UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1690
HOMI N. AMIRMOKRI,
Plaintiff - Appellant,
versus
SPENCER ABRAHAM, Secretary, Department of
Energy,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District Judge.
(8:05-cv-01717-AW)
Argued: December 4, 2007 Decided: February 22, 2008
Before TRAXLER, Circuit Judge, HAMILTON, Senior Circuit Judge, and
John Preston BAILEY, United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Morris Eli Fischer, Bethesda, Maryland, for Appellant.
Tarra R. DeShields-Minnis, Assistant United States Attorney, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Homi N. Amirmokri, an Iranian national, appeals the district
court’s order granting summary judgment in favor of the United
States Department of Energy (the “DOE”) on his employment
discrimination and retaliation claims filed under Title VII of the
Civil Rights Act of 1964. See 42 U.S.C.A. § 2000e to 2000e-17
(West 2003 & Supp. 2007). We affirm.
I.
Amirmokri was hired by the DOE in 1991, by Owen Lowe, the
Associate Director in the Office of Nuclear Energy Science and
Technology, a division of the DOE responsible for the management of
nuclear facilities in the United States. At the time of the events
in question, Amirmokri was a GS-15, Nuclear Engineer, and Lowe was
his supervisor. Both men were based in the Washington, D.C. area.
Between 2001 and June of 2003, Amirmokri’s assigned duties
included serving as Program Manager for the Oak Ridge National
Laboratory (“ORNL”), a nuclear energy facility in Oak Ridge,
Tennessee. In this capacity, he visited ORNL every six to eight
weeks, or as needed, and interacted with DOE employees as well as
employees of DOE’s contractor, UT-Battelle, who worked on site.
The events in question arose out of several complaints made by
employees at ORNL about Amirmokri’s unprofessional behavior during
Amirmokri’s May 2003 visit to ORNL. The first complaint originated
2
from Cathy Simmons, a UT-Battelle employee. As part of his duties,
Amirmokri was responsible for reviewing transportation plans,
including the Transportation Safety Document (“TSD”) prepared by
UT-Battelle for a Q-Ball cask that was to serve as a casing for
nuclear material during transport within the ORNL facility. During
the facility tour, Amirmokri raised concerns about the
transportation plans to Raymond Bond, the facility manager at ORNL
who was accompanying him. Bond advised Amirmokri that Simmons had
drafted the TSD report and took Amirmokri to meet her. According
to Bond, Amirmokri relayed his concerns about the TSD to Simmons
and began to aggressively question Simmons about her work product.
Simmons attempted to answer the questions, but did not do so to
Amirmokri’s satisfaction. The meeting “started to get out of
control” with Amirmokri becoming frustrated with Simmons and
cutting her off. J.A. 58. According to Bond, Simmons “was
starting to visibly get shaken,” prompting Bond to end the meeting.
J.A. 59. Bond asked Amirmokri to prepare his questions and they
would arrange another meeting to address them. Bond testified that
Amirmokri’s behavior was inappropriate, that he was “talking down”
to Simmons, and that he handled himself in an unprofessional
manner. J.A. 60. Simmons testified that she was “flabbergasted by
[Amirmokri’s] tone and [his] line of reasoning.” J.A. 54. She
also testified that Bond apologized to her later that day for
bringing Amirmokri to her unannounced, as well as for Amirmokri’s
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“condescending attitude.” J.A. 54. The incident was reported to
Simmons’s supervisor, Steve Marschman, and Simmons was asked to
document the encounter.
