                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

                                                }
RAMESH SHARMA,                                  }
                                                }
                Plaintiff,                      }
                                                }
        v.                                      }       Case No. 1:10-cv-1033(GK}
                                                }
DISTRICT OF COLUMBIA,                           }
                                                }
                Defendant.                      }
________________________________ }
                                       MEMORANDUM OPINION

        Plaintiff        Ramesh        Sharma       ("Plaintiff"              or     "Sharma")    brings

this suit against his former employer,                                 the District of Columbia

("Defendant"        or     "the District"),             under Title VII                   of the Civil

Rights       Act    of    1964,        42   U.S.C.          §§    2000e,        et    seq.;      the     Age

Discrimination in Employment Act of 1967                                  ( "ADEA'') ,     2 9 U.S. C.     §

621     et     seq.;      and     the       District             of     Columbia          Whistleblower

Protection Act ("DCWPA"), D.C. Code                         §    1-615.51.

        This matter is before the Court on Plaintiff's Motion for

Partial       Summary      Judgment         [Dkt.     No.        96]     and       Defendant's         Cross

Motion for Summary Judgment                   [Dkt. No.               107].        Upon consideration

of    the     Motions,      Oppositions             [Dkt.        Nos.     100,       110-2],     Replies

[Dkt.        Nos.   104,        113]   1    Plaintiff's                Notice        of    Supplemental

Authority       [Dkt. No.       120], and the entire record herein,                              and for

the reasons stated below, Plaintiff's Motion for Partial Summary
Judgment     shall       be   denied       and the District's Cross Motion                      for

Summary Judgment shall be granted in part and denied in part.

I .   Background

      A.     Factual Background 1

      Sharma, a United States citizen of Asian-Indian origin, was

previously        employed      by       the    District        of     Columbia's      Office    of

Contracting        &   Procurement         ( "OCP"        or the     "Agency")      as a Senior

Contract     Specialist          in      the        Construction       Design    and    Building

Renovation        ("CDBR")     Group.          See Def.'s Resp.           to Pl.'s Statement

of Material Facts ("SOMF") , 8 [Dkt. No. 100]

      Sharma       alleges      that,          at    his     initial     interview      for    this

position in January 2003,                  Karen Hester              ("Hester"),     the hiring

official and then-Manager of Contracting,                            "asked [him]      if he was

willing to do all types of work she would assign him,                                  including

clerical,     typing,         and     filing         work,    because      she   thought       most

people     from    his    part      of    the        world    (South Asia),         like     India,

Pakistan,      and       Bangladesh[,]              were     very      lazy   and     made     poor

supervisors or leaders [.]"                    Third Amended Complaint              ( "TAC")   , 11

[Dkt. No.    50] .       The District denies this allegation.                          Answer to

TAC ("Answer") , 11 [Dkt. No. 52].


1
  Unless otherwise noted, the facts are undisputed and drawn from
either the pleadings or the parties' Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).

                                                    -2-
        In any event,          Hester hired Sharma,                who was 64 years of age

at the time,          and, on May 26, 2004,             she evaluated his performance

as    "outstanding"          in    four    out    of     five       performance       categories.

She elaborated that:

         [Sharma] brings   a  vast  amount   of   know 1 edge and
        experience in contracting               He is extremely
        diligent, does not need supervision and exercises a
        high degree of judgment in carrying out assignments
        that are sensitive and highly visible.

        Ex.    to Def.'s Opp'n            (performance evaluation dated May 26,

2004)        [Dkt.     No.   100    at    ECF     pp.    77-78].          In    the        "Personal

Relations"           category,     however,       Hester      judged      Sharma      to    be    only

"satisfactory" I" acceptable,"               and       she    cautioned that          he     "should

be careful not to offend others in his zeal for timeliness and

thoroughness."           Id.

        In     June      2005,      Hester       again       issued       Sharma      a     glowing

performance evaluation,              rating him as             "outstanding"       in four out

of    five     categories          and    observing          that    he   "is    proactive          in

analyzing and resolving problems"                       and     "takes the      initiative to

do all that he can do to complete a project or assignment in a

timely       manner,     including        hours    of    work       without     compensation."

Ex.     to    Def. 's    Opp' n     (performance         evaluation        dated      June       2005)

[Dkt.    No.     100    at     ECF pp.     79-80].           She    opined again,          however,

that Sharma's           "Personal Relations"             were only "satisfactory"                  and



                                                 -3-
she   indicated that             he     "needs   improvement         11
                                                                           in cooperating with

his co-workers.               She explained:

       In his zeal for timeliness, thoroughness and integrity
       Mr. Sharma has offends [sic] internal and external
       customers on occasion.     In this regard, Mr. Sharma
       must   improve   the    content   and   tone   of    his
                                                            2
       communications with internal and external customers.

       Id.

