                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
MARCUS MCDANIEL,              )
                              )
          Plaintiff,          )
                              )
                v.            )   Civil Action No. 12-723 (EGS)
                              )
THOMAS VILSACK,               )
Secretary of USDA,            )
          Defendant.          )
______________________________)

                       MEMORANDUM OPINION

     Plaintiff Marcus McDaniel worked as a Safety & Occupational

Health Manager for the Natural Resources Conservation Service

(“NRCS”) at the U.S. Department of Agriculture (“USDA”) from

August 2008 to July 2009. Compl., ECF No. 1, ¶ 1. Mr. McDaniel

(African-American) was terminated during his one-year

probationary period for unsatisfactory performance and behavior.

Id. On May 4, 2012, Mr. McDaniel filed a Complaint against the

Secretary of Agriculture, Thomas Vilsack (“Secretary” or

“Defendant”), alleging that Mr. McDaniel’s supervisors

discriminated against him because of his race and sex by

harassing him and terminating his employment in violation of

Title VII of the Civil Rights Act of 1964, 43 U.S.C. § 2003, et

seq., and 42 U.S.C. § 1981. Id. The Secretary has moved for

summary judgment on the basis that Mr. McDaniel was lawfully
terminated during his one-year probationary period for

legitimate, non-discriminatory reasons, including his aggressive

and unprofessional behavior. Def.’s Mem. Supp. Mot. Summ. J.

(“Def.’s Mem. Supp.”), ECF No. 32 at 7. Defendant further

maintains that Mr. McDaniel is unable to prove the stated

reasons for his termination were actually pretext for racial or

sexist animus. Id. 23-24. Upon review of Defendant’s motion, the

responses and replies thereto, and for the reasons discussed

below, Defendant’s Motion for Summary Judgment is GRANTED. 1

    I.     BACKGROUND

         A. Mr. McDaniel’s employment at NCRS

         Mr. McDaniel started working for NCRS on August 18, 2008 as

its Safety and Occupational Health Manager, subject to a one-year

probationary period. Compl. ¶ 4. Ms. Sandra McWhirter (African

American) served as Mr. McDaniel’s immediate supervisor and Mr.

John      Glover   (African   American)    served   as   his   second   level

supervisor. Id. ¶ 7. Mr. McDaniel got along well with Ms. McWhirter

and Mr. Glover. Id. In April 2009, Mr. McDaniel received a positive

review from Ms. McWhirter. See ECF No. 35-10 at 1-8.

         Mr. McDaniel claims that “everything changed” in January

2009 when Mr. Glover, who served as the head of Human Resources

(“HR”), was replaced by Ms. Eloris Speight (African American)


1 This case was randomly referred to the undersigned on April 6,
2016. See April 6, 2016 docket entry.
                                   - 2 -
who “took an active dislike to plaintiff.” Id. ¶ 8. One point of

contention between Ms. Speight and Mr. McDaniel was her concern

about where his position should fall within the USDA’s

organizational structure. McDaniel 2014 Dep., ECF NO. 32 at 80;

26: 6-20. Ms. Speight even directed Mr. McDaniel to research the

question. Id. 73:21-22. Mr. McDaniel perceived Ms. Speight’s

inquiry as a threat, alleging that Ms. Speight “threateningly

pointed out to plaintiff that she could fire him at any time——

and for no reason at all——during his probationary period . . .

.” Id. ¶ 10. In June 2009, Ms. McWhirter was replaced by Ms.

Yevette Gray (African American) and Ms. Letitia Tommer (African

American). After this transition, Mr. McDaniel alleges that

“things became even more hostile” for him. Pl.’s Mem. Opp. at 3.

     The remainder of Mr. McDaniel’s Complaint includes sparse

factual allegations. Mr. McDaniel summarily argues that

“defendant, through his subordinate managers at the NRCS,

discriminated against plaintiff based on his race and sex by (i)

harassing him on the job (ii) preventing him from performing his

duties and responsibilities, and (iii) terminating his

employment with USDA and removing him from the Federal Service

effective July 31, 2009.” Compl. ¶ 16. Although not alleged in

his Complaint, Mr. McDaniel testified during his deposition that

Ms. Speight told him that he is not white and should “stop

acting white.” McDaniel Deposition, ECF No. 32 at 82; 32: 3-13.

