                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA
________________________________
                                 )
PHUC N. NGUYEN,                  )
                                  )
                Plaintiff,       )
                                  ) Civil Action No. 09-1349 (EGS)
          v.                      )
                                 )
RAY MABUS,1                       )
SECRETARY OF THE NAVY,           )
                                  )
                Defendant.       )
                                 )

                                                               MEMORANDUM OPINION

              Plaintiff Phuc Nguyen (“Nguyen”), proceeding pro se, brings

this action against the Secretary of the Navy, alleging

discrimination on the basis of race, national origin, and

retaliation, in violation of Title VII of the Civil Rights Act

of 1964 (“Title VII”), 42 U.S.C. § 2000e-2 et seq., as well as

discrimination on the basis of age and hostile work environment,

in violation of the Age Discrimination in Employment Act

(“ADEA”), 29 U.S.C. § 631 et seq.                                         Pending before the Court is

Defendant’s Motion for Summary Judgment.                                            Upon consideration of

the motion, the opposition and the reply thereto, the applicable

law, the entire record, and for the reasons stated below, the



                                                            
              1
       Pursuant to Fed. R. Civ. P. 25(d), Ray Mabus is
substituted for the former Secretary of the Navy as the named
Defendant in this case.
Court will GRANT IN PART AND DENY IN PART Defendant’s Motion for

Summary Judgment.

I.   BACKGROUND

     A.    Factual Background

     Plaintiff Nguyen was born on July 4, 1948 in Saigon,

Vietnam.   Am. Compl. ¶ 4.   Nguyen is a GS-13 equivalent grade

engineer employed at Naval Sea Systems Command Headquarters

(“NAVSEA”).   Def.’s Statement of Material Facts ¶ 1 (hereinafter

“Def.’s SMF”); see also Def.’s Mot. for Summ. J. (hereinafter

“Def.’s MSJ”), Ex. 7, Department of Defense Office of Complaint

Investigations, Reporter’s Transcript of Proceedings in the

Investigation of the Discrimination Complaint of Phuc Nguyen,

Agency Docket No. DON-05-00024-0872, Statement of Phuc Nguyen,

at 21-22 (Oct. 17, 2005) (hereinafter “2005 Transcript”).

Nguyen has worked at the same pay grade since 1986, and in the

same position since 1997.    Am. Compl. ¶¶ 7, 9; see also 2005

Transcript at 21.   During the relevant time period, Nguyen

worked in the management group that oversees the Submarine

Sensor Program Office (“PMS 435”) of the Program Executive

Officer for Submarines (“PEOSUB”).     Def.’s SMF ¶ 2.   PMS 435

designs, develops, and oversees the construction of Electronic

Warfare Systems, periscopes, and the Photonics Mast.      See Am.

Compl. ¶ 9; Def.’s SMF ¶ 4.     Within PMS 435 are several

branches, including an Imaging Systems Branch, an Electronic

                                   2
 
Warfare Systems Branch, and the I&EW Branch, which is headed by

the Chief Engineer.   See Def.’s SMF ¶ 6; see also Def.’s MSJ,

Ex. 10, 2007 Report of Investigation at 47 (hereinafter, “2007

ROI”).   During the relevant time period, Nguyen worked under the

Chief Engineer and had the working title of Assistant Chief

Engineer.   Def.’s SMF ¶ 9; see also Def.’s MSJ, Ex. 8, 2005

Report of Investigation at 69 (hereinafter, “2005 ROI”).

     From 1997 through January 2005, Nguyen’s direct supervisor

was Swarn Dulai, who was the Chief Engineer in PMS 435.    Am.

Compl. ¶ 10.   From 1997 through mid-2008, Paul Gross, Deputy

Project Manager, was Nguyen’s second level supervisor.    Am.

Compl. ¶ 11.   With respect to Mr. Gross, Plaintiff alleges --

without providing any dates -- that Gross has not assigned

Nguyen a major area of responsibility, despite other similarly

situated engineers having clear and substantive areas of

responsibility; that Gross has stripped Nguyen of substantive

engineering work relegating him to assignments of stop-gap

duties and responsibilities; that under Gross’s leadership,

Nguyen has received one performance award in contrast to regular

annual awards given to similarly situated Caucasian engineers

with less experience; and that Gross continues to exclude Nguyen

from major acquisition program duties and responsibilities, in

favor of other younger, less experienced, Caucasian engineers.

See Am. Compl. ¶¶ 14-17.   As to Mr. Dulai, Plaintiff alleges

                                 3
 
that on several occasions, Dulai spoke about the Vietnam War and

told Nguyen that “Vietnamese people ought to be grateful for

having a job at NAVSEA.”                                          Am. Compl. ¶ 19.    According to

Plaintiff, Dulai also stated that, in contrast to Asians, he

considered his racial identity to be more like a Caucasian

person, since he is Sikh.                                          Am. Compl. ¶ 20.   Plaintiff alleges

that on many occasions, Dulai mocked the accent of another

Vietnamese employee.                                           Am. Compl. ¶ 21.   Finally, Plaintiff

states that in late December 2004, Dulai approached Nguyen

privately and threatened that the new Chief Engineer would

target him with harassment.                                          Dulai purportedly recommended that

Nguyen leave the Assistant Chief Engineer position for a

position outside PEOSUB, and promised that if Nguyen did so,

Dulai would provide a positive reference.                                            Am. Compl. ¶ 28.

                             1.             2005 EEO Complaint

              Dulai announced his plan to retire in early 2004.                                      Am.

Compl. ¶ 18.                             The PMS 435 staffing charts reflect that up to

Dulai’s retirement, only two individuals were permanently

assigned to the Chief Engineer Branch: Nguyen and Dulai.                                              Def.’s

SMF ¶ 10; see also Def.’s MSJ, Ex. 12.                                            From about September 20,

2004 to September 11, 2005, Dr. Robert LaFreniere2 was detailed

to the branch from the Naval Undersea Warfare Center, Newport
                                                            
              2
        Plaintiff alleges that LaFreniere is Caucasian and 14
years younger than Plaintiff. Am. Compl. ¶¶ 24, 27, 32.


                                                                         4
 
Division, which is a field activity to NAVSEA.                                  Def.’s SMF ¶¶

11-12; see also 2005 ROI at 53; Def.’s MSJ, Ex. 12, at 4-7.

LaFreniere's working title while initially on detail was Deputy

Chief Engineer/Field Support.                                  Def.’s SMF ¶ 13; 2005 ROI at 69.

              Upon Dulai’s retirement on January 5, 2005, LaFreniere was

designated Acting Chief Engineer.                                   Def.’s SMF ¶ 14; 2005 ROI at

53.           LaFreniere served in that position until about April 2005,

when the position was permanently filled upon the selection of

Steven Stump.                               See Def.’s SMF ¶ 14; 2005 ROI at 53.      Nguyen made

initial contact with an EEO counselor on February 11, 2005,3

after learning that his name had been omitted from a group award

nomination.                           Def.’s SMF ¶ 15; see also 2005 ROI at 1, 6, 14-18,

82; 2005 Transcript at 89-91 (“I found out about this [award]

just by mere coincidence after I received an e-mail from

management showing the letter of recommendation . . . sometime

around that timeframe when I was thinking about complaining

about LaFreniere’s assignment as acting chief engineer.                                  I saw

this e-mail, so I said this is it.                                  I mean this is the last

straw . . . so I need to go forward with this complaint.”).



                                                            
              3
       In Plaintiff’s Amended Complaint, he alleges that he filed
his EEO complaint on January 4, 2005. See Am. Compl. ¶¶ 34-35.
The record of investigation reflects that the initial contact
was made on February 11, 2005, and Plaintiff does not
subsequently dispute this. Therefore, the Court does not
construe this as a disputed factual issue, but rather a
typographical error in Plaintiff’s Amended Complaint.
                                                                5
 
      In his initial EEO contact, Nguyen alleged discrimination

on the basis of his race, age, national origin, and reprisal

because of protected activity.   See Def.’s SMF ¶ 16; 2005 ROI at

15.   Nguyen alleged the following claims:

      1.   On February 11, 2005 he was denied recognition for his
           contribution to PMS 435 programs (such as initiating
           Patriot radar program and serving as systems engineer
           on it);
      2.   As of January 5, 2005 he was denied Chief Engineer
           lead systems engineering assignments;
      3.   As of January 2005 he was denied the Acting Chief
           Engineer position;
      4.   As of January 5, 2005 the Acting Chief Engineer
           excluded him from Advanced Submarine Support Equipment
           Program (“ASSEP”) budget management deliberations;
      5.   As of January 5, 2005, the Acting Chief Engineer “kept
           [Nguyen] in the dark and excluded [Nguyen] from all
           his communications and meetings with coworkers, field
           activities and support contractors.”

See Def.’s SMF ¶ 16; 2005 ROI at 15–16.      Nguyen also alleged the

following claims in support of a “continuing hostile

environment”:

      1.   On January 5, 2005, Dulai suggested that Nguyen leave
           his job and look for another position to avoid future
           adverse action;
      2.   On January 5, 2005 and continuing to the present,
           Management continues to manipulate position
           qualifications and deny Nguyen’s job experience to
           deny him assignments and advancement opportunities in
           favor of less experienced engineers;
      3.   Management encourages the community to exclude Nguyen
           from important program reviews, the latest of which
           was the ISIS kick-off meeting at Kollmorgen on
           February 9, 2005.

See Def.’s SMF ¶ 16; 2005 ROI at 15-16.




                                 6
 
              On February 17, 2005, Nguyen was given, and he initialed, a

notice of his rights and responsibilities.                                             This notice included

the requirement to contact an EEO counselor within 45 days of an

alleged discriminatory action, and information on how to allege

a violation of the ADEA, including use of the ADEA “bypass”

provision.4                          See Def.’s SMF ¶ 17; 2005 ROI at 20-29.                    On March

24, 2005, Nguyen’s attorney filed a formal EEO complaint

alleging the same claims raised in Nguyen’s initial EEO contact.

See Def.’s SMF ¶ 18; 2005 ROI at 2-4.

              Plaintiff alleges that, on April 15, 2005, Defendant again

failed to promote him to Chief Engineer; instead Defendant

selected Stephen Stump, who is Caucasian and seventeen years

younger than Nguyen.                                           Am. Compl. ¶¶ 37, 39.

                             2.             2007 EEO Complaint

              In about November 2006, Stump vacated the Chief Engineer

position, and the Deputy Program Manager, Paul Gross, initiated

the selection process for a new Chief Engineer.                                             See Def.’s SMF

¶ 19; 2007 ROI at 130.                                          Gross asked Nguyen and two other



                                                            
              4
        As an alternative to following the administrative process
discussed infra, Part III.A.1, a federal employee may bring a
claim of age discrimination directly to federal court, so long
as, within 180 days of the allegedly discriminatory act, he or
she provides the EEOC with notice of his or her intent to sue at
least 30 days before commencing suit. See 29 U.S.C. § 633a(c),
(d); Rann v. Chao, 346 F.3d 192, 195 (D.C. Cir. 2003); see also
2005 ROI at 27.


                                                                         7
 
individuals assigned to PMS 435, Riad Sayegh5 and Michael Patton,

to update their resumes electronically, and Gross provided their

names to Human Resources as individuals qualified and interested

in the Chief Engineer position.                                          2007 ROI at 131.   Nguyen and

Sayegh were the only two candidates interviewed for the

position.                       Def.’s SMF ¶ 20; 2007 ROI at 131.                     The interview

panel consisted of three individuals: Gross, Dr. Bradley Binder,

and Scott Greenberg.                                           Def.’s SMF ¶ 21; see also 2007 ROI at 131.