       Sharma's          relationships         with    customers            did        not,     however,

improve.           Sharma       contends       that    the    reason            for     the     lack    of

improvement was that his supervisors,                         co-workers,              and customers

repeatedly          "pressured 11        him     to    find         ways         to      "bypass       the

District's procurement                 regulations~~     and        "rubber- stamp 11           inflated

and wasteful contracts,                 which he refused to do.                        See generally

TAC    ~     18.         He    alleges,        for    example,            that    he         refused    an

influential lobbyist's demand that he process a $1 million claim

evaluated          to    be     "worth    only       about    $100,000,                not     about    $1

million, as claimed by the contractor[,]                       11
                                                                     because the contractor

"failed       to    provide      the     required      justification                  [and]    proof    of

costs [.]    11
                   Id.   ~~    14-16.     He also objected to alleged "[e]fforts

by    [OCP Deputy Director,                Peter May,        and          OCP    Project Manager,


2
  Hester appears to have used the term "internal customers 11 to
refer to employees of District of Columbia agencies other than
OCP and the term "external customers 11 to refer to contractors
and other non-District of Columbia persons.   See Pl.'s Mot. Ex.
10 (deposition tr. of Karen Hester ("Hester tr. I")) at 103:7-10
[Dkt. No. 96-13].
                              -4-
Tony        Esse]    to     steer         [a]      Conceptual        Design       contract                for     the

Consolidated              Forensics          Lab        (CFL)    project         to     a       pre-selected

contractor          at      highly          inflated          prices[.]"              Id.       ~     18.          In

addition,          he complained about a Department of Health official's

alleged attempt                 to coerce him into ignoring procurement                                         rules

and     a    general        lack       of     "cost       control      on   many           of       the

contracts administered by Mr. Esse."                                 Id.

        On July           11,    2 005,       Sharma       filed     his    first           "whistleblower

complaint"          with         the        D.C.     Auditor         and    D.C.            City          Council,

complaining of              these       and other             alleged violations.                         Id.      On

March 17, 2006, he filed several more "whistleblower complaints"

of the same type with the D.C.                             Inspector General's Office,                            the

D.C.    Auditor,          and the D.C.              City Council.            Id.       ~     30.          His co-

workers and supervisors,                        in turn,        complained that he was                           "not

helpful" and requested that he be removed from certain projects.

Id.    ~~    26, 29, 30.

        In August           2006,       after       Sharma       refused         to    comply with                 an

order from Ms.             Hester to "do whatever                     [Deputy Director May and

Project        Manager          Esse]        want       you     to   do     to        process"             certain

contracts,          Hester issued him a letter of admonishment stating,

among       other     things,           that       he     had    "poor      customer                relations,"

exhibited "disruptive behavior," and was insubordinate.                                                     Id.    ~~

58-60,       67,    68.         Thereafter,         on October 18,               2006,          Sharma filed
                                                        -5-
additional complaints with the D.C.                      Mayor's Office,      the United

States Department of Justice,                    the D.C.      Inspector General,     the

D.C.    Auditor,       the   United     States         Equal   Employment    Opportunity

Commission ("EEOC") and the D.C. Office of Human Rights alleging

retaliation,         discrimination,        and violations of federal and D.C.

whistleblower and false claims laws.                     Id.   ~   69.

       On December 12,        2006,        Sharma again refused a direct order

from Hester to process a major contract, this one related to the

Anacostia Waterfront project,                   which he contended was         "illegal"

because "it involved millions of dollars of hidden equipment[.]"

Id.    ~~   71-74.     The same day, Sharma submitted further complaints

of ethical violations to the D.C. Auditor and the D.C. Office of

the Inspector General.            Id.       ~    75.    Hester subsequently removed

him from the Anacostia Waterfront Project and the project was

reassigned to another employee who, according to Sharma, had "no

engineering          background       or        experience"        in    complex   design

contracts.       Id. ~ 78.
                --

       Sharma alleges that, in April 2007, in a meeting to discuss

Sharma's multiple grievances, Hester told him:

       Ray, you are filing too many complaints with the IG,
       the Auditors [sic] office, EEOC, and the Mayor.    You
       are making the Mayor's office and other big bosses
       very mad.   They will get back at you and you are also
       making my job difficult.              You need to be
       careful.          It will take you nowhere         but
       trouble [.]
                                                -6-
        Id.   ~   96.    The District denies this allegation.

        In    June      2007,     another    supervisor,          Diane   Wooden,    rated

Sharma's          performance      as     "unsatisfactory"          in    the   "Personal

Relations" category and only "satisfactory" in three of the five

remaining         performance      categories.         While       Wooden    acknowledged

that Sharma had a               "vast amount of experience and knowledge of

[the] construction procurement processes," she observed that

        the positive aspects of his performance are marred by
        poor personal relations with customers and other
        stakeholders.      Mr.    Sharma    is   argumentative,
        condescending, and an obstacle to District employees
        who disagree with his perspectives and who are often
        seeking advice and assistance from OCP on the proper
        way to get contracts awarded.    In fact, the quantity
        of work that is expected of an employee at his level
        is deficient because customers have complained and
        requested that Mr. Sharma not be assigned to their
        projects.

        Ex.   to Def. 's Mot.           (performance evaluation,            dated June 2,

2007)    [Dkt. No. 100 at ECF pp. 81-82].

        Sharma refused to sign this performance evaluation.                         Id.    A

few months         later,   in August       2007,     he    filed amendments        to his

EEOC complaint,          complaining of,       inter alia,         "continuing acts of

discrimination,          harassment,        hostile        work   environment,      severe

threats,      [and] retaliation by Ms. Hester and Mr. Mack [.]"                      TAC   ~

121.




                                             -7-
        The acrimony between Sharma and his                             supervisors        continued

in the       same general        pattern throughout                the     remainder of          2007,

2008,    and early 2009.              In the meantime,                  between November 2005

and     June    2009,    Sharma        applied          for   20        open     supervisory          and

directorship positions within OCP but was not                                   selected for any

of them.

        On March 4,      2009,    the District's Chief Procurement Officer,

David    Gragan      ( "Gragan")        announced         that      the       CDBR   group,      where

Sharma worked,       would be transferred from OCP to the District of

Columbia's Office of Property Management                            ("OPM").         In connection

with    this    move,     Sharma's          colleagues         in       the     CDBR     group      were

transferred to other positions within OCP or were                                      sent    to     the

newly formed OPM construction contracting division.                                       Sharma,      by

contrast, was not transferred to another position or sent to the

newly formed OPM division.

