UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AYDER KURTIEV,

Plaintiff, v. No. 15-cv-1839 (EGS) JEFFREY SHELL, et al.,

Defendants.

MEMORANDUM OPINION

I. Introduction

Plaintiff Ayder Kurtiev (“Mr. Kurtiev”) brings this action

against the Defendant Jeff Shell, the Chair of the Broadcasting

Board of Governors (“BBG”), and Defendant BBG, which oversee the

component broadcaster, the Voice of America (“VOA”)

(collectively “Defendants” or “VOA”) alleging discrimination on

the basis of national origin and/or religion, and retaliation

under Title VII of the Civil Rights Act of 1964 (“Title VII”),

42 U.S.C. § 2000e-2 et seq. Pending before the Court is

Defendants’ Motion for Summary Judgment. See Defs.’ Mot., ECF

No. 32. The Court has carefully considered the motion, the

response and reply thereto, the applicable law, and the entire

record herein. The Court GRANTS Defendants’ Motion for Summary

Judgment. II. Background

A. Factual Background

Except where indicated, the following facts are not in

dispute. Mr. Kurtiev, who identifies as Muslim, with a Crimean

Tatar ethnic background, is a naturalized United States citizen

originally from Uzbekistan, part of the former Soviet Union.

Compl., ECF No. 1 at 3 ¶ 8. 1 His native language is Russian, and

he was educated in Russian language schools in Uzbekistan. Id.

The VOA hired Mr. Kurtiev on June 21, 2009, to be the Managing

Editor of its Russian Service. Defs.’ Mot., ECF No. 32-1 at 7.

Throughout his entire employment with the VOA, Mr. Kurtiev was a

probationary employee, which meant he could be “terminated at

any time during [the two-year trial period] because of

deficiency in performance, unsatisfactory conduct,

unsuitability, or changes in VOA programming or staffing needs.”

Defs.’ Ex. Z, ECF No. 32-28 at 2. During Mr. Kurtiev’s tenure at

the VOA, Dr. Elez Biberaj, Director of the Eurasian Division,

was his “first-line supervisor.” Pl.’s Ex. 4, ECF No. 36-3 at

6:20-21; Pl.’s Ex. 6, ECF No. 36-4 at 23:3-5.

1 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document with the exception of deposition testimony, which is to the page number of the deposition transcript. 2 1. Mr. Kurtiev’s Witness Affidavit in the Investigation of Najia Badykova’s Equal Employment Opportunity Complaint

On September 4, 2009, Ms. Badykova, a VOA Russian Service

contractor, was informed that her contract would not be renewed.

Defs.’ Ex. A, ECF No. 32-3 at 3, 4. Mr. Kurtiev was responsible

for “review[ing] Ms. Badykova’s work product for acceptance

under the terms of the contract.” Id. at 3. At the time this

decision was made, Ms. Badykova had a pending Equal Employment

Opportunity (“EEO”) claim alleging that she had been

discriminated against based on her religion when she was not

selected for a position within the VOA. Defs.’ Ex. D, ECF No.

32-6 at 4. The EEO investigation of that claim included

investigating the decision not to renew her contract as she

later alleged that her contract was not renewed in retaliation

for her EEO activity. See id. at 11.

In January 2010, Mr. Kurtiev submitted a Witness Affidavit

as part of the investigation of Ms. Badykova’s EEO Claim. See

Defs.’ Ex. A, ECF No. 32-3 at 4. Prior to the submission of the

affidavit, and in response to Mr. Kurtiev’s requests, several

VOA officials reviewed the document, which was common practice

at the VOA. Defs.’ Ex. F, ECF No. 32-8 at 27:20–28:2; Defs.’ Ex.

B, ECF No. 32-4 at 151:3–11. Though he now denies that the

decision was his to make, Mr. Kurtiev averred that “I, Ayder

Kurtiev, Managing Editor, made the decision not to renew the

3 Complainant's contract. . . . The Complainant's contract was not

renewed due to changing operational requirements in the Russian

Service.” Defs.’ Ex. A, ECF No. 32-3 at 4.

2. March 2010 Incident Involving Mr. Kurtiev and Two Subordinate, Female Employees

In the afternoon of March 10, 2010, two Russian Service

employees—Anna Terterian and Yulia Appel—came to Mr. Kurtiev’s

office to discuss changes that had been made to their shifts.

Pl.’s Counter Statement of Facts, ECF No. 39 at 6. Following

that meeting, Ms. Terterian called another VOA employee, Karine

Roushanian, who in an email she sent to Dr. Biberaj the morning

of March 11, 2010, stated that Ms. Terterian “was crying so hard

that she could hardly talk” and “did not know how to deal with

what just happened to her and [Ms. Appel.]” Id. (citing Defs.’

Ex. N, ECF No. 32-16 at 2); see also Defs.’ Ex. O, ECF No. 32-17

at 26:10–27:3, 27:22–29:2. In the same email, Ms. Roushanian

stated that Ms. Terterian told her that Mr. Kurtiev responded to

a question about shift responsibilities by “laugh[ing] in a

shameless way,” translated his Russian statement into English as

“[i]f you do so, the next day when you come they [the Division]

will have you in different poses,[”] and that he accompanied his

statement “with some moves with the chair.” Pl.’s Counter

Statement of Facts, ECF No. 32 at 6-7 (citing Defs.’ Ex. N, ECF

No. 32-16 at 2; see also Defs.’ Ex. O, ECF No. 32-17 at 28:21-

4 29:1-10. Dr. Biberaj forwarded the e-mail to Ain Munn, a Labor

and Employee Relations (“LER”) Specialist in the VOA’s Office of

Human Resources, asking to meet at her earliest convenience to

discuss the incident. Defs.’ Ex. R, ECF No. 32-20 at 2; see also

ECF No. 32-1 at 8 (explaining Ms. Munn’s job responsibilities).

Also in the morning of March 11, 2010, Ms. Terterian

described the incident in an email to Ms. Appel and Ms. Appel

agreed with her description of the incident. Defs.’ Ex. M, ECF

No. 32-15 at 2. In that email, Ms. Terterian translated the

statement “[a]nd then the next day they will f*** you in as many

positions as they can.” Id. Ms. Terterian then sent the email to

Ms. Munn. See id. Mr. Kurtiev denies that he made the statement

and points out differences in Ms. Terterian’s English

translation of the statement, specifically that on the day of

the incident she translated the phrase to include the word

“have” but on the next day, she translated the phrase to include

the “f” word. Pl.’s Opp’n, ECF No. 36 at 13.

On the same day, LER staff met with Ms. Roushanian, who

reiterated that when Ms. Terterian called her the day before,

Ms. Terterian “was extremely upset . . . to the point she could

not understand what was being said.” Defs.’ Ex. S, ECF No. 32-21

at 2. LER staff “then met with Ms. Terterian who was visibly

upset when she began discussing the interaction with Mr.

Kurtiev. Ms. Terterian also demonstrated how Mr. Kurtiev moved

5 the chair when he made the . . . statement.” Id. Ms. Terterian

was placed on administrative leave for the remainder of that day

and for the next day. Id. Ms. Munn testified that she met with

Ms. Appel after meeting with Ms. Terterian and that Ms. Appel

said the same thing that Ms. Terterian said about the incident

during the meeting with Mr. Kurtiev. Pl.’s Ex. 33, ECF No. 36-14

at 51:14-16. Mr. Kurtiev disputes that Ms. Munn met with Ms.

Terterian in person because her notes of the meeting include Ms.

Terterian’s telephone number and that Ms. Munn met with Ms.

Appel because no notes of the meeting with Ms. Appel have been

produced despite Ms. Munn’s statement in her deposition that she

“takes notes for every meeting.” Id. at 54:16-55:7; 53:4; see

also ECF No. 40 at 31. LER staff then met with Mr. Kurtiev, who

“adamantly denied making any offensive statements to Ms. Appel

and Ms. Terterian.” Defs.’ Ex. S, ECF No. 32-21 at 2. LER staff

determined that “a full inquiry needed to be conducted and Mr.

Kurtiev was placed on administrative leave pending the outcome

of the investigation.” Id.