Binder, the Chief Engineer for Surface Electronic Warfare

Systems, worked outside of the Team Sub organization and had no

prior knowledge of any of the applicants.                                          Greenberg had served

as the Chief Engineer for Towed Systems.                                           See Def.’s SMF ¶¶ 22-

23; 2007 ROI at 131.                                           The panel members reviewed Nguyen’s and

Sayegh’s resumes and interviewed both applicants.                                           All three

panel members believed Sayegh to be the better candidate, and he

was selected for the position.                                           See Def.’s SMF ¶¶ 24-25; 2007

ROI at 132, 134, 136.

              Nguyen made initial contact with an EEO counselor via email

on April 24, 2007.                                         See Def.’s SMF ¶ 26; 2007 ROI at 5, 13-18.

In his initial contact, Nguyen alleged discrimination on the

basis of race, national origin, age, and reprisal due to the

“[c]ontinuing failures by PMS 435 to promote [Nguyen] to PMS 435


                                                            
              5
       Plaintiff alleges that Sayegh is Caucasian and twenty-four
years younger than Nguyen. Am. Compl. ¶ 42.
                                                                         8
 
Chief Engineer position between Jan[uary] 2005 [and] the

present.”    2007 ROI at 18.   On July 27, 2007, Nguyen filed a

formal administrative complaint, again alleging discrimination

based on Defendant’s continuing failure to promote him to Chief

Engineer; in particular, Nguyen complained of his non-selection

for the Chief Engineer position on three occasions: (1) January

4, 2005, (2) April 15, 2005, and (3) March 19, 2007.    Def.’s SMF

¶ 27; 2007 ROI at 2-3.    On August 28, 2007, the EEO Officer sent

Nguyen a notice of acknowledgment for investigation and partial

dismissal.    The EEO Officer informed Nguyen that his claim of

non-selection for the Chief Engineer position on March 19, 2007

was accepted for investigation.    Def.’s SMF ¶ 27; 2007 ROI at

40.   However, Nguyen was informed that the EEO Officer was

dismissing his other two non-selection claims: the April 15,

2005 non-selection claim was dismissed for failure to contact an

EEO counselor within 45 days, and the January 2005 claim was

dismissed because the same claim was pending before an EEO

administrative judge.     See Def.’s SMF ¶ 27; 2007 ROI at 41-42.

             3.   Post-April 24, 2007 Allegations

      Nguyen alleges that Sayegh, as Chief Engineer, has

transferred management duties and responsibilities for the Small

Business Innovative Research (“SBIR”) projects away from Nguyen.

Am. Compl. ¶ 48.    Further, Nguyen alleges that Sayegh has not

assigned new SBIR projects to Nguyen as other projects reach

                                   9
 
their successful ends, and thus, Sayegh has virtually eliminated

Nguyen’s duties and responsibilities in this area.                                        Am. Compl. ¶

49.           In November 2008, Nguyen was made Acting Chief Engineer.

However, according to Nguyen, Mr. Gross split the duties

normally carried out by one Chief Engineer among three different

Acting Chief Engineers, two of whom had not previously served

under a Chief Engineer.                                        Am. Compl. ¶ 50.   Finally, Nguyen

asserts that in November 2008, November 2009, and July 2009,

Defendant failed to promote him to the high-grade PMS 435

Imaging Sensor Assistant Program Manager position; instead,

Defendant selected three different Caucasian applicants who were

substantially younger than Nguyen.6                                       Am. Compl. ¶¶ 51, 55-57.

Plaintiff does not dispute that he never contacted an EEO

counselor or filed an EEO complaint regarding these post-April

24, 2007 allegations.

              B.             Procedural Background

              Nguyen filed his initial Complaint in this action on July

21, 2009.                       He filed an Amended Complaint on December 31, 2009.

In the Amended Complaint, Nguyen alleges that Defendant’s

failure to promote him constitutes discrimination on the basis


                                                            
              6
       Those applicants were: Matthew Severson, who Plaintiff
alleges is Caucasian and over twenty-four years younger than
Plaintiff, Am. Compl. ¶ 51; Ray Desautel, who Plaintiff alleges
is Caucasian and eighteen years younger than Plaintiff, id. ¶
55; and Joseph Brunner, who Plaintiff alleges is Caucasian and
substantially younger than Plaintiff, id. ¶ 57.
                                                                     10
 
of race, national origin, and age, in violation of Title VII and

the ADEA.   See Am. Compl. ¶¶ 59-79.    In addition, Nguyen alleges

that after he contacted an EEO counselor in 2005, Defendant

retaliated against him by cutting ASSEP funding from Nguyen’s

programs and continuing to prohibit Nguyen from participating in

ASSEP funding decisions, which stripped Nguyen of substantive

job responsibilities.   Am. Compl. ¶¶ 80-85.   Nguyen filed a

separate action on June 18, 2010.    Compl., Nguyen v. Mabus, No.

10-1030 (June 18, 2010), Docket No. 1.    The three-page complaint

in that action makes largely similar claims but provides much

less detail.   Without alleging separate causes of action,

Plaintiff claims:

     This action arises out of the Agency continually
     discriminating against Phuc N. Nguyen, based on race (Asian
     Pacific), national origin (Viet Nam), and retaliat[ing]
     against Nguyen based on prior Equal Employment Opportunity
     (EEO) activity in violation of Title VII . . . . In
     addition, the Defendant discriminated against Nguyen and
     created a hostile work environment based on age (57 years
     as of January 2005) in violation of the [ADEA].

Id. at 2.   On January 4, 2011, the Court consolidated case

number 10-1030 with this action.     See Minute Order, Nguyen v.

Mabus, No. 10-1030 (Jan. 4, 2011).     On October 17, 2011,

Defendant filed a Motion for Summary Judgment.    That motion is

ripe for determination by the Court.




                                11
 
II.    STANDARD OF REVIEW

       Summary judgment should be granted only if the moving party

has shown that there are no genuine issues of material fact and

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

law.    See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477

U.S. 317, 325 (1986); Waterhouse v. Dist. of Columbia, 298 F.3d

989, 991 (D.C. Cir. 2002).   “A fact is material if it ‘might

affect the outcome of the suit under the governing law,’ and a

dispute about a material fact is genuine ‘if the evidence is

such that a reasonable jury could return a verdict for the

nonmoving party.’”    Steele v. Schafer, 535 F.3d 689, 692 (D.C.

Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986)).    The moving party bears the initial burden of

demonstrating the absence of genuine issues of material fact.

See Celotex, 477 U.S. at 323.    In determining whether a genuine

issue of material fact exists, the Court must view all facts in

the light most favorable to the non-moving party.    See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Keyes v. Dist. of Columbia, 372 F.3d 434, 436 (D.C.

Cir. 2004).

       The non-moving party’s opposition, however, must consist of

more than mere unsupported allegations or denials; rather, it

must be supported by affidavits or other competent evidence

setting forth specific facts showing that there is a genuine

                                 12
 
issue for trial.       See Fed. R. Civ. P. 56(c)(1); Celotex, 477

U.S. at 324.     Moreover, “although summary judgment must be

approached with special caution in discrimination cases, a

plaintiff is not relieved of [his] obligation to support [his]

allegations by affidavits or other competent evidence showing

that there is a genuine issue for trial.”       Adair v. Solis, 742

F. Supp. 2d 40, 50 (D.D.C. 2010), aff’d, 473 F. App’x 1 (D.C.

Cir. 2012) (internal quotation marks and citations omitted).

“The mere existence of a scintilla of evidence in support of the

[non-movant]’s position will be insufficient; there must be

evidence on which the jury could reasonably find for the [non-

movant].”    Anderson, 477 U.S. at 252.

     Where, as here, a plaintiff is proceeding pro se, “the

Court must take particular care to construe the plaintiff’s

filings liberally, for such [filings] are held ‘to less

stringent standards than formal pleadings drafted by lawyers.’”

Cheeks v. Fort Myer Constr. Co., 722 F. Supp. 2d 93, 107 (D.D.C.

2010) (quoting Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).

III. ANALYSIS

     A.     Claims of Discrimination Under Title VII and ADEA

            1.    Exhaustion of Administrative Remedies

                  a.     Legal Standard for Exhaustion

     Before bringing suit under either Title VII or the ADEA, an

aggrieved party is required to timely exhaust his or her

                                    13
 
administrative remedies.    See Harris v. Gonzales, 488 F.3d 442,

443 (D.C. Cir. 2007); Washington v. Wash. Metro. Area Transit

Auth., 160 F.3d 750, 752 (D.C. Cir. 1998).     These exhaustion

requirements are not jurisdictional, but rather operate as a

statute of limitations defense.    Artis v. Bernanke, 630 F.3d

1031, 1034 n.4 (D.C. Cir. 2011) (citation omitted).     “Because

untimely exhaustion of administrative remedies is an affirmative

defense, the defendant bears the burden of pleading and proving

it.”    Bowden v. United States, 106 F.3d 433, 437 (D.C. Cir.

1997) (citation omitted).

       An employee of the federal government who believes he or

she has been subject to discrimination is first required to

“initiate contact” with an EEO counselor within forty-five days

of the allegedly discriminatory action.   29 C.F.R. §

1614.105(a)(1); see Steele, 535 F.3d at 693.     The forty-five day

period begins to run when an employee has a “reasonable

suspicion” of a discriminatory action.    Adesalu v. Copps, 606 F.

Supp. 2d 97, 102 (D.D.C. 2009).    If the matter is not resolved

informally, the counselor shall inform the employee in writing

of the right to sue, and the employee must file a formal

complaint of discrimination with the agency.     See 29 C.F.R. §§

1614.105(d), 1614.106(a)-(c); Bowie v. Ashcroft, 283 F. Supp. 2d

25, 33 (D.D.C. 2003).   The agency must then investigate the

matter, after which the complainant may demand an immediate

                                  14
 
final decision from the agency or a hearing before an EEOC

administrative judge.    See 29 C.F.R. §§ 1614.106(e)(2),

1614.108(f).   A complainant may file a civil action within

ninety days of receiving a final decision from the agency or

after a complaint has been pending before the EEOC for at least

180 days.   See 42 U.S.C. § 2000e-16(c); 29 C.F.R. § 1614.407;

Price v. Bernanke, 470 F.3d 384, 389 (D.C. Cir. 2006).

     Importantly, an employee must exhaust the administrative

process for each discrete act for which he seeks to bring a

claim.   See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,

113-14 (2002).   In Morgan, the Supreme Court held that “discrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges.     Each

discrete discriminatory act starts a new clock for filing

charges alleging that act.   The charge, therefore, must be filed

within the [45]-day time period after the discrete

discriminatory act occurred.”    Id. at 113.

                 b.   Application to Plaintiff’s Claims

     It is undisputed that Nguyen only made contact with an EEO

counselor regarding the claims in the instant suit on two

occasions: February 11, 2005 and April 24, 2007.   Defendant thus

argues that the following acts of alleged discrimination were

not timely exhausted because they did not occur within forty-

five days of that contact:

                                 15
 
              1.             August 2004 Denial of Promotion to GS-14/Deputy Chief
                             Engineer Position;
              2.             December 2004 Dulai threat;
              3.             April 15, 2005 Non-Selection for the Chief Engineer
                             Position -- Steven Stump selected;
              4.             November 2008 Non-Selection for Imaging Sensor
                             Assistant Program Manager (“APM”) position -- Matthew
                             Severson selected;
              5.             November 2009 Non-Selection for APM position -- Ray
                             Desautel selected;
              6.             July 10, 2009 Non-Selection for APM position -- Joseph
                             Brunner selected;
              7.             Undated ASSEP Funding Cuts.

