UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JEMAL A. CHEATHAM, Plaintiff, v. Civil Action No. 18-03026 (CKK)

ALEJANDRO MAYORKAS, et al., Defendants.

MEMORANDUM OPINION

Plaintiff, Jemal A. Cheatham, appearing pro se and in forma pauperis, sues the Secretary

of the United States Department of Homeland Security (“DHS”) 1 and 23 unidentified John/Jane

Does. 2 See Amended Complaint (“Am. Compl.”), ECF No. 25, at 1, 3, 12. Before the Court is

Defendants’ Motion to Dismiss and/or for Summary Judgment, ECF No. 35, Memorandum in

Support (“Defs.’ Mem.”), ECF No. 35-1, and Statement of Material Facts (“Defs.’ Stmt.”), ECF

No. 35-2. For reasons explained herein, the Court will grant the Motion, dismissing without

prejudice Counts II, III, IV, and V, pursuant to the Federal Rule 12(b)(1), and entering summary

judgment as to Count I and any other intended claims arising from violations of the Civil Rights

Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16, arising from Cheatham’s sex and gender.

1 The current DHS Secretary is automatically substituted in his official capacity for his predecessor pursuant to Fed. R. Civ. P. 25(d). 2 As previously noted in the Court’s previous Memorandum Opinion (“Mem. Op.”), ECF No. 18, at 6, the head of the agency is the only proper defendant in a Title VII action, see 42 U.S.C. § 2000e–16(c); Davis v. Califano,

, 958 n.1 (D.C. Cir. 1980). Additionally, the Local Rules of this Court state that a plaintiff “filing pro se in forma pauperis must provide in the [complaint’s] caption the name and full residence address or official address of each party.” LCvR 5.1(c)(1). For these reasons, the claims against all “Doe Defendants” will be dismissed. 1 I. PROCEDURAL HISTORY

Cheatham filed this matter on December 3, 2018. Defendants responded to the original

Complaint by filing a preliminary Motion to Dismiss pursuant to Federal Rules 4(m), 8(a),

12(b)(1), and 12(b)(6). See First Motion to Dismiss, ECF No. 11. On March 4, 2020, the Court

denied the Motion without prejudice. See generally Mem. Op.; Order, ECF No. 19. Among other

conclusions, the Court found that the Complaint failed to comply with Federal Rule 8(a), but that

Cheatham’s intended Title VII discrimination and retaliation claims materialized with slightly

more precision during motions briefing. See Mem. Op. at 11. Therefore, Cheatham was directed,

pursuant to Federal Rule 15(a)(2), to amend his complaint by April 6, 2020, and to assert his claims

with “greater clarity.”

(citing Carter v. Dep't of the Navy, No. 05–cv–0775,

at *4 (D.D.C. Aug. 24, 2006)).

On March 27, 2020, Cheatham filed a Motion for Extension, ECF No. 20, to file an

amended complaint, which the Court granted by Minute Order on April 10, 2020. Cheatham was

ordered to file an amended complaint by May 8, 2020.

By September 1, 2020, the Court had

not yet received an amended complaint, and consequently, Cheatham was ordered to show cause

why this case should not be dismissed for failure to prosecute. See Show Cause Order, ECF No.

23. Cheatham then filed a timely Response that included evidence that an Amended Complaint,

attached as an exhibit thereto, had been timely received by the courthouse mailroom, but for

unknown reasons, had not been docketed. As a result, on October 30, 2020, the Court entered a

minute order discharging the Show Cause Order and directed the Clerk to docket the attached

Amended Complaint.

Cheatham contends that DHS, more specifically, his former employer and DHS subsidiary,

the Federal Emergency Management Agency (“FEMA”), discriminated against him based on his

2 male sex and gender. See Am. Compl. ¶¶ 1, 8, 17, 21, 35. He sues Defendants for discriminatory

termination based on his sex and gender in violation of Title VII,

¶¶ 32–6, and for retaliation

in violation of

(“Section 1981”),

¶¶ 37–61. Cheatham seeks declaratory

and injunctive relief,

¶¶ 62–65, reinstatement, back pay, compensatory damages, punitive

damages, liquidated damages, and fees and costs,

at Prayer for Relief.

