
memorandum set a second deadline, 11:30 a.m. on March 3, 2006,
by which Darvishian was required to vacate his office. The
document advised Darvishian that disobeying this order “could
result in [his] removal from the federal service.”
An army lawyer, Captain Joshua Drewitz, accompanied
Campbell to see Darvishian but stopped a short distance down the
hallway from Darvishian’s office. Drewitz could see Campbell in
the office doorway, but did not hear the conversation taking
place between Campbell and Darvishian. Drewitz did not observe
Campbell carrying any papers.
That evening, Darvishian sent an email to senior officials
in the Agency describing his exchange with Campbell. Darvishian
stated that when Campbell entered Darvishian’s office doorway,
Campbell held up a piece of paper that threatened, “Get out or
you will be killed.” 3
3
In the same email, Darvishian stated, “I don’t believe I
mentioned it in my initial email but when I had a discussion
with Ms. Thompson on 23 Feb, prior to my contact with EEO, she
8
The next morning, Darvishian reported this alleged threat
to the military police. He also sent an email detailing the
threat to the “head” employees of the Agency and to an EEO
Counselor. The subject of his email was entitled, “Reprisal.”
The police conducted an investigation, which included interviews
of Campbell, Darvishian, and Drewitz, but concluded there was
“insufficient probable cause to believe that Mr. Campbell
communicated a threat.”
On the afternoon of Friday, March 3, 2006, after the
deadline stated in the human resources department memorandum had
passed, Thompson directed four employees to remove Darvishian’s
belongings from his office. These individuals conducted an
inventory of the items in Darvishian’s office and moved the
items to a secure file room. Campbell later sent an email to
Darvishian, informing him that he could retrieve his belongings
by contacting Campbell to obtain a key to the file room. After
receiving this email, Darvishian sent another email to Agency
“management” and to an EEO Counselor stating, “Bill Campbell
continues to harass me.”
On Monday morning, March 6, 2006, Darvishian called the
military police to report a “property theft.” He later made a
sworn statement in which he alleged that $1,000 in cash and some
told me ‘You are nothing. I will take care of my contracting
people.’”
9
personal documents were missing. Darvishian stated, “[b]ecause
[Campbell] has threatened me and now stolen my belongings I am
afraid to go back to the office.”
The military police conducted an investigation of the
alleged theft. The four employees who had moved Darvishian’s
property attested that they did not find any money in
Darvishian’s desk when they made the inventory of his
belongings. 4 The military police closed its investigation of the
incident on April 13, 2006, because of “insufficient probable
cause” that a theft had occurred.
On March 22, 2006, Darvishian filed a formal EEO complaint
alleging discrimination against certain CDCC officials,
including Campbell, Jackson-Sewell, and Thompson. About five
weeks later, on April 28, 2006, Campbell proposed that
Darvishian be removed from federal service.
In his written proposal, Campbell articulated four reasons
for the recommended punishment: insubordination (two incidents),
making false statements, failing to provide candid information
to the military police, and disrupting the workplace.
Under the first charge, insubordination, Campbell wrote
that Darvishian’s refusal to comply with two orders to move from
his office, by March 1, 2006, and later by March 3, 2006,
4
A former CDCC Director stated in deposition testimony that
she had personal knowledge that Darvishian kept cash in his
desk.
10
constituted insubordination. Campbell based the second charge,
making false statements, on Darvishian’s report to the military
police that Campbell had threatened Darvishian’s life. The
proposal of removal characterized this report as “knowingly
false.”
The third charge, failing to provide candid information to
the military police, was based on Darvishian’s allegation of
theft against Campbell. The notice of proposed removal stated,
“At the time you made your allegation against Mr. Campbell to
the military police, you failed to tell the military police that
you had not personally viewed, seen or otherwise inventoried any
personal items you had left in your office since the previous
week, or that you had any personal knowledge that Mr. Bill
Campbell had removed anything from your office.” With regard to
the charge of disrupting the workplace, Campbell noted that
various CDCC employees were forced to leave their regular work
duties to participate in the two police investigations of the
charges Darvishian had filed.
Darvishian responded to these charges orally and in
writing. Thompson issued a five-page memorandum sustaining the
removal charges as supported by the evidence, and Darvishian was
removed from federal service on July 7, 2006.
Darvishian timely appealed the Agency’s action to the
Board, raising discrimination and retaliation as “affirmative
11
defenses.” See 5 U.S.C. §§ 7513, 7701. An Administrative Judge
upheld the removal in a lengthy written decision, finding that
the Agency had proved all four charges by a preponderance of the
evidence, and that Darvishian had failed to demonstrate
discrimination or retaliation by preponderant evidence.
Darvishian timely filed a petition for review of this
initial decision, which a panel of three Board members denied in
a Final Order. Darvishian also requested a review by the EEOC,
Office of Federal Operations, which issued a decision concurring
with the Board. See 29 C.F.R. § 1614.303 et seq.