See Def.’s MSJ at 12.7                                         Nguyen does not directly dispute that he

failed to exhaust the above claims.                                         Rather, he argues that the

non-exhausted claims were “part of a history of continuing

discriminatory non-assignment practices and selections for


                                                            
              7
       In addition, Defendant argues that to the extent any of
the acts discussed above are alleged acts of age discrimination,
Plaintiff cannot avail himself of the ADEA “bypass” provision
because he did not, within 180 days of the allegedly
discriminatory act, file notice with the EEOC at least 30 days
before commencing suit, in accordance with 29 U.S.C. § 633a.
See Def.’s MSJ at 12. According to Defendant, the EEOC has no
record of Plaintiff filing any notice of intent to file an age
discrimination claim in federal court. See Def.’s MSJ at 12
(citing Def.’s MSJ, Ex. 13, Barkley Decl. ¶ 3). In response,
Nguyen argues that because he filed his two civil actions 90
days after the EEOC granted him “right to sue” on his 2005 and
2007 EEO complaints, the ADEA bypass provision was rendered
moot. Pl.’s Mem. of P&A in Opp’n to Def.’s Mot. Summ. J. at 10
(“Pl.’s Opp’n”). However, Plaintiff misunderstands that
Defendant’s argument regarding the ADEA bypass provision was
related to all of the acts that did not occur within the 45-day
period before the 2005 and 2007 complaints. As discussed in
more detail below, Nguyen failed to exhaust his administrative
remedies for those discrete acts. Because Nguyen never
alternatively filed a notice of intent to sue with the EEOC
within the requisite time period, he cannot have exhausted his
administrative remedies via this route.


                                                                      16
 
promotions that started in 1997 and throughout the time period

between 1997 to the present[.]”    Pl.’s Opp’n at 3-4.   The Court

construes this argument as a reference to the continuing

violation theory.

     Under that theory, a plaintiff may recover for allegedly

discriminatory conduct falling outside the applicable charging

period if that conduct forms part of one indivisible

discriminatory practice and at least one act in furtherance of

that practice took place within the applicable charging period.

See Coghlan v. Peters, 555 F. Supp. 2d 187, 203 (D.D.C. 2008);

see also Adesalu, 606 F. Supp. 2d at 101.    However, since the

Supreme Court’s decision in Morgan, the continuing violation

theory is restricted to claims akin to hostile work environment

claims because those violations -- unlike a discrete act such as

firing or failing to promote an employee -- “cannot be said to

occur on any particular day.”     Coghlan, 555 F. Supp. 2d at 203

(citing Morgan, 536 U.S. at 115, 117).     Morgan makes clear that

courts should not treat individual incidents of alleged

discrimination as part of a discriminatory pattern for

exhaustion purposes: “[d]iscrete acts such as termination,

failure to promote, denial of transfer, or refusal to hire are

easy to identify.   Each incident of discrimination . . .

constitutes a separate actionable ‘unlawful employment

practice.’”   536 U.S. at 114.

                                  17
 
              The Court therefore finds that all of Plaintiff’s non-

selection/denial of promotion claims -- which include the August

2004 Denial of Promotion to GS-14/Deputy Chief Engineer

Position; the April 15, 2005 Non-Selection for the Chief

Engineer Position; and the November 2008, July 2009, and

November 2009 Non-Selections for the Imaging Sensor APM position

-- are discrete acts of alleged discrimination.                                          Because none of

these acts occurred within forty-five days of Nguyen’s EEO

contact, they were not timely exhausted and they are therefore

procedurally barred.8                                          The Court construes the December 2004

Dulai threat as part of Plaintiff’s hostile work environment

claim and therefore addresses it in Part III.C, infra.                                          Finally,

because Plaintiff only alleged the issues related to ASSEP

funding in the context of his retaliation claim, the Court

considers those undated actions in Part III.B, infra.

Accordingly, the only discrete claims of discrimination that

Plaintiff timely exhausted are (1) the January 2005 designation

of Dr. Robert LaFreniere as Acting Chief Engineer,9 and (2) the

March 19, 2007 selection of Riad Sayegh as Chief Engineer.


                                                            
              8
       In addition, Nguyen concedes that he never applied for the
November 2008, July 2009, and November 2009 Imaging Sensor APM
positions. See Def.’s Reply, Ex. 5, Transcript of Nguyen Dep.
at 122-24. Thus, Defendant could not have discriminated against
Nguyen by not selecting him for those positions.
              9
       In his initial contact and formal EEO complaint in 2005,
Nguyen also alleged the following claims:
                                                                       18
 
                             2.            Plaintiff’s Discrimination Claims

                                           a.             Legal Framework for Claims Under Title VII
                                                          and the ADEA

              Title VII makes it unlawful for a federal government

employer to discriminate “based on race, color, religion, sex,

or national origin.”                                            42 U.S.C. § 2000e-16(a).                                                    The ADEA

provides that “[a]ll personnel actions affecting employees or

applicants for employment who are at least 40 years of age . . .

in executive agencies . . . shall be made free from any

discrimination based on age.”                                                             29 U.S.C. § 633a(a).

              In the absence of direct evidence of discrimination, Title

VII and ADEA claims are assessed under the burden-shifting

framework set out by the Supreme Court in McDonnell Douglas
                                                                                                                                                                                               
                                                                                                                                                                                               

              1.             On February 11, 2005 he was denied recognition for his
                             contribution to PMS 435 programs (such as initiating
                             the Patriot radar program);
              2.             As of January 5, 2005 he was denied Chief Engineer
                             lead systems engineering assignments;
              3.             As of January 5, 2005, LaFreniere “kept [Nguyen] in
                             the dark and excluded [Nguyen] from all his
                             communications and meetings with coworkers, field
                             activities and support contractors.”

2005 ROI at 15–16. However, Nguyen has not alleged these
claims, even in passing reference, in either his initial
Complaint or Amended Complaint in this action, or his Complaint
in case number 10-1030. Therefore, the Court assumes that
Nguyen has abandoned these claims, and alternatively, the Court
finds that Nguyen has failed to allege sufficient facts to
support a cause of action for discrimination based upon these
claims. See Douglas-Slade v. LaHood, 793 F. Supp. 2d 82, 97
(D.D.C. 2011) (finding that where plaintiff had asserted claims
of race and sex discrimination in her EEO complaint but then not
mentioned them in her civil complaint, the claims failed).
                                                                                            19
 
Corp. v. Green, 411 U.S. 792 (1973).    See Barnette v. Chertoff,

453 F.3d 513, 515 (D.C. Cir. 2006); Lathram v. Snow, 336 F.3d

1085, 1088 (D.C. Cir. 2003).   Pursuant to that framework, the

plaintiff has the initial burden of proving, by a preponderance

of the evidence, a prima facie case of discrimination.        Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

To establish a prima facie case, the plaintiff must show that

(1) he or she is a member of a protected class; (2) he or she

suffered an adverse employment action; and (3) the unfavorable

action gives rise to an inference of discrimination.     See Wiley

v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007); Barnette, 453

F.3d at 515.

     Once the plaintiff has established a prima facie case, “the

burden shifts to the defendant ‘to articulate some legitimate,

nondiscriminatory reason for the [action in question].’”        Wiley,

511 F.3d at 155 (quoting Burdine, 450 U.S. at 253).     In

asserting a legitimate, non-discriminatory explanation, the

defendant “need not persuade the court that it was actually

motivated by the proffered reasons.    It is sufficient if the

defendant’s evidence raises a genuine issue of fact as to

whether it discriminated against the plaintiff.”    Burdine, 450

U.S. at 254 (internal citation omitted).   The burden then shifts

back to the plaintiff to demonstrate that the asserted reason is

pretextual.    Id. at 253; Barnette, 453 F.3d at 516.   The

                                 20
 
plaintiff at all times retains the burden of persuasion.

Burdine, 450 U.S. at 253.

              At the summary judgment stage, once the defendant provides

a legitimate, non-discriminatory explanation, “the district

court need not -- and should not -- decide whether the plaintiff

actually made out a prima facie case under McDonnell Douglas.”

Brady v. Office of the Sergeant at Arms, 520 F.3d 490, 494 (D.C.

Cir. 2008).10                             Rather, the sole inquiry becomes whether the

plaintiff 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 against the [plaintiff] on [a prohibited basis].”

Id.; see also Jones v. Bernanke, 557 F.3d 670, 678 (D.C. Cir.

2009).                 In other words, the McDonnell Douglas burden-shifting

framework essentially disappears and the only remaining issue is

whether the employer discriminated against the employee.                             In

evaluating whether the plaintiff defeats summary judgment, the

Court considers all the relevant circumstances in evidence,

including the strength of the prima facie case, any direct

evidence of discrimination, any circumstantial evidence that

defendant’s proffered explanation is false, and any properly
                                                            
              10
       Although Brady involved a race discrimination claim, the
D.C. Circuit also applies Brady’s framework to retaliation
claims, see Jones v. Bernanke, 557 F.3d 670, 678-79 (D.C. Cir.
2009), and to ADEA claims, see Lurie v. Mid-Atl. Permanente Med.
Grp., P.C., 729 F. Supp. 2d 304, 316 n.2 (D.D.C. 2010).
                                                               21
 
considered evidence supporting the employer’s case.    See Jones,

557 F.3d at 679.

               b.   Plaintiff’s Non-Selection Claims

     Nguyen alleges that Defendant’s failure to select him for

the Acting Chief Engineer position in January 2005 and the Chief

Engineer position in March 2007 constituted discrimination on

the basis of race, national origin, and age.   In particular,

Nguyen alleges that he was better qualified for these positions

than the individuals selected.

     The law does not dictate which candidate an employer should

choose when making a promotion decision.   Indeed, an “employer

has discretion to choose among equally qualified candidates,

provided the decision is not based upon unlawful criteria.”

Burdine, 450 U.S. at 259.   As the D.C. Circuit has stated, “[w]e

have consistently declined to serve as a super-personnel

department that reexamines an entity’s business decisions.”

Holcomb v. Powell, 433 F.3d 889, 897 (D.C. Cir. 2006) (internal

quotation marks and citation omitted); see also Fischbach v.

D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996) (“Title

VII liability cannot rest solely upon a judge’s determination

that an employer misjudged the relative qualifications of

admittedly qualified candidates.”).

     In Aka v. Washington Hospital Center, however, the D.C.

Circuit concluded that a fact-finder could infer discrimination

                                 22
 
if the evidence showed that a reasonable employer would have

found the plaintiff significantly better qualified for the job,

and that there was other evidence calling the employer’s

explanation into question.   See 156 F.3d 1284, 1294-95 (D.C.

Cir. 1998).   In order to survive a motion for summary judgment,

“[a] plaintiff attacking a qualifications-based explanation” may

also raise an inference of discrimination by “seek[ing] to

expose other flaws in the employer’s explanation,” including,

inter alia, “show[ing] that the employer’s explanation misstates

the candidates’ qualifications.”      Id. at 1295.   However, a

plaintiff’s subjective assessment of his own qualifications is

not enough.   See Waterhouse v. Dist. of Columbia, 124 F. Supp.

2d 1, 7 (D.D.C. 2000), aff’d, 298 F.3d 989 (D.C. Cir. 2002).

“In a close case, a reasonable juror would usually assume that

the employer is more capable of assessing the significance of

small differences in the qualifications of the candidates, or

that the employer simply made a judgment call.”       Aka, 156 F.3d

at 1294.   In order to justify an inference of discrimination,

the qualifications gap must be great enough to be “inherently

indicative of discrimination.”     Jackson v. Gonzalez, 496 F.3d

703, 707 (D.C. Cir. 2007) (citation omitted).