        On   May   29,   2009,        Sharma       received         a    letter        from   Gragan,

stating that,        as a      result of a          reduction in force                   ( "RIF") ,    he

would be       "separated      from District government                         service    effective

06/19/09."         See Ex.     to Def. 's Opp' n              (letter from David Gragan,

Chief Procurement Officer,                  to Ramesh Sharma,               dated May 18,           2009

( "RIF notice"))         [Dkt.    No.       100    at   ECF p.          59] .     Sharma was          the

only    member      of   the     CDBR       group       who    was        separated        from       the

District's      employment       as     a   result       of   the       RIF.       His    separation

                                                  -8-
went     into       effect        on     June       19,     2009,     at    which        time       he     was

approximately 71 years old.

        B.        Procedural Background

        Sharma       filed        this     lawsuit          on     June    18,      2010,       asserting

claims       under        the   DCWPA      and       the    False     Claims        Act,       31     U.S.C.

§   3730(h).        On September 1, 2010, the District filed a Motion to

Dismiss       the     Original          Complaint          [Dkt.    No.    5] ,    which the             Court

denied on June 17, 2011                    [Dkt. No.         21].      See Sharma v. Dist. of

Columbia,         791      F.     Supp.       2d    207      (D.D.C.       2011)        ("Sharma          I").

Sharma       subsequently           filed       a    Second Amended               Complaint           ("SAC")

[Dkt. No. 42] on February 6, 2012, and a Third Amended Complaint

("TAC")       [Dkt.       No.     50]    on March 28,              2012,    adding claims under

Title VII and the ADEA.                       On April 16, 2012,              the District moved

to dismiss Sharma's claim under the False Claims Act                                            [Dkt. No.

53], which the Court granted on August 8, 2012.                                     Sharma v. Dist.

of Columbia,          881 F. Supp. 2d 138, 142-43                         (D.D.C.    2012)          ("Sharma

II").

        The parties conducted discovery from February 2012 through

February 2013.              See Scheduling Order dated Feb.                             7,    2 012      [Dkt.

No. 43]; Minute Order dated Dec. 17, 2012; Order dated Jan. 28,

2013    [Dkt.       No.    86].         During this time,             it came to light that,

whether       intentionally              or     unintentionally,              the       District           had

failed       to    retain       a      great       deal     of     relevant       and        discoverable
                                                     -9-
information,          including                 "information pertaining to the selection

of    other    individuals                 for     positions           Plaintiff       has    applied             for,

his performance record during the relevant period of time,                                                         and

procedures           and         policies              pertaining            to      the     selection              of

applicants        for positions                   in OCP and             [OPM] . "     Order dated Jan.

15,   2013,    at 2        [Dkt. No. 81]

        The    District           conceded             that      its     failure      to     preserve             this

information           was         a        violation          of       the    EEOC's         record-keeping

regulation,          29    C.F.R.           §    1602.14.          Id.    at 3.       Consequently,                the

Court     awarded           Sharma              attorneys'         fees       and     various       discovery

relief       and ordered that,                     "as a        sanction for          failure       to comply

with Fed.       R.        Civ.        P.    37 (a) (3)     and      (4),      the    [District]          will be

deemed to have waived any privilege objections to any documents

produced more than 14 days after issuance of this Order[.]"                                                        Id.

at    6-7.      The        Court           thereafter           denied       an     oral   Motion            by    the

District to conduct additional discovery.                                           See Order dated May

28,   2013    [Dkt. No. 91] .

        On August           12,        2013,       Sharma        filed       his     Motion       for        Partial

Summary       Judgment            [Dkt.          No.    96] .       On       September       4,    2013,           the

District filed its Opposition                            [Dkt. No.           100]      On September 19,

2013,    Sharma filed his Reply [Dkt. No. 104].

        On September 27,                   2013,       the District filed its Cross Motion

for     Summary       Judgment              [Dkt.      No.      107] .        On     November           4,     2 013,

                                                         -10-
Sharma      filed       his     Opposition        [Dkt.     No.    110].            On    December       5,

2013,    the District filed its Reply [Dkt. No. 113].                                     On April 14,

2014,      Sharma       filed      a   Sur-Reply          with    permission             of   the     Court

[Dkt. No.        116] .       Thereafter,       on June 6,         2014,    he filed a Notice

of Supplemental Authority [Dkt. No. 120].

II.     STANDARD ON SUMMARY JUDGMENT

        Summary judgment may be granted only if the pleadings,                                          the

discovery and disclosure materials on file,                                and any affidavits

show that there is no genuine issue as to any material fact and

that    the     moving party is              entitled to          judgment          as    a   matter of

law.     See Fed. R. Civ. P. 56(c); Arrington v. United States, 473

F.3d 329, 333           (D.C. Cir. 2006).              uA dispute over a material fact

is     'genuine'        if    'the     evidence      is    such    that    a        reasonable         jury

could return a               verdict    for the non-moving party. '"                          Arrington,

473    F.3d at        333      (quoting Anderson v.               Liberty Lobby,              Inc.,     477

u.s.    242,    248     (1986)).        A fact is umaterial"               if it might affect

the    outcome      of       the   case      under    the    substantive            governing          law.

Liberty Lobby,            477 U.S.        at   248.        The burden          is    on the moving

party      to    demonstrate           the     absence       of    any     genuine            issues     of

material        fact.         Celotex     Corp.       v.    Catrett,       477       U.S.      317,     323

(1986) .