After receiving the EEOC decision, Darvishian filed the
present action in the district court. See 42 U.S.C. § 2000e-
16(c) (2006). He alleged that the Agency removed him from
federal service as a result of discrimination based on his
religion and national origin, in violation of Title VII, and in
retaliation for protected EEO activity, also in violation of
Title VII. Darvishian additionally sought review of the Board’s
final decision. The district court granted summary judgment for
the Secretary on the Title VII claim, and upheld the Board’s
decision.
The district court concluded that even if Darvishian could
present a prima facie case of discrimination and retaliation, he
could not demonstrate that the Agency’s proffered reasons for
his removal were pretextual, because it was beyond dispute that
12
Darvishian’s conduct constituted “insubordination.” The
district court did not address the other nondiscriminatory bases
for removal articulated by the Agency, because the district
court found that the removal decision was supported by the
insubordination incidents alone, and that Darvishian had not
presented sufficient evidence of pretext to overcome the
Agency’s stated ground of insubordination. Darvishian appeals
from the district court’s judgment.
II.
A.
We first consider the district court’s award of summary
judgment in favor of the Secretary on the Title VII claims.
Under Title VII, it is unlawful for an employer to discriminate
against any individual on the basis of religion or national
origin. 42 U.S.C. § 2000e-2(a)(1) (2006). It is also unlawful
for an employer to retaliate against an employee for
participating in a Title VII investigation or for opposing
discriminatory workplace practices. Id. § 2000e-3(a).
A plaintiff alleging discrimination under Title VII may
avert a summary judgment ruling in favor of an employer by
presenting either of two theories of proof. First, a plaintiff
may offer direct and circumstantial evidence of discrimination
that raises a genuine issue of material fact regarding whether
13
an impermissible factor motivated the employer’s adverse
employment decision. See Diamond v. Colonial Life & Accident
Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Second, when a
plaintiff lacks direct evidence of discrimination or
retaliation, he or she may proceed using the burden-shifting
proof scheme set forth in McDonnell Douglas Corp. v. Green, 41
U.S. 792, 802-05 (1973).
The present case has proceeded under the McDonnell Douglas
analysis. Under that framework, a plaintiff first must
establish a prima facie case of discrimination or retaliation.
See Burdine, 450 U.S. at 252-53. After the plaintiff has met
this evidentiary burden, the burden of production shifts to the
employer to set forth, through the introduction of admissible
evidence, a legitimate nondiscriminatory or nonretaliatory basis
for the employment action. Id. at 253; see Bd. of Trustees v.
Sweeney, 439 U.S. 24, 25 n.2 (1978).
If the employer satisfies this burden of production, the
plaintiff must establish by a preponderance of the evidence that
the neutral reasons offered by the employer are merely pretext
for discrimination or retaliation. See Burdine, 450 U.S. at
253. A plaintiff may prove such pretext by demonstrating that
the defendant’s explanation is “unworthy of credence” or by
offering circumstantial evidence sufficiently probative of the
issue of discrimination or retaliation. See Reeves v. Sanderson
14
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); Price v.
Thompson, 380 F.3d 209, 212 (4th Cir. 2004); EEOC v. Sears
Roebuck & Co., 243 F.3d 846, 853-54 (4th Cir. 2001).
In practice, the McDonnell Douglas analytical burden
shifting ends at this stage, and the “pretext” inquiry merges
with the plaintiff’s ultimate burden to prove that he or she was
the victim of intentional discrimination or retaliation.
Burdine, 450 U.S. at 256; see Merritt, 601 F.3d at 294-95. A
plaintiff is entitled to a trial on the merits of a Title VII
claim if he or she establishes a factual record permitting a
reasonable finder of fact to conclude that it is more likely
than not that the adverse employment action was the product of
discrimination or retaliation. Burdine, 450 U.S. at 254; Ennis
v. Nat’l Ass’n of Bus. & Educ. Radio, Inc, 53 F.3d 55, 58 (4th
Cir. 1995). Therefore, “[b]y the time of appeal especially, the
issue boils down to whether the plaintiff has presented a
triable question of intentional discrimination [or
retaliation].” Merritt, 601 F.3d at 295.
In considering Darvishian’s Title VII claim of
discrimination, we assume, without deciding, that Darvishian has
established a prima facie case of discrimination. This prima
facie case includes the comments allegedly made by Campbell and
DeDecker to Darvishian.
15
We conclude that the Agency met its burden to articulate a
legitimate, nondiscriminatory basis to remove Darvishian from
federal service. As described above, the Agency gave four
lawful reasons why Darvishian should be removed, as stated in
Thompson’s Notice of Decision to Remove. First, Thompson
concluded that Darvishian disregarded Campbell’s February 22,
2006 email to relocate to a cubicle by March 1, 2006. Thompson
further found that Darvishian ignored the March 2, 2006
memorandum, which directed him to move his belongings by 11:30
a.m. on March 3, 2006. Thompson stated that Darvishian had
received and disobeyed both orders, and that these acts of
noncompliance constituted insubordination.