     Defendant has alleged a non-discriminatory reason for each

non-selection, and Plaintiff has argued that these asserted



                                 23
 
reasons are mere pretext for discrimination.       The Court will

explore each non-selection in turn.

                    1)   2005 Non-Selection

      Defendant’s asserted legitimate, non-discriminatory reason

for its selection of Dr. LaFreniere over Nguyen for the 2005

Acting Chief Engineer position is that LaFreniere’s

qualifications exceeded those of Nguyen.        See Def.’s MSJ at 15-

21.   First, Defendant states that LaFreniere’s academic

credentials are superior to Nguyen’s because LaFreniere has a

Master’s degree in Mechanical Engineering and a Ph.D. in Applied

Mechanics, while Nguyen holds a Bachelor’s degree in Engineering

Science.     See id. at 15.   In addition, Defendant asserts that

LaFreniere had impressive program management and engineering

experience, including his experience in the periscope program

for ten years, two of which were as Program Manager.        See id. at

16-21.   According to Defendant, before LaFreniere was detailed

to PMS 435, he was the Chief Engineer for the periscope program.

Id. at 21.    In approximately August 2004, LaFreniere’s

supervisor nominated him for, and he was selected to receive, an

accretion of duties promotion to the equivalent of GS-14.         Thus,

at the time of his selection for the Acting Chief position,

LaFreniere was a GS-14 grade equivalent, while Nguyen was a GS-

13 grade equivalent.     Id. at 20.     Finally, Deputy Program

Manager Paul Gross testified that Defendant appointed LaFreniere

                                   24
 
Acting Chief Engineer over Plaintiff not only because of

LaFreniere’s exceptional experience and academic credentials,

but also because “he’s actually had real-life experience in the

field touching and feeling the systems that we deal with,

actually doing and developing tasking that we review here at

headquarters.   So he’s actually got a lot of hands-on experience

that Mr. Nguyen doesn’t have.”   Def.’s MSJ at 20 (citing 2005

Transcript at 150-53).

     The Court finds that Defendant has produced legitimate,

non-discriminatory reasons for the selection of LaFreniere over

Plaintiff.   See, e.g., Holcomb, 433 F.3d at 896 (concluding that

defendant had met its burden of producing a legitimate, non-

discriminatory reason for selection of one applicant where

selecting official provided affidavit explaining that she chose

the selectee because she was more qualified for the position

than the plaintiff); Oliver v. Napolitano, 729 F. Supp. 2d 291,

301 (D.D.C. 2010) (finding that defendant’s selection of another

employee based upon the interviewers’ assessment that the other

employee was “more qualified” was a legitimate non-

discriminatory explanation).   Accordingly, Nguyen now bears the

burden of showing that “a reasonable jury could conclude from

all of the evidence that the adverse employment decision was

made for a discriminatory reason.”    Lathram, 336 F.3d at 1088.



                                 25
 
              Nguyen argues that two issues of material fact preclude

summary judgment: first, whether LaFreniere’s degrees are the

“right qualifications” for the Chief Engineer position; second,

whether the nature and extent of LaFreniere’s management

experience, “exists and is suitable for the Chief Engineer

position.”11                           Pl.’s Opp’n at 11.

              With respect to the first issue, Nguyen argues that

LaFreniere’s degrees in mechanics and mechanical engineering are

“not suitable for the PMS 435 Chief Engineer position because

the degrees are in a totally different field of engineering from

‘knowledge of the theories and practices of electrical

engineering’[] that is required for managing antennas,

electrical systems, and electronic receivers and systems, under

PMS 435 Chief Engineer’s cognizance.”                               Id.   Nguyen produces no

evidence to support his conclusory assertions that LaFreniere’s
                                                            
              11
       Plaintiff also points to a third purported issue of
material fact: “whether ‘outstanding interpersonal
communication’ claimed for LaFreniere is business necessity or
nothing more than a pretext for discrimination against a non-
native English speaker like Plaintiff.” Pl.’s Opp’n at 11.
Because Defendant never contended that LaFreniere’s “outstanding
interpersonal communication” was the reason for LaFreniere being
designated Acting Chief Engineer, the Court need not address
this argument. Defendant did provide the testimony of Mr.
Gross, who opined that LaFreniere was a very good manager, while
Plaintiff was only an average manager. Def’s MSJ at 20 (citing
2005 Transcript at 151). However, Defendant did not purport to
base its selection on LaFreniere’s or Nguyen’s management
skills. Nor has Plaintiff submitted evidence demonstrating or
even raising an inference that Gross’s evaluation of their
relative management skills was false or pretextual.


                                                               26
 
degrees are not suitable, and therefore the Court finds that

Nguyen has not raised a genuine issue of fact regarding

LaFreniere’s academic credentials.12                                See Hastie v. Henderson,

121 F. Supp. 2d 72, 77 (D.D.C. 2000), aff’d, No. 00-5423, 2001

WL 793715 (D.C. Cir. 2001) (“To defeat a motion for summary

judgment, a plaintiff cannot create a factual issue of pretext

with mere allegations or personal speculation, but rather must




                                                            
              12
       Nguyen also contends that Defendant has misstated his
academic credentials:

              Contrary to Defendant’s erroneous claim for the purpose of
              trivializing Plaintiff’s academic education in comparison
              with that of LaFreniere, . . . Plaintiff holds a
              professional Bachelor of General Engineering (which is, in
              the strictest sense of the term, well-rounded multiple
              engineering discipline training) from Dartmouth College
              (Graduate) Thayer School of Engineering since May 1978.
              Thayer School’s Bachelor of General Engineering degree
              requires schooling in Mathematics, Physics, Mechanical and
              Electrical Engineering disciplines in the undergraduate
              curriculum, and is conferred as a graduate diploma only to
              graduate students having held a Bachelor of Arts majoring
              in Engineering Sciences.

Pl.’s Opp’n at 18. Plaintiff provides no evidence that his
degree, which he himself characterizes as a Bachelor’s degree,
is equivalent to a graduate degree. The Court therefore cannot
discern any way in which Defendant made a misstatement when it
asserted that Nguyen holds a Bachelor’s degree. The Court also
finds no basis for concluding that Defendant’s comparison of
Nguyen’s degree with LaFreniere’s was “for the purpose of
trivializing” Plaintiff’s academic credentials or in any other
way improper. The Court has no doubt that Mr. Nguyen is highly
educated; that he does not possess a Master’s or Doctorate
degree, however, appears to be undisputed. See Def.’s MSJ at
15; 2007 ROI at 114-16 (Nguyen’s Resume).


                                                               27
 
point to ‘genuine issues of material fact in the record.’”

(citation omitted)).

     As to the second issue, Nguyen argues that LaFreniere’s

mechanical engineering management experience is “not the same as

management of electronic or electrical systems.    LaFreniere

cannot claim to have extensive experience in electronics program

management[.]”    Pl.’s Opp’n at 12.   Defendant provided an

explanation for why it believed LaFreniere’s mechanical

engineering background did not limit his ability to be Acting

Chief Engineer:

     [I]f you look at his experience, a lot of the systems that
     we deal with are mechanical engineering-type systems.
     Periscopes are highly mechanical; they require an
     understanding of optical systems, digital electronics and
     digital cameras, hydraulics, material sciences. . . . So he
     has an extensive amount of experience and training in these
     areas. So I don’t think that was limiting factor. He had
     experience in [] electronic warfare, although not as
     extensive as Mr. Nguyen. But he had practical experience
     because of his experience with the imaging systems that we
     deal with.

Def.’s MSJ at 20-21 (citing ROI Transcript at 152-53).    The

Court will not second-guess Defendant’s conclusion that

LaFreniere’s mechanical engineering experience was relevant and

sufficient for the Acting Chief Engineer position.    An agency’s

“decision not to consider certain qualifications . . . while

emphasizing other qualifications, such as hands-on experience,

when ranking candidates is within its discretion.    Even if a

court suspects that a job applicant was victimized by poor

                                 28
 
selection procedures, which is not the case here, it may not

second-guess an employer’s personnel decision absent

demonstrably discriminatory motive.”                                   Madan v. Chow, No. 02-2016

(ESH), 2005 WL 555414, *6 (D.D.C. Mar. 8, 2005) (citing

Fischbach, 86 F.3d at 1183).                                   Nguyen has failed to present any

evidence that Defendant’s preference for LaFreniere’s

professional experience was pretextual.

              In this regard, Nguyen also argues that Defendant misstated

LaFreniere’s professional experience, see Pl.’s Opp’n at 24-28;

Pl.’s Statement of Genuine Issues ¶¶ 22-23, but Nguyen has not

provided any evidentiary support for these assertions.13


                                                            
              13
       Nguyen purports to cite to several documents to support
these misstatements. See, e.g., Pl.’s Opp’n at 27 (“Defendant
made yet another false claim for LaFreniere’s ‘involvement . . .
with multi-discipline engineering teams and managers, . . . in
[producing] composite materials required for the Submarine
Satellite Information eXchange System (SSXIS) antenna . . . and
[delivering] the SSXIS antenna[.]’ SSIXS [sic] is NOT an
antenna, according to a retired SPAWAR communication U.S. Navy
officer and a retired U.S. submarine radio man. E-mail to
Plaintiff dated Nov 3, 2011 on the subject SSXIS. Furthermore,
an antenna cannot be made of composite materials. Canceled ECP
No. N18-277, Title: Type 18B Periscope Set with ADF Installed,
SSIXS Implementation, dated 94-12-30.”); id. at 28 (“To show
that LaFreniere had prior experience managing Imaging sensors,
Defendant also made the false claim that LaFreniere was the
‘chief engineer’ of an Office of Naval Intelligence-classified
Imaging ‘Top Gate’ program. . . . Actually, Top Gate is NOT a
classified PROGRAM managed or engineered by LaFreniere. ONI’s
Topgate project is a ‘Vision 1’ camera-and-WIN-NT workstation
system put ‘on board’ by APL for ONI without LaFreniere[’s]
involvement, much less management. Meeting minutes at ONI-34 of
19 January 2000. Plaintiff was an attendee at this meeting but
not LaFreniere. LaFreniere’s OPF SF52 Request for Personnel
Action.”). However, Nguyen did not attach the documents he
                                                                29
 
Plaintiff’s mere assertions that Defendant made false claims --

with no support for his assertions -- is insufficient under Rule

56(c)(1) to raise a genuinely disputed factual issue.                                                                                                           See

Hastie, 121 F. Supp. 2d at 77.                                                               Nguyen has therefore not raised

a genuine issue of material fact as to whether LaFreniere’s

experience “exist[ed]” or was suitable for the Acting Chief

Engineer position.                                        Even if Defendant had misstated LaFreniere’s

experience, Plaintiff “cannot create a genuine issue for trial

by demonstrating that only one of [Defendant’s] reasons for

[his] non-[selection] was false; []he can only create a genuine

dispute if []he can make this demonstration with respect to all

of [Defendant’s] reasons.”                                                       Hicks v. Gotbaum, 828 F. Supp. 2d

152, 162 (D.D.C. 2011).

