                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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


                                        3
“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


                                     6
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

                                       10
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.

                                 11
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




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