After a brief extension, on December 2, 2020, Defendants filed the pending Motion to

Dismiss and/or for Summary Judgment, to which Cheatham filed an Opposition (“Opp’n”) and

Statement of Material Facts (“Pl.’s Stmt.”), collectively ECF No. 37. Defendants then filed a

Reply (“Reply”), ECF No. 38. The Motion is now ripe for the Court’s consideration.

II. FACTUAL BACKGROUND

On September 11, 2011, Cheatham began working at FEMA as an accountant for the

Internal Control Team in the Office of the Chief Financial Officer. Am. Compl. ¶ 10, 16–17; Pl.’s

Stmt. ¶ 1 (citing Report of Investigation (“ROI”) (also attached at Defs.’ Ex. 2, ECF No. 35-4) at

1, 72); Defs.’ Stmt. ¶ 1; Defs.’ Ex. 1, ECF No. 35-3, at 183, 187. His employment was subject to

a one-year probationary period. See Am. Compl. ¶¶ 3, 22; Defs.’ Stmt. ¶ 2; Defs.’ Ex. 1 at 183,

263, 288–89; Defs.’ Ex. 2 at 5; Defs.’ Ex. 3, ECF No. 35-5, at 2. Cheatham worked, for a period

of time and in certain capacities, “under the direction of a male Team Lead employee,” Michael

Walker. Am. Compl. ¶ 17. On March 20, 2012, Cheatham emailed Responsible Management

Official, Kathy Hill – also the Director of Risk Management and Cheatham’s direct supervisor,

Pl.’s Stmt. ¶ 4 – wanting to discuss “high level issues” relating to Walker, Defs.’ Ex. 1 at 213–15.

Hill replied suggesting that they discuss the issues the following day. See id. at 215.

The following month, on June 4, 2012, Hill met with Walker to discuss complaints

regarding alleged improprieties in Cheatham’s interactions with some of his female co-workers.

3 Defs.’ Ex. 3 at 6 (citing ROI 110). At the meeting, Walker informed Hill that Cheatham had

allegedly

1. Looked at a waitress in an Atlanta restaurant in December 2011 while having lunch; 2. Sexually harassed an intern on her first day working . . . [and] 3. There was a possible situation involving AFC (i.e. Chapman) that he declined to go into detail.

Id. (quoting ROI 126, 195).

More specifically, Walker reported that the first incident (“First Allegation”) occurred

during a training in Atlanta. Id. at 6–7 (citing Administrative Judge (“AJ”) Ex. 5 at 443, 543, 733).

Cheatham was accompanied by two female co-workers at a lunch outing, during which, Cheatham

allegedly inappropriately stared at a waitress. Id. According to Walker, he and two female co-

workers had to tell Cheatham that his staring was inappropriate. Id. at 7 (citing AJ Ex. 5 at 734).

As to the second incident (“Second Allegation”), Walker reported that a female intern,

Sandra Akintola, alleged that Cheatham “rubbed her arm and made her feel uncomfortable.” Id.

(quoting ROI 108). Hill then followed up with Akintola, who did not, at first, confirm that

anything happened but asked to be moved away from Cheatham. Id. Consequently, Hill removed

Akintola from the project on which she had been working with Cheatham. Id. (citing ROI 108;

AJ Ex. 5 at 442). The third allegation (“Third Allegation”) was a “possible situation” with another

female co-worker, Amanda Fenwick-Chapman, that seemed to be emerging. See id. (quoting ROI

126, 195).

At the time, Cheatham had some level of knowledge about the three Allegations, and he

believed them to be a complete fabrication by Walker, created solely to attack and humiliate him.

See id. (citing ROI 110; 193); see also Pl’s Ex. 4, ECF No. 34-4, at 141–43; Defs.’ Ex. 1 at 105–

08. On the day following the Walker/Hill meeting, June 5, 2012, Cheatham reached out to Hill

4 requesting his own meeting. See id. In these email communications, Plaintiff expressed his

concern about Walker’s alleged fabrications and workplace discourse regarding same, and also

noted that he felt sexually harassed by Walker, who had allegedly asked Cheatham repeatedly

about Cheatham’s “sexual exploits.” See Pl.’s Ex. 4, ECF No. 37–4, at 143; see also Am. Compl.

