                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-1672


ALI DARVISHIAN,

                  Plaintiff - Appellant,

           v.

PETE GEREN, Secretary of the Department of the Army,

                  Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:08-cv-00009-TSE-TCB)


Argued:   September 21, 2010                 Decided:   December 14, 2010


Before GREGORY and KEENAN, Circuit Judges, and James C. DEVER
III, United States District Judge for the Eastern District of
North Carolina, sitting by designation.


Affirmed by unpublished opinion.        Judge Keenan wrote           the
opinion, in which Judge Gregory and Judge Dever joined.


ARGUED: Gary M. Gilbert, LAW OFFICES OF GARY M. GILBERT, PC,
Silver   Spring,  Maryland,   for  Appellant.    Leslie  Bonner
McClendon, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellee.   ON BRIEF: Thomas J. Gagliardo, Silver
Spring, Maryland, for Appellant. Dana J. Boente, United States
Attorney, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
KEENAN, Circuit Judge:

        Ali Darvishian, a 23-year civil servant of Iranian descent,

appeals the district court’s entry of summary judgment in favor

of his former employer, the Secretary of the Army (Secretary),

on claims brought under the Civil Rights Act of 1964 (Title

VII), as amended, 42 U.S.C. § 2000e et seq. (2006).                                Darvishian

alleged that the Secretary violated Title VII by removing him

from federal employment because he is Iranian and Muslim, and

because       he   filed    discrimination          claims     against       his   superiors

with the Equal Employment Opportunity Commission (EEOC).

        The    district     court       dismissed      these    claims,         holding    that

Darvishian presented insufficient evidence that the Secretary’s

nondiscriminatory           and       nonretaliatory     reasons       for      his    removal

were “pretext for discrimination.”                       See        Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 253 (1981).                                   The district

court    also      affirmed       a    final    decision       of    the    Merit      Systems

Protection Board (the Board) upholding Darvishian’s removal from

federal service.

        We    review    the    summary        judgment    decision         on   Darvishian’s

Title VII claims de novo, applying the same standard as the

district       court.         See      Fed.    R.     Civ.     P.    56(c);      Holland    v.

Washington         Homes,     Inc.,     487    F.3d    208,    213    (4th      Cir.    2007).

Under that standard, summary judgment is appropriate when “there

is no genuine issue as to any material fact.”                              Fed. R. Civ. P.


                                                2
56(c)(2); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d

289, 295 (4th Cir. 2010).                Therefore, summary judgment may be

granted when there is insufficient evidence for a jury to return

a verdict in favor of the nonmoving party.                            See Holland, 487

F.3d at 213.

       In our separate review of the Board’s decision, we must

affirm      the   Board       unless    the        decision      is   “(1)     arbitrary,

capricious,       an    abuse     of    discretion,         or      otherwise    not    in

accordance with law; (2) obtained without procedures required by

law,     rule,     or     regulation      having        been        followed;    or     (3)

unsupported by substantial evidence.”                   5 U.S.C. § 7703(c).            Upon

our    review     of    the    record,    we       affirm     the     district    court’s

judgment in both the Title VII action and the court’s review of

the Board’s decision.



                                           I.

       We   present      the    facts    in       the   light     most    favorable     to

Darvishian, and draw all reasonable inferences in his favor.

Holland, 487 F.3d at 213.                 The record before us shows that

before his removal from the federal service on July 7, 2006,

Darvishian was a General Engineer at the level of GS-14 working

for the Army Contracting Agency (the Agency), Capital District

Contracting       Center      (CDCC).         In    November      2005,      Acting    CDCC

Director Lieutenant Colonel Craig DeDecker announced an office-


                                              3
wide    reorganization          intended       to    streamline       CDCC      operations.

DeDecker sent an email to all CDCC employees providing a broad

outline      of    this     plan.          He       told     employees       that      a     new

organizational division, Construction and Engineering (C&E), was

being created and that William E. Campbell would become “Chief”

of     the   division.           The     email       identified       three      employees,

including Darvishian, who were scheduled to be assigned to C&E.