Second, Thompson determined that Darvishian’s accusation
that Campbell threatened Darvishian’s life was unsupported.
Thompson also concluded that Darvishian made this accusation to
retaliate against Campbell for ordering Darvishian to move from
his office to a cubicle.
Third, Thompson determined that Darvishian gave incomplete
information to the police when he reported that Campbell
allegedly had stolen some of Darvishian’s property. Finally,
Thompson determined that as a result of Darvishian’s actions, at
least five CDCC employees were required temporarily to leave
their work duties to participate in police investigations.
Thompson summarized Darvishian’s conduct as exhibiting a
16
disregard for authority that “deminish[ed] [sic] his
supervisor’s confidence in being able to continue to task or
assign duties to Mr. Darvishian.”
To rebut these legitimate reasons for his removal,
Darvishian was required to produce a record that would permit a
reasonable fact-finder to conclude that the justifications
stated by the Agency were merely a pretext for discrimination.
See Burdine, 450 U.S. at 253. We conclude that Darvishian has
failed to satisfy this burden.
Darvishian argues that the Agency lacked a legitimate basis
for removing him from the federal service, rather than for
merely suspending him. He relies on the March 2, 2006
memorandum, which indicated that a suspension was the only
penalty being considered by the Agency for the first act of
insubordination. Darvishian contends that, therefore,
Thompson’s choice of a more severe penalty was suggestive of
pretext.
This argument, however, is unavailing. The record
establishes that at least three Agency officials having
supervisory authority over Darvishian directed that he vacate
his office. Even if we accept Darvishian’s argument that he
reasonably doubted Campbell’s supervisory authority on February
22, 2006, there is no doubt that by February 23, 2006, two other
individuals with unquestioned authority over Darvishian had
17
either instructed him to move, or confirmed the legitimacy of
Campbell’s directive. Thus, regardless whether Darvishian was
given the memorandum containing the second deadline of March 3,
2006, his ongoing refusal to move his office constituted
insubordination.
We also observe that the penalty imposed by Thompson was
consistent with the punishments set forth in the Table of
Penalties in the Army regulations. According to that document,
a single offense of insubordination or a single incident of
making a false statement can be punished by removal. The
possibility that a different decision maker may have imposed a
less severe penalty if presented with similar circumstances does
not support a conclusion that Thompson was motivated by
discrimination, or that her stated explanation for removing
Darvishian was false.
Nonetheless, we are mindful that the Supreme Court has
cautioned that courts should not become mired in the intricacies
of the McDonnell Douglas proof scheme. See U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); Proud v.
Stone, 945 F.2d 796, 798 (4th Cir. 1991). Thus, ultimately, we
must reverse the district court if it appears that a reasonable
fact-finder could conclude that Thompson more likely than not
removed Darvishian because of his religion or national origin.
Burdine, 450 U.S. at 254.
18
Darvishian argues that the following evidence of record
supports a conclusion that Thompson’s employment decision was
motivated by discriminatory animus. First, Darvishian points to
Thompson’s deposition testimony that she feared “Darvishian’s
irrational behavior.” Darvishian infers from this statement
that Thompson’s apprehension was “based solely on her perception
that an Iranian-born man . . . was dangerous.” Second,
Darvishian heavily relies on an affidavit made by a former CDCC
employee, Tracy Fetchik. In her affidavit, Fetchik stated that
on March 3, 2006, the day Darvishian’s belongings were removed
from his office, Thompson drew her finger across her neck as if
she were slitting a throat, and stated, “I finally got rid of
him.” However, while the above evidence cited by Darvishian
supports an inference that Thompson disliked Darvishian
personally, this evidence does not establish a link between her
personal dislike of Darvishian and his membership in a protected
class.
Our conclusion does not change when we additionally
consider the balance of Fetchik’s affidavit. Most particularly,
Fetchik stated that “sometimes Ms. Thompson, [another employee,]
and Ms. Brenda Jackson-Sewell would make comments amongst
themselves about Mr. Darvishian, like he is a crazy Muslim.”
Notably, however, Fetchik’s affidavit fails to identify any
particular statement that Thompson made regarding Darvishian’s
19
religion or national origin, but only attributes the above type
of offensive remark to general group conversation. In the
absence of any indication which of the three individuals made a
statement of that nature, or any other discriminatory remarks,
we are unable to accord such remarks any probative value as
tending to establish that Thompson, in fact, was motivated by
discrimination regarding Darvishian’s religion or national
origin in her decision to terminate him from federal service.