              Nguyen also points to the fact that LaFreniere “competed

for the same position” in April 2005 but was not selected, in

favor of “another 39 year old Caucasian who is less degreed and
                                                                                                                                                                                               
                                                                                                                                                                                               
purports to rely on or provide any guidance as to their location
in the record; the Court was unable to locate the documents on
its own. This does not comport with Local Civil Rule 7(h)(1),
which requires that “[a]n opposition to [a motion for summary
judgment] shall be accompanied by a separate concise statement
of genuine issues setting forth all material facts as to which
it is contended there exists a genuine issue necessary to be
litigated, which shall include references to the parts of the
record relied on to support the statement.” LCvR 7(h)(1).
Moreover, it is incumbent on the nonmovant who asserts such a
fact to provide depositions, affidavits, or other competent
evidence in support of the factual assertion if he is to defeat
summary judgment. The Court advised Plaintiff as much in its
Order directing Plaintiff to respond to Defendant’s Motion for
Summary Judgment. See Order (Oct. 18, 2011), Docket No 36. 
                                                                                            30
 
less experienced than himself” (Stephen Stump).    Pl.’s Opp’n at

13.   Nguyen thus contends that another issue of fact is whether

the selection criteria were changed for the same position

between August 2004 and January 2005.    Id.   Nguyen points to no

evidence from which the Court can infer that Defendant altered

the selection criteria for the Acting Chief Engineer or Chief

Engineer positions at any time.    Furthermore, the Court is

unable to draw an inference that the selection criteria for the

two positions were ever the same, such that the fact that

LaFreniere was selected Acting Chief, but then not selected

Chief Engineer, would raise an inference of pretext.    Nguyen’s

mere conclusory allegation that the selection criteria were

altered -- with no support for the statement -- is insufficient

to raise a genuine issue of fact regarding the selection

criteria or Defendant’s alteration thereof.

      Furthermore, Nguyen’s conclusory assertion that

LaFreniere’s non-selection for the Chief Engineer position in

April 2005 raises an inference that his prior selection for

Acting Chief was pretextual is not supported by the record.

According to Defendant, the panel that ranked candidates for the

April 2005 selection “scored Plaintiff’s application (with 25

out of 40 points) lower than LaFreniere’s (with 33 out of 40

points).”   Def.’s Reply at 9.   The interview panel thus found

the top candidates to be LaFreniere and Stephen Stump.     Id.    The

                                  31
 
fact that LaFreniere was selected as Acting Chief Engineer but

was later not selected as Chief Engineer does not raise a

genuine issue of material fact as to whether Defendant’s

selection of LaFreniere for Acting Chief over Nguyen was

pretextual.14

              Finally, Nguyen argues at length that he was better

qualified than LaFreniere because he has more extensive academic

and professional training, the requisite professional

experience, and actual accomplishments for performing the duties

and responsibilities of Chief Engineer.                             See Pl.’s Opp’n at 16-

34.           In order for Nguyen to raise an inference of discrimination

on this basis, however, he must demonstrate that he was

“substantially more qualified” than LaFreniere.                             Holcomb, 433

F.3d at 897; see also Aka, 156 F.3d at 1299.                            In Aka, for
                                                            
              14
       Nguyen alleges that “[a]nother issue of fact” is that
“Defendant never entrusted budget management to Plaintiff but it
did [to] LaFreniere . . . .” Pl.’s Opp’n at 12. It is unclear
how this issue is a disputed issue of fact that is material to
Plaintiff’s discrimination claim. It appears that Plaintiff and
Defendant do not dispute that Nguyen was not responsible for
budget management because that responsibility belonged to the
Chief Engineer, or Acting Chief Engineer. See 2005 ROI at 54
(“The overall budgetary management of the ASSEP program is the
responsibility of the Chief Engineer. . . . The overall
management of these efforts was not the responsibility of Mr.
Nguyen.”); 2005 Transcript at 42-45 (NGUYEN: “The ASSEP program
budget is a key component of the chief engineer’s
responsibilities and functions.”). Nguyen may have believed
that he was capable of performing budget management; however,
that he was not given this responsibility is not a disputed
issue of fact or an allegation that would raise an inference of
pretext on the part of Defendant.


                                                               32
 
example, the D.C. Circuit determined the evidentiary record was

sufficient for a reasonable jury to conclude that the plaintiff,

who was denied a pharmacy technician job, was “markedly more

qualified” than the applicant selected.      156 F.3d at 1299.

There, the plaintiff had presented undisputed evidence that he

had nineteen years of experience as a hospital assistant as well

as Bachelor’s and Master’s degrees; the other applicant did not

have a college degree, had worked in the hospital laundry for

slightly over a year, and had spent only two months as a

pharmacy volunteer.    Id. at 1295-96.   Here, Plaintiff

extensively details his own experience and, as noted above,

avers that LaFreniere’s experience was overstated or misstated

by Defendant.    See Pl.’s Opp’n at 16-34.    However, “plaintiff’s

perception of [him]self,” and of his qualifications, “is not

relevant.    It is the perception of the decisionmaker which is

relevant.”    Waterhouse, 124 F. Supp. 2d at 7 (internal citation

and quotation marks omitted).

     Even viewing all of the evidence in the light most

favorable to Nguyen, the Court is not persuaded that Nguyen was

substantially better qualified than LaFreniere.     Plaintiff’s

resume reflects that he began employment at NAVSEA in 1983, see

2007 ROI at 115, while Dr. LaFreniere has been employed at the

Naval Undersea Warfare Center (“NUWC”) since 1985, with the

exception of two years in private industry, see Def.’s MSJ, Ex.

                                 33
 
17, LaFreniere Decl. ¶¶ 5,8.   As noted above, Plaintiff holds a

Bachelor’s degree in General Engineering, while LaFreniere holds

a Master’s and Ph.D. in Mechanical Engineering.   Finally,

Plaintiff has approximately twelve years of experience on the

Sea Wolf program and approximately five years serving as the

Assistant Chief Engineer in PMS 435, see Pl.’s Statement of

Genuine Issues ¶ 20, while LaFreniere has approximately seven

years’ experience as an Engineering Program Manager in NUWC and

approximately five years of experience as the Program Manager

and Chief Engineer of the Night Owl program, see Def.’s MSJ at

16-20.   Although the Court does not doubt that Nguyen’s

qualifications are impressive, Nguyen has failed to demonstrate

that he was substantially more qualified than LaFreniere to

allow a jury to infer discrimination.   Cf. Holcomb, 433 F.3d at

897-98; Stewart v. Ashcroft, 352 F.3d 422, 429-31 (D.C. Cir.

2003).   Moreover, Nguyen has provided no evidentiary support for

his assertions that Defendant misstated either Nguyen’s or

LaFreniere’s qualifications.   Therefore, the Court concludes

that Nguyen has not produced sufficient evidence to satisfy his

burden of showing that Defendant’s asserted reasons for its

selection of LaFreniere were pretext.

                  2)   2007 Non-Selection

     Nguyen also alleges that he was better qualified for the

Chief Engineer position than Riad Sayegh, and that Defendant’s

                                34
 
failure to select him was discriminatory.                                 Defendant argues,

however, that its legitimate, non-discriminatory reason for

selecting Sayegh is that the interview panel believed Sayegh to

be the better qualified candidate.                                  See Def.’s MSJ at 21-29.

Defendant asserts that a selection panel, composed of Gross and

two individuals outside of PMS 435, Dr. Binder and Mr.

Greenberg, reviewed the applications of five eligible candidates

and rated Nguyen and Sayegh as the top two candidates based on

their resumes.                                 Id. at 24 (citing 2007 ROI at 117-19).15

Nguyen’s total rating was 11.5, while Sayegh’s total rating was

11.75.                 Id. (citing 2007 ROI at 117-18).                  The panel then

interviewed both Nguyen and Sayegh on the same day and asked the

two candidates the same six interview questions.                                  Id. at 24-25

(citing 2007 ROI at 118, 131).16                                Based on the applications and


                                                            
              15
       The Knowledge and Skills used by the panel to rank the
candidates’ applications were:

              1.             Knowledge of Submarine Electronic Warfare technology
                             and systems;
              2.             Knowledge of Imaging and Electronic Optics Systems;
              3.             Knowledge of Systems Engineering and Test & Evaluation
                             processes;
              4.             Ability to manage R&D projects;
              5.             Ability to develop specification.

2007 ROI at 118.
              16
                     Those questions were as follows:

              1.             After reading the brief description of the vacant
                             Imaging and EW Chief Engineer position, please
                             describe how you are qualified to perform the duties?
                                                               35
 
the interviews, the panel unanimously recommended selecting

Sayegh.                   The panel explained their selection as follows:

              During the interview Mr. Sayegh demonstrated a broad
              understanding of both I&EW systems and their acquisition.
              He provided examples of current work experience that were
              relevant and germane to skills he would have to use as the
              I&EW Chief Engineer (CE) whereas Mr. Nguyen provided
              examples that were dated and not as relevant to the CE
              position. Mr. Sayegh provided examples of his understanding
              of the Systems Engineering process and its importance in
              the acquisition and the life cycle management of systems.
              He also has in depth experience in acquiring software and
              managing it over its life cycle. Mr. Nguyen didn’t provide
              good examples of his understanding of the Systems
              Engineering process and didn’t appear to have as good an
              understanding and experience with the processes as Mr.
              Sayegh. He also didn’t mention any experience he had in
              acquiring and managing software. . . . Mr. Sayegh also
              demonstrated experience managing both the imaging and EW
              upgrade and improvement R&D efforts for Photonics. Mr.
              Sayegh and Mr. Nguyen both have knowledge and experience in
              managing submarine I&EW technology. Overall, Mr. Sayegh on
              both his resume and during the interview demonstrated


                                                                                                                                                                                               
                                                                                                                                                                                               
                             Why do you think you have the ability to lead and
                             coordinate the activities of a diverse group of
                             government and industry personnel?
              2.             Please describe what experience you have in the
                             financial management and contracting process. What
                             functions have you performed during your career and
                             what have been your roles in planning and executing
                             financial management and the contracting process?
              3.             Do you have any experience in the systems engineering
                             discipline, including software acquisition and
                             management processes? If so, explain.
              4.             What relevant knowledge of submarine modernization and
                             life cycle management do you possess?
              5.             Please explain the role of the systems engineer within
                             the Program Office.
              6.             Do you have a TS security clearance? If not, is there
                             anything in your background that would prevent you
                             from obtaining a TS security clearance?

2007 ROI at 118.
                                                                                            36
 
     broader and more in depth experience in the skills required
     to perform the job.

2007 ROI at 119.   Mr. Greenberg, one of the panel members,

specifically stated:

     During the interviews, I remember Mr. Nguyen’s answers were
     very good, but Mr. Sayegh’s were outstanding. For instance,
     Mr. Sayegh handled research and development programs
     applicable to the Chief Engineer position and understood
     how those responsibilities fit into the overall program. .
     . . Mr. Sayegh had managed a research and development
     program within PMS 435. I don’t remember Mr. Nguyen
     explaining his research and development experience
     applicable to PMS 435. In addition, Mr. Sayegh’s responses
     to interview question four were plainly superior.
     Specifically, Mr. Sayegh described in detail his experience
     with the Virginia class submarine. The Virginia class
     submarine program is of particular importance to the Navy
     and plays a pivotal role in the future of undersea warfare.
     By contrast, Mr. Nguyen described his experience with the
     Seawolf class submarine. This description was helpful, but
     Seawolf class submarines were delivered in the late 1990s.
     Because Mr. Sayegh’s response discussing the Virginia class
     submarine program was especially current demonstrating an
     understanding of the modernization process employed by the
     program, I found his experience more applicable to the
     Chief Engineer position.

2007 ROI at 136.

     The Court concludes that Defendant provided legitimate,

non-discriminatory reasons for its selection of Sayegh over

Nguyen.   See, e.g., Holcomb, 433 F.3d at 896; Oliver, 729 F.

Supp. 2d at 301-03 (finding that defendant’s selection of other

employees for two vacancies based upon the interviewers’

assessment that the other employees performed better in the

interview was a legitimate non-discriminatory explanation).



                                37
 
Therefore, Nguyen now has the burden of demonstrating that this

explanation was pretextual.