                             - 3 -
Ms. Speight denies ever making such a statement. Speight Dep.,

ECF No. 35 at 23. Mr. McDaniel also testified that his

termination was motivated by race and his gender because:

          The fact that me being articulate and well-
          versed in what I was doing was either
          unacceptable to Eloris, Yvette, and Tish, or
          unbelievable. So I assumed they had a common
          mind frame, like if – it can’t be what it looks
          like, so why are we to assume anything other
          than what Eloris is telling us, or why do we
          care, why don’t we look into it for ourselves.

McDaniel 2011 Dep., ECF No. 32, 12-13.

     B. Concerns about Mr. McDaniel’s aggressive behavior and
        professionalism

     Numerous colleagues expressed concern about Mr. McDaniel’s

aggressive and unprofessional behavior. Def.’s Mem. Supp., ECF

No. 32 at 3-7. The reported incidents generally involved Mr.

McDaniel acting unprofessionally by raising his voice to

superiors, making inappropriate comments and displaying

disrespectful body language during meetings. See e.g. Deposition

of Denise Cooke (“Cooke 2011 Dep.”), ECF No. 32 at 25, Ex. 2 at

117:18 – 118:1 (“I heard his loud voice more than one time.”);

Deposition of Eloris Speight (“Speight 2011 Dep.), ECF No. 32 at

37, Ex. 3 at 92:16 – 92:21 (testifying that Mr. McDaniel often

raised his voice to the point that Ms. Speight felt that “she

was not going to take his disrespect, you know, any longer.”).

One incident was so disturbing that agency employees discussed

whether they should call security. See e.g. Deposition of Sandra

                              - 4 -
Detter (“Detter 2011 Dep.”), ECF No. 32 at 53, Ex. 4 at 59:5-

59:17 (“ I remember [] when I heard a loud and angry male voice

coming through the wall from the next – from the office next

door . . . the incident was unusual because it was not normal to

be able to hear voices through the wall.”); Id. at 61:13-61:15

(“Well, I wonder[ed] what’s going on, Denise said you need to

call – should we call security, you know, we don’t know – we

didn’t know what to do.”). Mr. McDaniel does not deny that he

raised his voice to his supervisors, but testified that “I would

not have said anything in a threatening manner.” Deposition of

Marcus McDaniel (“McDaniel 2014 Dep.”), ECF No. 32 at 86, Ex. 9.

     Several female staff members testified that they felt

“afraid” of Mr. McDaniel, particularly because they believed he

was allowed to carry a gun for his duties. Cooke Dep., ECF No.

32 at 34; 121:11-122:10 (“Q. Then on what basis where you afraid

of him? A. Because I heard him expressing a loud voice. [] He

seemed to have something pinned up or built up inside of him and

I felt intimidated.”) Some staff members created an escape plan

in the event Mr. McDaniel “snapped” and turned violent. Cooke

2011 Dep. at 119:8–119:19 (“He put me in fear that he might

snap” and “if he snapped, I’m not sure what he might do.”).

     Mr. McDaniel was also prone to acting unprofessionally in

meetings. Detter 2011 Dep., ECF No. 32 at 55; 18:10-18:19;

23:14-23:17. Mr. McDaniel would throw himself back in his chair,

                             - 5 -
roll his eyes, and sigh. Id., ECF No. 32 at 59; 54: 5-10 (“at

the time, I had a teenage daughter at home – and he was acting

just like her, and I thought it was just disrespectful.”).

Several employees also observed and reported Mr. McDaniel’s rude

and inappropriate behavior towards his supervisor, Ms. Speight.

Deposition of Rebecca Rogenbuck (“Rogenbuck Dep.”), ECF No. 32

at 6, 60:18-61:13 (“Q: And when he told you that he said this to

her, what was your opinion of that communication by Mr.

McDaniel? A: I thought that was a rude thing to say to a

supervisor.”).

     C. Mr. McDaniel’s termination

     Toward the end of Mr. McDaniel’s probationary period, Ms.

Speight conducted a meeting of his current supervisors and other

HR personnel to discuss whether Mr. McDaniel passed his

probationary period. Speight Dep., ECF No. 32 at 42 -43. At that

meeting, no disagreement was expressed with the recommendation

to terminate Mr. McDaniel, whose termination letter stated, in

part:

          Based on feedback received from management, it
          has been determined that your conduct in
          performing your job has been unsatisfactory.
          During your short tenure with the Agency, you
          have demonstrated an unwillingness to accept
          direction and accomplish work items as
          prescribed. Moreover, the manner in which you
          have behaved in dealings with management and
          other agency personnel related to such matters
          as Environmental Management Systems (EMS),
          interagency   contract    acquiring   Employee

                             - 6 -
          Assistance Program (EAP) and Office of
          Workers’ Compensation (OWCP) services, etc.,
          has been challenging and unprofessional. It is
          our    determination    that    during    your
          probationary period you have failed to
          demonstrate your potential to be an asset to
          the agency.