¶ 18; Pl.’s Stmt. ¶¶ 5–6 (citing Walker Deposition at 12–13), 13. Cheatham alleged that Walker

was preoccupied with Cheatham’s status as a single man. See id. He alleges that neither Hill, nor

any other “higher level officials[,]” took any action to remedy the situation with Walker. Am.

Compl. ¶ 19; see also Pl.’s Stmt. ¶¶ 14–15 (citing ROI 00081, 00166). Cheatham also states that

he requested to be fully transferred to another work group and that such request was denied. Pl.’s

Stmt. ¶ 23.

On the other hand, Defendants contend, and the record shows, that the agency did, in fact,

take action, even if not quite as swiftly or in the manner Cheatham would have initially preferred.

See Defs.’ Stmt. ¶ 4. By June 11, 2012 – within four business days of Cheatham’s request for a

meeting – Hill met with Cheatham and Walker to jointly discuss Cheatham’s reported issues 3 and

to attempt to resolve same. See Defs.’ Stmt. ¶ 4 (citing Defs.’ Ex. 1 at 108).

On June 13, 2012, two days after the meeting with Hill, Cheatham filed an informal Equal

Employment Opportunity (“EEO”) sexual harassment Complaint Against Walker (“Complaint

Against Walker”) for posing “personal and searching questions” about Cheatham’s sex life. Id. ¶

5 (citing Defs.’ Ex. 1 at 97); Defs.’ Ex. 3 at 7 (quoting ROI 101); Pl.’s Stmt. ¶ 21. The Complaint

Against Walker also alleged that Hill failed to resolve the issues despite her knowledge that Walker

3 On June 8, 2012, Cheatham declined Walker's physical activity program calendar invitation to go swimming at a gym during off-work hours, which Cheatham perceived to be sexual harassment. Pl.’s Stmt. ¶¶ 13, 16 (citing ROI 00168); see Defs.’ Ex. 1 at 98–9, 272. There is nothing in the record to suggest that Cheatham reported this incident until after his termination. See Defs.’ Ex. 1 at 8, 108. 5 made Cheatham “very uncomfortable.” Defs.’ Ex. 3 at 7 (quoting ROI 101). Cheatham also

reiterated that the First, Second, and Third Allegations were concocted by Walker as a ruse to oust

him from employment during his probationary period. See id.

On the same date, June 13, 2012, Hill independently determined that Cheatham would

henceforth report only to her, and not to Walker. See Defs.’ Stmt. ¶ 4 (citing Defs.’ Ex. 1 at 108);

see also Defs.’ Ex. 3 at 7–8.

On June 22, 2012, Stacy L. Merriwether, an EEO specialist with FEMA’s Office of Equal

Rights, was assigned as the counselor for the pre-complaint phase of the Complaint Against

Walker. Pl.’s Stmt. ¶ 22 (citing ROI 00106); Defs.’ Ex. 1 at 143. Merriwether promptly reached

out to Cheatham, see id., and then began the pre-complaint process by also notifying Walker of

the charges against him, compiling information, and initiating interviews. See Pl.’s Ex. 4 at 141–

45.

Six days later, on June 28, 2012, Cheatham notified Merriwether that he wished to

withdraw the Complaint Against Walker, see Defs.’ Stmt. ¶ 6 (citing Defs.’ Ex. 1 at 134), stating

While I do not agree with Mr. Walker’s side of the story, I do agree that my supervisor has taken appropriate action to remove me from the situation (my reporting relationship) with Mr. Walker even though I have had to speak to [Hill] on 3 different times regarding his behavior. Having said that, since my last report to my supervisor, there have been no other issues that have come up and Mr. Walker’s behavior has been adjusted[.]

Defs.’ Ex. 1 at 134; see also Opp’n at 6. On July 2, 2012, Cheatham emailed Merriwether,

requesting that he be provided a copy of the “final report for the informal charge.” Defs.’ Ex. 1 at

133. On the same day, Merriwether replied, advising that he was not entitled to a copy of the final

report because he had withdrawn the Complaint Against Walker. Id. at 132. Cheatham replied

back, stating” “[w]ell in that case[,] consider this closed[.]” Id.