LER staff investigated the incident by interviewing sixteen

Russian Service employees, asking each individual the same

twenty-two questions, and then drafting summaries of the

interviews. Defs.’ Ex. L, ECF No. 32-13 at 61:8–13. Mr. Kurtiev

does not dispute that the VOA conducted interviews with most of

the Russian Service employees, nor the results of those

6 interviews, but he disputes that the phrase was translated

properly by the Russian Service employees, and his expert, an

employment lawyer who conducts investigations into workplace

misconduct, disputes whether VOA’s investigation was fair and

reliable. Pl.’s Ex. 10, ECF No. 36-7 at 20.

Seven of the Russian Service employees stated that Mr.

Kurtiev used inappropriate or profane language in the workplace,

including the “f” word. Defs.’ Ex. Y, ECF No. 32-27 at 2; see

also Defs.’ Ex. W, ECF No. 32-25 at 5 (stating that he has heard

Mr. Kurtiev use the “f” word); 10 (stating that Mr. Kurtiev

“use[d] profanity (f***, s***) when he is upset”) (profanity

altered); 13 (“Mr. Kurtiev often uses [phrase] and profanity

(f***) that undereducated Russian people would use in informal

settings.”) (profanity altered); 21 (stating that Mr. Kurtiev

“often said m*****f*** or similar words often in Russian but not

in English”) (profanity altered); 26 (stating that he has heard

Mr. Kurtiev use the “f” word); 30 (stating that she has heard

Mr. Kurtiev use the “f” word but not often); 32 (stating that

she has heard Mr. Kurtiev use the “f” word many times).

Regarding the statement at issue, all of the employees

translated the Russian phrase as having a sexual connotation or

otherwise being inappropriate in a workplace. See, e.g., Defs.’

Ex. W, ECF No. 32-25 at 4 (“He stated that it meant to f*** you

different [sic] positions. The phase is absolutely

7 unacceptable.”) (profanity altered); 6 (“it meant they will f***

you in different positions”) (profanity altered); 9 (“They will

have you sexually in many different positions.”); 14 (“they will

f*** you in other positions”) (profanity altered); 18 (“They

will f*** you in different positions”).

Mr. Kurtiev does not dispute that the interviewed employees

made the statements or that some of these employees’ job

responsibilities included translating Russian into English, but

he contends that “[t]he members of the Russian Service were not

qualified to do translation because of their poor English. The

Russian Service had to use professional translators because

members of the Russian Service did such a poor job when they

tried to translate.” Pl.’s Opp’n, ECF No. 36 at 32 (citing Pl.’s

Ex. 6, ECF No. 36-4 at 86-87, 222-224).

On March 19, 2010, Donna Grace, Director of the Office of

Human Resources, informed Ms. Munn via email that “Dan Austin [,

Director of the Voice of America] has made the decision to

terminate Mr. Kurtiev’s employment.” Defs.’ Ex. X, 32-26 at 2.

This email was sent in response to an undated email from Ms.

Munn in which she stated, “here are the statements our office

has so far for the Russian Service.” Id. Later that day, Tisha

Elliott, another LER staff member, informed Ms. Munn that Mr.

Kurtiev had called her and stated that he had additional

information that would be helpful to the investigation. Pl.’s

8 Ex. 20, ECF No. 36-11 at 4. In the afternoon of March 22, 2010,

Mr. Kurtiev, at his request, met with Ms. Munn to provide the

additional information to her. Defs.’ Ex. B, ECF No. 32-4 at

220:6-7; Defs.’ Ex. U, 32-23 at 13.

In a Notice of Termination of Appointment letter dated

March 24, 2010, the VOA informed Mr. Kurtiev that his contract

would not be renewed or extended, but would expire on April 24,

2010. Defs.’ Ex. Z, ECF No. 32-28 at 2. The letter stated that

the VOA “determined that [he had] displayed unacceptable conduct

during [his] tenure with VOA,” specifically referencing the

March 10, 2010 incident with the two subordinate female

employees. Id. The letter also referenced a memorandum from Dr.

Biberaj, which was included with the letter, and which

summarized the unacceptable behavior. Id. The memorandum from

Dr. Biberaj stated that his recommendation to terminate Mr.

Kurtiev’s employment was based on conduct rather than

performance or personality traits. Defs.’ Ex. C, ECF No. 32-5 at

2. The memorandum further stated that the conduct for which the

recommendation was being made was: (1) the March 10, 2010

incident; and (2) that the investigation of that incident

revealed that “Mr. Kurtiev has made several inappropriate

remarks throughout his tenure.” Id. The Notice of Termination of

Appointment letter informed Mr. Kurtiev of his “right to request

that the VOA reconsider its determination concerning your

9 fitness for continued employment” and explained the process for

doing so. Defs.’ Ex. Z, ECF No. 32-28 at 2. Two days later, on

March 26, 2010, Mr. Kurtiev responded to the Notice of

Termination in a fourteen-page document in which he, among other

things, denied that the statement translated as “they will f--

you in different positions or anything close to that,” and

alleging that the employees who made the complaint were

disgruntled against him because of the change to their shifts.

Defs.’ Mot., ECF No. 32-1 at 12; Defs.’ Ex. U, ECF No. 32-23 at

2.

Thereafter, Mr. Kurtiev sent a letter, through counsel,

requesting that the VOA reconsider its decision and seeking a

meeting with the final decision-maker, John Lennon, Associate

Director for Language Programming. Defs.’ Ex. AA, ECF No. 32-29

at 2. Pursuant to that request, Mr. Kurtiev, his attorney, Mr.

Lennon, and Ms. Munn met on April 8, 2010. Defs.’ Ex. CC, ECF

No. 32-31. At that meeting, Mr. Kurtiev provided an Affidavit

from Ms. Laimute Lipinskaite, who averred that she is fluent in

the Russian language, asserted that the phrase had been

translated incorrectly, and provided an alternate translation

that did not have a sexual connotation. Defs.’ Ex. Y, ECF No.

32-27 at 2-3. On April 9, 2010, Mr. Lennon received Mr.

Kurtiev’s written statement. Defs.’ Ex. Y, ECF No. 32-27. And on

April 12, 2010, his attorney sent a letter following up to that

10 meeting. Defs.’ Ex. CC, ECF No. 32-31.

In a Decision Notice-Termination of Appointment letter

dated April 19, 2010, Mr. Kurtiev was informed that Mr. Lennon

had determined to uphold the decision to terminate Mr. Kurtiev’s

appointment. Defs.’ Ex. Y, ECF No. 32-27 at 4. That letter

stated that, in addition to the March 10, 2010 incident, the VOA

based its decision on reports that Mr. Kurtiev had “repeatedly

and frequently made inappropriate statements to several members

of the Russian Service.” Id.

Mr. Kurtiev filed a formal Equal Employment Opportunity

(“EEOC”) complaint on June 7, 2010, and on August 5, 2015, the

EEOC issued a right to file suit notice. Compl., ECF No. 1 at 1.

B. Procedural History

On October 15, 2015, Mr. Kurtiev timely filed the current

action. See Compl., ECF No. 1. Defendants filed their Motion for

Summary Judgment on May 15, 2019. Defs.’ Mot., ECF No. 32. Mr.

Kurtiev filed his Opposition Response on August 30, 2019, see

Pl.’s Opp’n, ECF No. 36, and Defendants filed their Reply on

October 2, 2019, Defs.’ Reply, ECF No. 37. The motion is ripe

and ready for the Court’s adjudication.

III. Legal Standard

Pursuant to Federal Rule of Civil Procedure 56, summary

judgment should be granted “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

11 entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); Waterhouse v. District of Columbia,

(D.C. Cir. 2002). The moving party must identify “those portions

of the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, which

it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v. Catrett,

(1986) (internal quotation marks omitted). To defeat summary

judgment, the nonmoving party must demonstrate that there is a

genuine issue of material fact.

. A material fact is

one that is capable of affecting the outcome of the

litigation. Anderson v. Liberty Lobby, Inc.,

(1986). A genuine dispute is one where “the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party.”