        In deciding a motion for summary judgment,                                  uthe court must

draw all reasonable inferences in favor of the nonmoving party,

                                                -11-
and     it    may       not    make        credibility determinations                         or    weigh       the

evidence."          Reeves v. Sanderson Plumbing Prods.,                                  Inc.,         530 U.S.

133,    150       (2000).        The Supreme Court has consistently emphasized

that the judge's function is not to "determine the truth of the

matter,       Liberty Lobby,                477 U.S.       at        249,    but merely to decide

"whether          the    evidence           presents       a     sufficient             disagreement             to

require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law."                                       Id. at 251-52.

III. DISCUSSION

        In his          TAC,     Sharma       brings       claims           for    discrimination and

retaliation             under         Title     VII   I        the     ADEA,         and       the        DCWPA.

Specifically,            he contends that his separation in 2 009,                                      and the

District's          refusal           to     select        him        for     the        20        supervisory

positions to which he applied between 2005 and 2009,                                                were each

based        on    his        race,     age,     and/or          the        fact        that       he     was     a

whistleblower.             See generally TAC               ~~    402-34.

       A.         Legal Framework

       Whether brought under Title VII,                                the ADEA,           or the DCWPA,

discrimination             and        retaliation          claims           such    as        Sharma's          are

subject to the burden-shifting framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S.                           792, 802           (1973).          See Jones v.

Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009)                                       (Title VII and ADEA

retaliation          claims);          Czekalski          v.     Peters,          475    F.3d        360,       363
                                                  -12-
(D.C.      Cir.      2007)         (Title       VII    discrimination                    claims);       Payne    v.

Dist.     of      Columbia,         722     F.3d       345,     353          (D.C.       Cir.    2013)        (DCWPA

claim) .

         Under this            framework,        "a plaintiff must                       first    establish a

prima facie case of retaliation                           [or discrimination] [.]"                         Jones,

557      F.3d       at      677.           To    establish               a     prima        facie       case     of

discrimination,             the plaintiff must                  show:          "(i)       that he        [or she]

belongs         to a      [protected class];                  (ii)       that       he     [or she]       applied

and was qualified for a                     job for which the employer was seeking

applicants;            (iii)     that,     despite his               [or her]            qualifications,         he

[or      she]       was     rejected;           and     (iv)        that,           after       his     [or    her]

rejection,          the position remained open and the employer continued

to       seek       applicants             from        persons               ·of         [the     plaintiff's]

qualifications."                 Teneyck v.           Omni Shoreham Hotel,                      365 F.3d 1139,

1150      (D.C.      Cir.      2004)       (citing       McDonnell                 Douglas,       411    U.S.    at

802) .         To    establish         a    prima       facie         case          of     retaliation,         the

plaintiff must              demonstrate          that     "(1)           [he or]          she    engaged in a

statutorily            protected         activity;            (2)        [he       or]     she    suffered       an

adverse employment action;                       and    (3)     there is a causal connection

between the two."                  Carter v.           George Washington Univ.,                         387 F.3d

872,     878    (D.C. Cir. 2004).

         "If     the      plaintiff         establishes              a       prima        facie       case,     the

burden         shifts       to      the     employer            to           produce        a     'legitimate,

                                                      -13-
nondiscriminatory reason'               for its actions."               Jones,   557 F.3d at

677    (citation omitted).          At the summary judgment stage, once the

employer       has   presented      such       a     legitimate,        non-discriminatory

reason,       '"the burden-shifting            framework disappears,"'                id.,    and

"the district        court                 proceed [s]       to address          'one central

question:      Has   the    employee produced sufficient                     evidence    for a

reasonable       jury      to    find     that      the     employer's        asserted       non-

discriminatory reason was                not       the    actual    reason and that           the

employer intentionally discriminated [or retaliated]                              against the

employee on [an invidious basis] ? '"                      Talavera v. Shah,          638 F.3d

303,    308     (D.C.    Cir.     2011)        (citing      Brady       v.   Office     of    the

Sergeant at Arms,          520 F. 3d 490,           494    (D.C. Cir.        2008))     If so,

summary       judgment     for    the     employer         must    be    denied.        Aka    v.

Washington Hasp. Ctr., 156 F.3d 1284, 1290 (D.C. Cir. 1998).

       B.      Plaintiff's Motion

       Sharma seeks summary judgment on seven Title VII and ADEA

claims arising out of his failure to be selected for specific

supervisory and directorship positions. 3                          He argues that he has


3
   These positions were as follows:     (1) Supervisory Contract
Specialist, MS-1102-14, under Posting No. 2037, to which Sharma
applied   on  November   1,  2005;   (2)    Supervisory Contract
Specialist, OCP, MS-14, under Posting No. 5647, to which Sharma
applied  on   February  12,   2007;  (3)    Supervisory Contract
Specialist, MS-14, in OCP's "OCTO contracting group," under
Posting No. 5677, to which Sharma applied on February 12, 2007;
(4) Assistant Director, Procurement (OCP), MS 1101-16, under
                              -14-
made out a prima facie case of discrimination and retaliation by

demonstrating           that        he    was    qualified          and    applied      for     each

position but was ultimately rejected in favor of less qualified,

younger individuals who were not Asian or whistleblowers.                                      Pl. Is

Mot.    at    30-32.          He    contends         that    the District        has   failed     to

rebut this evidence with "a so-called legitimate reason" for not

selecting him.          Id. at 26, 34.