Absent such probative value, any remarks of this nature were not
admissible evidence and, thus, did not create a genuine issue of
material fact to avert an award of summary judgment. See Fed.
R. Civ. P. 56(e)(1); Fed. R. Evid. 402.
Based on our review of the record, we observe that Thompson
apparently developed a dislike of Darvishian. It is also clear
that Darvishian perceived that he was being pressured by
DeDecker, Campbell, and Thompson to leave the Agency. But Title
VII is not “a general civility code for the American workplace.”
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80 (1998)). Rather, Title VII makes unlawful certain, defined
intentional acts of discrimination. Darvishian has not
demonstrated, as he must to survive summary judgment, that on
this record a reasonable fact-finder could conclude that
Thompson held discriminatory biases based on Darvishian’s
20
religion and national origin that motivated her decision to
remove him from federal service.
We recognize, nevertheless, that under certain
circumstances, discriminatory statements by non-decision makers
can be attributed to the ultimate decision maker. See Merritt,
601 F.3d at 300; see, e.g., Hill v. Lockheed Martin Logistics
Mgmt., 354 F.3d 277, 289-91 (4th Cir. 2004) (en banc); Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000);
Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th
Cir. 1997). Darvishian argues that in this case, Campbell and
Thompson merely were carrying out DeDecker’s directive to
“finish the job” of pressuring Darvishian to leave the CDCC.
However, based on the present record, there is no reason to
conclude that Thompson based her decision to remove Darvishian
on another person’s judgment.
The Agency has given a consistent, lawful rationale for its
removal of Darvishian, contemporaneously with the disciplinary
proceeding and throughout this litigation. Further, Darvishian
has not demonstrated such weaknesses, implausibilities, or
inconsistencies in the Agency’s proffered reasons for his
removal that a reasonable fact-finder could find those reasons
“unworthy of credence.” See Price, 380 F.3d at 212; Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Thus, we conclude
that Darvishian has not met his burden to show that a reasonable
21
fact-finder could conclude that the Agency’s explanation was
pretext for discrimination, or that material factual questions
remain regarding the Agency’s motives. See Merritt, 601 F.3d at
295. Accordingly, we conclude that on this record, a reasonable
fact-finder could not say that Darvishian has presented
sufficient facts to show, by a preponderance of the evidence,
that discrimination was more likely than not a determinative
cause of the Agency’s employment decision.
B.
Darvishian also contends that he was removed from his
employment in retaliation for complaining about the allegedly
discriminatory conduct by his superiors. To establish a prima
facie case of retaliation, Darvishian was required to
demonstrate that he engaged in “protected activity,” and that he
was removed by the Agency because of that activity. See
Holland, 487 F.3d at 218.
The record shows that when Thompson removed Darvishian from
federal service, she knew that he had complained about
discrimination at his workplace. Darvishian contends that
because his protected activity occurred so close in time to the
Agency’s removal decision, the simple fact of this temporal
proximity establishes a causal connection between the two
events.
22
We will assume, but do not decide, that Darvishian has
shown a causal connection establishing a prima facie case of
retaliation. See Holland, 487 F.3d at 218. Thus, proceeding
under the McDonnell Douglas framework, Darvishian was required
to rebut the legitimate nonretaliatory reasons articulated by
the agency for his removal. Id. Based on our review of the
record, we hold that Darvishian failed to make this required
showing. We reach this conclusion for the same reasons we
already have held that Darvishian failed to demonstrate pretext
with respect to his discrimination claims.
III.
Finally, we consider Darvishian’s appeal of the Board’s
decision. We apply an established, narrow standard of review,
under which we must affirm the Board unless, based on the
administrative record, the decision is “(1) arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required by
law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7703(c)
(2006).
In this case, the Administrative Judge determined that the
Agency carried its burden to prove by a preponderance of the
evidence each charge stated in the notice of removal. The
23
Administrative Judge also made certain credibility
determinations, which are “virtually unreviewable” by this court
on appeal. Bieber v. Dept. of the Army, 287 F.3d 1358, 1364
(Fed. Cir. 2002); see Pope v. U.S. Postal Serv., 114 F.3d 1144,
1149 (Fed. Cir. 1997). In assessing testimony related to
Darvishian’s conduct, the Administrative Judge determined,
“[T]he appellant is not a reliable or credible witness in light
of his implausible allegations and inconsistent statements.” In
contrast, the Administrative Judge found that Thompson was a
“credible witness.”
Applying the deferential standards applicable to our review
of the Board’s decision, and based on the evidence contained in
the administrative record, we hold that the Board conclusions
cannot reasonably be said to be arbitrary and capricious, an
abuse of discretion, or unsupported by substantial evidence.
The Board had sufficient evidence before it, and made a reasoned
decision based on that record.
For these reasons, we affirm the district court’s judgment.
AFFIRMED
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