       DeDecker     attached       to    the    email      an    organizational        chart.

The chart identified both Campbell and Darvishian as GS-14 level

employees, and a line extended horizontally across the chart

from     Campbell’s        name     to     Darvishian’s           name.          Underneath

Campbell’s name, the chart stated, “Chief, Team 1.”

       One component of this reorganization involved placing all

contract specialists on a single floor of the CDCC building.                                 As

a    consequence,       certain     employees,         including      Darvishian,           were

required      to   relocate       their    offices         to   another    space    in      the

building.

       DeDecker     left     his       position       with      the   CDCC      before      the

reorganization was completed.                  However, his successor, Christine

Thompson, continued to implement the changes when she became the

permanent director of the CDCC in December 2005.

       On    February     22,   2006,     the       Deputy      Director   of    the       CDCC,

Brenda Jackson-Sewell, approached Darvishian in his office to

discuss a work-related matter.                      Darvishian asked her about a


                                                4
“rumor” circulating in the office that Darvishian would have to

move from his fixed office space to a cubicle.                     Jackson-Sewell

told Darvishian that this information was “not a rumor.”

     That same day, Campbell personally directed Darvishian to

relocate to a cubicle so that a new division chief could move

into his office.        Darvishian told Campbell that he would not

move, because he did not think that Campbell was “his boss.” 1

After he left Darvishian’s office, Campbell sent the following

email to Darvishian: “As your supervisor[,] it is not required

that any additional direction to mine be given.                    Therefore you

are directed to move to the last cubical [sic] in room 204.

This move has to [be] completed by [the close of business] 1

March 2006.”      Campbell sent a carbon copy of this email to

Thompson and to Jackson-Sewell.

     The following day, February 23, 2006, Darvishian approached

Thompson to express his concerns about Campbell’s order to move

Darvishian’s office.          The parties dispute the details of this

conversation,   but    it   is   clear       from   the   record   that   Thompson

confirmed to Darvishian that he needed to vacate his office.

     Darvishian       later      lodged       various      complaints      against

DeDecker, Campbell, and Thompson by sending an email, stating a

subject of “Discrimination,” to the head of the Agency.                    In the

     1
       Before this encounter, Campbell spent little or no time
supervising    Darvishian   because,    in   Campbell’s    words,
“[Darvishian] was a senior civil servant and he knew his job.”

                                         5
email,    Darvishian         expressed          his   concern       that       he     was    being

marginalized       by    his    superiors        and,      under    the    guise        of   being

ordered    to   move      his   office,         actually      was    being          pressured    to

leave the CDCC.            Darvishian provided the following examples of

his superiors’ conduct toward him.

     Darvishian explained that Thompson’s predecessor had sought

Darvishian’s        advice      in    planning        the    layout       of    cubicles        and

office spaces.           Darvishian stated that Thompson, however, had

excluded     him    from     similar       planning,        and     had   carried        out    the

office reorganization without consulting him.

     Darvishian          recounted         an   incident      in     November         2005     when

DeDecker     made    certain         inappropriate          comments      about       people     of

Middle    Eastern        descent.           Darvishian        recalled         that     DeDecker

bragged    that     he     would      be    able      to    kill     Muslims         during     his

upcoming     deployment         to     Iraq.          During       the    same        encounter,

Darvishian alleged, DeDecker asked, “Why [are you] all radical

Muslims[?]”         Darvishian        also      accused      DeDecker          of    threatening

Darvishian that if he “wasn’t gone” before DeDecker left the

CDCC, Jackson-Sewell and Bill Campbell would “finish[] the job”

for him. 2      Finally, Darvishian alleged that DeDecker improperly

had promoted a friend to a GS-14 level position.