McDaniel Termination Letter, ECF No. 32-1 at 72.

     In support of this litigation, Mr. McDaniel obtained

affidavits from Mr. Glover and Ms. McWhirter. Glover Aff., ECF

No. 35, Ex. 12; McWhirter Aff., ECF No. 35, Ex. 13. Mr. Glover

states that “[d]uring the time I was his second line supervisor,

I had no issues or concerns with [Mr. McDaniel’s] performance,

conduct or attitude.” Glover Aff. at 2. Ms. McWhirter noted that

she gave Mr. McDaniel a positive April 2009 review, rating him

“fully successful.” McWhirter Aff. at 3. Ms. McWhirter also

stated that she never received any Complaints about Mr. McDaniel

until Ms. Speight became Acting Director. Id. Both Mr. Glover

and Ms. McWhirter state that they do not have a basis to

conclude that Mr. McDaniel was terminated because of his race or

sex. Glover Aff. at 5; McWhirter Aff. at 6.

  II.   DISCUSSION

     A. Summary Judgment Standard

     Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment is appropriate if the pleadings on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

                             - 7 -
is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c). Material facts are those that “might affect the outcome

of the suit under the governing law.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). The party seeking summary

judgment bears the initial burden of demonstrating an absence of

a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.

1994).

  In considering whether there is a triable issue of fact, the

court must draw all reasonable inferences in favor of the non-

moving party. Tao, 27 F.3d at 638. The non-moving party's

opposition, however, must consist of more than mere unsupported

allegations or denials and must be supported by affidavits or

other competent evidence setting forth specific facts showing

that there is a genuine issue for trial. Fed. R. Civ. P. 56(e);

see Celotex Corp., 477 U.S. at 324. In employment discrimination

cases, summary judgment is appropriate “where either evidence is

insufficient to establish a prima facie case, or, assuming a

prima facie case, there is no genuine issue of material fact

that the defendant's articulated non-discriminatory reason for

the challenged decision is pretextual.” Paul v. Fed. Nat'l

Mortgage Ass'n, 697 F. Supp. 541, 553 (D.D.C. 1988) (citations

omitted).



                             - 8 -
  B. Termination of probationary employees under 5 C.F.R.
     § 315.803-04

  Federal regulations require that agencies “shall utilize the

probationary period as fully as possible to determine the

fitness of the employee and shall terminate his services during

this period if he fails to demonstrate fully his qualifications

for continued employment.” 5 C.F.R. § 315.803. As reasoned by

the Fifth Circuit:

          There is ample basis for Congress's concluding
          that a healthy Civil Service System . . . would
          itself be jeopardized or weakened by denying
          the Government the benefit available in nearly
          all   selective   programs   of   testing   the
          competency and capacity of the new employee
          during a fixed but limited probationary or
          trial period.

Jaeger v. Freeman, 410 F.2d 528, 531 (5th Cir. 1969). An agency

must terminate probationary employees during their trial period

if the employee “fails to demonstrate his fitness or his

qualifications for continued employment . . . .” 5 C.F.R.

§ 315.804; see also Stanton v. Reukauf, 10-CV-633 RLW, 2012 WL

379931, at *5 (D.D.C. Feb. 6, 2012), aff'd, 12-5390, 2013 WL

3357807 (D.C. Cir. June 20, 2013) (noting that managers have

maximum discretion to retain or remove probationary employees)

(citations omitted).

     C. Title VII and Section 1981

     Title VII of the Civil Rights Act of 1964 prohibits adverse



                              - 9 -
employment actions on the basis of “race, color, religion, sex

or national origin.” See 42 U.S.C. § 2000e-2(a)(1). 2 Race

discrimination claims under Section 1981 require proof of

intentional discrimination. 42 U.S.C. § 1981. Both Title VII and

Section 1981 claims may be proven through direct evidence, or

with indirect evidence using the McDonnell Douglas burden-

shifting framework. Robinson v. Chao, 403 F. Supp. 2d 24, 33

(D.D.C. 2005) (citation omitted).

     Courts have not explicitly defined what constitutes “direct

evidence,” but “it is clear that at a minimum, direct evidence

does not include stray remarks in the workplace, particularly

those made by nondecision-makers or statements made by

decisionmakers unrelated to the decisional process itself.”