The second complaint involved Gary Kelly, who served as a lead
health physicist for the facility. During Amirmokri’s tour of
Kelly’s area, Amirmokri was accompanied by Michael Woods, an ORNL
facility representative. In order to gain access to a restricted
area, Amirmokri (like all visitors) was required to provide Kelly
with his name and position in order to obtain a dosimeter for
possible radiation exposure. Kelly testified that he did not
recognize Amirmokri and, when he asked him who he worked for,
Amirmokri questioned Kelly as to why that mattered. When Kelly
explained that he was required to record the information in order
to report the dose to Amirmokri’s employer, even if it was zero,
Amirmokri told Kelly that it “did not matter [because the] dose
would be reported to him.” J.A. 385. Kelly reiterated that the
dose had to be reported to Amirmokri’s employer; if Amirmokri was
self-employed, Kelly could record that, but Kelly could not issue
the dosimeter without the required information. At some point,
Woods interrupted the exchange by providing Kelly the requisite
information for Amirmokri. Kelly issued the dosimeter, but called
his supervisor and reported that he thought Amirmokri’s conduct
“was unprofessional” and that “if [i]t hadn’t been for Mike Woods,
[he] would not have issued the [dosimeter].” J.A. 387. Woods’s
4
account of the dispute confirmed that Kelly required Amirmokri to
fill out the requisite form for a dosimeter because Amirmokri, a
program manager, was not on the ORNL list. Woods also confirmed
that Kelly is required to record the names and employers of “people
who come from off site to get dosimeters . . . so that they can
send any dose records to that person.” J.A. 116. Although Woods
testified that he would not “characterize [Amirmokri’s behavior] as
rude,” he appeared to acknowledge some dispute surrounding the
incident. J.A. 117. According to Woods, “Kelly had asked
[Amirmokri] what his name was as if he didn’t know who he was. I
think that kind of surprised [Amirmokri]. And then he asked him
who did he work for, as if he didn’t know who [Amirmokri] was,
which he did because [Amirmokri’s] been down . . . to see Gary
Kelly several times in the past.” J.A. 117. As noted above, Kelly
stated that he did not recognize Amirmokri.
On May 8, 2003, Lowe received a telephone call from an Oak
Ridge manager advising him of Simmons’s and Kelly’s complaints
about Amirmokri’s unprofessional behavior. Lowe, in turn,
immediately contacted Amirmokri and cautioned him to “be on his
best behavior” while at ORNL. J.A. 76.
Despite this warning, a third incident involving Amirmokri
occurred approximately a week later when Amirmokri met with Larry
Boyd, a GS-14 General Engineer with local oversight for the Oak
Ridge facility, to discuss an e-mail Boyd had sent to Amirmokri two
5
months earlier. In the e-mail, Boyd acknowledged that the decision
was ultimately Amirmokri’s to make, but he presented Amirmokri with
several technical points for why he thought the TSD for the Q-Ball
cask was sufficient to ensure safety. In the course of doing so,
Boyd related that he felt additional assessment would be “a waste
of taxpayers’ money.” J.A. 65 (internal quotation marks omitted).
Apparently, Amirmokri took great offense to Boyd’s differing
opinion as to the adequacy of the TSD. According to Boyd,
Amirmokri “came into my office and shut the door[,] . . . sat down
in a chair across from my desk and said, are you aware you can be
sued for libel.” J.A. 66. Boyd was taken aback by the comment,
and he immediately contemplated (and asked Amirmokri) whether he
needed to talk to a DOE lawyer before discussing the matter any
further. Amirmokri referenced the libel threat at least two more
times, but told Boyd that he (Amirmokri) had not yet contacted an
attorney. According to Boyd, “the whole conversation was extremely
disturbing . . . from a professional standpoint. It was not at all
something that [he] was prepared to discuss. It took [him] totally
by surprise.” J.A. 67.
Disturbed by the encounter, Boyd reported the threat to his
supervisor, who advised him to document the incident and, if he
decided to pursue a more formal complaint, to do so quickly. Boyd
also contacted a DOE lawyer, who reassured Boyd that they would
represent him should anything materialize. Because Boyd felt that
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Amirmokri was trying to intimidate him, Boyd decided to report the
matter to Lowe but to “cut [Amirmokri] the slack and not pursue
anything more formal than talking to Mr. Lowe about what had
happened and letting him know that I really didn’t appreciate it
and that I would not put up with any such actions in the future.”
J.A. 179.
Because the incident with Boyd involved “the subject of
qualifying the Q-ball, the same subject as with Cathy Simmons[,]”
and occurred “a week after [he] had admonished [Amirmokri] to be on
his best behavior,” Lowe felt that further investigation was
necessary. J.A. 76. Lowe additionally found the nature of the
complaints “to be disturbing and, if true, very damaging to
[Lowe’s] ability to carry out [his] responsibilities for nuclear
safety at [ORNL].” J.A. 76. Lowe decided that he should go to Oak
Ridge and talk directly to the people who had raised the
allegations and, after consultation with and approval from his
superior, William Magwood, Lowe traveled to ORNL to personally
investigate the complaints.
Upon his arrival at ORNL, Lowe interviewed Simmons, her
supervisor Marschman, Bond, Bond’s supervisor Carol Scott, and
Kelly. Lowe then returned to headquarters and met with Amirmokri.