     2
       Darvishian also described “rumors” that confirmed his
suspicion that he was being pressured to leave the CDCC.
According to these “rumors,” Darvishian was being ordered from

                                                 6
       Darvishian        next     accused       Campbell     of       improprieties      in

awarding Army contracts.               Darvishian complained that even though

Campbell was not his superior, Jackson-Sewell and Thompson had

confirmed       Campbell’s      order    that       Darvishian     relocate     from    his

office to a cubicle.              Darvishian maintained that Thompson had

“backed [Campbell] up” without considering Darvishian’s “side of

the story.”

       On receipt of the email, the Director of the Agency for the

Northern     Region       initiated      an        investigation       of   Darvishian’s

allegations.       The assigned investigator observed an ambiguity in

CDCC      hiring        procedures,       but         otherwise        concluded       that

Darvishian’s           allegations lacked merit.             The investigator also

concluded       that    DeDecker’s      reorganization       was      “based    on    sound

reasoning with no malicious intent,” and that “Darvishian had a

responsibility          to     comply    with       the    lawful      orders    of    his

superiors,” including DeDecker, Thompson, and Campbell.                               Based

on Darvishian’s complaints, the investigator recommended certain

changes    to    internal       operating      procedures,        including     that    all

supervisors        should       meet    with       their   new    employees      on     the

effective       date      of     any    reorganization           to    prevent       future

“communication gap[s].”




his office to “degrade” him and to make him “so unhappy that
[he] would want to leave.”



                                               7
     On   March     2,   2006,   Campbell   went     to   Darvishian’s     office

purportedly    to    deliver     a   memorandum    prepared    by    the   human

resources    department     at    Thompson’s   request.       The    memorandum

characterized Darvishian’s failure to move from his office by

March 1, 2006, as “insubordination,” and stated that Campbell

was proposing a penalty of suspension for this misconduct.                   The

memorandum set a second deadline, 11:30 a.m. on March 3, 2006,

by which Darvishian was required to vacate his office.                       The

document advised Darvishian that disobeying this order “could

result in [his] removal from the federal service.”

     An     army    lawyer,      Captain    Joshua     Drewitz,     accompanied

Campbell to see Darvishian but stopped a short distance down the

hallway from Darvishian’s office.           Drewitz could see Campbell in

the office doorway, but did not hear the conversation taking

place between Campbell and Darvishian.               Drewitz did not observe

Campbell carrying any papers.

     That evening, Darvishian sent an email to senior officials

in the Agency describing his exchange with Campbell.                 Darvishian

stated that when Campbell entered Darvishian’s office doorway,

Campbell held up a piece of paper that threatened, “Get out or

you will be killed.” 3



     3
       In the same email, Darvishian stated, “I don’t believe I
mentioned it in my initial email but when I had a discussion
with Ms. Thompson on 23 Feb, prior to my contact with EEO, she

                                        8
     The next morning, Darvishian reported this alleged threat

to the military police.               He also sent an email detailing the

threat to the “head” employees of the Agency and to an EEO

Counselor.      The subject of his email was entitled, “Reprisal.”

The police conducted an investigation, which included interviews

of Campbell, Darvishian, and Drewitz, but concluded there was

“insufficient      probable      cause     to    believe    that    Mr.    Campbell

communicated a threat.”

     On   the     afternoon      of    Friday,   March     3,   2006,     after   the

deadline stated in the human resources department memorandum had

passed, Thompson directed four employees to remove Darvishian’s

belongings    from      his   office.      These   individuals      conducted      an

inventory    of   the    items    in    Darvishian’s     office    and    moved   the

items to a secure file room.               Campbell later sent an email to

Darvishian, informing him that he could retrieve his belongings

by contacting Campbell to obtain a key to the file room.                      After

receiving this email, Darvishian sent another email to Agency

“management” and to an EEO Counselor stating, “Bill Campbell

continues to harass me.”

     On Monday morning, March 6, 2006, Darvishian called the

military police to report a “property theft.”                     He later made a

sworn statement in which he alleged that $1,000 in cash and some



told me ‘You are nothing.              I will take care of my contracting
people.’”

                                          9
personal documents were missing.                     Darvishian stated, “[b]ecause

[Campbell] has threatened me and now stolen my belongings I am

afraid to go back to the office.”

