Belyakov v. Leavitt

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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