On July 6, 2012, Cheatham’s co-worker, Chapman, a Financial Policy Specialist in the

6 Policy Section, and the individual associated with the Third Allegation, contacted FEMA’s EEO

Office and alleged that Cheatham had sexually harassed her. Defs.’ Ex. 3 at 8 (citing ROI 127; AJ

Ex. 5 at 197). Chapman also reported the alleged sexual harassment to her direct supervisor,

Nicole Gore. See id. at 7 (quoting ROI 126; 195), 8 (citing ROI 111); Defs’ Ex. 1 at 104, 108.

On July 16, 2012, Merriwether notified Cheatham that Chapman had contacted the Office

of Equal Rights, alleging that he had sexually harassed her on multiple occasions (“Chapman’s

Complaint”). See Defs.’ Stmt. ¶ 8 (citing Defs.’ Ex. 1 at 129). Merriwether also notified him that

she was assigned as Chapman’s counselor as part of the EEO pre-complaint process. See Defs.’

Stmt. ¶ 8 (citing Defs.’ Ex. 1 at 129).

Subsequently, in late July and early August 2012, Cheatham emailed Hill to inform her

that Walker was allegedly publicly discussing Chapman’s Complaint, and that he had reason to

believe that Walker was performing his own “investigation” without authority. See Defs. Ex. 1 at

195–96; Pl.’s Ex. 3, ECF No. 37-3, at 86, 91–2, 106. According to Cheatham, Hill responded and

indicated that she would tell Walker to cease any such behavior and, should it happen again and if

Cheatham were able to provide additional specifics, she would initiate an investigation. See Defs.’

Ex. 1 at 196.

He then emailed Merriwether directly on August 6, 2012, expressing his concerns that

FEMA was unfairly prioritizing Chapman’s Complaint, and that he believed it was receiving

“more attention in the informal stage” than the Complaint Against Walker had received. Id. at

122–3; see Am. Compl. ¶¶ 19–21; Pl.’s Stmt. ¶ 45; Opp’n at 6, 13–14. He asked why his

allegations against Walker “seemed” to go “to the wayside” and were “now forgotten.” Defs.’ Ex.

1 at 122–3. He also stated, contrary to his prior assertions, see Defs.’ Ex. 1 at 134, that Walker

had continued the “assault of [his] character” and that he was not sure, see Pl.’s Stmt. ¶ 44, but

7 believed that it was Walker who convinced Chapman to accuse him of sexual harassment, Defs.’

Ex. 1 at 122–3. As a result, Cheatham requested to reopen the Complaint Against Walker, and

also requested that it serve as counter‐complaint against Chapman for filing false charges. He also

expressed his intention to potentially file a separate and additional complaint against Chapman

regarding her own alleged workplace misbehaviors. See id.; Opp’n at 7.

On August 22, 2012, Cheatham attempted to notify the Office of the Attorney General of

his circumstances, see Defs.’ Ex. 1 at 196–7, though it is unclear if anything came of those

attempts. Then on August 24, 2012, Cheatham again informed Merriwether that he still had

“problems on how [his] case was handled with Mike Walker” and expressed the belief that the

Complaint Against Walker “was handled differently” than Chapman’s Complaint. Id. at 120–1.

Cheatham contends that his supervisors never pursued his “renewed complaint” against Walker.

See Pl.’s Stmt. ¶ 46.

Meanwhile, FEMA’s Office of Chief Security Officer (“OCSO”) proceeded with the

investigation of Chapman’s Complaint. Defs.’ Stmt. ¶ 9 (citing Defs.’ Ex. 1 at 73, 183 and id. at

Ex. 2). Special Agent Lori Brannigan (Internal Investigations Branch), and the Fraud and Internal

Investigation Division were also assigned to the investigation. See Defs.’ Ex. 1 at 211; Defs.’ Ex.

2 at 3; Defs.’ Ex. 3 at 9 (citing AJ Ex. 4 at 74). These specific procedures were instituted because

Chapman’s Complaint included an allegation of improper touching, see Defs. Ex. 1 at 109; Defs.’

Ex. 2 at 32, therefore, FEMA was mandated to investigate, through these particular channels,

allegations under the provisions of its policy against violence in the workplace, see Defs.’ Ex. 3 at

10 (citing AJ ex. 4 at 74).