Further, in the summary judgment analysis “[t]he

evidence of the non-movant is to be believed, and all

justifiable inferences are to be drawn in his favor.”

.

IV. Analysis

Under Title VII, it is unlawful for an employer to: (1)

“discriminate against any individual with respect to [his]

compensation, terms, conditions, or privileges of employment,

because of [his] race, color, religion, sex, or national

origin,” 42 U.S.C. § 2000e-2(a)(1); or (2) retaliate against any

12 individual for participating in a protected activity, 42 U.S.C.

§ 2000e-3(a).

Discrimination and retaliation claims are subject to the

burden-shifting framework set forth in McDonnell Douglas Corp.

v. Green,

, 802–05 (1973). As the Court of Appeals

for the District of Columbia Circuit (“D.C. Circuit”) has

instructed:

A plaintiff must first establish her prima facie case. To state a prima facie case of discrimination, a plaintiff must allege she is part of a protected class under Title VII, she suffered a cognizable adverse employment action, and the action gives rise to an inference of discrimination. Stella v. Mineta,

(D.C. Cir. 2002). For a retaliation claim, the plaintiff must allege that she engaged in activity protected by Title VII, the employer took adverse action against her, and the employer took that action because of the employee's protected conduct. Hamilton v. Geithner,

(D.C. Cir. 2012).

If the plaintiff clears that hurdle, the burden shifts to the employer to identify the legitimate, nondiscriminatory or non- retaliatory reason on which it relied in taking the complained-of action. Holcomb v. Powell,

(D.C. Cir. 2006). Assuming the employer proffers such a reason, the “central question” at summary judgment becomes whether “the employee produced sufficient evidence for a reasonable jury to find that the employer's asserted nondiscriminatory or nonretaliatory reason was not the actual reason and that the employer intentionally discriminated or retaliated against the employee.” Allen v. Johnson,

, No. 13–5170,

(D.C. Cir. July 24, 2015)

13 (brackets omitted) (quoting Brady, 520 F.3d at 494); see also Hamilton,

.

A plaintiff may support an inference that the employer's stated reasons were pretextual, and the real reasons were prohibited discrimination or retaliation, by citing the employer's better treatment of similarly situated employees outside the plaintiff's protected group, its inconsistent or dishonest explanations, its deviation from established procedures or criteria, or the employer's pattern of poor treatment of other employees in the same protected group as the plaintiff, or other relevant evidence that a jury could reasonably conclude evinces an illicit motive.

Walker v. Johnson,

(D.C. Cir. 2015).

The VOA argues that it had legitimate, non-discriminatory

reasons for terminating Mr. Kurtiev’s probationary employment,

and that Mr. Kurtiev cannot demonstrate that the reasons were

pretextual. See Defs.’ Mot., ECF No. 31-1 at 19. In response,

Mr. Kurtiev argues that there “are many disputed issues of

material fact,” concerning his “Title VII retaliation claim and

the related discrimination claim,” such that the VOA is not

entitled to summary judgment. Pl.’s Opp’n, ECF No. 36 at 1. The

VOA replies that it is entitled to summary judgment because each

of Mr. Kurtiev’s theories rely “on untenable leaps in logic and

fail[] to cast doubt on the clear basis for terminating [Mr.]

Kurtiev—his misconduct with two female subordinates.” Defs.’

Reply, ECF No. 37 at 4.

14 A. Mr. Kurtiev Has Failed to Produce Sufficient Evidence From Which a Reasonable Jury Could Find that the VOA’s Stated Reason for Terminating Him Was Pretext for Discrimination Based on National Origin and/or Religion

Mr. Kurtiev alleges that he was discriminated against based

on his national origin and/or religion when his employment was

terminated. Compl., ECF No. 1 at 26 ¶ 189. To demonstrate that

it had a legitimate, non-discriminatory reason for its actions,

the VOA asserts that it terminated Mr. Kurtiev after it: (1)

“received a report from two female employees stating that [Mr.

Kurtiev] responded to a work-related question with vulgar

language and gestures,” Defs.’ Mot., ECF No. 32-1 at 19; (2)

found the allegations credible after investigating the claim,

see id.; and (3) during the investigation learned that many of

Mr. Kurtiev’s subordinates reported that he “frequently used

inappropriate and vulgar language in the workplace.”

To support its legitimate, non-discriminatory reason for

terminating Mr. Kurtiev’s employment, the VOA provided evidence

that: (1) on March 11, 2010, two female, subordinate employees

notified LER staff by email that Mr. Kurtiev had stated to them

in Russian, “then the next day they will f*** you in as many

positions as they can.” Defs.’ Ex. M, ECF No. 32-15 at 2; (2)

LER staff met with Mr. Kurtiev to discuss the incident, see

Defs.’ Ex. B, ECF No. 32-4 at 176:8-178:21; and (3) LER staff

interviewed sixteen Russian Service employees who worked with

15 Mr. Kurtiev, all of whom translated Mr. Kurtiev’s statement as

having a sexual connotation, and many of whom stated that Mr.

Kurtiev used inappropriate or vulgar language in the workplace.

Defs.’ Ex. W, ECF No. 32-25.

Courts have found that the use of inappropriate language in

the workplace can constitute a legitimate, non-discriminatory

reason for an adverse employment action. See Thompson v.

Sessions,

(D.D.C. 2017) (rejecting

comparator evidence as support for pretext when an employee was

reprimanded for using profanity when speaking to other employees

during angry tirades even though a younger employee of a

different gender was not reprimanded for using profanity);

Stewart v. Fed. Commc'ns Comm'n,

, 221

(D.D.C. 2017) (noting that the employer’s refusal to award an

annual bonus due to the employee’s use of profanity was

legitimate and non-retaliatory).

Since the VOA has “asserted a legitimate, non-

discriminatory reason for” terminating Mr. Kurtiev, the Court

need not examine whether Mr. Kurtiev made out a prima facie case

of national origin and/or religious discrimination as it is “no

longer relevant.” Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008). At this point, under the McDonnell

Douglas framework, the burden has shifted back to Mr. Kurtiev to

demonstrate that the VOA’s “stated reasons were pretextual, and

16 the real reasons were prohibited discrimination or retaliation.”

Walker,

. And “the central question at summary

judgment becomes whether the employee produced sufficient

evidence for a reasonable jury to find that the employer's

asserted nondiscriminatory or nonretaliatory reason was not the

actual reason and that the employer intentionally discriminated

or retaliated against the employee.

(internal

quotation marks and citation omitted).

1. Insufficient Evidence of Pretext Based on Mr. Kurtiev’s Testimony that He Did not Make the Statement 2

The Court may not “second-guess an employer’s personnel

decision absent demonstrably discriminatory motive.” Fischbach

v. District of Columbia Dep’t of Corr.,

(D.C.

Cir. 1996) (internal quotation marks and citation omitted).

“Once the employer has articulated a non-discriminatory

explanation for its action, as did the [employer] here, the

issue is not the correctness or desirability of [the] reasons

offered . . . [but] whether the employer honestly believes the

reasons it offers.”

An inference of pretext could be

appropriate where “the employer made an error too obvious to be

unintentional” because in such a situation, “perhaps [the

employer] had an unlawful motive for doing so.”

2 This analysis is equally applicable to Mr. Kurtiev’s argument that he was terminated in retaliation for engaging in protected activity. 17 Mr. Kurtiev, citing his deposition testimony, denies that

he made the statement during the meeting with Ms. Appel and Ms.

Terterian. Pl.’s Opp’n, ECF No. 36 at 3. LER staff was informed

of the incident the day after it occurred and began

investigating it that day. LER staff interviewed Ms. Terterian

and Ms. Appel in person and separately. Each described the

incident consistently. LER staff then interviewed Mr. Kurtiev,

who denied making the statement. Over the next week, LER staff

interviewed sixteen members of the Russian Service, seven of

whom stated that Mr. Kurtiev used inappropriate and/or profane

words in the work place. Finally, Ms. Munn made credibility

determinations based on her “discussions with Ms. Appel and Ms.