        The       District     has,       however,          presented      several     legitimate

non-discriminatory and non-retaliatory reasons for not selecting

Sharma.       Hester, who was the selecting official for at least two

of     the    Supervisory           Contract         Specialist       positions        at     issue,

testified,          that,      "despite         [Sharma's]          technical     expertise,        I

didn't feel that his interaction with the customers was what I

wanted       it    to   be"        because      he    "[t]ended       to    be   combative       and

argumentative and difficult."                        Pl.'s Mot. Ex. 10           (Hester tr.      I)

at 103 [Dkt. No. 96-13].

       Hester        also      explained         that        she    selected      Karen       Wooden

instead       of    Sharma     to        fill   one    of     the    positions       because     she



Posting No. 8610, to which Sharma applied on December 12, 2007;
(5) Assistant Director, Construction Contracting, MS-16, OCP,
under Posting 9937, to which Sharma applied on April 2, 2008;
(6) Supervisory Contract Specialist (Construction), MS-14, under
Posting 12320, to which Sharma applied on December 12, 2008; and
(7) Supervisory Contract Specialist (Construction), MS-14, under
Posting No. 12923, to which Sharma applied on March 29, 2009.
See Pl.'s Mot. at 34-43.
                                                 -15-
thought      Wooden      was     "better    qualified,"     meaning          that     she    had

    "[t]he   ability     to     get   along     with    others    [and]       respectfully

disagree with customers."                Id.    at 105.     She explained that she

selected another           employee,       Geoffrey Mack,        to    fill     the    second

position because he had a                "vast amount of experience,"                  id.    at

208, and, unlike Sharma,

        had a non-emotional analytical approach to dealing
        with    [customers] .   [Mack]  understood what I was
        looking for.    He didn't have a problem conferring with
        me or, you know, turning certain issues over to me for
        resolution if he had a problem.      In other words, he
        supported the manner in which I wanted to manage the
        office.

         Id. at 201.

        Hester     also        stated,     more    generally,         that     Sharma        was

"disruptive"       and "uncooperative"             and that she had communicated

to him on several occasions,                  without effect,         that    " [h] e needed

to learn how to appropriately deal with our customers[.]"                                    Ex.

to     Def.'s    Opp'n    (deposition tr.          of   Karen Hester          ("Hester tr.

II")) at 164-68          [Dkt. No. 100 at ECF pp. 65-69]; see also Hester

tr. I at 217-18 [Dkt. No. 96-13]. 4

        Similarly,       Diane Wooden,         who became Plaintiff's supervisor

upon her promotion in 2006,                testified that,       although Sharma was


4
  In addition, as Sharma concedes, the fact that Hester hired him
in the first place "is probative evidence against the claim that
[she] harbored a general animus" against him on the basis of his
age or race. Pl.'s Reply at 10.
                                            -16-
"very    knowledgeable,"     his     "overall      attitude     and    condescending

ways and disruptive behavior sort of muddled his experience and

knowledge."        Ex. to Def.'s Opp'n (deposition tr. of Diane Wooden

("Wooden tr.")) at 35-36 [Dkt. No. 100 at ECF pp. 87-88].

        Sharma's     personnel     records        also     support     this      general

assessment of his performance.             Both Hester and Wooden completed

performance       evaluations    opining      that    his    abrasive      manner       and

"poor        personal   relations"     with        customers         and    co-workers

prevented him from being successful                  on the    job.        See    Ex.    to

Def. 's Opp' n     (Performance Evaluations dated June 2005 and June

2, 2007)      [Dkt. No. 100 at ECF pp. 79-82].

        Furthermore,    on February 8,       2006,       Kevin Donahue,       a Special

Assistant      in the District's Department of Transportation,                       sent

Hester an email         complaining that       Sharma       "displayed a         stunning

lack    of    professionalism in how         he    handled disagreements             with

staff at the RFQ process today."                  Def.'s Mot.    Ex.       G [Dkt.      No.

107-11].       Donahue went on to state that:

        [w] ithin the first ten minutes of the meeting today,
        [Sharma] threatened (in fact declared) that he was
       going to report the team to the IG on several
       occassions [sic]          and called the group a zoo.
       Since I'm not familiar with the process, I really
       don't know who was right or wrong on the issues, but
       what I do know is that under no circumstances should
       the OCP representative have responded .    . with such
       a complete disregard for processional decorum.      It
       made it impossible to move forward until he was
       removed.
                                       -17-
      Id.

      Indeed,       Sharma's interpersonal              issues appear to have been

such a concern to Hester that,                  in August 2006, she issued him a

formal admonition stating that "despite repeated counseling," he

continued to "display disruptive and inappropriate behavior with

me,   your peers,         and OCP customers," which included "insulting,

accusatory,        and    threatening         comments    and    outbursts."                 Def. 's

Mot. Ex.     F    (Formal Admonition,           dated Aug.       25,    2006)         at 1     [Dkt.

No.   107-10]          Hester explained that such conduct "has resulted

in poor customer relations,                  lack of timely progress on critical

procurement actions,             and disruptions          in the operations of                   the

Construction,          Design,       and    Building Renovations             group         (CDBR) . "

Id.

      Finally, Wilbur Giles, OCP's Chief of Staff and one of the

hiring      officials          for    several     of     the    positions             at     issue,

testified        that,    in    his    opinion,       Sharma    was    only       a    "mediocre

performer" because he thought himself superior to everyone else,

"portrayed        an     imbalanced         thought    process [,]"      and          "failed     to

understand         the      type       of     leadership        potential             that       the

organization was looking for."                    Def.'s Mot.          Ex.    E       (deposition

tr. of Wilbur Giles ("Giles tr.")) at 152, 219, 220.