        The   military         police    conducted         an    investigation      of     the

alleged theft.             The four employees who had moved Darvishian’s

property      attested         that     they    did        not    find     any    money     in

Darvishian’s          desk      when    they        made    the     inventory       of     his

belongings. 4        The military police closed its investigation of the

incident on April 13, 2006, because of “insufficient probable

cause” that a theft had occurred.

        On March 22, 2006, Darvishian filed a formal EEO complaint

alleging       discrimination            against          certain        CDCC     officials,

including Campbell, Jackson-Sewell, and Thompson.                                About five

weeks       later,        on   April    28,     2006,       Campbell       proposed       that

Darvishian be removed from federal service.

      In his written proposal, Campbell articulated four reasons

for the recommended punishment: insubordination (two incidents),

making false statements, failing to provide candid information

to the military police, and disrupting the workplace.

      Under     the       first    charge,     insubordination,            Campbell      wrote

that Darvishian’s refusal to comply with two orders to move from

his   office,        by    March   1,   2006,       and    later    by    March    3,    2006,

        4
      A former CDCC Director stated in deposition testimony that
she had personal knowledge that Darvishian kept cash in his
desk.

                                               10
constituted insubordination.                   Campbell based the second charge,

making false statements, on Darvishian’s report to the military

police    that     Campbell      had   threatened         Darvishian’s      life.      The

proposal      of    removal    characterized          this   report    as     “knowingly

false.”

      The third charge, failing to provide candid information to

the military police, was based on Darvishian’s allegation of

theft against Campbell.             The notice of proposed removal stated,

“At the time you made your allegation against Mr. Campbell to

the military police, you failed to tell the military police that

you had not personally viewed, seen or otherwise inventoried any

personal items you had left in your office since the previous

week,    or   that      you   had   any    personal       knowledge    that    Mr.    Bill

Campbell had removed anything from your office.”                       With regard to

the   charge       of   disrupting     the      workplace,    Campbell      noted     that

various CDCC employees were forced to leave their regular work

duties to participate in the two police investigations of the

charges Darvishian had filed.

      Darvishian         responded        to    these     charges     orally    and    in

writing.      Thompson issued a five-page memorandum sustaining the

removal charges as supported by the evidence, and Darvishian was

removed from federal service on July 7, 2006.

      Darvishian        timely      appealed        the   Agency’s    action    to    the

Board,    raising       discrimination          and   retaliation     as   “affirmative


                                               11
defenses.”   See 5 U.S.C. §§ 7513, 7701.                 An Administrative Judge

upheld the removal in a lengthy written decision, finding that

the Agency had proved all four charges by a preponderance of the

evidence,    and    that       Darvishian         had    failed    to    demonstrate

discrimination or retaliation by preponderant evidence.

     Darvishian     timely       filed      a    petition   for    review    of     this

initial decision, which a panel of three Board members denied in

a Final Order.      Darvishian also requested a review by the EEOC,

Office of Federal Operations, which issued a decision concurring

with the Board.     See 29 C.F.R. § 1614.303 et seq.

     After   receiving         the   EEOC       decision,   Darvishian      filed    the

present action in the district court.                    See 42 U.S.C. § 2000e-

16(c)   (2006).     He   alleged       that       the   Agency    removed   him     from

federal   service   as     a    result      of    discrimination     based    on     his

religion and national origin, in violation of Title VII, and in

retaliation for protected EEO activity, also in violation of

Title VII.   Darvishian additionally sought review of the Board’s

final decision.     The district court granted summary judgment for

the Secretary on the Title VII claim, and upheld the Board’s

decision.

     The district court concluded that even if Darvishian could

present a prima facie case of discrimination and retaliation, he

could not demonstrate that the Agency’s proffered reasons for

his removal were pretextual, because it was beyond dispute that


                                            12
Darvishian’s         conduct          constituted             “insubordination.”                  The

district court did not address the other nondiscriminatory bases

for   removal       articulated        by    the       Agency,      because          the    district

court     found     that    the      removal       decision         was    supported         by   the

insubordination           incidents        alone,       and    that    Darvishian           had   not

presented        sufficient          evidence          of    pretext       to        overcome     the

Agency’s stated ground of insubordination.                                Darvishian appeals

from the district court’s judgment.