Terterian, Ms. Terterian’s emotional state, [and] the

translation of the statement that each member of the Russian

Service translated to being the same.” Defs.’ Ex. K, ECF No. 32-

13 at 73:11-16.

The VOA concluded that although Mr. Kurtiev denied making

the statement, “the charge [of having made the statement] was

supported by a preponderance of the evidence, i.e., accounts

from two employees, both of whom were in the room when the

comment was made.” Defs.’ Ex. Y, ECF No. 32-27 at 2. Mr.

Kurtiev’s denial of having made the statement does not call

into question whether the VOA “honestly believe[d] the reasons

it offers,” nor does his denial suggest “the employer made an

18 error too obvious to be unintentional.” Fischbach,

. Moreover, his own self-serving assertions do not give rise

to a triable issue of fact. Toomer v. Mattis,

(D.D.C. 2017) (Sullivan, J.).

For all of these reasons, Mr. Kurtiev’s denial of having

made the statement does not provide evidence from which “a

reasonable jury could not only disbelieve the employer's

reasons, but conclude that the real reason the employer took a

challenged action was a prohibited one.” Walker,

.

2. Insufficient Evidence of Pretext Based on the Translation of the Phrase 3

Mr. Kurtiev argues that the VOA relied on an inaccurate

translation of the phrase in making its decision, pointing out

that he provided VOA management with alternate translations of

the phrase by a “fluent Russian speaker” and a “native Russian

speaker,” neither of which had a sexual connotation. Pl.’s

Opp’n, ECF No. 36 at 2, 3, 22-23. All sixteen Russian Service

employees who were asked to translate the phrase translated it

as having a sexual connotation. See Defs.’ Ex. W, ECF No. 32-35.

The VOA found the translation of the phrase as having a sexual

connotation to be more credible, stating that “there is no

3 This analysis is equally applicable to Mr. Kurtiev’s argument that he was terminated in retaliation for engaging in protected activity. 19 reason for Russian Service employees, some of whom expressed

support for your leadership, to misrepresent the meaning of the

phrase.” Defs.’ Ex. Y, ECF No. 32-27 at 3. The VOA also noted it

obtained a generic translation of the phrase using Google which

also had a sexual connotation.

Finally, the VOA dismissed

Mr. Kurtiev’s alternate translations of the phrase: the “poor

judgment [Mr. Kurtiev] displayed . . . by attempting to provide

a false translation to mitigate [his] misconduct lead me to

conclude that [his] removal from federal service is justified

and necessary.” Defs.’ Ex. Y, ECF No. 32-27 at 3-4.

Although Mr. Kurtiev attempts to cast doubt on the ability

of Russian Service employees to accurately translate the phrase

into English, he testified that for some of those who provided

the translation, performing translations was part of their day-

to-day jobs. Defs.’ Ex. B, ECF No. 32-4 at 222:7-225:6. Based on

this evidence, it is clear that VOA management “honestly

believe[d] the reasons it offer[ed]” and these facts do not

suggest “the employer made an error too obvious to be

unintentional.” Fischbach,

. And Mr. Kurtiev’s

alternate translations without a sexual connotation balanced

against the unanimous translations with a sexual connotation

does not create a genuine issue for trial because “[w]here the

record taken as a whole could not lead a rational trier of fact

to find for the non-moving party, there is no genuine issue for

20 trial.” Matsushita Elec. Indus. Co., v. Zenith Radio Corp.,

(1986) (internal quotation marks and citation

omitted).

For all of these reasons, Mr. Kurtiev has failed to provide

evidence from which “a reasonable jury could not only disbelieve

the employer's reasons, but conclude that the real reason the

employer took a challenged action was a prohibited one.” Walker,

.

3. Insufficient Evidence of Pretext Based on Certain Russian Service Employees’ Alleged Racial Animus Towards Non-Russians

Mr. Kurtiev argues that a reasonable jury could infer a

discriminatory basis for his termination because some Russian

Service employees used racial slurs in the workplace, Pl.’s

Opp’n, ECF No. 36 at 2, 19; and because the decision to

terminate him relied on the summaries of the interviews with

Russian Service employees, some of whom showed discriminatory

animus during their interviews, id. at 14-16. To support his

argument that some Russian Service employees used racial slurs

in the workplace, Mr. Kurtiev cites his own interrogatory

answers, Pl.’s Ex. 5, ECF No. 36-3 at 27-28; his own affidavit,

Pl.’s Ex. 1, ECF No. 36-1 ¶ 2; and Ms. Munn’s notes of the April

8, 2010 meeting between Mr. Kurtiev, his attorney, Mr. Lennon

and herself, where Mr. Kurtiev made the same allegation, Pl.’s

Ex. 27, ECF No. 36-12 at 7-8. Mr. Kurtiev also points to the

21 summaries of the interviews with six of the Russian Service

employees. Id. at 15-16 (citing Defs.’ Ex. W, ECF No. 32-25 at 5

(“Mr. Kurtiev is out of place in his current position . . .

[and] has no knowledge of the Russian language since he is not

from Russia but rather Central Asia.”); 13 (attributing Mr.

Kurtiev’s profanity to his “level of education and degree of

culture”); 27 (“Mr. Kurtiev’s style of aggression is cultural;

it is not part of the Western Russian culture.”); 30 (Mr.

Kurtiev “has no knowledge of Russian history, culture or art”);

32 (“[S]ince Mr. Kurtiev is not fluent in Russian it is

unreasonable for him to make an authoritative decision on how

something should be done without consultation.”); 21 (“Mr.

Kurtiev is from Middle Asia where women are considered low

compared to men which may be the reason Mr. Kurtiev behaves the

[sic] way.”).

As an initial matter, Mr. Kurtiev is unable to point to any

evidence other than his own statements to support his allegation

that some Russian Service employees used racial slurs in the

workplace. But his own self-serving assertions do not give rise

to a triable issue of fact. Toomer,

. And

whether or not the statements suggest racial animus on the part

of the individuals who made them, Mr. Kurtiev has provided no

evidence that the VOA staff who were involved in and made the

decision to terminate him held similar opinions. That in making

22 its decision, the VOA relied in part on the summaries does not

call into question whether the VOA “honestly believe[d] the

reasons it offers,” nor does the reliance on those summaries

suggest “the employer made an error too obvious to be

unintentional.” Fischbach,

.

For all of these reasons, Mr. Kurtiev has failed to provide

evidence from which “a reasonable jury could not only disbelieve

the employer's reasons, but conclude that the real reason the

employer took a challenged action was a prohibited one.” Walker,

.

4. Insufficient Evidence of Pretext Based on Mr. Kurtiev’s Miscellaneous Arguments 4

Finally, Mr. Kurtiev raises a number of miscellaneous

arguments as to why the Court should conclude that a reasonable

jury could infer a discriminatory purpose in his termination.

Mr. Kurtiev states that “[Ms.] Appel admitted that she used the

phrase herself.” Pl.’s Opp’n, ECF No. 36 at 21. However, Ms.

Appel is not similarly situated to Mr. Kurtiev because, among

other reasons, she was his subordinate. Consequently, this

argument fails. Walker,

(discriminatory purpose

could be demonstrated by “citing the [VOA’s] better treatment of

similarly situated employees outside [his] protected group”).

4 This analysis is equally applicable to Mr. Kurtiev’s argument that he was terminated in retaliation for engaging in protected activity. 23 Mr. Kurtiev argues that Ms. Appel’s, Ms. Terterian’s, and

others’ translations of the phrase were inconsistent because it

was sometimes translated as including the “f” word, sometimes as

“screw,” and sometimes as “have.” Pl.’s Opp’n, ECF No. 36 at 20-

22. He also contends that “Ms. Terterian decided to make the

words more sinister” when the day after the incident, she stated

that the phrase included the “f” word whereas the day of the

incident her translation of the phrase did not include the “f”

word. Id. at 22. Although the record contains slight deviations

in the translation of the phrase, those deviations do not change

the sexual connotation of the phrase. Accordingly, these slight

deviations do not create a genuine issue of material fact from

which a reasonable jury could conclude that the VOA’s reasons

for terminating Mr. Kurtiev were pretext. Matsushita Elec.