                                               -18-
       Sharma argues that this evidence is insufficient to survive

summary     judgment        because      the    District's          failure     to     retain

relevant        personnel     records      warrants          an    inference     that      the

missing    records        support    his   claims       of    discrimination.           Pl. Is

Mot. at 32-34.            Such an inference, however, is merely a relevant

consideration for           the trier of        fact;        it does not warrant           the

entry of summary judgment where,                    as here,       there is admissible

evidence that the employer had a legitimate,                         non-discriminatory

basis for its actions.               See, e.g., Talavera,           638 F.3d at 311-12

(reversing summary judgment because permissive adverse inference

resulting from record destruction created genuine fact                                issue);

Gerlich v.       U.S.     Dep't of Justice,          711      F.3d 161,       170-73     (D.C.

Cir. 2013)       (same)

       Sharma also contends that summary judgment must be granted

because the witness who testified for the District pursuant to

Fed. R. Civ. P. 30(b) (6) did not know the specific reason he was

not selected for each of the seven positions at issue.                                   Pl. Is

Reply at 3-4.          He fails to cite a single case, however, holding

that   an employer's          evidence     of   a    legitimate       nondiscriminatory

reason    for    its      actions must     be     in the       form of    Rule       30 (b) (6)

testimony as        opposed     to    other     competent         evidence    produced       in




                                           -19-
discovery. 5         Nor must           the District produce evidence                     "that the

person       selected        [in        each    case]        was        better     qualified       than

    [Sharma]."       St.    Peter v.           Sec'y of Army,             659    F.2d 1133,        1138

    (D.C. Cir. 1981)          Instead, it must merely "bring forth evidence

that     [it]      acted on a           neutral      basis,,,       id.     (citation omitted),

which        the     District           has     done        with        evidence     of     Sharma,s

argumentative, antagonistic style and interpersonal issues.

        In    sum,    the    District          has     presented more            than     sufficient

evidence for a jury to conclude that Sharma was not selected for

the positions          at    issue because of                his        combative    and abrasive

communication style and general inability to work with others,

rather       than    his    race,        age,     or    "whistleblower"             status.         Any

adverse       inference       arising          out     of    the        District,s       failure     to

retain       relevant       documentary          evidence          is     merely    an    additional

consideration to be submitted to the trier of fact.                                         Sharma,s

Motion for Partial Summary Judgment shall, therefore, be denied.

        c.       The District of Columbia's Motion

        The District has also moved for summary judgment on each of

Sharma,s         claims.           It     advances          two    arguments:         first,       that

5
  The cases on which Sharma relies concern, almost exclusively,
discovery sanctions under Fed. R. Civ. P. 37.  These cases are
inapposite because Sharma has not moved under Rule 37 to
preclude the testimony of Hester, Wooden, or Giles or to bar
introduction of    the personnel   records memorializing their
complaints about his interpersonal issues.

                                                 -20-
Sharma's DCWPA claim is time-barred, and second, that his claims

of     discrimination        and     retaliation     are    not     supported      by        the

evidence in the record.               The Court considers these arguments in

turn.

               1.      Plaintiff's Claim under the DCWPA

        The     DCWPA,     D.C.     Code    §   1-615.51,        provides      that         "[a]

supervisor       shall     not     take,   or   threaten    to    take,    a   prohibited

personnel        action     or     otherwise    retaliate        against    an    employee

because of the employee's protected disclosure or because of an

employee's refusal to comply with an illegal order."                             D. C. Code

§    1-615.53.       Employees seeking to enforce their rights under the

DCWPA must          file   their    case "within 3 years           after a       violation

occurs or within one year after the employee first becomes aware

of     the    violation,     whichever      occurs   first."         D.C.      Code     §     1-

615.54 (a) (2).        As the Court has previously observed, "[t]here is

no dispute that the one year statute of limitations applies to

this case[.]"         Sharma I, 791 F. Supp. 2d at 214.

        Sharma's DCWPA claim is based on his separation under the

RIF,    which went into effect on June 19,                 2009.      See P1 . ' s Opp' n

at 28.        He filed this case on June 18, 2010.                  Therefore, if his

claim accrued on the date his separation went into effect, as he

argues,       the claim is timely,         having been filed on the last day



                                            -21-
of the limitations period.                       If,    however,       the claim accrued any

time before that, as the District argues, it is time-barred.

        As the Court held in Sharma I,                         a DCWPA claim accrues when

the employee learns "'of the discriminatory act,                                   not     [when]     the

consequences       of        the    act    become       painful . ' "         Sharma     I,     791    F.

Supp.    2d at     214        (emphasis      in original)             (quoting Stephenson v.

American        Dental       Ass'n,        789     A.2d     1248,          1250     (D.C.      2002)).

Consequently,          the     relevant          question       is     when       Sharma      obtained

"'final,    unequivocal,             and     definite'         notice"       of    the   District's

purportedly retaliatory act even if "the effective date" of the

retaliatory       decision          occurred       later.            Id.    (citing      Del.    State

College    v.    Ricks,        449    U.S.       250,    259    (1980);       Cesarano v.           Reed

Smith, LLP, 990 A.2d 455, 465                    (D.C. 2010)).