During the investigation, Brannigan interviewed co-worker Lantanya Drake. She attested

that Chapman was “often approached” by Cheatham who “spoke to her, played with her, made

8 comments towards, and always looked her up and down.” Defs.’ Ex. 3 at 8 (quoting ROI 156).

Drake indicated that Chapman was visibly annoyed and would often tell Cheatham to leave her

alone. Id. Drake remembered specific raunchy and inappropriate comments that Cheatham

allegedly made to Chapman about her appearance race, and age, and that he often purportedly tried

to provoke Chapman to engage back with him. Id. (quoting ROI 156). Drake denied ever seeing

Chapman reciprocate or initiate flirtation with Cheatham. Id. (citing ROI 157). According to

Drake, while on smoke breaks, she, Chapman, and others, often “joked around[,]” but did not use

vulgar language, and that only Cheatham would use vulgar language, which upset some of his co-

workers. Id. at 8–9 (quoting ROI 157). Drake did not see Cheatham ever touch Chapman. Id. at

9.

According to Drake, Chapman personally told her she felt harassed, and that Chapman also

reported the alleged harassment to Gore. See id. (citing ROI 158; AJ Ex. 4 at 95; AJ Ex. 5 at 219).

Drake averred that she personally told Cheatham to “back off” Chapman, and that she was also

really “upset” about the circumstances. See id. (quoting ROI 158; AJ Ex. 2 at 95). Drake stated

that Cheatham stopped the alleged behavior for “about two weeks” before starting again. Id.

(quoting ROI 158). Drake noted that Cheatham was “not a bad guy” in her opinion but that he was

“very flirtatious towards the ladies.” Id. (quoting ROI 160).

Brannigan interviewed Chapman, who attested that she had been subjected to alleged

sexual harassment perpetrated by Cheatham multiple times since 2011. Id. at 10. She reported,

verbatim, some of the same alleged inappropriate comments that he had repeatedly made to her,

which had also been independently corroborated by Drake. See Defs. Ex. 2 at 14–15. Chapman

stated that Cheatham repeatedly came into her workstation and sat on her desk flirtatiously, despite

her requests for him to stop. See id. at 14. She also alleged that Cheatham had, unprovoked, given

9 her his personal phone number on a Post-It note, and she provided this note to Brannigan as

evidence. See id. at 14–15. Chapman noted that, on two occasions, that Cheatham attempted to

get her into an empty office with him. Id. at 15. She also reported that Cheatham had allegedly

showed her graphic photos on his phone and made numerous sexual comments, both to her and

about her, and about others. See id. She denied ever kissing him or initiating any type of physical

contact. See id. at 9, 12. Next, she noted an alleged incident where Cheatham allegedly sexually

harassed her outside the building, then followed her closely and aggressively into an elevator, and

then upon leaving the elevator, made untoward comments while walking behind her. Id at 14. She

indicated that, while contemplating reporting the behavior, she reached out to Drake, who asked

Cheatham to stop on Chapman’s behalf. See id. at 15. She also noted that at least three other

women felt uncomfortable around Cheatham, namely, co-workers, Drake, Tammy Briscoe, and

Rosalind Brown. When his alleged behavior did not stop, Chapman reached her “breaking point”

and decided to report the alleged behavior to Gore. Id.

Brannigan also interviewed Briscoe. See Defs.’ Ex. 2 at 25. Briscoe corroborated the

Chapman’s allegations regarding Cheatham’s alleged persistent sexual harassment. Defs.’ Ex. 3

at 10 (citing AJ Exs. 4 and 5 at 385). More specifically, she recalled “several occasions” when

Cheatham was “disrespectful to [Chapman] in a sexual way.” Defs.’ Ex. 2 at 25. She also reported

some of the same alleged charged comments – also separately corroborated by Drake and Chapman

– that Cheatham made to Chapman about her appearance and race. She observed Cheatham

allegedly “looking [Chapman] up and down” for extended periods of time on several occasions.

Id. Chapman told Briscoe that she was bothered by it and wanted it to stop. Briscoe also reported

that she found Cheatham’s alleged behaviors “unprofessional” and that she was “offended as a

woman by his actions and comments[.]” Id.