                                              II.

                                                  A.

      We first consider the district court’s award of summary

judgment in favor of the Secretary on the Title VII claims.

Under Title VII, it is unlawful for an employer to discriminate

against       any   individual        on    the    basis       of    religion         or    national

origin.        42 U.S.C. § 2000e-2(a)(1) (2006).                       It is also unlawful

for     an      employer        to    retaliate             against       an        employee      for

participating        in     a   Title       VII    investigation               or    for    opposing

discriminatory workplace practices.                         Id. § 2000e-3(a).

      A       plaintiff    alleging        discrimination            under          Title   VII   may

avert     a    summary     judgment        ruling       in    favor       of    an    employer     by

presenting either of two theories of proof.                               First, a plaintiff

may offer direct and circumstantial evidence of discrimination

that raises a genuine issue of material fact regarding whether


                                                  13
an     impermissible     factor      motivated     the     employer’s       adverse

employment decision.        See Diamond v. Colonial Life & Accident

Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005).                     Second, when a

plaintiff     lacks      direct       evidence        of    discrimination        or

retaliation, he or she may proceed using the burden-shifting

proof scheme set forth in McDonnell Douglas Corp. v. Green, 41

U.S. 792, 802-05 (1973).

        The present case has proceeded under the McDonnell Douglas

analysis.       Under     that    framework,      a    plaintiff     first     must

establish a prima facie case of discrimination or retaliation.

See Burdine, 450 U.S. at 252-53.               After the plaintiff has met

this evidentiary burden, the burden of production shifts to the

employer to set forth, through the introduction of admissible

evidence, a legitimate nondiscriminatory or nonretaliatory basis

for the employment action.           Id. at 253; see Bd. of Trustees v.

Sweeney, 439 U.S. 24, 25 n.2 (1978).

       If the employer satisfies this burden of production, the

plaintiff must establish by a preponderance of the evidence that

the neutral reasons offered by the employer are merely pretext

for discrimination or retaliation.               See Burdine, 450 U.S. at

253.     A plaintiff may prove such pretext by demonstrating that

the    defendant’s     explanation    is     “unworthy     of   credence”    or   by

offering circumstantial evidence sufficiently probative of the

issue of discrimination or retaliation.                See Reeves v. Sanderson


                                        14
Plumbing    Prods.,       Inc.,      530    U.S.    133,   148   (2000);       Price    v.

Thompson,    380    F.3d     209,     212    (4th   Cir.   2004);      EEOC    v.     Sears

Roebuck & Co., 243 F.3d 846, 853-54 (4th Cir. 2001).

      In    practice,       the      McDonnell      Douglas      analytical         burden

shifting ends at this stage, and the “pretext” inquiry merges

with the plaintiff’s ultimate burden to prove that he or she was

the     victim     of     intentional        discrimination       or     retaliation.

Burdine, 450 U.S. at 256; see Merritt, 601 F.3d at 294-95.                               A

plaintiff is entitled to a trial on the merits of a Title VII

claim if he or she establishes a factual record permitting a

reasonable finder of fact to conclude that it is more likely

than not that the adverse employment action was the product of

discrimination or retaliation.                Burdine, 450 U.S. at 254; Ennis

v. Nat’l Ass’n of Bus. & Educ. Radio, Inc, 53 F.3d 55, 58 (4th

Cir. 1995).      Therefore, “[b]y the time of appeal especially, the

issue    boils     down    to   whether       the   plaintiff     has    presented       a

triable      question           of         intentional      discrimination              [or

retaliation].”          Merritt, 601 F.3d at 295.

      In     considering          Darvishian’s         Title      VII         claim     of

discrimination, we assume, without deciding, that Darvishian has

established a prima facie case of discrimination.                          This prima

facie case includes the comments allegedly made by Campbell and

DeDecker to Darvishian.