Brady v. Livingood, 456 F. Supp. 2d 1 at 6 (D.D.C. 2006)

(quoting Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86,

96 (1st Cir. 1996)) (internal quotations and citations omitted);

see also Price Waterhouse v. Hopkins, 490 U.S. 228, 251-52


2 Although Mr. McDaniel alleges in his complaint that he was
unlawfully terminated due to his race and gender, his Opposition
Memorandum mentions gender discrimination once in a footnote:
“Ms. Speight’s comment by a Black female to a Black male suggest
gender bias as well.” Pl.’s Mem. Opp., ECF No. 35 at 10. This
conclusory allegation is insufficient to prevail on summary
judgment because other than the fact that a majority of his
colleagues were black women, Mr. McDaniel cites no specific
facts sufficient to support an “inference of discrimination”
based on his gender.



                              - 10 -
(O’Connor, J., concurring) (noting that while potentially

probative of discrimination, “stray remarks do not satisfy a

plaintiff’s burden of proving discrimination by direct

evidence.”).

     Where direct evidence of discrimination is not present, a

plaintiff may indirectly prove discrimination through the

McDonnell Douglas burden-shifting framework. First, the

plaintiff must make a prima facie case of racial discrimination

by presenting credible facts. McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973); Abdelkarim v. Tomlinson, 605 F. Supp. 2d

116, 120-21 (D.D.C. 2009). 3 Once a prima facie case has been

made, the burden shifts to the defendant to rebut the

presumption of discrimination by “producing evidence that the

adverse employment action were taken for a legitimate,

nondiscriminatory reason.” Id. Finally, if the rebuttal is




3 A plaintiff makes out a prima facie case of race discrimination
under Title VII and Section 1981 by establishing that (1) he is
a member of a protected class; (2) he suffered an adverse
employment action; and (3) the unfavorable action gives rise to
an inference of discrimination. Id. Etoh v. Fannie Mae, 883 F.
Supp. 2d 17, 35 (D.D.C. 2011) (citing Royall v. Nat’l Ass’n of
Letter Carriers, 548 F.3d 137, 144 (D.C. Cir. 2008); see also
Chao, 403 F. Supp. 2d at 33 (“The standards and order of proof
in section 1981 cases have been held to be identical to those
governing Title VII disparate treatment cases.”) (citation
omitted).



                              - 11 -
successful, the burden shifts back to the plaintiff to show that

the employer’s nondiscriminatory reason was pretext. Id.

     However, where the defendant asserts a legitimate, non-

retaliatory explanation for the alleged adverse actions, “the

district court should . . . proceed[] to the ultimate issue of

[discrimination] vel non instead of evaluating whether

[plaintiff] made out a prima facie case.” Jones v. Bernanke, 557

F.3d 670, 678 (D.C. Cir. 2009) (citing United States Postal

Service Bd. Of Governors v. Aikens, 460 U.S. 711, 716 (1983)

(holding that once an employer asserts a legitimate,

nondiscriminatory reason for its action, it “has done everything

that would be required . . . if the plaintiff had properly made

out a prima facie case,” so “whether the plaintiff really did so

is no longer relevant.”)).

     Here, Mr. McDaniel’s performance and behavior issues cited

by Defendant constitute legitimate non-discriminatory reasons

for his termination. Therefore, the question before the Court is

whether Mr. McDaniel has alleged sufficient facts for a

reasonable jury to agree with him that Defendant’s stated

reasons for his termination were in fact pretext for racial

discrimination. Pardo-Kronenmann v. Donovan, 601 F. 3d 599, 603-

604 (D.C. Cir. 2010) (holding that once a non-discriminatory

reason is given for an employer’s action, “the sole remaining

question” becomes “whether, based on all of the evidence, a

                             - 12 -
reasonable jury could conclude that [defendant’s] proferred

reason for the [action] was pretext for [discrimination].”)

     D. Mr. McDaniel’s racial discrimination claim fails

     Defendant argues that it was required to terminate Mr.

McDaniel during his probationary period because of his

unsatisfactory performance and behavior. Def.’s Mem. Supp. at

22. Mr. McDaniel does not respond to Defendant’s probationary

period argument. See generally Pl.’s Mem. Opp. Instead, Mr.