        The District argues that the RIF notice gave Sharma "final,

unequivocal,           and     definite          notice"        of     his        separation,         and

therefore       that    his        DCWPA claim accrued               no    later     than May         29,

2009, when he received the notice.                        Def.'s Mot. at 9-11. 6



6
   Sharma initially stated in his TAC that he received the RIF
notice "on or about May 29, 2009."      TAC ~ 340.   He has now
submitted an affidavit declaring that, although he first saw the
notice on May 29, 2009, he refused to sign for it without a
union steward present and, therefore, did not read it until June
3, 2009.    See Pl.'s Opp'n Ex. 72 (Affidavit of Ramesh Sharma
 ("Sharma Aff.")) ~ 3.   Whether Sharma first had notice of his
impending separation on May 29 or June 3 is immaterial to the
timeliness of his claim because he did not file this case until
June 18, 2010 - more than a year after both dates.
                              -22-
        Sharma counters that the RIF notice did not provide final

and     unequivocal          notice        of      his   claim      because          he   "could           have

obtained another position in the D.C.                              Government before his RIF

became        final . "      Pl. 's       Opp' n    at     3 0.     His        theory     is     that       the

retaliatory act             was     not       merely his          impending       separation under

the     RIF     (which      applied       to     the     entire     CDBR group) ,              but    rather

such     separation          in    conjunction           with       the    Agency's        failure           to

reemploy him in a                new position.             Specifically,             he alleges that

the District "moved other similarly situated employees from the

          abolished CDBR group                     to positions           in other groups"                  but

refused to move him.                    TAC ~ 390.           Under this view,              even if the

RIF notice was             final        and unequivocal            as     to   the    elimination of

his position in the CDBR group,                          his claim did not accrue until

he learned that he was to be treated differently than other CDBR

employees         subject         to     the     RIF       (i.e.,       not     reassigned            to     or

reemployed in a new position) .

        However,          even    if,    Sharma's        claim did not               accrue until            he

learned        the   District           was     treating      him       differently        from        other

CDBR employees by refusing to reassign him to a new position,                                                it

is undisputed that he knew as much by June 11,                                       2009.           On that

date,     he     forwarded         a     memorandum         to     the     offices        of    the        D.C.

Inspector General and the D.C. Government Auditor titled "Formal

Complaint of Outrageous Behavior and Illegal Retaliation
                                                    -23-
Leading to My job Loss for Whistleblowing,                               etc.    -   REQUEST FOR

PROTECTION [.]II            See     Def.'s      Reply     Ex.        A     [Dkt.     No.    113-1]

    (emphasis in original) .           In this memorandum, Sharma specifically

complained,         not only that his position was being cut under the

RIF, but also that he had been "illegally FORCED-OUT/RIF'ed with

a     severe and adverse impact on of                   [sic]        losing my job as the

only SINGLE employee in the group .                       . all because of my trying

to do an 'HONEST' job for the Government."                            See Def.'s Reply Ex.

A     [Dkt.   No.    113-1]       (emphasis added).             He       stated further          that

"OCP+OPM       refuses        [sic]     to    consider     me        under       'Priority/RIP'

status for many vacancies for which I                       am,          not    just minimally,

but HIGHLY qualified."                Id.    (emphasis added)

        This evidence removes any doubt that,                            no later than June

11, 2009, Sharma knew or believed that:                     (1) he was being treated

differently         than    other      employees    in    the        CDBR group,           (2)    the

District was refusing to reassign him to other vacancies as it

had with other members of his group, and (3)                              the RIF would lead

to     his    final        separation        from   the     District's               employment. 7


7
  Sharma has submitted an affidavit stating that until "late June
or early July" 2009, he did not completely understand the RIF's
effects on other CDBR employees and did not "fully realize" that
he had been discriminated against.    Pl.'s Opp' n Ex. 72 (Sharma
Aff.) ' ' 14-16. But the date on which Sharma "fully realize[d]"
he was a victim of discrimination is not important.     See e.g. ,
Fortune v. Holder, 767 F. Supp. 2d 116, 122 (D.D.C. 2011)
("Notice or knowledge of discriminatory motivation is not a
                               -24-
Consequently, even if the Court were to apply the accrual theory

urged by Sharma,             there    is    no genuine        dispute     that    his    claim

accrued,   at the latest,             by June 11,       2009.      Sharma did not file

this   case        until     June    18,     2010,     more     than    one    year     later.

Therefore, his DCWPA claim is time-barred and Defendant's Motion

for Summary Judgment on Count 1 shall be granted.

              2.      Plaintiff's Claims Under Title VII and the ADEA

       The District next             argues     that    summary judgment          should be

granted    in      its     favor     on    Sharma's    Title     VII     and    ADEA    claims

because    Sharma          "can    present    no     evidence     that    the    District's

[non-discriminatory,              legitimate]      reasons for the non- selections

were pretextual[.]"               Def.'s Mot. at 20-21. 8         Sharma has, however,



prerequisite for a cause of action to accrue.") (citation and
punctuation omitted) . What is important is the date Sharma knew
the District was "refus [ing] to consider [him for reassignment]
under 'Priority/RIF' status," which the undisputed evidence
shows to be no later than June 11, 2009.
8
  The District also contends that Sharma has not made out a prima
facie case.    Def. 's Mot. at 11-16.   Our Court of Appeals has
consistently held that where, as here, an employer has asserted
a   legitimate,   non-discriminatory   reason  for  the   adverse
employment decision, "the district court need not - and should
not     decide whether the plaintiff actually made out a prima
facie case under McDonnell Douglas" but rather should focus on
whether the employee has "produced sufficient evidence for a
reasonable jury to find           that the employer intentionally
discriminated [or retaliated] against the employee [.]"    Brady,
520 F. 3d at 494 (emphasis in original) (citations omitted); see
also Wilson v. Cox,      753 F.3d 244, 247    (D.C. Cir. 2014).
Consequently, the Court does not consider whether Sharma has
made out a prima facie case.
                               -25-
presented          evidence           from        which     a     jury      could        find    that       the

District's failure to select him for various positions, as well

as    its   ultimate               decision        to    terminate       him in 2009,            were       not

based on his interpersonal issues but rather on his race,                                                  age,

and/or "whistleblower                 11
                                            status.