                                             15
        We conclude that the Agency met its burden to articulate a

legitimate,      nondiscriminatory          basis       to    remove      Darvishian      from

federal    service.           As    described      above,      the      Agency     gave   four

lawful reasons why Darvishian should be removed, as stated in

Thompson’s       Notice    of       Decision      to    Remove.           First,    Thompson

concluded    that      Darvishian       disregarded          Campbell’s       February     22,

2006 email to relocate to a cubicle by March 1, 2006.                               Thompson

further     found      that        Darvishian      ignored        the     March     2,    2006

memorandum, which directed him to move his belongings by 11:30

a.m. on March 3, 2006.                  Thompson stated that Darvishian had

received    and     disobeyed        both   orders,         and   that     these    acts   of

noncompliance constituted insubordination.

       Second,    Thompson          determined     that      Darvishian’s         accusation

that    Campbell       threatened       Darvishian’s          life      was    unsupported.

Thompson also concluded that Darvishian made this accusation to

retaliate against Campbell for ordering Darvishian to move from

his office to a cubicle.

       Third, Thompson determined that Darvishian gave incomplete

information       to    the        police   when       he    reported      that     Campbell

allegedly had stolen some of Darvishian’s                          property.        Finally,

Thompson determined that as a result of Darvishian’s actions, at

least five CDCC employees were required temporarily to leave

their    work     duties      to     participate        in    police      investigations.

Thompson     summarized            Darvishian’s        conduct       as       exhibiting     a


                                             16
disregard      for         authority          that       “deminish[ed]        [sic]         his

supervisor’s confidence in being able to continue to task or

assign duties to Mr. Darvishian.”

      To     rebut     these       legitimate          reasons      for     his     removal,

Darvishian was required to produce a record that would permit a

reasonable     fact-finder          to     conclude        that    the     justifications

stated by the Agency were merely a pretext for discrimination.

See Burdine, 450 U.S. at 253.                   We conclude that Darvishian has

failed to satisfy this burden.

      Darvishian argues that the Agency lacked a legitimate basis

for   removing       him   from    the     federal       service,        rather    than     for

merely     suspending       him.         He     relies     on     the     March     2,    2006

memorandum,      which      indicated         that   a    suspension       was     the    only

penalty being considered by the Agency for the first act of

insubordination.                 Darvishian          contends       that,         therefore,

Thompson’s choice of a more severe penalty was suggestive of

pretext.

      This     argument,         however,       is       unavailing.          The        record

establishes      that       at     least       three      Agency     officials           having

supervisory authority over Darvishian directed that he vacate

his office.          Even if we accept Darvishian’s argument that he

reasonably doubted Campbell’s supervisory authority on February

22, 2006, there is no doubt that by February 23, 2006, two other

individuals      with      unquestioned         authority         over    Darvishian       had


                                               17
either instructed him to move, or confirmed the legitimacy of

Campbell’s directive.              Thus, regardless whether Darvishian was

given the memorandum containing the second deadline of March 3,

2006,    his    ongoing          refusal      to     move      his       office     constituted

insubordination.

      We also observe that the penalty imposed by Thompson was

consistent      with     the      punishments           set    forth      in   the      Table   of

Penalties in the Army regulations.                       According to that document,

a   single     offense      of    insubordination             or    a    single    incident     of

making    a    false     statement       can       be    punished        by    removal.         The

possibility that a different decision maker may have imposed a

less severe penalty if presented with similar circumstances does

not     support    a     conclusion           that      Thompson         was      motivated     by

discrimination,        or    that       her    stated         explanation         for    removing

Darvishian was false.

      Nonetheless,        we      are   mindful         that       the   Supreme        Court   has

cautioned that courts should not become mired in the intricacies

of the McDonnell Douglas proof scheme.                             See    U.S. Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983); Proud v.

Stone, 945 F.2d 796, 798 (4th Cir. 1991).                               Thus, ultimately, we

must reverse the district court if it appears that a reasonable

fact-finder could conclude that Thompson more likely than not

removed Darvishian because of his religion or national origin.