Indus. Co.,

.

Mr. Kurtiev argues that the decision-making process was

unusual. Pl.’s Opp’n, ECF No. 36 at 24. He argues that Mr.

Austin decided to terminate his employment on March 19, 2010,

but that “[t]he agency then fabricated a record purportedly

showing that [Dr.] Biberaj decided to terminate Mr. Kurtiev’s

employment and that [Mr.] Lennon upheld that decision.”

The evidence shows that on March 19, 2010, Ms. Grace

informed Ms. Munn via email that “Dan Austin has made the

decision to terminate Mr. Kurtiev’s employment,” Defs.’ Ex. X,

24 ECF No. 32-26; and that in a memo dated March 23, 2010, Dr.

Biberaj recommended Mr. Kurtiev’s termination to Mr. Lennon, and

that recommendation was agreed to by Mr. Lennon, Steve Redisch,

VOA Executive Editor, and Ms. Grace. Defs.’ Ex. C, 2-3. Mr.

Lennon testified that he was the “nominal deciding official” but

that Mr. Austin “became aware of the results of the

investigation and made a preliminary decision to dismiss Mr.

Kurtiev . . . [that] his employment should be terminated.” Pl.’s

Ex. 32, ECF No. 36-13 at 31:3-4, 9-11, 19-20.

However, that Dr. Biberaj, Mr. Kurtiev’s immediate

supervisor, wrote a memorandum dated March 23, 2010 recommending

that Mr. Kurtiev’s employment be terminated, and that Mr.

Austin, the Director of the VOA, decided on March 19, 2010 that

Mr. Kurtiev’s employment should be terminated after learning the

results of the investigation does create a genuine issue of

material fact from which a reasonable jury could conclude that

the VOA’s reasons for terminating Mr. Kurtiev were pretext for

discrimination as Mr. Kurtiev has introduced no evidence linking

this timeline to any discriminatory intent. Matsushita Elec.

Indus. Co.,

. Mr. Kurtiev also argues that Ms.

Munn admitted that if Mr. Austin made the termination decision

rather than Mr. Lennon, this would have been against VOA policy.

Pl.’s Opp’n, ECF No. 36 at 24. However, this misstates Ms.

Munn’s testimony. Ms. Munn stated that if the “Decision Notice”—

25 here the April 19, 2010 letter—had been issued before the

“Notice”—here the March 24, 2010 letter—in which the employee is

notified of the opportunity to seek reconsideration of the

“Notice,” this would have been against VOA policy. Pl.’s Ex. 33,

ECF No. 36-24 at 77:15-20.

Finally, Mr. Kurtiev argues that “there are many

inconsistencies concerning the official reason for [his]

Kurtiev’s termination,” Pl.’s Opp’n, ECF No. 36 at 24-25. First,

Mr. Kurtiev argues that Ms. Munn testified that Mr. Kurtiev was

terminated based only on the one phrase he was accused of using,

whereas the Decision Notice states that he was also being

terminated for “repeatedly and frequently ma[king] inappropriate

statements to several members of the Russian Service.” Id. at

24. That Ms. Munn did not recall the additional stated reason

for Mr. Kurtiev’s termination in a deposition taken seven years

after the decision does not create a genuine issue of material

fact from which a reasonable jury could conclude that the VOA’s

reasons for terminating Mr. Kurtiev were pretext. Matsushita

Elec. Indus. Co.,

. Second, Mr. Kurtiev argues

that Mr. Lennon stated for the first time in his deposition that

his decision was based on part on Mr. Kurtiev’s managerial

performance. Pl.’s Opp’n, ECF No. 36 at 25. Mr. Lennon testified

that “part of my decision had to be based on an assessment of

his supervisor and managerial skills as evidenced by his

26 performance.” Pl.’s Ex. 32, ECF No. 36-13 at 30:22-31:1-2.

Again, that Mr. Lennon did not recall that Mr. Kurtiev was

terminated based on conduct rather than performance in a

deposition taken seven years after the decision does not create

a genuine issue of material fact from which a reasonable jury

could conclude that the VOA’s reasons for terminating Mr.

Kurtiev were pretext. Matsushita Elec. Indus. Co.,

. Furthermore, Mr. Lennon later confirmed in the deposition

that Mr. Kurtiev’s employment was terminated based on the

investigation into the March 2010 incident. Pl.’s Ex. 32, ECF

No. 36-13 at 70:7-13.

For all of these reasons, Mr. Kurtiev has failed to present

evidence from which “a reasonable jury could not only disbelieve

the employer's reasons, but conclude that the real reason the

employer took a challenged action was a prohibited one.” Walker,

.

Accordingly, since Mr. Kurtiev failed to present evidence

from which a reasonable jury could find that he was terminated

due to his national origin and/or religion, the Defendants'

Motion for Summary Judgment on this claim is GRANTED.

27 B. Mr. Kurtiev Has Failed to Produce Sufficient Evidence From Which a Reasonable Jury Could Find That the VOA’s Stated Reason for Terminating Him was Pretext for Retaliation

To establish a prima facie case for retaliation, Mr.

Kurtiev alleges that: (1) he participated in a protected

activity in January 2010 when he submitted the Badykova Witness

Affidavit, Compl., ECF No. 1 at 10 ¶ 66; (2) he suffered a

materially adverse action when he was terminated in April 2010,

see

at 25 ¶ 182; and (3) there is a causal link connecting

the two because he was terminated after he questioned his

immediate supervisor about the allegedly false reason he had

been given about the nonrenewal of Ms. Badykova’s contract. See

Pl.’s Opp’n, ECF No. 36 at 3.

As with the discrimination claim, the VOA asserts the same

reason for its termination decision: the results of its

investigation of the incident in his office with Ms. Appel and

Ms. Terterian. Having asserted a legitimate, non-retaliatory

reason for the termination decision, the burden now shifts back

to Mr. Kurtiev to demonstrate that the VOA’s “stated reasons

were pretextual, and the real reasons were prohibited

discrimination or retaliation.” Walker,

. And

“the central question at summary judgment becomes whether the

employee produced sufficient evidence for a reasonable jury to

find that the employer's asserted nondiscriminatory or

28 nonretaliatory reason was not the actual reason and that the

employer intentionally discriminated or retaliated against the

employee.”

(internal quotation marks and citation omitted).

To meet his burden, Mr. Kurtiev argues that: (1) he was

terminated in retaliation for refusing to make false statements

in the Badykova Witness Affidavit and for later questioning the

reason he had been given for the nonrenewal of her contract, see

Pl.’s Opp’n, ECF No. 36 at 11; (2) the two subordinate employees

that made the accusation against him were disgruntled and blamed

him for their shift assignment, see id. at 12-13; and (3) the

VOA’s review of the incident was a “sham investigation.” See id.

at 13.

1. Insufficient Evidence of Retaliation Arising From the Badykova Witness Affidavit

Mr. Kurtiev argues that he was terminated in retaliation

for: (1) refusing to make false statements in his Witness

Affidavit; and (2) raising questions about the reason he had

been given for the non-renewal of Ms. Badykova’s contract. Pl.’s

Opp’n, ECF No. 36 at 10.

With regard to his refusal to make false statements in his

Witness Affidavit, Mr. Kurtiev testified that Dr. Biberaj and

Ms. Gandji, another VOA employee, “wanted [him] to include

false[] information that [Ms. Badykova] didn't perform well in

her position, and they wanted [him] to include false[]

29 information that she had conduct issues.” Pl.s’ Ex. 6, ECF No.

36-4 at 138:1-5. Mr. Kurtiev’s affidavit stated that “[a]lthough

her performance was not stellar, Ms. Badykova's contract . . .

was not renewed because a decision was made to rely on stringers

in [] Central Asia and the Caspian region.” Defs.’ Ex. A, ECF

No. 32-3 at 5.

Mr. Kurtiev also states that VOA officials “wanted [him] to

include that [he] was the [person] who made the decision,” not

to renew Ms. Badykova’s contract, Pl.s’ Ex. 6, ECF No. 36-4 at

140:15-17; whereas even though he was Ms. Badykova’s supervisor,

he claims that the decision to not renew her contract was made

by Dr. Biberaj and Ms. Gandji, id. at 140:3-5.