10 Akintola was also interviewed by Brannigan and testified 4 that was assigned to work on a

project with Cheatham on her first day as an intern, and found Cheatham to be obviously “overly

attentive and friendly to her and conveying a fe[e]ling of ‘promiscuity’ towards her.” Id. at 30.

She stated that Cheatham “put his hand on her back to walk her places throughout the office[,]”

which made her uncomfortable. Id. Akintola testified that she felt continuously uncomfortable

working with him but was “uncertain how to handle it[,]” and did not report her uncomfortable

feelings to her supervisor when initially asked because she was trying to move on. Id. According

to Akintola, she just did her best to avoid him on her own even though he was sexually harassing

her. See id. at 32.

Cheatham was also interviewed, see Defs.’ Ex. 1 at 73; Defs.’ Ex. 2 at 8–9, 35–9, and he

provided a written statement to Brannigan on September 4, 2012, see Defs.’ Ex. 1 at 99, Defs.’ Ex.

2 at 35, 40–58, and notarized the statement on September 5, see Pl.’s Ex. 1, ECF No. 37-1, at 120.

In his interviews and statement, Cheatham consistently denied all of Akintola allegations, noting

his suspicions that her allegations did not come to fruition until Chapman had raised her own. See

Defs.’ Ex. 1 at 189–90, 197–98. He also denied Chapman’s allegations and maintained that he

was the target of Chapman’s continued aggressive sexual advances and comments, see id. at 187–

205; Pl.’s Stmt. ¶¶ 24–43, which he “probably entertained[,]” Defs.’ Ex. 1 at 200. He also attested

that many of his co-workers engaged voluntarily in conversations of a graphic or bawdy nature

during their breaks, and that it was, essentially, just part of the accepted workplace culture. Id. at

198–99; Pl.’s Stmt. ¶¶ 8–12. Cheatham also alleged that Chapman had approached him, kissed

him on more than one occasion, and sexually taunted him. Defs.’ Ex. 2 at 53–5; Defs.’ Ex. 3 at 9

4 Cheatham states that Akintola’s written statement is “unsigned [and] unattested to,” Opp’n at 13 n.3, however, it is very clearly signed and dated (August 17, 2012 at 12:00 pm), see Defs.’ Ex. 2 at 32. 11 (citing ROI 158); Defs.’ Ex. at 187–205. He stated that, after she had already kissed him, he began

consensually flirting with her, but only outside of work. See Defs.’ Ex. 2 at 35. He indicated that

Drake would be able to corroborate his version of events. Id. When then informed that Drake had

actually corroborated Chapman’s version of events, Cheatham then indicated that Drake was lying

due to her own personal insecurities. See id.; Defs.’ Ex. 1 at 203.

Cheatham also alleged that Walker had orchestrated the charges against him because he

believed Walker to be sexually attracted to him, and when Cheatham spurned his advances, Walker

took lead in an overarching conspiracy to silence him and to get him fired. See id. at 187–205. He

also contended that Hill and Merriwether intentionally failed to take action once notified because

they were complicit in the same scheme. See id.

Ultimately, OCSO determined that Cheatham “had in fact sexually harassed” Chapman.

Id. at 73; Defs.’ Ex. 2 at 5; see Defs.’ Stmt. ¶ 10. On September 6, 2012, five days before the

conclusion of Cheatham’s probationary period, FEMA terminated his employment based on

OCSO’s findings. See Defs.’ Stmt. ¶ 11; Pl.’s Stmt. ¶ 47 (citing ROI 00072). The removal notice

indicated that

[o]n July 6, 2012, one of your co-worke[rs] alleged you sexually harassed her in the workplace. As a result of the allegations, FEMA’s Office of Chief Security Officer conducted an investigation. The investigation substantiated the allegation of sexual harassment. . .

Your probationary period was a time for an assessment of your fitness for cooperating with fellow employees and for measuring your capacity to take responsibility for your actions in dealing with situations arising in a working environment. Your treatment of your co-worker demonstrates unfitness on both counts.

Defs.’ Ex. 1 at 183. FEMA did not consider any penalty other than removal because Cheatham

“was in his probationary time and this was a sexual harassment case that was substantiated.” Defs.’

Ex. 3 at 11 (citing AJ Ex. 5 at 512). FEMA’s policy as to probationary employees is that “in most

12 cases, if a probationary or temporary employee’s performance or conduct is unacceptable,

termination of the appointment would be the most appropriate action.” Id. (citing AJ Ex. 5 at 628).