       First, it is undisputed that all of the positions to which

Sharma applied were filled by employees who were younger than

Sharma,     were not of Indian or Asian descent,                                   and had not filed

any complaints.                    See,     e.g.,       Def.'s Resp.            to Pl.'s SOMF         ~~    22,

38, 52, 79, 85, 88, 96, 110, 114, 124, 154.

       Second,           as    to race/national                 origin discrimination,                Sharma

has submitted a sworn statement that,                                at his initial interview

in January 2003,                   Hester told him "she thought most people from

his part of the world                           (South Asia),      like India,            Pakistan,         and

Bangladesh[,]             were        very        lazy     and    made          poor     supervisors         or

leaders [.]   11
                                                  Sharma has further sworn that,                      during

his   tenure        at        OCP,         he    "observed       that      Ms.     Hester       constantly

harassed      [a         Bangladeshi              employee] ,      and          finally    forced       [that

employee]          out        of    his     supervisory          job [.]   11
                                                                                   TAC    ~     12.        This



9
  Because the TAC is verified, it serves as a sworn statement of
Sharma.   See Neal v. Kelly, 963 F. 2d 453, 457 (D.C. Cir. 1992)
(treating verified complaint as an affidavit for purposes of
summary judgment) .

                                                        -26-
evidence        establishes    a     genuine            factual      dispute                as    to whether

Hester,s treatment of Sharma, and in particular, her failure to

select him for several supervisory positions, was motivated by a

bias against South Asians. 10

        Third,    as   to    age     discrimination,              Sharma has                     submitted      a

sworn statement that Hester told him not to apply for one of the

Supervisory Contract Specialist positions because Geoffrey Mack,

who was ultimately selected to fill the position, was "younger,

[and]    needed a      break with a permanent promotion and a                                              faster

salary jump than Plaintiff.                 11
                                                       TAC   ~~   37   I         42.        There         is also

evidence that,         in 2008,          OCP s Chief Procurement Officer,
                                            1
                                                                                                            David

Gragan,     opined that       Sharma was               "'too old,                for    [a supervisory]

position   11
                 and   had    an         "'old         outdated        vision,                  and   outdated

management        experience.      111
                                                 TAC     ~    152.                   This        evidence      is

sufficient to establish a genuine factual dispute as to whether

Sharma, s failure to be selected for a supervisory position was

based on his age, rather than his interpersonal problems.


10
   The District argues that Hester s decision to hire Sharma in
                                                         1


the first place refutes any inference that she discriminated
against him on the basis of his age or race.   Def. s Opp n at 6-                           1         1


7.   This circumstance, while relevant, is countered by Sharma,s
direct evidence of discriminatory animus and is not, therefore,
dispositive   at  the   summary judgment   stage.     See,  e.g.,
Czekalski, 475 F.3d at 368-69       (fact that supervisor hired
plaintiff was "probative evidence against the claim that he
harbored a general animus against,, women but was not "alone
sufficient to keep th[e] case from the jury                                11
                                                                                ).

                               -27-
        Fourth and finally, as to retaliation, Sharma has submitted

evidence            that    Hester      told       him     he     was      "filing       too       many

complaints" and "making the Mayor's office and other big bosses

very mad" which would take him "nowhere                                       but trouble [.]"

TAC     ~   96.       Similarly,       he attests          that,        on or about          July 16,

2007,       Geoffrey Mack,       "stalked [him], and yelled to him 'You

      damn it                 Motherf*cker                  . you have been calling and

filing all these reports with the auditors                                  . I am calling my

mother [ex-D.C. Council Member Gladys Mack]                              right now and .

     She will fire your ass[.]"                TAC    ~   110.

        In addition,           former OCP Assistant Director,                   Anthony Reed,

has     filed       an     affidavit    stating       that,        in    October     2008,        Giles

asked him to "terminate Sharma, effective immediately[.]"                                         Pl. Is

Mot.    Ex.     3    (Affidavit of Anthony Reed                  ("Reed Aff. "))         ~    3    [Dkt.

No.    96-6]          Reed explains that Giles told him to watch out for

Sharma because "[h]e'll document everything you say and then use

it     against        you."      Id.     ~    4.         Reed    states     further          that     he

discussed Giles'              request    with Chief             Procurement     Officer David

Gragan who told him that                     he was       "was    free     to make       [his]       own

decision        regarding       Mr.     Sharma's          continued       employment [,]"            but

agreed       with     Giles     that    Sharma       "was       'problematic'        due      to     his

numerous        whistleblower          and     EEO       complaints[.]"            Id.       ~~     6-7.

Based on all of this evidence,                       a jury could find that Sharma's
                                               -28-
separation          and    non-selections     were        based       on    the   numerous

complaints he filed.

      In    sum,     the   record is      sufficient      for     a   jury to     conclude

that the District's adverse actions against Sharma were based on

his   race,      age,      and/or   whistleblower         status      rather      than    his

interpersonal issues,           as the District contends.                  Therefore,     the

District's Motion for Summary Judgment shall be denied.

III. CONCLUSION

      For     the    reasons    set   forth   above,       Plaintiff's         Motion     for

Partial Summary Judgment shall be denied and Defendant's Cross

Motion     for      Summary    Judgment    shall     be    granted         insofar   as    it

pertains to Count 1 of the TAC and shall be denied insofar as it

pertains    to Counts         3-5 of the TAC.          An Order shall accompany

this Memorandum Opinion.




August 25, 2014

                                          United States District Judge




Copies to: attorneys on record via ECF




                                          -29-