With regard to his questioning the real reason for the non-

renewal of Ms. Badykova’s contract, Mr. Kurtiev states that in

February 2010, after he signed the Witness Affidavit on January

15, 2010, he found evidence suggesting that the reason he had

been given for the non-renewal of Ms. Badykova’s contract—lack

of funds—was not true. Id. at 11. Mr. Kurtiev states that he

confronted Dr. Biberaj, who responded with a look of “extreme

interest and concern” and told him not to worry about it. Pl.’s

Ex. 6, ECF No. 36-4 at 149:18. 5 Mr. Kurtiev then states that in

5 The Court notes that Mr. Kurtiev’s deposition testimony does not support counsel’s characterization that Dr. Biberaj was “visibly upset.” Pl.’s Opp’n, ECF No. 36 at 11. 30 late February or early March 2010, he found evidence that

strongly suggested that the lack of funds rationale was false

and that after confronting Dr. Biberaj about it in late February

or early March 2010, Dr. Biberaj threatened to terminate him.

Pl.’s Opp’n, ECF No. 36 at 11. In support, Mr. Kurtiev cites his

own deposition testimony where he avers that in response to his

confronting Dr. Biberaj, Dr. Biberaj asked him whether he missed

two former employees, which Mr. Kurtiev took to be a threat that

he “could join them outside the Russia Service.” Pl.’s Ex. 6,

ECF No. 36-4 at 150:13-17. Mr. Kurtiev argues that soon

thereafter, the first steps to terminate his employment were

taken. Pl.’s Opp’n, ECF No. 36 at 11. Mr. Kurtiev argues that

his dismissal “was in close temporal proximity to [his]

protected activity of opposing discrimination by refusing to

make knowingly false statements in his affidavit in the Badykova

Case” and “in closer temporal proximity to his confronting Mr.

Biberaj.” Id.

The VOA argues that Mr. Kurtiev’s retaliation claim fails

for several reasons: 6 (1) “any inference of retaliation is undercut

6 The Court is unpersuaded by defendants’ technical argument that during his deposition, Mr. Kurtiev was unable to “identify a single place in his Badykova affidavit where [Dr.] Biberaj or Gandji suggested he include information that he refused to include.” Defs.’ Reply, ECF No. 37 at 20. It is clear that Mr. Kurtiev’s contention is that he was pressured into including the statement that Ms. Badykova “was not a stellar performer” and to state that he was the decisionmaker in the Witness Affidavit.

31 by the lack of temporal proximity”; (2) “any reliance on temporal

proximity here is made even weaker by the absence of any other

evidence suggesting a retaliatory motive”; (3) he has not shown a

connection between any alleged impropriety in various official’s

review of his Witness Affidavit and his termination; (4) he

fails to connect his termination to Dr. Biberaj’s alleged threat

to terminate him; and (5) he “cannot demonstrate the requisite

knowledge of the protected activity.” Defs.’ Reply, ECF No. 37 at

20-22.

The question at this juncture is whether Mr. Kurtiev has

“put forward enough evidence to defeat the proffer and support a

finding of retaliation.” Woodruff v. Peters,

(D.C. Cir. 2007). Mr. Kurtiev argues that the temporal

proximity—two months or less between his signing of the Witness

Affidavit, confronting Mr. Biberaj about the reason he had been

given for the non-renewal of Ms. Badykova’s contract, and when

the decision to fire him was made—establish a prima facie case

of retaliation. Pl.’s Opp’n, ECF No. 36 at 12. 7

“The temporal proximity between an employee's protected

activity and [his] employer's adverse action is a common and

often probative form of evidence of retaliation.” Walker, 798

7 Mr. Kurtiev appears to misunderstand his burden at this juncture. His burden is not to argue that he has stated a prima facie case; it is to “put forward enough evidence to defeat the proffer and support a finding of retaliation.” Woodruff,

. 32 F.3d at 1092) (citing Hamilton, 666 F.3d at 1357–59); Taylor v.

Solis,

(D.C. Cir. 2009). “Whether evidence

offered to show that an employer's explanation is false itself

suffices to raise an inference of unlawful discrimination or

retaliation is a fact-sensitive inquiry.”

(citing Aka v.

Washington Hosp. Center,

(D.C. Cir. 1998)

(“[I]t is difficult, if not impossible, to say in any concise or

generic way under what precise circumstances such an inference

will be inappropriate.”). Assuming that two months or less would

be sufficient to support an inference of temporal proximity,

Clark Cnty. Sch. Distr. v. Breeden,

(2001); at

the summary judgment stage, “positive evidence beyond mere

proximity is required to defeat the presumption that the

proffered explanations are genuine.” Woodruff,

.

And “[t]he evidence of record must be such that a reasonable

jury could not only disbelieve the employer's reasons, but

conclude that the real reason the employer took a challenged

action was a prohibited one.” Walker,

.

Here, a reasonable jury could not disbelieve the VOA’s

reasons and conclude that Mr. Kurtiev’s termination was

retaliatory. Mr. Kurtiev’s contention—that he was retaliated

against because he refused to state in the Witness Affidavit

that Ms. Badykova was a poor worker and had conduct issues, but

stated instead that “she was not a stellar worker” and because

33 he was pressured into stating that he made the decision to

terminate Ms. Badykova—is belied by the fact that the Witness

Affidavit contains the information Mr. Kurtiev alleges he was

pressured to include. Assuming he was in fact pressured to

include this information, Mr. Biberaj and Ms. Gandji achieved

their objective, giving them no reason to retaliate. To the

extent Mr. Kurtiev argues that they retaliated against him two

months later because of their frustration in having had to

pressure him, Mr. Kurtiev offers no evidence other than his

opinion, which is insufficient to overcome the presumption that

the VOA’s reason was legitimate. See Hastie v. Henderson,

(D.D.C. 2000), aff’d, No. 00-5423,

(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

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

Similarly, Mr. Kurtiev’s interpretation of Mr. Biberaj’s

statement as a threat to terminate him for raising questions

about the reason for the non-renewal of Ms. Badykova’s contract

is insufficient to raise a genuine issue of material fact for a

jury. See

Mr. Kurtiev’s arguments that it was improper for

Mr. Biberaj and Ms. Gandji to have reviewed his Witness

Affidavit and to have not informed him that Ms. Badykova named

them in her EEO complaint, and that it was improper for LER and

34 General Counsel staff to have reviewed it fail to “put forward

enough evidence to defeat the proffer and support a finding of

retaliation,” Woodruff,

; because he has provided

no evidence that shows a connection between these alleged

improprieties and his termination. Finally, Mr. Kurtiev has

provided no evidence indicating that the persons other than Mr.

Biberaj who were involved in the decision to terminate him—Ms.

Grace, Mr. Lennon, Mr. Redisch, Mr. Austin, and Ms. Elliott—had

any knowledge of Mr. Kurtiev’s involvement in the Badykova

Witness Affidavit.

For all of these reasons, Mr. Kurtiev has failed to provide

evidence from which “a reasonable jury could not only disbelieve

the employer's reasons, but conclude that the real reason the

employer took a challenged action was a prohibited one.” Walker,

.

2. Insufficient Evidence of Retaliation Based on Ms. Appel and Ms. Terterian Being Unhappy About Their Shift Pick

Next, Mr. Kurtiev contends that the two subordinate

employees who made the accusation against him were disgruntled

because of the shifts they received. Mr. Kurtiev cites his own

testimony to assert that the two employees “were very combative

and threatened [him] with trouble if he did not change the

shifts they were assigned to under the shift picks.” Pl.’s

Opp’n, ECF No. 36 at 13. However, the testimony Mr. Kurtiev

35 cites does not support his assertion that they threatened him.