Cheatham continues to emphatically deny all of Chapman’s allegations and argues that

they have been further undermined by contradictory deposition testimony. See Opp’n at 8–11. He

contends that his termination was discriminatory as it was based upon “unsupported, non-factual,

baseless, ingenuous allegations of sexual harassment against a female co-worker, and without ever

acknowledging or investigating Cheatham’s original, repeated charges of sexual harassment

against” Walker. Am. Compl. ¶ 22.

He filed an appeal with the Merit Systems Protection Board on September 14, 2012,

alleging wrongful termination. Defs.’ Stmt. ¶ 12 (citing Defs.’ Ex. 3 at 2). MSPB dismissed the

appeal for lack of jurisdiction because Cheatham was a probationary employee at the time of his

termination. Id. ¶ 13 (citing Defs.’ Ex. 3 at 2). He then sought EEO counseling on October 9,

2012, Defs.’ Ex. 3 at 2, and on November 16, 2012, filed a formal EEO Complaint (“First EEO

Complaint”), No. HS-FEMA-00116-2013, with the Office of Equal Rights, alleging discrimination

based on gender and sex (male) that resulted in wrongful termination without due process. Compl.

¶ 27; see Defs.’ Ex. 1 at 45.

Sometime after his termination, Cheatham learned through a FOIA request, that FEMA

had investigated him for theft of government property; Cheatham had failed to return the second

of his two work-issued laptop computers. See Am. Compl. ¶ 23; Defs.’ Ex. 3 at 25. On September

25, 2012, FEMA Responsible Management Official, Winona Cason, contacted FEMA’s Labor

Relations Department to recover the laptop. Def.’s Ex. 3 at 11 (citing AJ Ex. 4 at 11, 178).

Cheatham alleges that the laptop theft investigation was somehow orchestrated to thwart his

employment prospects. See Pl.’s Stmt. ¶¶ 50–2. He also alleges that he was unable to submit an

13 affidavit in his own defense before the investigation was closed. See id. ¶¶ 48–50 (citing Pl.’s Ex.

1 at 15–16); Opp’n at 15. However, when Cheatham returned the laptop on November 16, 2012,

FEMA fully closed its investigation in his favor. Defs.’ Stmt. ¶ 16 (citing Defs.’ Ex. 3 at 11).

Cheatham alleges that FEMA hindered his ability to obtain other employment in yet other

ways. See Am. Compl. ¶¶ 24–6. First, Cheatham maintains that, in January 2013, he became

aware that FEMA unfairly “precluded him” from competing for one of the agency’s own

employment opportunities, namely, Announcement #MG-2012-T0433-BLG-778372MP for

position GS-0510-13/14. See Am. Compl. ¶ 26. He alleges that FEMA unfairly deemed him

“ineligible” for the position, when in fact, he should have been eligible under the Veterans Equal

Employment Opportunity Act, as . . . a disabled Gulf War combat veteran[.]” Am. Compl. ¶ 26.

FEMA attests that Cheatham was deemed ineligible because the position was open to “Current

FEMA Status Candidates Only[.]” Defs.’ Stmt. ¶ 19 (quoting Defs.’ Ex. 1 at 241, 250). He was

formally notified of same on January 24, 2013. Defs.’ Ex. 3 at 11 (citing ROI 253).

Second, on April 30, 2013, the United States Marine Corps, vis-à-vis, the Department of

Navy (“Navy”) rescinded a tentative job offer from January 2, 2013, after it received FEMA’s

response to his reference check. See id. (citing ROI 266); Am. Compl. ¶ 25. Navy informed

Cheatham that the position was “contingent upon the fulfillment of preemployment conditions,”

and that his employment was “not firm until an applicant receives a firm or final offer[.]” Defs’

Ex. 1 at 263. Because Cheatham had been fired during his probationary period, and because his

FEMA “indicated one of the bases for termination was inappropriate conduct towards others,” he

was removed from consideration for the Navy position, see id., in part, because Cheatham had

indicated to Navy that his termination from FEMA was for reasons other than misconduct, see

Defs.’ Ex. 3 at 11 (citing ROI 266). Instead, Cheatham had falsely reported that he had been

14 “subjected to a Reduction in Force (“RIF”) and was therefore not granted permanent status[.]” Id.

at 12 (quoting ROI 266).