Burdine, 450 U.S. at 254.


                                               18
       Darvishian       argues    that      the     following      evidence       of    record

supports a conclusion that Thompson’s employment decision was

motivated by discriminatory animus.                    First, Darvishian points to

Thompson’s      deposition       testimony         that    she   feared       “Darvishian’s

irrational      behavior.”        Darvishian           infers     from     this    statement

that Thompson’s apprehension was “based solely on her perception

that    an    Iranian-born       man    .     .    .   was       dangerous.”           Second,

Darvishian heavily relies on an affidavit made by a former CDCC

employee, Tracy Fetchik.               In her affidavit, Fetchik stated that

on March 3, 2006, the day Darvishian’s belongings were removed

from his office, Thompson drew her finger across her neck as if

she were slitting a throat, and stated, “I finally got rid of

him.”        However, while the above evidence cited by Darvishian

supports       an   inference          that        Thompson      disliked         Darvishian

personally, this evidence does not establish a link between her

personal dislike of Darvishian and his membership in a protected

class.

       Our     conclusion    does        not       change     when       we   additionally

consider the balance of Fetchik’s affidavit.                         Most particularly,

Fetchik stated that “sometimes Ms. Thompson, [another employee,]

and     Ms.    Brenda    Jackson-Sewell            would      make    comments         amongst

themselves about Mr. Darvishian, like he is a crazy Muslim.”

Notably,      however,     Fetchik’s        affidavit        fails    to      identify     any

particular statement that Thompson made regarding Darvishian’s


                                              19
religion or national origin, but only attributes the above type

of   offensive     remark      to   general   group   conversation.           In    the

absence of any indication which of the three individuals made a

statement of that nature, or any other discriminatory remarks,

we are unable to accord such remarks any probative value as

tending to establish that Thompson, in fact, was motivated by

discrimination         regarding     Darvishian’s     religion         or    national

origin in her decision to terminate him from federal service.

Absent such probative value, any remarks of this nature were not

admissible evidence and, thus, did not create a genuine issue of

material fact to avert an award of summary judgment.                        See Fed.

R. Civ. P. 56(e)(1); Fed. R. Evid. 402.

       Based on our review of the record, we observe that Thompson

apparently developed a dislike of Darvishian.                 It is also clear

that    Darvishian      perceived      that   he   was    being        pressured    by

DeDecker, Campbell, and Thompson to leave the Agency.                       But Title

VII is not “a general civility code for the American workplace.”

Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68 (2006)

(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

80 (1998)).      Rather, Title VII makes unlawful certain, defined

intentional      acts     of    discrimination.          Darvishian         has     not

demonstrated, as he must to survive summary judgment, that on

this    record     a    reasonable      fact-finder      could        conclude     that

Thompson    held       discriminatory     biases      based      on     Darvishian’s


                                         20
religion    and   national   origin     that       motivated    her    decision   to

remove him from federal service.

      We     recognize,         nevertheless,         that       under      certain

circumstances, discriminatory statements by non-decision makers

can be attributed to the ultimate decision maker.                     See Merritt,

601 F.3d at 300; see, e.g., Hill v. Lockheed Martin Logistics

Mgmt., 354 F.3d 277, 289-91 (4th Cir. 2004) (en banc); Russell

v. McKinney Hosp. Venture, 235 F.3d 219, 226-27 (5th Cir. 2000);

Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th

Cir. 1997).       Darvishian argues that in this case, Campbell and

Thompson    merely    were      carrying     out    DeDecker’s        directive    to

“finish the job” of pressuring Darvishian to leave the CDCC.

However, based on the present record, there is no reason to

conclude that Thompson based her decision to remove Darvishian

on another person’s judgment.