McDaniel argues that Ms. Speight’s alleged comments that he

should “stop acting white” and that she was going to “get rid of

him” constitute direct, or in the alternative, circumstantial

evidence of discrimination. Pl.’s Mem. Opp. at 8. Mr. McDaniel’s

alleged direct and circumstantial evidence will be analyzed in

turn.

        1. Ms. Speight’s alleged statements do not constitute
           direct evidence of discrimination

     Mr. McDaniel alleges that he was told he “would likely

suffer an adverse employment action at the same time he was

reminded that the decision maker considered his race (color) an

issue by making an invidious reference to his not being

‘white.’” Id. at 12-13. However, the record evidence does not

support Mr. McDaniel’s contention. First, Mr. McDaniel

misrepresents the context of Ms. Speight’s alleged “get rid of

you” statements; and second, no evidence in the record——not even


                              - 13 -
Mr. McDaniel’s deposition testimony——supports a finding of

temporal proximity between the two statements.

     Mr. McDaniel’s own testimony confirms that the context of

Ms. Speight’s comments about “getting rid of” him were made in

reference to where his position should fall on the NCRS’s

organizational chart. McDaniel 2014 Dep., ECF No. 32 at 80; 26:

6-20. During Mr. McDaniel’s 2011 deposition, he testified that

he could not remember the exact dates, but that Ms. Speight told

him several times that she was “going to get rid of you, either

you or your job is going to go or both, safety and health is not

a function, you are not going to be part of Human Resources.”

McDaniel 2011 Dep., ECF No. 32 at 8; 68: 8-13. Mr. McDaniel also

testified that Ms. Speight mentioned in a meeting with several

other people that “safety may be moving away to a different

department.” Id. at 9; 73: 18-20. Ms. Speight even had Mr.

McDaniel complete research to see where his position was

typically located in other agencies. Id.; 73: 21-22. Mr.

McDaniel’s Complaint also mentions these facts. Compl. ¶ 10

(“Ms. Speight claimed not to approve of having NRCS’s Safety &

Occupational Health Manager job . . . within the agency’s HR

unit . . . .”). 4 As noted above, Mr. McDaniel does not allege


4 Mr. McDaniel alleges that Ms. Speight “often threateningly
pointed out to plaintiff that she could fire him at any time –
for no reason all – during his probationary period . . . .”
Compl. ¶ 10. Although arguably unkind, Ms. Speight’s alleged
                             - 14 -
that Ms. Speight made the “stop acting white” comment in his

Complaint. See generally Compl.

     Moreover, Mr. McDaniel does not allege in his Complaint,

nor did he testify during his 2011 or 2014 depositions, that Ms.

Speight’s “get rid of” and “stop acting white” comments were

made contemporaneously. Id. Whereas Mr. McDaniel testified that

Ms. Speight made comments about the placement of his position

“several times,” he alleges that she made the “stop acting

white” comment only “on one occasion.” McDaniel 2011 Dep., ECF

No. 32 at 8; 68: 8-13. Thus, it is only in Mr. McDaniel’s

response brief to Defendant’s motion that the theory of a

relationship between Ms. Speight’s “get rid of” and “stop acting

white” comments is suggested. See generally Pl.’s Mem. Opp.

Based on the record evidence before the Court, no reasonable

juror could agree with Mr. McDaniel’s argument that there is

evidence of a temporal relationship between Ms. Speight’s

alleged “get rid of” and “stop acting white” statements. Absent

such a temporal nexus, the comments do not constitute direct

evidence of racial animus.




statement was accurate and does not evidence unlawful
discrimination. See e.g., Yu, 28 Fed. Appx. at 970 (holding that
an agency “need not show unsatisfactory performance in order to
discontinue employment during a probationary period.”).



                             - 15 -
     The Court must also consider whether Ms. Speight’s alleged

“stop acting white” statement independently constitutes direct

evidence of racial discrimination. Because Mr. McDaniel does not

allege the statement was made in reference to the decision to

terminate Mr. McDaniel, the statement cannot be considered

direct evidence of racial discrimination. See McDaniel 2011

Dep., ECF No. 32 at 8; 68: 8-13; Plummer v. Safeway, Inc., Civ.

No. 93-0316 (PLF), 1995 WL 129100, at *4 (D.D.C. Mar. 17, 1995)

(describing direct evidence of racial animus as “statements that

the plaintiff is being fired because of his race or gender.”).

This critical fact distinguishes this case from Ayissi-Etoh v.

Fannie Mae, the principal case relied on by Mr. McDaniel to

support his argument of direct racial discrimination. Pl.’s Mem.

Opp., ECF No. 35 at 9.