              Similar to his arguments regarding LaFreniere, Plaintiff

argues that Sayegh was not qualified for the Chief Engineer

position because he is a mechanical engineer by training and

does not have sufficient relevant experience.                         See Pl.’s Opp’n

at 34-43.                       However, Nguyen has not provided the Court with any

evidentiary support for his assertions, and therefore, the Court

finds that he has not demonstrated that either of these issues

are genuine issues of material fact that would bar summary

judgment.17                         Moreover, as the Court noted above, an employer is

afforded discretion to choose between equally qualified

applicants, and the Court should not second-guess an employer’s

personnel decision absent a demonstrably discriminatory motive.

See Barnette, 453 F.3d at 517 (“[C]ourts must defer to the

employer’s decision as to which qualities required by the job .

. . it weighs more heavily.”); Fischbach, 86 F.3d at 1183;

Reshard v. Peters, 579 F. Supp. 2d. 57, 71 (D.D.C. 2008).

Indeed, Defendant provided testimony that the panel who


                                                            
              17
       Nguyen also contends -- without support -- that Defendant
cannot justify having scored Sayegh higher than Nguyen based on
the factors it listed for consideration of candidates. Pl.’s
Opp’n at 41-42. However, Nguyen’s subjective assertion that he
should have been rated higher than Sayegh, without more, does
not provide sufficient evidence from which the Court could infer
that this rating was pretext for discrimination.


                                                               38
 
interviewed Sayegh believed he had more than sufficient relevant

experience.                           See Def.’s MSJ at 25-26 (“[Sayegh] provided

examples of current work experience that were relevant and

germane to skills he would have to use as the I&EW Chief

Engineer . . . . He also has in depth experience in acquiring

software and managing it over its life cycle. . . . Mr. Sayegh

also demonstrated experience managing both the imaging and EW

upgrade and improvement R&D efforts for Photonics.”).                                Nguyen

therefore has not demonstrated a genuine issue of material fact

as to Sayegh’s qualifications or experience.

              Nguyen also argues generally that he was more qualified

than Sayegh because he had extensive R&D management experience

and training.                               See Pl.’s Opp’n at 34-41.18   Again, however,

Nguyen has offered nothing more than his own subjective

assertions, which are insufficient to demonstrate that he was

significantly better qualified than Sayegh.                                Even viewing the

evidence in the light most favorable to Nguyen, the Court cannot

conclude that Nguyen was significantly better qualified than

Sayegh.                   Defendant asserts that Sayegh has a Master’s Degree in


                                                            
              18
       Nguyen also asserts that Sayegh failed to meet the
requirement of membership in the Defense Acquisition
Professional Corps (“APC”) and was thus not qualified for the
Chief Engineer position. See Am. Compl. at ¶¶ 43-45. However,
Sayegh has been a member of the Defense Acquisition Corps,
formerly the APC, since March 15, 2007. Def.’s MSJ, Ex. 18,
Sayegh Decl. ¶ 7.


                                                               39
 
Mechanical Engineering, as compared to Nguyen’s Bachelor’s

degree.   See Def.’s MSJ at 22.   In addition, despite the fact

that Nguyen has more total years of experience than Sayegh,

Defendant provided evidence that Sayegh had more relevant recent

experience, including with the Virginia class submarine program.

See id. at 22-26; 2007 ROI at 136.     Finally, the interview panel

contemporaneously rated Sayegh’s relevant knowledge and skills

the highest of all of the applications.     See Def.’s MSJ at 24.

     At best, the evidence demonstrates that Nguyen was merely

one of several qualified candidates for the job, and not that he

was substantially more qualified than Sayegh.     See Ford v.

Mabus, 629 F.3d 198, 202-03 (D.C. Cir. 2010) (concluding that

despite having twenty more years of experience, plaintiff had

not demonstrated that he was significantly better qualified than

the selected candidate in order to raise an inference of age

discrimination); Jackson, 496 F.3d at 708-09 (affirming grant of

summary judgment for the defendant because the plaintiff and the

selectee were both qualified for the promotion and there was no

evidence that the plaintiff was a “discernibly better” candidate

than the selectee).   Accordingly, the Court concludes that

Nguyen has not met his burden of producing evidence upon which a

reasonable fact-finder could conclude that Defendant’s

preference of Sayegh’s qualifications and interview performance

was mere pretext for discrimination.

                                  40
 
              B.             Retaliation Claims

              Nguyen has alleged that Defendant retaliated against him in

two different ways: (1) following his 2005 EEO complaint,

Defendant began to cut ASSEP funding from Nguyen’s programs and

continued to prohibit him from participating in ASSEP funding

decisions, see Am. Compl. ¶¶ 83-85; and (2) Defendant failed to

select Nguyen for the Chief Engineer position in April 2005 soon

after his February 2005 EEO contact, see Compl., No. 10-1030, at

¶¶ 6-7.19

              Employers are forbidden “from discriminating against an

employee or job applicant because that individual opposed any

practice made unlawful by Title VII or made a charge, testified,

assisted, or participated in a Title VII proceeding or

investigation.”                                   Burlington N. & Santa Fe Ry. Co. v. White, 548

U.S. 53, 56 (2006) (internal alterations and quotation marks
                                                            
              19
       Defendant construes Plaintiff’s Complaint in case number
10-1030 as alleging that Plaintiff’s non-selection as Acting
Chief Engineer in January 2005 was retaliation based upon
Plaintiff’s EEO activity in approximately 1997 or 1998. See
Def.’s MSJ at 13-14. The Court finds no basis for construing
Plaintiff’s Complaint to make this allegation. Indeed, the
Complaint specifically states that Defendant “continued to deny
Nguyen GS-14 position shortly after Nguyen contested Defendant’s
decision to appoint LaFreniere to the Acting PMS 435 Chief
Engineer in an EEO complaint . . . . On April 15, 2005, Agency
again failed to promote Nguyen to GS-14 and PMS 435 Chief
Engineer position after his EEO complaint of January 5, 2005.”
Compl., No. 10-1030, at ¶¶ 6-7 (emphasis added). Therefore, the
Court need not address Defendant’s argument that Plaintiff
cannot establish a prima facie case of retaliation concerning
the selection of LaFreniere as Acting Chief Engineer.


                                                                41
 
omitted); see also 42 U.S.C. § 2000e-3(a).     The same ban on

retaliation applies under the ADEA. Gomez-Perez v. Potter, 553

U.S. 474, 479, 491 (2008).    Retaliation claims also follow the

McDonnell Douglas framework set forth above, whereby the

plaintiff must first establish a prima facie case of

retaliation; the defendant must then articulate a legitimate,

non-discriminatory reason for its action; and the plaintiff must

then demonstrate that this explanation is mere pretext.      See

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

retaliation, the plaintiff must show that (1) he engaged in

statutorily protected activity; (2) he suffered a materially

adverse action by his employer; and (3) a causal connection

existed between the two.     Id.; see also Tomasello v. Rubin, 167

F.3d 612, 619 (D.C. Cir. 1999) (“[T]he test for determining

retaliation under the ADEA and Title VII is identical”).     A

plaintiff has engaged in a protected activity if he or she has

“opposed any practice made an unlawful employment practice” by

Title VII or the ADEA.     Gilbert v. Napolitano, 670 F.3d 258, 262

(D.C. Cir. 2012).   Filing a formal complaint of discrimination

constitutes a protected activity.      See Holcomb, 433 F.3d at 902.

          1.   Exhaustion

     As noted supra, Part III.A.1, after the Supreme Court’s

decision in Morgan, this Court has required plaintiffs to

exhaust their administrative remedies with respect to each

                                  42
 
discrete act of discrimination.                                    Several courts in this

District, however, have distinguished retaliation claims that

arise after a plaintiff has filed an administrative complaint,

holding that separate exhaustion is not required for those later

acts of retaliation that would have come within the “scope of

any investigation that reasonably could have been expected to

result from [the] initial [administrative] charge of

discrimination.”                                     Hazel v. Wash. Metro. Area Transit Auth., No.

02-1375, 2006 WL 3623693, *8 (D.D.C. Dec. 4, 2006) (relying on

Wedow v. Kansas City, 442 F.3d 661, 673-74 (8th Cir. 2006) and

Lane v. Hilbert, No. 03-5309, 2004 WL 1071330, *1 (D.C. Cir. May

12, 2004)); see also Jones v. Bernanke, 685 F. Supp. 2d 31, 37

(D.D.C. 2010); Thomas v. Vilsack, 718 F. Supp. 2d 106, 121

(D.D.C. 2010); Smith-Thompson v. Dist. of Columbia, 657 F. Supp.

2d 123, 137 (D.D.C. 2009); Lewis v. Dist. of Columbia, 535 F.

Supp. 2d 1, 6-8 (D.D.C. 2008).20                                    The D.C. Circuit has declined

to weigh in on this split.                                     See Payne v. Salazar, 619 F.3d 56,

65 (D.C. Cir. 2010) (“We need not decide whether Morgan did in

fact overtake that line of cases [that permits federal employees


                                                            
              20
       But see Romero-Ostolaza v. Ridge, 370 F. Supp. 2d 139,
148-49 (D.D.C. 2005) (requiring plaintiffs to separately exhaust
every discrete act of discrimination or retaliation regardless
of whether it was “like or reasonably related” to claims in the
administrative complaint); Coleman–Adebayo v. Leavitt, 326 F.
Supp. 2d 132, 137-38 (D.D.C. 2004) (dismissing post-
administrative complaint retaliation claim where the plaintiff
failed to exhaust).
                                                                  43
 
to litigate unfiled retaliation claims that are like or

reasonably related to claims they did file with the agency].”).

The courts in this District that have followed this line of

reasoning have required claims of retaliation to be

administratively exhausted unless they were (1) related to the

claims in the initial administrative complaint, and (2)

specified in that complaint to be of an ongoing and continuous

nature.   See, e.g., Thomas, 718 F. Supp. 2d at 121; Lewis, 535

F. Supp. 2d at 7-8.    Because exhaustion of administrative

remedies is an affirmative defense, Defendant bears the burden

of pleading and proving it.    Bowden, 106 F.3d at 437.   Notably,

Defendant does not address the relevant split in legal authority

whatsoever.

     With respect to Nguyen’s claim regarding ASSEP funding

issues, Defendant argues that Nguyen did not make any contact

with an EEO counselor regarding ASSEP funding cuts in either his

2005 or 2007 EEO complaints.    See Def.’s MSJ at 29; see also

Def.’s MSJ, Ex. 16, Dyson Decl. ¶ 7.     In his February 2005 EEO

contact, however, Plaintiff alleged that “[a]s of 5 Jan 2005 and

continuing to present the de facto new Chief Engineer excluded

me from ASSEP budget management deliberations/decisions in favor

of support contractors and other co-workers, and reduced me to

an outsider’s role.”   2005 ROI at 16.   These allegations are not

substantially similar to the claim that Defendant cut ASSEP

                                 44
 
funding to Nguyen’s programs, but they are similar to his

allegation that Defendant continued to exclude him from ASSEP

funding decisions.   In addition, they are clearly specified to

be of an ongoing and continuous nature.

     Defendant does not address Nguyen’s April 2005 non-

selection claim, and for this reason alone, the Court finds that

Defendant has not met its burden of proving that Plaintiff

failed to exhaust this claim.   Even had Defendant addressed this

claim, the Court finds that it is at least plausible that the

April 2005 non-selection claim is sufficiently related to the

claims in Nguyen’s 2005 administrative complaint that Defendant

had denied Nguyen the Acting Chief Engineer position.     See

Hazel, 2006 WL 3623693, at *8 (finding that allegations of two

subsequent retaliatory non-selections and termination were of a

similar kind to the history of harassment and discrimination

alleged in the EEO charges, which included a retaliatory non-

selection and attempts to set the plaintiff up for termination).