      The Agency has given a consistent, lawful rationale for its

removal of Darvishian, contemporaneously with the disciplinary

proceeding and throughout this litigation.                   Further, Darvishian

has   not   demonstrated        such   weaknesses,       implausibilities,        or

inconsistencies      in   the     Agency’s     proffered       reasons     for    his

removal that a reasonable fact-finder could find those reasons

“unworthy of credence.”          See Price, 380 F.3d at 212; Fuentes v.

Perskie, 32 F.3d 759, 765 (3d Cir. 1994).                      Thus, we conclude

that Darvishian has not met his burden to show that a reasonable


                                       21
fact-finder      could      conclude       that      the    Agency’s      explanation        was

pretext for discrimination, or that material factual questions

remain regarding the Agency’s motives.                          See Merritt, 601 F.3d at

295.     Accordingly, we conclude that on this record, a reasonable

fact-finder      could        not       say    that        Darvishian         has    presented

sufficient facts to show, by a preponderance of the evidence,

that discrimination was more likely than not a determinative

cause of the Agency’s employment decision.



                                               B.

        Darvishian     also     contends         that      he    was    removed      from    his

employment in retaliation for complaining about the allegedly

discriminatory conduct by his superiors.                           To establish a prima

facie     case    of        retaliation,            Darvishian          was    required       to

demonstrate that he engaged in “protected activity,” and that he

was    removed    by    the     Agency        because       of    that    activity.          See

Holland, 487 F.3d at 218.

        The record shows that when Thompson removed Darvishian from

federal     service,         she    knew      that         he    had     complained        about

discrimination         at    his    workplace.              Darvishian        contends      that

because his protected activity occurred so close in time to the

Agency’s    removal         decision,      the      simple       fact    of   this   temporal

proximity     establishes           a    causal      connection          between     the     two

events.


                                               22
       We   will    assume,       but   do     not    decide,         that   Darvishian       has

shown a causal connection establishing a prima facie case of

retaliation.        See Holland, 487 F.3d at 218.                        Thus, proceeding

under the McDonnell Douglas framework, Darvishian was required

to rebut the legitimate nonretaliatory reasons articulated by

the agency for his removal.                    Id.      Based on our review of the

record, we hold that Darvishian failed to make this required

showing.      We        reach    this   conclusion         for    the    same      reasons     we

already have held that Darvishian failed to demonstrate pretext

with respect to his discrimination claims.



                                              III.

       Finally,     we     consider      Darvishian’s         appeal         of   the   Board’s

decision.       We apply an established, narrow standard of review,

under   which      we     must    affirm       the    Board      unless,      based     on    the

administrative           record,        the     decision          is     “(1)      arbitrary,

capricious,        an     abuse    of     discretion,            or    otherwise        not    in

accordance with law; (2) obtained without procedures required by

law,    rule,       or     regulation          having      been        followed;        or    (3)

unsupported        by    substantial          evidence.”          5     U.S.C.     §    7703(c)

(2006).

       In this case, the Administrative Judge determined that the

Agency carried its burden to prove by a preponderance                                    of the

evidence     each       charge    stated      in     the   notice       of    removal.        The


                                               23
Administrative         Judge        also        made        certain     credibility

determinations, which are “virtually unreviewable” by this court

on appeal.      Bieber v. Dept. of the Army, 287 F.3d 1358, 1364

(Fed. Cir. 2002); see Pope v. U.S. Postal Serv., 114 F.3d 1144,

1149    (Fed.   Cir.   1997).         In   assessing        testimony   related   to

Darvishian’s     conduct,       the    Administrative          Judge    determined,

“[T]he appellant is not a reliable or credible witness in light

of his implausible allegations and inconsistent statements.”                      In

contrast, the Administrative Judge found that Thompson was a

“credible witness.”

       Applying the deferential standards applicable to our review

of the Board’s decision, and based on the evidence contained in

the administrative record, we hold that the Board conclusions

cannot reasonably be said to be arbitrary and capricious, an

abuse   of   discretion,       or   unsupported        by   substantial   evidence.

The Board had sufficient evidence before it, and made a reasoned

decision based on that record.

       For these reasons, we affirm the district court’s judgment.



                                                                           AFFIRMED




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