     In Ayissi-Etoh, the D.C. Circuit reversed the District

Court’s granting of summary judgment on a racial discrimination

claim where a superior was alleged to have justified not giving

an African American employee a pay raise by stating, “for a

young black man like you, we are happy to have your expertise, I

think I’m already paying you a lot of money.” 712 F.3d 572, 576

(D.C. Cir. 2013). Although the employer denied making the

statement, the Circuit concluded that the “young black man”

statement made in this context was sufficient direct evidence of

discrimination entitling Ayissi-Etoh to a jury trial. Id. at

                             - 16 -
577-78. Critically, the alleged statement in Ayissi-Etoh was

evidence of racial animus related (directly) to the adverse

action (i.e. no pay raise for the “young black man”).

     Here, Mr. McDaniel alleges that Ms. Speight told him to

“stop acting white,” but Mr. McDaniel does not allege a specific

date that this statement was made, nor does he draw a legitimate

connection between the alleged “stop acting white” statement and

his termination. McDaniel 2011 Dep., ECF No. 32 at 8; 68: 8-13.

Again, Mr. McDaniel fails to allege that Ms. Speight made the

“stop acting white” comment in his compliant. For these reasons,

Mr. McDaniel fails to establish any direct evidence of racial

discrimination.

      2. Mr. McDaniel fails to show that Ms. Speight’s alleged
         “stop acting white” comment is indirect evidence of
         racial discrimination

     Mr. McDaniel may still establish that the reasons given for

his termination were pretext for actual racial animus through

indirect, circumstantial evidence. The Court must analyze

whether a jury “could infer discrimination from the combination

of (1) the plaintiff's prima facie case; (2) any evidence the

plaintiff presents to attack the employer's proffered

explanation for its actions; and (3) any further evidence of

discrimination that may be available to the plaintiff ... or any

contrary evidence that may be available to the employer.”

Wheeler v. Georgetown Univ. Hosp., 812 F.3d 1109, 1115 (D.C.

                             - 17 -
Cir. 2016) (quoting Aka v. Washington Hosp. Ctr., 156 F.3d 1284,

1289 (D.C. Cir. 1998) (en banc)).

     Mr. McDaniel’s argument that Ms. Speight’s alleged “stop

acting white” comment creates an issue of triable fact for a

jury as indirect evidence of racial animus fails for the same

reasons that the statement alone does not constitute evidence of

direct racial animus. As highlighted by Mr. McDaniel, a remark

can “provide an inference of discrimination when the remark was

(1) made by the decision maker; (2) around the time of the

decision; and (3) in reference to the adverse employment

action.” Pl.’s Mem. Opp. at 10; quoting Hemsworth v.

Quotesmith.Com, Inc., 476 F.3d 487, 491 (7th Cir. 2007). As

discussed above, Mr. McDaniel does not allege that the “stop

acting white” statement was made around the time of the decision

to terminate him, or in reference to his termination. Ms.

Speight’s alleged “stop acting white” statement therefore does

not alone establish pretext.

      3. Mr. McDaniel’s other arguments related to pretext fail

     Mr. McDaniel makes several other arguments relating to

pretext. Mr. McDaniel could establish a triable issue relating

to pretext by demonstrating that the employer treated similarly

situated employees outside of Mr. McDaniel’s protected class

more favorably, a showing of inconsistent or dishonest

explanations, deviation from established procedures or criteria,

                               - 18 -
or a pattern of poor treatment of employees in the same

protected group as Mr. McDaniel. Id.; See also Royall v. Nat'l

Ass'n of Letter Carriers, AFL–CIO, 548 F.3d 137, 144

(D.C.Cir.2008) (“A plaintiff, who retains the burden of

persuasion throughout, may show pretext in a number of ways,

including by offering evidence of more favorable treatment of

similarly situated persons who are not members of the protected

class or that the employer is lying about the proffered

justification.” (citation omitted)).

       a. Mr. McDaniel cites no evidence that similarly situated
          employees were treated more favorably

     Mr. McDaniel argues that a jury could find that Ms. Speight

concealed her termination of another male employee for similar

“misconduct.” Pl.’s Mem. Opp. at 20. However, Mr. McDaniel does

not explain how this fact supports his theory of termination

based on pretext. Id. Indeed, only if white employees who

demonstrated similar behavior and performance problems were not

terminated within their probationary periods would Mr. McDaniel

be able to show pretext via inconsistent treatment of those

similarly situated individuals. McKenna v. Winberger, 729 F. 2d

783 (D.C. Cir. 1984) (holding that a probationary employee was

not similarly situated to a permanent employee and noting that

agency regulations “mandated that probationary employees with

serious performance problems were to be terminated, even if


                             - 19 -
those problems would not have been good cause for terminated a

permanent employee”).