In addition, Nguyen’s initial EEO complaint specified that his

non-selection claim was continuous and ongoing.   See 2005 ROI at

16 (“As of January 2005 and continuing to Present, PMS 435

denies me the Acting Chief Engineer position . . . .”).    It is

therefore plausible that Nguyen’s non-selection claim would have

fallen within the scope of the investigation that reasonably



                                45
 
could have been expected to result from Nguyen’s initial charge

of discrimination.

     Accordingly, Defendant has not met its burden of proving

that Plaintiff failed to exhaust his administrative remedies

related to his two retaliation claims.

          2.    Plaintiff’s Claims

                a.   Cuts to ASSEP Funding and Exclusion from
                     Funding Decisions

     Even assuming Nguyen exhausted his claim regarding cuts in

ASSEP funding and his exclusion from ASSEP funding decisions, he

has not established a prima face case of retaliation regarding

these purported actions.   Although it is undisputed that Nguyen

engaged in a protected activity when he filed his 2005 EEO

complaint, Nguyen has not demonstrated that the actions related

to ASSEP funding were materially adverse.

     Under the Supreme Court’s decision in Burlington, a

materially adverse action in the retaliation context is one that

could “dissuade a reasonable worker from making or supporting a

charge of discrimination.”   548 U.S. at 57; see also Steele, 535

F.3d at 696.   Thus, the term “adverse action” in the retaliation

context “encompass[es] a broader sweep of actions than those in

a pure discrimination claim.”   Baloch v. Kempthorne, 550 F.3d

1191, 1198 n.4 (D.C. Cir. 2008).     The D.C. Circuit has, however,

established some limits to what constitutes an adverse


                                46
 
employment action.   Although “‘purely subjective injuries,’ such

as dissatisfaction with a reassignment, public humiliation, or

loss of reputation, are not adverse actions, the threshold is

met when an employee ‘experiences materially adverse

consequences affecting the terms, conditions, or privileges of

employment or future employment opportunities such that a

reasonable trier of fact could find objectively tangible harm.’”

Holcomb, 433 F.3d at 902 (quoting Forkkio v. Powell, 306 F.3d

1127, 1130-31 (D.C. Cir. 2002)).

     In Holcomb, the D.C. Circuit concluded that the plaintiff

had suffered an objectively tangible harm where, even though she

never suffered a reduction in grade, pay, or benefits, she

experienced:

     [A]n extraordinary reduction in responsibilities that
     persisted for years . . . . The record includes
     uncontroverted testimony that her duties dramatically
     declined in both quantity and quality. Most tellingly, the
     . . . desk audit revealed [plaintiff] was performing tasks
     commensurate with a Grade 5 position -- six grades below
     [plaintiff’s position].

433 F.3d at 902.    Here, Nguyen alleges that following his

protected activity, he suffered cuts to ASSEP funding, and

Defendant “continu[ed]” to prohibit him from participating in

ASSEP funding decisions, which stripped him of substantive job

responsibilities.    Am. Compl. ¶¶ 83-85.    These allegations are

not sufficient to rise to the level of a materially adverse

action like the one found in Holcomb.       First, there is no

                                 47
 
indication from the record that Defendant ever made any cuts to

the funding of Nguyen’s programs whatsoever or excluded him from

funding decisions.       Nor does Nguyen allege that the purported

cuts to ASSEP funding or exclusion from funding decisions led to

any material changes in the terms, conditions, or privileges of

his employment or future employment opportunities.       Indeed,

Nguyen appears to have conceded that ASSEP funding decisions

were the responsibility of the Chief Engineer, not the Assistant

Chief Engineer.        See 2005 Transcript at 42-45 (NGUYEN: “The

ASSEP program budget is a key component of the chief engineer’s

responsibilities and functions.”).        Nguyen has therefore not

shown how the purported cuts to ASSEP funding and exclusion from

funding decisions amounted to a tangible harm to his employment

that would have dissuaded a reasonable worker from making a

charge of discrimination.

     Accordingly, the Court concludes that Nguyen has not

succeeded in establishing a prima facie case of retaliation on

this claim. 

                  b.      Non-selection for Chief Engineer, April 2005

     It is undisputed that Nguyen engaged in a protected

activity when he filed his EEO complaint.       In addition, Nguyen’s

non-selection for the Chief Engineer position constitutes a

materially adverse action.        See Stewart, 352 F.3d at 427

(“[F]ailing to select an employee for a position with

                                     48
 
substantially greater supervisory authority is an adverse

employment action.”); Cones v. Shalala, 199 F.3d 512, 521 (D.C.

Cir. 2000) (holding that refusal to allow employee to compete

for higher level Director position constituted materially

adverse action).   In order to establish a prima facie case then,

Nguyen must finally demonstrate that his non-selection for Chief

Engineer in April 2005 was causally connected to his protected

EEO activity.

     A causal connection may be established by showing that “the

employer had knowledge of the employee’s protected activity, and

. . . the adverse personnel action took place shortly after that

activity.”   Holcomb, 433 F.3d at 903 (citations omitted).    For

purposes of establishing a prima facie case of retaliation,

temporal proximity between the protected EEO activity and

adverse action can support an inference of causation, but only

when the two events are “very close” in time.   Woodruff v.

Peters, 482 F.3d 521, 529 (D.C. Cir. 2007) (quoting Clark Cnty.

Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001)); see also

Singletary v. Dist. of Columbia, 351 F.3d 519, 525 (D.C. Cir.

2003) (“[T]his circuit has held that a close temporal

relationship may alone establish the required causal

connection.”).   Although the Supreme Court has suggested that in

some instances a three-month period between the protected

activity and the adverse employment action may, standing alone,

                                49
 
be too lengthy to raise an inference of causation, neither the

Supreme Court nor the D.C. Circuit has established a bright-line

three-month rule.   See Clark Cnty. Sch. Dist., 532 U.S. at 273-

74; Hamilton v. Geithner, 666 F.3d 1344, 1357-58 (D.C. Cir.

2012).   Instead, courts in this Circuit have evaluated the

specific facts of each case to determine whether inferring

causation is appropriate.   See Hamilton, 666 F.3d at 1358-59

(measuring time between filing of formal EEO complaint and

adverse employment action, which was just under three months,

and finding that a pattern of antagonism leading up to the

adverse action supported inference of causation).

     Here, the time between Nguyen’s initial EEO contact

(February 11, 2005) and his non-selection for the Chief Engineer

position (April 15, 2005) was approximately two months.

Further, the time between Nguyen’s formal EEO complaint (March

24, 2005) and the non-selection was less than one month.    This

close temporal proximity is, therefore, sufficient for the Court

to infer a causal connection.   In addition, there is, at the

very least, a genuine issue of material fact as to whether any

member of the panel that selected Stephen Stump for the Chief

Engineer position in April 2005 was aware of Nguyen’s EEO

activity.   The record reflects that the panel involved in rating

candidates for the selection included Paul Gross, although it

does not appear that Gross was involved in interviewing any of

                                50
 
the candidates.    See Def.’s Reply, Ex. 4, at 1.   Mr. Gross was,

however, listed as the ultimate selecting official.     See id. at

2.   The record also reflects that Mr. Gross was interviewed in

connection with Nguyen’s 2005 EEO complaint, thus making it

plausible that Gross was aware of the complaint before the April

2005 selection of Stump.    See 2005 Transcript at 150-57.   The

Court therefore concludes that there is sufficient evidence in

the record to infer a causal connection between Nguyen’s

protected activity and his non-selection for the Chief Engineer

position in order to demonstrate a prima facie case.     See Cones,

199 F.3d at 521.

      Because Nguyen has demonstrated a prima facie case of

retaliation, the burden thus shifts to Defendant to assert a

legitimate, non-discriminatory reason for its action.    As noted

above, Defendant did not construe Nguyen’s Complaint as alleging

retaliation based upon the selection of Stump as Chief Engineer.

Therefore, Defendant did not address this claim at all, let

alone offer any legitimate, non-discriminatory reason for its

action.    Accordingly, the Court finds that summary judgment is

not appropriate as to this claim.

      C.    Hostile Work Environment Claims

      In both his Amended Complaint and his Complaint in case

number 10-1030, Plaintiff alleges only in passing that Defendant

“created a hostile work environment based on age” in violation

                                 51
 
of the ADEA.      Am. Compl. ¶ 1; see also Compl., No. 10-1030, at

2.   Throughout his Amended Complaint, however, Plaintiff alleges

acts that can only be read as part of a hostile work environment

claim based on Plaintiff’s race and national origin, in addition

to age.   See, e.g., Am. Compl. ¶¶ 14-17 (alleging that Gross has

not assigned Nguyen a major area of responsibility, has stripped

Nguyen of substantive engineering work, has given Nguyen fewer

performance awards than other similarly situated Caucasian

engineers with less experience, and continues to exclude Nguyen

from major duties and responsibilities); id. ¶¶ 19-21, 28

(regarding Chief Engineer Dulai’s comments about Vietnamese

people and his threat that Nguyen should look for a different

position).    Nguyen also alleges that Defendant has repeatedly

denied Nguyen promotions to higher grade positions for which he

was qualified, in favor of substantially younger, Caucasian

employees.     See, e.g., id. ¶ 22.     Because Plaintiff is

proceeding pro se, the Court construes the allegations in his

complaints liberally to include claims for hostile work

environment based on race, national origin, and age.       The Court

concludes that Nguyen’s allegations do not rise to the level of

a hostile work environment on any of those bases.

             1.    Exhaustion and Unrelated Allegations

      Defendant argues that Nguyen failed to exhaust many of his

hostile work environment claims and that other allegations

                                   52
 
raised for the first time in his civil complaint are not

reasonably related to his administrative claims.

     Whatever impact Morgan may have had on other types of Title

VII claims, there appears to be no confusion as to its holding

regarding hostile work environment claims: plaintiffs may

incorporate non-exhausted allegations into a hostile work

environment claim so long as some allegations were exhausted and

all of the allegations together form one hostile environment

claim.    See Morgan, 536 U.S. at 115 (holding that for purposes

of exhaustion, “[h]ostile environment claims are different in

kind from discrete acts” because “[t]heir very nature involves

repeated conduct”); Nurriddin v. Goldin, 382 F. Supp. 2d 79, 107

n.10 (D.D.C. 2005).

     In his 2005 EEO contact, Nguyen alleged the following as

the basis of his continuing hostile work environment claim:

     1.     On January 5, 2005, Dulai suggested that Nguyen leave
            his job and look for another position to avoid future
            adverse action;
     2.     On January 5, 2005 and continuing to the present,
            Management continues to manipulate position
            qualifications and deny Nguyen’s job experience to
            deny him assignments and advancement opportunities in
            favor of less experienced engineers;
     3.     Management encourages the community to exclude Nguyen
            from important program reviews, the latest of which
            was the ISIS kick-off meeting at Kollmorgen on
            February 9, 2005.

See Def.’s SMF ¶ 16; 2005 ROI at 15-16.   In his 2007 contact,

however, Nguyen did not allege a hostile work environment claim,


                                 53
 
nor did he include any facts that could support such a claim.