However, Amirmokri “did not take the opportunity to rebut any of
these issues that had been raised, other than saying that none of
it had happened,” which Lowe did not find to be credible. J.A. 78.
7
Lowe initially determined that Amirmokri should be reassigned
away from his program manager duties at ORNL and to a “more
headquarters-oriented” position. J.A. 79. Because Lowe had “no
direct line authority over the people that operate[d] the [ORNL]
reactor and the nuclear facilities at Oak Ridge,” Lowe was
dependent upon having “good, solid collegial working relationships
with the people at the site.” J.A. 92. As he later advised
Amirmokri, Lowe felt that “[t]he combined effect of the[] incidents
ha[d] discredited [his agency] and disqualified [Amirmokri] as a
representative of the Office to both the [DOE] and UT-Battelle
organizations at Oak Ridge.” J.A. 38.
On June 16, 2003, Lowe advised Amirmokri in writing of his
reassignment. Amirmokri was advised to concentrate on the
Documented Safety Analysis (“DSA”) Review for the High Flux Isotope
Reactor (“HFIR”) at Oak Ridge, which was already a part of his
duties and expected to take a large amount of time, and notified of
the specific reasons for the reassignment as follows:
Based on my personal observations since last July, I have
concluded that you are no longer an effective
representative of NE to the Oak Ridge DOE and contractor
organizations. I have similar concerns about your
interactions with headquarters personnel. I have also
concluded that some of your interactions with ORNL and
[other] personnel during your recent trip to Oak Ridge
were totally unacceptable and have sufficiently damaged
NE’s effectiveness at the site that I must make a change.
You have stated several times since I became your
supervisor in July 2002 that you have too heavy a
workload. I am also making this assignment in response
to your stated concern. This assignment will enable you
8
to achieve a timely and thorough completion of the DSA
review.
J.A. 36. Amirmokri was also directed to participate in mandatory
counseling through the Employee Assistance Program, and he was
advised that disciplinary action as a result of the Oak Ridge
incidents was under consideration.
DOE’s human resources department reviewed Lowe’s investigation
and recommended a suspension of Amirmokri for two to five days, but
Lowe disagreed. He felt that the matter could be handled with a
simple letter of reprimand. Magwood testified that he too believed
Amirmokri’s conduct at ORNL warranted suspension, but he supported
Lowe’s decision (as the more immediate supervisor) to impose a
lesser sanction. On June 27, 2003, Amirmokri received a written,
but limited, reprimand for “inappropriate behavior while on
official Government business at Oak Ridge between May 5, 2003 and
May 16, 2003.” J.A. 38. The reprimand referenced Amirmokri’s
“inappropriate and unprofessional behavior” on “three separate
occasions,” as reported to Lowe by the Oak Ridge personnel;
specifically, Amirmokri’s “rude and condescending” demeanor towards
Simmons, his disregard of the requirements for access to a
restricted radiation area, and his “line of questioning and
aggressive behavior” towards Boyd on May 15, 2003, the latter of
which “occurred after [Lowe] had admonished [Amirmokri] on May 8,
2003, via telephone, to avoid such conduct.” J.A. 38. Amirmokri
was again “admonished to avoid similar behavior in the future and
9
to conduct [himself] during future DOE business interactions in
only the most disciplined, polite, and professional manner.” J.A.
38. The reprimand itself was to remain in Amirmokri’s personnel
file for only one year, at which time it would be removed.
Amirmokri’s salary and grade level remained unchanged.
In the fall of 2004, Amirmokri initiated an EEOC complaint
against the DOE, alleging that he had been discriminated against
based upon his Iranian national origin and retaliated against for
having pursued a prior national origin discrimination and
retaliation action against the DOE.1 Following discovery and an
evidentiary hearing, an administrative law judge ruled that, even
assuming that Amirmokri had established a prima facie case of
national origin discrimination and retaliation, the DOE had
“articulated legitimate reasons for its actions,” which he found
were “not a pretext for either national origin discrimination or
retaliation.” J.A. 29.2 Amirmokri then filed this action,
1
In the prior proceedings, Amirmokri alleged that the DOE
failed to promote and train him because of his national origin, and
delayed his promotion in retaliation for his having filed the EEOC
complaint. A jury rejected Amirmokri’s claim, and we affirmed that
judgment on appeal. See Amirmokri v. Abraham, 119 Fed. Appx. 520
(4th Cir. 2005) (per curiam). Amirmokri’s second EEOC complaint --
which led to this lawsuit -- was initiated after the district court
entered judgment against him on the former complaint and while the
appeal from that decision was pending before us.