     Mr. McDaniel does not attempt to show that similarly

situated probationary employees who were not African American

were treated more favorably. See generally, Pl.’s Mem. Opp.

Indeed, the only relevant evidence in the record favors

Defendant. Ms. Speight was asked during her deposition if she

terminated any other employees during their probationary period.

Speight Dep., ECF No. 32 at 52; 158-161. She confirmed that she

terminated close to ten individuals during their probationary

period. Id. Ms. Speight specifically testified that she was

delegated the authority to terminate a white male during his

probationary period for similar behavior displayed by Mr.

McDaniel——disrespectful body language and being argumentative

with the head of the agency. Id. Because Mr. McDaniel has failed

to produce any evidence of similarly situated employees not part

of his protected class who were treated more favorably during

their probationary periods, no reasonable juror could conclude

his termination was pretext for racial discrimination on this

basis.

         b. Conflicting testimony about who decided to terminate
            Mr. McDaniel does not establish pretext


     Mr. McDaniel argues that Ms. Speight made a “knowingly

false” statement related to who made the decision to terminate

                               - 20 -
him. Pl.’s Mem. Opp. at 11 (citing Ms. Speight’s Affidavit “I

did not made the decision to terminate Mr. McDaniel.”). Mr.

McDaniel points to the testimony of Ms. Gray and Ms. Toomer who

later testified that Ms. Speight did make the termination

decision. Id. Mr. McDaniel cites Evans v. Sebelius for the

proposition that “conflicting testimony regarding who made the

decision to take the adverse employment action is ‘precisely the

type of factual dispute that must be resolved in a jury room

rather than in the pages of the Federal Reporter.’” Id. at 12

(quoting Evans, 716 F.3d 617, 622-23 (D.C. Cir. 2013)). Mr.

McDaniel’s parenthetical summary of Evans is misleading. First,

Mr. McDaniel fails to acknowledge that Evans was a career

federal employee, not a new federal employee in her probationary

period like Mr. McDaniel. Evans, 716 F.3d at 618. Second, the

Circuit concluded there was a triable issue of fact for a jury

to decide based on at least three major substantive pieces of

evidence, none of which are present in an equivalent way here.

The entirety of the Circuit’s reasoning in Evans speaks for

itself:

          In the end, the record supports two plausible
          interpretations of what happened. One view,
          urged by Evans, is that Morrissey decided not
          to create the position because Evans and
          another African American had been selected to
          fill the two spots. The other view, urged by
          the government, is that no one in the incoming
          Administration championed the creation of the
          LDDS position. As an appellate court reviewing

                             - 21 -
            the   district  court's   grant  of   summary
            judgment, we have no authority to choose
            between these competing views. Given our
            “obligation to draw reasonable inferences in
            [Evans's] favor,” Salazar, 401 F.3d at 509,
            and given the record evidence that HHS (1)
            promoted whites but not African Americans
            during the hiring controls, (2) offered
            inconsistent and inaccurate explanations, and
            (3) is unable to identify who cancelled the
            LDDS position, a reasonable jury, especially
            in   light   of  Powell's   testimony   about
            Morrissey's and McCormick's comments, could
            find the Secretary's proffered explanation to
            be nothing more than a veil for racial
            discrimination. Ultimately, this is precisely
            the type of factual dispute that “must be
            resolved in a jury room rather than in the
            **56 *623 pages of the Federal Reporter.”
            Czekalski v. Peters, 475 F.3d 360, 362
            (D.C.Cir.2007).

Id. at 617, 622–23. Mr. McDaniel cites to no authority where a

dispute about who actually terminated a probationary federal

employee alone created a triable issue of fact for a jury to

consider.

       c. Mr. McDaniel fails to show that an alleged shift in
          the justification for his termination shows pretext

     Mr. McDaniel next argues that Ms. Speight’s shifting

justification from a critique of his performance to “her

personal and subjective feels [sic] about his ‘conduct’ would

support a jury finding of pretext and an inference of

discrimination.” Pl.’s Mem. Opp. at 14. Mr. McDaniel cites to

Aka v. Washington Hosp. Ctr. for the proposition that




                               - 22 -
courts treat an employer’s “subjective considerations with

caution.” 156 F.3d 1284, 1298 (D.C. Cir. 1998). Mr. McDaniel’s

application of this principle is again, however, taken out of

context.