Rather, Mr. Kurtiev testified that Ms. Terterian asked her

questions about the shifts in a “combative way.” Pl.’s Ex. 6,

ECF No. 26-4 at 172-173. Mr. Kurtiev points to the summary of

the interview of Russian Service employee Daria Kutkovaya, who

stated “that people would have personal offense against him and

accuse him of something because of the shift picks.” Pl.’s

Opp’n, ECF No. 36 at 12. However, Ms. Kutkovaya’s personal

opinion does not create a genuine issue of material fact from

which a reasonable jury could conclude that the VOA’s reasons

for terminating Mr. Kurtiev were pretext. See Hastie, 121 F.

Supp. at 72.

Additionally, the VOA considered and rejected Mr. Kurtiev’s

argument about Ms. Appel and Ms. Terterian’s motivations: “I

find your arguments that Ms. Appel and Ms. Terterian have

personal reasons to make false allegations against you are

without merit. You have not shown how these accusations would

benefit either Ms. Appel or Ms. Terterian. In fact, the

complaint did not result in an adjustment to either employee’

[sic] schedule or shift.” Defs.’ Ex. Y, ECF No. 32-27 at 3-4.

Mr. Kurtiev also asserts that the two employees’ stories

about the March 10, 2010 incident “changed over time.” Pl.’s

Opp’n, ECF No. 36 at 13. His support for this assertion is Ms.

Roushanian’s March 11, 2010 email describing the call she

36 received from Ms. Terterian and stating that the phrase included

the word “have,” Ms. Terterian’s March 11, 2010 email to Ms.

Appel in which she translated the phrase as including the “f”

word, and that the investigation showed a split among employees

as to whether Mr. Kurtiev makes offensive statements. Id. Mr.

Kurtiev also asserts that Ms. Appel and Ms. Terterian “testified

differently during their depositions as to what was said and its

translation.” ECF No. 40 at 7 ¶ 39. As the Court explained

supra, although the record contains slight deviations in the

translation of the phrase, those deviations do not change the

sexual connotation of the phrase. Accordingly, these slight

deviations do not create a genuine issue of material fact from

which a reasonable jury could conclude that the VOA’s reasons

for terminating Mr. Kurtiev were pretext. Matsushita Elec.

Indus. Co.,

.

For all of these reasons, Mr. Kurtiev has failed to provide

evidence from which “a reasonable jury could not only disbelieve

the employer's reasons, but conclude that the real reason the

employer took a challenged action was a prohibited one.” Walker,

.

3. Insufficient Evidence of Retaliation Based on the Investigation

Mr. Kurtiev raises a number of complaints about the

investigation to argue that the investigation of the incident

37 was a “sham.” Pl.’s Ex. 10, ECF No. 36-7. The question at this

juncture is whether Mr. Kurtiev has “presented sufficient

evidence to attack the employer’s proffered explanations for its

actions” by “call[ing] into question whether [Defendants’]

investigation was a reasonably objective assessment of the

circumstances or, instead, an inquiry colored by . . .

discrimination” or retaliation. Mastro v. Potomac Elec. Power

Co.,

(D.C. Cir. 2005).

Mr. Kurtiev complains that the decision to terminate his

employment was made before the investigation was complete

because he was notified of the decision before he was given the

opportunity to respond to the complaint against him. Pl.’s

Opp’n, ECF No. 36 at 13. However, the evidence shows that LER

staff met with Mr. Kurtiev on March 11, 2010 to inform him of

the complaint made against him and that he denied that he made

the statement. Defs.’ Ex. S, ECF No. 32-21 at 2. LER staff then

conducted the investigation from March 11, 2010 through March

18, 2010. Defs.’ Ex. K, ECF No. 32-13 at 62:19-20.

Mastro is instructive. In Mastro, the D.C. Circuit reversed

the district court’s grant of summary judgment in favor of the

defendants, “conclud[ing that the plaintiff] raised a genuine

issue of material fact concerning the legitimacy of [the

defendants’] nondiscriminatory reason for termination” based on

the investigation that was conducted into the incident and that

38 lead to the plaintiff’s termination. Mastro,

. The

D.C. Circuit pointed to record evidence suggesting that the

investigation, “which was central to and culminated in [the

plaintiff’s] termination, was not just flawed but inexplicably

unfair” because: (1) the plaintiff himself was not interviewed;

and (2) “careful, systematic assessments of credibility” were

not performed. Id. at 80. Here, by contrast, Mr. Kurtiev was

interviewed on the day after the incident occurred. And Ms. Munn

made credibility determinations based on her “discussions with

Ms. Appel and Ms. Terterian, Ms. Terterian’s emotional state,

[and] the translation of the statement that each member of the

Russian Service translated to being the same.” Defs.’ Ex. K, ECF

No. 32-13 at 73:11-16.

The record shows that Mr. Kurtiev, at his request, met with

Ms. Munn during the afternoon of March 22, 2010, Defs.’ Ex. B,

ECF No. 32-4 at 220:6-7; after Mr. Austin decided on March 19,

2010 that his employment should be terminated, Defs.’ Ex. X, ECF

No. 32-26 at 2. Given that after Mr. Kurtiev was given notice of

his termination in a letter dated March 24, 2010, he was able to

seek reconsideration of that decision and did so with the

assistance of counsel, Defs.’ Ex. Y, ECF No. 32-27; Defs.’ Ex.

CC, ECF No. 32-31; the Court cannot find that the March 22, 2010

meeting between Mr. Kurtiev and Ms. Munn calls into question

39 whether the “investigation was a reasonably objective assessment

of the circumstances . . .” Mastro,

.

Mr. Kurtiev also asserts that Ms. Munn did not request a

description of the incident from Ms. Appel and Ms. Terterian.

Pl.’s Opp’n, ECF No. 36 at 14. However, the record shows that on

March 11, 2010, Ms. Terterian forwarded to Ms. Munn an email

discussion between Ms. Terterian and Ms. Munn describing the

incident. Pl.’s Ex. M at 2. Mr. Kurtiev complains that the

“investigation was not thorough” because Ms. Appel was never

interviewed and Ms. Terterian was interviewed only

telephonically. Pl.’s Opp’n, ECF No. 36 at 16. However, the

record shows that both Ms. Appel and Ms. Terterian were

interviewed in person. Pl.’s Ex. 33, ECF No. 36-14 at 51:14-16;

Defs.’ Ex. S, ECF No. 32-21 at 2. Mr. Kurtiev disputes that Ms.

Munn met with Ms. Terterian in person because Ms. Munn’s notes

of the meeting include Ms. Terterian’s telephone number.

However, as Ms. Munn explained, she wrote Ms. Terterian’s

telephone number on her notes so that she could reach her while

she was on administrative leave. Pl.’s Ex. 33, ECF No. 36-14 at

55:3-7. He also disputes that Ms. Munn met with Ms. Appel in

person because no notes of the meeting with Ms. Appel have been

produced despite Ms. Munn’s statement in her deposition that she

“takes notes for every meeting.” Id. at 54:16-55:7; 53:4.

However, Mr. Kurtiev provides no positive evidence to support

40 his allegations and his arguments are based on an inaccurate

understanding of the record. Accordingly, he fails to “call into

question whether [Defendants’] investigation was a reasonably

objective assessment of the circumstances.” Mastro,

.

Mr. Kurtiev’s expert criticized the investigation for not

investigating Mr. Kurtiev’s defenses, or his allegations about

Ms. Appel and Ms. Terterian’s motivations prior to the March 24,

2010 decision. Pl.’s Opp’n, ECF No. 36 at 14. Along the same

lines, Mr. Kurtiev complains that the VOA did not investigate

whether Ms. Appel and Ms. Terterian conspired to get Mr. Kurtiev

fired. Id. at 17. However, Mr. Kurtiev points to no evidence in

the record indicating that he made Ms. Munn aware of his

defenses or allegations when he met with her and other LER staff

on March 11, 2010. And in making its final decision in response

to Mr. Kurtiev’s request for reconsideration, the VOA did take

into account Mr. Kurtiev’s evidence of alternate translations of

the phrase as well as his allegations about Ms. Appel’s and Ms.

Terterian’s motivations. Specifically, the VOA took into

consideration the alternate translation of the phrase provided

by Mr. Kurtiev, but found the translation of the phrase that has

a sexual connotation to be more credible. Defs.’ Ex. Y, ECF No.