2
The ALJ also noted, as we do, that “[t]he real theme that
runs through the Report of Investigation is that [Amirmokri]
believed that actions were taken against him because of his refusal
to violate [a safety regulation].” J.A. 30. However, as aptly
noted by the ALJ, even if true, “[t]his belief is not founded upon
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alleging that the reprimand and reassignment (to which he added an
allegation of unattainable deadlines, at first, and then the
deprivation of meaningful work assignments in his new duties) were
adverse employment actions motivated by such discrimination and
retaliation.3
II.
In order to prevail on a Title VII retaliation claim, a
plaintiff is required to show: (1) that he engaged in protected
activity; (2) that adverse employment action was taken against him;
and (3) that a causal connection existed between the first two
elements. See Holland v. Washington Homes, Inc., 487 F.3d 208, 218
(4th Cir. 2007). Assuming that a prima facie case is established,
the burden then shifts to the employer “to rebut the presumption of
retaliation by articulating a legitimate nonretaliatory reason for
national origin discrimination or retaliation.” J.A. 30.
3
Amirmokri’s complaint of unreasonable deadlines appears to
involve his assigned responsibility to complete review of the DSA
for the reactor at Oak Ridge. According to Lowe, the preparation
of the DSA review was a “heavy” responsibility. J.A. 81.
Amirmokri claimed that he was not only the best person to do the
job, but possibly the only person to complete this assignment,
which involved leading a team of 20-25 subject matter experts. It
is undisputed that Amirmokri worked overtime to meet the deadline
for the project, although Lowe testified that it was not excessive
or unusual; it is also undisputed that Lowe extended the deadline
six months after Amirmokri complained and that Amirmokri made no
further requests for an extension of the deadline. Lowe disputes
that Amirmokri was thereafter deprived of meaningful work
assignments.
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its actions.” Id. (internal quotation marks omitted). The burden
then shifts back to plaintiff “to show that the reason is mere
pretext for retaliation by proving both that the reason was false,
and that discrimination was the real reason for the challenged
conduct.” Id. (internal quotation marks omitted).
In order to prevail on an employment discrimination claim
based upon national origin, plaintiff must show: (1) that he is a
member of a protected class; (2) that he suffered an adverse
employment action; (3) that he was performing his job duties at a
level that met his employer’s legitimate expectations at the time
of the adverse employment action; and (4) that the position
remained open or was filled by a similarly qualified person outside
the protected class. See Hill v. Lockheed Martin Logistics Mgmt.,
Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). As in the
retaliation context, the burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the action.
If the employer satisfies this requirement, the burden returns to
the plaintiff to demonstrate that the reason is a pretext for
discrimination based upon his national origin. See id.
In the instant case, it is undisputed that Lowe, who hired
Amirmokri and had absolutely no involvement with or in the previous
EEOC action or ensuing lawsuit, received two unsolicited telephone
calls from ORNL personnel complaining of unrelated incidents of
inappropriate behavior on the part of Amirmokri towards DOE and UT-
12
Battelle employees working on site. After opting to give Amirmokri
a mild verbal admonishment to be on his best behavior after the
first complaint, Lowe received another complaint that Amirmokri had
threatened an employee with a libel suit because the employee had
expressed disagreement with Amirmokri’s technical opinion as to the
TSD requirements for the Q-Ball cast transport. Lowe traveled to
ORNL to personally interview each of the offended parties and, at
the conclusion of the investigation, gave Amirmokri an opportunity
to respond, but was met with only a general denial, which Lowe
found to be not credible. Lowe also determined that the combined
effects of the complaints had discredited their agency and
compromised Amirmokri’s ability to effectively work with the ORNL
facility personnel and contractors in the future.
Even if we assume that the actions taken against Amirmokri in
the wake of his visit to ORNL qualify as “adverse employment
actions” and that Amirmokri has met the other requirements of the
prima facie case for his respective claims, Amirmokri cannot
prevail on either of his claims because he has failed to
demonstrate that Lowe’s decision to reprimand him and reassign him
away from his duties as project manager for ORNL was a mere pretext
for discrimination based on his national origin or retaliation for
his having previously filed suit for such claims.
With regard to the discrimination claim, there is absolutely
no evidence that any complaint or employment action was taken based
13
upon Amirmokri’s national origin and nothing that would demonstrate
that the reasons given for the employment actions taken in the wake
of the unsolicited complaints were a pretext for such
discrimination.