     The Aka case dealt with alleged age and disability

discrimination based on Defendant Washington Hospital Center’s

failure to re-hire Mr. Aka for a new position after he had heart

surgery due to what one individual perceived as a “lack of

enthusiasm” expressed by Mr. Aka for the new position. Id. In

contrast, Mr. McDaniel’s behavior in the workplace, including

raising his voice and expressing dismissive body language to

superiors, was observed by several employees. See e.g. Cooke

2011 Dep., ECF No. 32 at 25, Ex. 2 at 117:18 – 118:1; Detter

2011 Dep., ECF No. 32 at 53, Ex. 4 at 59:5-59:17 (“I remember []

when I heard a loud and angry male voice coming through the wall

from the next – from the office next door . . . the incident was

unusual because it was not normal to be able to hear voices

through the wall.”). Moreover, even if Mr. McDaniel’s contention

that Ms. Speight “was the only official . . . to desire that Mr.

McDaniel be removed from his position,” is true, it does not

create a triable issue of fact for a jury because Mr. McDaniel

cites to no authority prohibiting a manager at a federal agency

from terminating an individual during their probationary period

for unprofessional behavior in the workplace. Id. at 12; see

                             - 23 -
also Francis v. Dist. of Columbia, 731 F. Supp. 2d 56, 71

(D.D.C. 2010) (“[T]he issue is not ‘the correctness or

desirability of [the] reasons offered ... [but] whether the

employer honestly believes in the reasons it offers.’”)(quoting

McCoy v. WGN Continental Broadcasting Co., 957 F.2d 368, 373

(7th Cir. 1992)).

       d. Mr. McDaniel’s allegations of a conspiracy do not
          establish pretext

       Finally, Mr. McDaniel argues that the record evidence

presents a triable issue of material fact relating to whether

Ms. Speight was “intimidated by and resented Mr. McDaniel as a

young, well-educated, African American male professional, and

whether because of her animus against Mr. McDaniel she fired him

based upon fabricated reasons.” Pl.’s Mem. Opp. at 26. Mr.

McDaniel alleges the other managers were similarly intimated and

convinced by Ms. Speight to participate in a cover up of the

racial animus driving his termination. Id. 23-24. Defendant

maintains that this argument is mere speculation. Def.’s Reply

at 17. The Court agrees.

      Mr. McDaniel “assumed” that those involved in the decision

to terminate him (Ms. Gray and Ms. Toomer) “had a common mind

frame” as Ms. Speight and discriminated against him with “the

same ideology, that it was not possible for a young, black male

to inform her of whether it be the EMS or anything else related


                             - 24 -
to safety . . . .” McDaniel 2011 Dep., ECF No. 32, 12-13; 116:4-

14. Beyond these assumptions and speculation, Mr. McDaniel

offers no evidence in the record or allegations related to a

conspiracy orchestrated by Ms. Speight and the other managers to

terminate him based on his status as a successful African

American male. Thus, Mr. McDaniel’s effort to show pretext based

on a conspiracy led by Ms. Speight fails. Ryan v. Reno, 168 F.3d

520, 524 (D.C. Cir. 1999) (“[t]he more valid a reason appears

upon evaluation, the less likely a court will be to find that

reason pretextual.”) (quoting Brazil v. United States Dep't of

Navy, 66 F.3d 193, 197 (9th Cir.1995)).

     For all of these reasons, Mr. McDaniel’s effort to show

that the reasons given for his termination were pretext for

unlawful discrimination fail. See Anderson v. Liberty Lobby,

Inc. 477 U.S. 242, 249-50 (1986) (noting that where the evidence

is merely colorable, or is not significantly probative, summary

judgment may be granted); Brady, 520 F. 3d 490 at 495 (“If the

employer’s stated belief about the underlying facts is

reasonable in light of the evidence, however, there ordinarily

is no basis for permitting the jury to conclude that the

employer is lying about the underlying facts.”).

      4. CONCLUSION

     For the foregoing reasons, and because there is no genuine

issue of material fact that the defendant's articulated non-

                             - 25 -
discriminatory reason for the challenged decision is pretextual,

Defendant’s Motion for Summary Judgment is GRANTED. An Order

accompanies this Memorandum Opinion, filed this same day.

SO ORDERED.

Emmet G. Sullivan
United States District Court
September 23, 2016.




                               - 26 -