32-27 at 3. And as stated above, the VOA also noted that the

“poor judgment [Mr. Kurtiev] displayed in making this statement

41 and by attempting to provide a false translation to mitigate

[his] misconduct lead me to conclude that [his] removal from

federal service is justified and necessary.” Id. at 3-4. Also as

stated above, the VOA also considered and rejected his argument

about Ms. Appel and Ms. Terterian’s motivations: “I find your

arguments that Ms. Appel and Ms. Terterian have personal reasons

to make false allegations against you are without merit. You

have not shown how these accusations would benefit either Ms.

Appel or Ms. Terterian. In fact, the complaint did not result in

an adjustment to either employee’ [sic] schedule or shift.” Id.

Mr. Kurtiev raises a number of additional miscellaneous

complaints about the investigation based on the report of his

expert. However, none of these complaints call into question

whether the “investigation was a reasonably objective assessment

of the circumstances . . . .” Mastro,

. Mr.

Kurtiev complains that he did not have the opportunity to engage

in “meaningful discussions” until after the termination decision

had been made. Pl.’s Opp’n, ECF No. 36 at 16. However, Mr.

Kurtiev was informed of the complaint and provided an

opportunity to respond on the day the investigation began.

Moreover, he was able to engage in meaningful discussions during

the VOA’s reconsideration of the decision, and did so with the

advice of counsel. And the record indicates that the VOA

considered his arguments carefully.

42 Mr. Kurtiev complains that the VOA did not investigate

whether Ms. Appel and Ms. Terterian themselves used the phrase.

Pl.’s Opp’n, ECF No. 36 at 16-17. However, whether or not they

used the phrase is not relevant to the propriety of Mr. Kurtiev

using the phrase during the meeting with them. Mr. Kurtiev

complains Ms. Munn asked leading questions and that the VOA did

not investigate whether the translation of the phrase was

accurate. Pl.’s Opp’n, ECF No. 36 at 17. He also argues that the

VOA should have found “an individual fluent in Russian who had

no relationship or connection with the complainants or the

accused (and therefore no conflict of interest) and who could

have provided an unbiased translation.” Pl.’s Opp’n, ECF No. 36

at 17. Mr. Kurtiev’s objection to the questions that were posed

during the investigation do not “call into question whether

[Defendants’] investigation was a reasonably objective

assessment of the circumstances.” Mastro,

. And

the evidence shows that VOA obtained sixteen translations by

Russian Service employees, including employees who performed

translations as part of their day-to-day responsibilities,

unanimously translating the phrase as having a sexual

connotation. Furthermore, some of those employees showed support

for Mr. Kurtiev’s leadership. Mr. Kurtiev complains that some of

the Russian Service employees who were interviewed “expressed

distain for Mr. Kurtiev based on his national origin.” However,

43 assuming some Russian Services employees expressed distain, the

employees were unanimous in translating the phrase as having a

sexual connotation. Accordingly, even employees who did not

allegedly express distain for him translated the phrase as

having a sexual connotation.

Mr. Kurtiev complains that the record does not indicate

that Ms. Munn or anyone assisting her evaluated the reliability

and credibility of the persons interviewed. Pl.’s Opp’n, ECF No.

36 at 17. However, Ms. Munn testified that she made credibility

determinations based on her “discussions with Ms. Appel and Ms.

Terterian, Ms. Terterian’s emotional state, [and] the

translation of the statement that each member of the Russian

Service translated to being the same.” Defs.’ Ex. K, ECF No. 32-

13 at 73:11-16.

Finally, Mr. Kurtiev speculates that Ms. Munn and other

high-ranking VOA officials “may” have been biased against Mr.

Kurtiev. Pl.’s Opp’n, ECF No. 16-19. However, such speculation

is insufficient to create a factual issue of pretext. See

Hastie,

.

Accordingly, since Mr. Kurtiev failed present evidence from

which a reasonable jury could find that he was terminated in

retaliation for issues surrounding the Badykova Witness

Affidavit, that the allegations against him were fabricated, or

that the investigation was not a “reasonably objective

44 assessment of the circumstances,” Mastro,

, the

Defendants’ motion for summary judgment on this claim is

GRANTED.

C. Mr. Kurtiev is Entitled to a Weak Adverse Inference

Mr. Kurtiev asserts that documents relating to this case—

specifically documents relating to edits made to the Badykova

Witness Affidavit—were not preserved when the hard drive of his

computer was “wiped clean.” Pl.’s Opp’n, ECF No. 36 at 9. Mr.

Kurtiev states that no litigation hold was placed by the Office

of General Counsel nor by the VOA’s EEO office.

As a result,

Mr. Kurtiev asks the Court to “conclude that there was

spoliation and that a negative inference is warranted.” Id. at

10.

A party has “an obligation to preserve and also to not

alter documents it knew or reasonably should have known were

relevant to the . . . litigation if it knew the destruction or

alteration of those documents would prejudice the [other

party].” Shepherd v. Am. Broad. Cos.,

(D.C.

Cir. 1995). “[A] negative inference may be justified where the

defendant has destroyed potentially relevant evidence.” Gerlich

v. Dep’t of Justice,

(D.C. Cir. 2012). The

duty to preserve arises when litigation is reasonably

foreseeable.

. “Once a court has determined that

future litigation was reasonably foreseeable to the party who

45 destroyed relevant records, the court must then assess . . .

whether the destroyed records were likely relevant to the

contested issue.”

.

Here, litigation was reasonably foreseeable since the

record indicates that Mr. Kurtiev was represented by counsel

during his request for reconsideration of the March 24, 2010

Notice of Termination of Appointment. See e.g., Defs.’ Ex. AA,

ECF No. 32-29. Moreover, his counsel’s April 8, 2010 letter to

the VOA raised the possibility of an EEO retaliation claim.

Pl.’s Ex. 12, ECF No. 36-9 at 9-10. Accordingly, the Court must

assess “whether the destroyed records were likely relevant to

the contested issue.” Gerlich,

. “[I]n situations

where ‘the document destruction has made it more difficult for a

party to prove that the documents destroyed were relevant,’ the

‘burden on the party seeking the adverse inference is lower,’

and ‘the trier of fact may draw such an inference based even on

a very slight showing that the documents are relevant.’”

Gerlich,

(quoting Ritchie v. U.S.,

, 1025 (9th Cir. 2006)). Mr. Kurtiev asserts that “[these

documents were highly relevant to the issue of motive, among

other things.” Pl.’s Opp’n, ECF No. 36 at 9. The inference he

requests is that VOA officials, “at a minimum,” Mr. Biberaj and

Ms. Gandji, had a retaliatory motive or a retaliatory intent.

Id. at 10.

46 Mr. Kurtiev’s theory of relevance is unclear. If it is that

the destroyed documents would have shown that the versions of

the affidavit that showed Mr. Biberaj and Ms. Gandji’s edits

would provide evidence that Mr. Biberaj and Ms. Gandji had

reason to retaliate against him, Mr. Kurtiev is entitled to only

a weak inference because as the Court explained above, to the

extent they pressured him to say that Ms. Badykova “was not a

stellar performer” and that Mr. Kurtiev made the decision to

fire her, they achieved their objective and so would have no

reason to retaliate against him. On the other hand, if his

theory is that the different versions of the affidavit would

have shown that it was improper for VOA officials to have played

a role in editing the affidavit, he is entitled to only a weak

inference because he has not provided any evidence linking the

editing process to his termination. Neither of these weak

inferences are strong enough to provide evidence from which “a

reasonable jury could not only disbelieve the employer's

reasons, but conclude that the real reason the employer took a

challenged action was a prohibited one.” Walker,

.

V. Conclusion

Drawing every justifiable inference in Mr. Kurtiev’s favor,

as the Court must, it finds no basis upon which a reasonable

factfinder could conclude that the VOA had discriminatory intent

47 based on his national origin and/or religion, or was retaliating

against Mr. Kurtiev for taking part in a protected activity when

it terminated him. Accordingly, the Defendants’ Motion for

Summary Judgment is GRANTED. An appropriate Order accompanies

this Memorandum Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge June 1, 2020

48