With regard to the retaliation claim, it is undisputed here
that Lowe was only vaguely aware of the prior lawsuit at the time
he investigated the ORNL complaints and was not involved with the
previous litigation nor aware of any specific details of it. Even
if he had been, there is no evidence that anyone at the DOE
instigated the complaints from ORNL, the complaints largely
originated from employees of UT-Battelle who were working at the
site, and there is no evidence that Simmons, Bond, Kelly, or Boyd
were ever aware of Amirmokri’s prior litigation.
For the same reasons, we are unpersuaded that pretext may be
shown from the fact that William Magwood’s deposition testimony in
the previous lawsuit was taken approximately two months before the
ORNL complaints were received. Magwood was Lowe’s supervisor at
the time of the ORNL visit and approved Lowe’s decision to visit
ORNL to investigate the complaints made by the employees at that
facility. However, there is no evidence that Magwood played any
role in the complaints that were lodged against Amirmokri and he
played no role in their investigation other than to authorize Lowe
to look into the matter. At best, Magwood merely supported Lowe’s
decision to impose a limited written reprimand -- a lesser sanction
14
than that recommended by the human resources department and that he
personally felt was warranted -- and to reassign Amirmokri to other
duties due to his diminished effectiveness as a representative to
the facility.
Equally unavailing are Amirmokri’s assertions that summary
judgment was premature because there are factual issues regarding
whether he was unprofessional and because pretext may be proven by
the fact that Lowe did not interview Woods during his
investigation. With regard to the former, it is largely irrelevant
whether Amirmokri was, in fact, unprofessional or whether Lowe
should have believed his general denial over the specific
complaints of the three ORNL employees. The ORNL personnel made
these complaints, placing Lowe in the position of having to deal
with them. The only relevant question is whether Lowe’s decisions
were motivated by the desire to discriminate or retaliate, and
there is nothing in the record that would support an inference that
Lowe disbelieved the accounts of the three ORNL employees, yet used
them as pretext for such a hidden motivation. With regard to the
latter, it is uncontroverted that Woods was not present during
Amirmokri’s encounters with Simmons or Boyd. While Woods was
present during Amimokri’s interaction with Kelly, Kelly initiated
that complaint when he reported Amirmokri’s behavior to his own
supervisor. Kelly was personally interviewed by Lowe and confirmed
in his testimony that he regarded Amirmokri’s behavior to be
15
unprofessional and offensive. At best, a minor discrepancy exists
as to whether Lowe attempted to interview Woods and why that
interview did not take place, but Woods has never denied that there
was an “incident” between Kelly and Amirmokri. He simply offered
his view that Kelly knew or should have known Amirmokri and should
not have imposed the normal requirements for entrance to a
restricted access area. In short, Woods was not such a critical
witness that Lowe’s failure to interview him could support a
finding of pretext.
Finally, we find no abuse of discretion in the district
court’s denial of Amirmokri’s request to conduct further discovery
under Rule 56(f), which provides the district court with
discretionary authority, in appropriate cases, to deny a premature
motion for summary judgment where the nonmoving party demonstrates
that he has not had adequate time for discovery or needs additional
time to complete it. See Fed. R. Civ. P. 56(f). As noted by the
district court, Amirmokri’s “claims were thoroughly investigated at
the administrative level,” and “the central participants” were all
deposed. J.A. 413. In addition, the ALJ conducted an evidentiary
hearing where the pertinent witnesses were questioned. Because
Amirmokri failed to demonstrate that additional discovery would aid
in rebutting the DOE’s legitimate reason for reassigning Amirmokri
away from his on-site duties at ORNL as project manager and
imposing a minor reprimand for the conduct that necessitated that
16
reassignment, we find that the district court did not abuse its
discretion in denying Amirmokri’s request for discovery.
To conclude, there is no indication that the DOE acted with a
discriminatory or retaliatory motivation and, on the contrary, the
evidence indicates that a reasonable determination was made that
the complaints about Amirmokri had irretrievably compromised
Amirmokri’s ability to be effective as a DOE representative at the
ORNL. The DOE has set forth legitimate, nondiscriminatory reasons
for the alleged adverse employment actions taken against Amirmokri,
and Amirmokri has failed to produce evidence upon which a
reasonable jury could find the proffered reasons were a pretext for
discrimination or retaliation. Accordingly, the district court did
not err in granting summary judgment dismissing his retaliation and
discrimination claims.
AFFIRMED
17