See 2007 ROI at 2-3, 18 (claiming continuing failure by PMS 435

to promote him to Chief Engineer position on three specific

occasions).                           Therefore, only allegations that form a part of the

claims in Nguyen’s 2005 complaint will survive.                                    The Court

construes any allegations related to (1) Dulai’s statements to

Nguyen, (2) management’s denial of assignments and advancement

opportunities to Nguyen, and (3) exclusion of Nguyen from

meetings/events to form part of those claims.21

              By contrast, Plaintiff’s allegations that, after being

selected as Chief Engineer in 2007, Sayegh has not assigned

additional SBIR projects to Nguyen, see Am. Compl. ¶ 49, cannot

be said to form part of the same hostile work environment, nor

are they “like or reasonably related to” the allegations raised

in Nguyen’s administrative complaint, Akridge v. Gallaudet

Univ., 729 F. Supp. 2d 172, 180-81 (D.D.C. 2010) (finding that

plaintiff had not exhausted his administrative remedies with

respect to his hostile work environment claim because it was not

“like or reasonably related to” the single claim of

discrimination for non-selection that plaintiff alleged in his

administrative complaint).                                     In addition, because the

administrative complaint described management’s denial of
                                                            
              21
       Nguyen does not appear to allege that exclusion from any
meetings or events forms the basis of the claims in either his
Amended Complaint or his Complaint in case number 10-1030.
                                                                  54
 
assignments and advancement opportunities as comprising “January

5, 2005 . . . to the present,” the claims were insufficient to

put the agency on notice that Nguyen was alleging a hostile work

environment claim that encompassed decisions Gross may have made

in 1998.   See Grosdidier v. Broad. Bd. of Governors, 774 F.

Supp. 2d 76, 99 (D.D.C. 2011) (“[Plaintiff’s] formal complaint

listed the dates of discriminatory conduct as extending from

January 2007 to the present, meaning that the agency would not

have had a basis to investigate [plaintiff’s] claims . . . that

occurred before January 2007.”); Patterson v. Johnson, 391 F.

Supp. 2d 140, 146 (D.D.C. 2005) (finding that untimely acts

committed by supervisor were not related to claim of retaliatory

reassignment by the same supervisor).   These allegations are

thus untimely and cannot form part of Nguyen’s hostile work

environment claims.

           2.   Plaintiff’s Claims

     To prevail on a hostile work environment claim, “a

plaintiff must show that his employer subjected him to

‘discriminatory intimidation, ridicule, and insult’ that is

‘sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.’”

Baloch, 550 F.3d at 1201 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)); Hussain v. Nicholson, 435 F.3d 359, 366

(D.C. Cir. 2006).   To determine whether a hostile work

                                55
 
environment exists, the Court “looks to the totality of the

circumstances, including the frequency of the discriminatory

conduct, its severity, its offensiveness, and whether it

interferes with an employee’s work performance.”    Baloch, 550

F.3d at 1201 (citing Faragher v. Boca Raton, 524 U.S. 775, 787-

88 (1998)); see also Lester v. Natsios, 290 F. Supp. 2d 11, 22

(D.D.C. 2003) (“The key terms, then, are ‘severe,’ ‘pervasive,’

and ‘abusive,’ as not just any offensive of discriminatory

conduct rises to an actionable hostile work environment.”).    The

Supreme Court has made clear that the “conduct must be extreme

to amount to a change in the terms and conditions of

employment.”   Faragher, 524 U.S. at 788.   By adhering to these

standards, the Court thereby “ensure[s] that Title VII does not

become a general civility code” that involves courts in policing

“the ordinary tribulations of the workplace, such as the

sporadic use of abusive language, gender-related jokes, and

occasional teasing.”   Faragher, 524 U.S. at 788 (internal

quotation marks and citations omitted); see also Clark Cnty.

Sch. Dist., 532 U.S. at 271 (holding that “simple teasing,

offhand comments, and isolated incidents (unless extremely

serious)” are insufficient (citation omitted)).    In addition,

Courts in this District have routinely held that “hostile

behavior, no matter how unjustified or egregious, cannot support

a claim of hostile work environment unless there exists some

                                56
 
linkage between the hostile behavior and the plaintiff’s

membership in a protected class.”       Na’im v. Clinton, 626 F.

Supp. 2d 63, 73 (D.D.C. 2009) (citing Baloch, 550 F.3d at 1201).

        Plaintiff makes allegations regarding two potential sources

of a hostile work environment: (1) insensitive statements made

by Chief Engineer Dulai, and (2) management’s denial of higher-

level assignments and advancement opportunities to Nguyen, in

favor of less experienced, Caucasian engineers.      The Court will

address each in turn.

                   a.   Statements Made by Dulai

        Nguyen alleges that, “[o]n several occasions, Dulai spoke

about the Viet Nam War and told Nguyen that Vietnamese people

ought to be grateful for having a job at NAVSEA.”      Am. Compl.

¶ 19.    Nguyen states that these comments revealed Dulai’s

prejudice towards Vietnamese people and were very upsetting to

Nguyen.     Id.   According to Nguyen, Dulai made these comments “on

and off” around the year 2001, and Nguyen believed he made these

comments less than ten times.      See Def.’s MSJ, Ex. 11, Nguyen

Dep. at 33-35.     In addition, Nguyen alleges that Dulai stated

that, “in contrast to Asians, [Dulai] considered his racial

identity [Indian Sikh] to be more like that of a Caucasian

person.”    Am. Compl. ¶ 20.    Nguyen asserts that “on many

occasions,” Dulai mocked the accent of another Vietnamese

employee, and Dulai would contrast his own manner of speaking,

                                   57
 
which had less of an accent.   Id. ¶ 21.   Finally, according to

Nguyen, in December 2004, Dulai “approached Nguyen privately and

threatened that the new Chief Engineer will target him with

harassment, lest Nguyen leaves his Assistant Chief Engineer

position for another position outside PEOSUB.”    Id. ¶ 28.   Dulai

also offered to provide Nguyen a positive reference if he

applied for an outside position.     Id.

     These allegations are insufficient to establish a hostile

work environment.   Allegations of disparaging remarks and other

negative comments do not sufficiently demonstrate a significant

level of offensiveness.   See, e.g., Harris, 510 U.S. at 21

(“[M]ere utterance of an . . . epithet which engenders offensive

feelings in a[n] employee does not sufficiently affect the

conditions of employment to implicate Title VII.” (internal

quotation marks and citation omitted)); George v. Leavitt, 407

F.3d 405, 416-17 (D.C. Cir. 2005).    In George, the D.C. Circuit

held that statements by three employees over a six-month period

telling a plaintiff to “go back where she came from,” separate

acts of yelling and hostility, and allegations that the

plaintiff was not given the type of work she deserved, were

isolated instances that did not rise to the level of severity

necessary to find a hostile work environment.    407 F.3d at 408-

09, 416-17.   Here, the Court cannot infer that Dulai’s

statements that “Vietnamese people should be grateful for having

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a job at NAVSEA” and his mocking of another Vietnamese

individual’s accent were so extreme and pervasive that they

altered the conditions of Nguyen’s employment.22                               Instead, they

constitute isolated incidents that simply do not rise to the

level of a hostile work environment.                                See George, 407 F.3d at

416-17; Badibanga v. Howard Univ. Hosp., 679 F. Supp. 2d 99,

103-04 (D.D.C. 2010) (finding allegations that plaintiff’s

accent was criticized in front of others on more than one

occasion, he was told he was easy to replace with an American,

and was told that his supervisor would not hire other Africans

were insufficiently severe and pervasive to constitute a hostile

work environment).

              Further, Nguyen offers no evidence from which a reasonable

fact-finder could infer that Dulai’s statement advising that

Nguyen look for another job was hostile.                               According to Nguyen’s


                                                            
              22
       Moreover, when asked about Dulai’s comparison of himself
to Caucasians, Nguyen responded, “I don’t recall the situation,
but it stuck in my mind that throughout he behaved like ‘Yeah,
I’m superior to you Vietnamese and people like that.’” Def.’s
MSJ, Ex. 11, Nguyen Dep. at 41. According to Nguyen, “[Dulai]
said . . . his culture is like the Greek culture, that he has
white complexion people [sic], that he -- at one time, I believe
we were talking about the -- some Greek wedding movie. And then
he said ‘[y]eah. We do the same thing. We have dances, unlike
the Asian, other Asian people. They don’t have dances and things
like that.’” Id. Nguyen’s testimony about this conversation
reveals only his subjective interpretation that Dulai’s
statements contained discriminatory animus. Without more, this
comment is insufficient to establish a severe or pervasive
environment. See Ramey v. Potomac Electric Power Co., 468 F.
Supp 2d. 51, 58 (D.D.C. 2006).
                                                               59
 
testimony, sometime in December 2004, Dulai called Nguyen aside

and said: “Let me be a friend to you. If you want to avoid any

hardship later on, any harassment later on, if I were you I

would move to another job, I would apply for another job.”             2005

Transcript at 78.       Dulai purportedly added that he would write

Nguyen a good recommendation so that he could get hired

somewhere else.        Id.    At most, this statement amounts to an

“offhand comment[] [or] isolated incident[],” which did not

amount to a discriminatory change in the terms and conditions of

Nguyen’s employment.           Faragher, 524 U.S. at 788.   Therefore, no

reasonable jury could find that Dulai’s statements were

sufficiently severe that Nguyen’s workplace was “permeated with

discriminatory intimidation, ridicule, and insult.”            Harris, 510

U.S. at 21 (internal quotation marks and citation omitted).

                  b.         Denial of Assignments and Advancement
                             Opportunities

     Nguyen also alleges that management, in particular Mr.

Gross, denied him desirable assignments and job advancement

opportunities in favor of younger, Caucasian employees.              See Am.

Compl. ¶¶ 17, 22; see also Pl.’s Opp’n at 5.

     Nguyen points to no evidence suggesting that these denials

were connected to Nguyen’s race, national origin, or age.             Most

importantly, Nguyen does not present sufficient evidence that

these denials created a workplace that was “permeated with


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‘discriminatory intimidation, ridicule, and insult.’”     Harris,

510 U.S. at 21 (citation omitted); see also Nurriddin v. Bolden,

674 F. Supp. 2d 64, 94 (D.D.C. 2009) (“[T]he removal of

important assignments, lowered performance evaluations, and

close scrutiny of assignments by management [cannot] be

characterized as sufficiently intimidating or offensive in an

ordinary workplace context.”); Bell v. Gonzales, 398 F. Supp. 2d

78, 92 (D.D.C. 2005) (finding that actions such as exclusion

from the informal chain of command, close monitoring of work,

missed opportunities for teaching, travel, and high-profile

assignments, and reassignment to another work unit did not

amount to a hostile work environment because “they cannot fairly

be labeled abusive or offensive”).

      Even construing the facts in the light most favorable to

Plaintiff, the Court finds that no reasonable jury could

conclude that the actions Plaintiff alleges were “sufficiently

severe or pervasive to alter the conditions of [his] employment

and create an abusive working environment.”     Baloch, 550 F.3d at

1201 (quoting Harris, 510 U.S. at 21).     Accordingly, summary

judgment in favor of Defendant is appropriate with respect to

Nguyen’s hostile work environment claim.

IV.   CONCLUSION

      For the foregoing reasons, the Court hereby GRANTS IN PART

AND DENIES IN PART Defendant’s Motion for Summary Judgment.

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Defendant’s Motion for Summary Judgment is hereby GRANTED as to

Plaintiff’s discrete claims of discrimination under Title VII

and the ADEA, Plaintiff’s hostile work environment claims, and

Plaintiff’s retaliation claim as it applies to ASSEP funding.

However, Defendant’s Motion for Summary Judgment is DENIED as to

Plaintiff’s retaliation claim based upon his April 2005 non-

selection for the Chief Engineer position.   An appropriate Order

accompanies this Memorandum Opinion.


SIGNED:   Emmet G. Sullivan
          United States District Court Judge
          September 30, 2012




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