Third, Cheatham contends that the Defense Contract Audit Agency (“DCAA”) declined to

consider him for four different employment opportunities – Supervisory Auditor, GS-0511-13,

Vacancy Announcement #760590, Supervisory Auditor, GS-0511-13, Vacancy Announcement

#793411, Supervisory Auditor, GS-0511-13, Vacancy Announcement #749806, and Supervisory

Auditor, GS-0511-13, Vacancy Announcement # 875873 – based on the reference check that

FEMA provided to DCAA. Am. Compl. ¶ 24. He was advised that he was removed from

consideration “due to suitability,” noting the “circumstances and recency” of his separation from

FEMA and “sustain[ing] management’s objections[.]” Defs.’ Stmt. ¶ 16 (quoting Defs.’ Ex. 1 at

278–79).

In her testimony, Hill agreed that she received reference calls from prospective employers

regarding Cheatham’s employment record. See Defs.’ Ex. 3 at 12 (citing AJ Ex. 5 at 514). Hill

testified that she did not personally handle the references and forwarded these callers to the

Agency’s Labor Relations contact, Kelley Stevens. See id.

On February 22, 2013, Cheatham requested to supplement the First EEO Complaint by

adding retaliation allegations arising from the laptop theft investigation and his non-selection for

the noted employment opportunities. Id. ¶ 20 (citing Defs.’ Ex. 1 at 80). Initially, the Office of

Equal Rights concluded these allegations were unrelated to his original claim. Id. Consequently,

after separate and expedited counseling on these additional allegations, Cheatham then filed a

second formal EEO Complaint (“Second EEO Complaint”), No. HS-FEMA-00868-2013,

containing these additional allegations, on March 19, 2013. Id. ¶¶ 20–1 (citing Defs.’ Ex. 1 at 82).

On April 26, 2013, the First and Second EEO Complaints were consolidated for processing,

15 Defs.’ Ex. 3 at 2 (citing ROI 93), and on May 24, 2013, the EEO investigator commenced

investigation of the consolidated complaints, id. During the majority of the EEO investigation,

Cheatham was represented by counsel. See id. at 3–4.

Cheatham submitted additional amendments, first on May 7, 2013, and then on June 17,

2013, Defs.’ Stmt. ¶ 21 (citing Defs.’ Ex. 1 at 86), providing additional detail regarding his non-

selections, see Defs.’ Ex. 1 at 86–88. On August 14, 2013, Cheatham also amended the First EEO

complaint, id. ¶ 22 (citing Defs.’ Ex. 1 at 90–2), providing additional details regarding: (1) the

laptop theft allegations, (2) Hill’s allegedly retaliatory behavior, and (3) affidavits submitted by

FEMA that Cheatham contended were improperly executed, see Defs.’ Ex. 1 at 91.

On July 29, 2014, and following the exchange of various motions, and transfer of the matter

to the Miami District Office, see Defs.’ Ex. 3 at 4, FEMA’s Final Formal ROI was submitted to

the parties and to the EEO Commission, which encompassed both the First and Second EEO

Complaints, and all of Cheatham’s subsequent amendments, id.; Defs.’ Stmt. ¶ 23 (citing Defs.’

Ex. 1 at 323).

On May 24, 2016, FEMA filed a Motion for Summary Judgment, opposed by Cheatham,

which was granted by the Miami District Office AJ in May 2017. Defs.’ Stmt. ¶ 24; Defs.’ Ex. 3

at 4 (citing AJ Exs. 4, 5, and 6). The AJ determined that Cheatham was not discriminated against

based upon his sex or gender or in reprisal for his prior EEO activity. Defs.’ Stmt. ¶ 25 (citing

Defs.’ Ex. 3 at 26–7). In June 2017, FEMA issued a Final Order that implemented the AJ’s entry

of summary judgment, id. ¶ 26 (citing Defs.’ Ex. 4, ECF No. 35-6, at 2), and shortly thereafter,

Cheatham filed an appeal of that Order with the EEO Commission, id. ¶ 27 (citing Defs.’ Ex. 4);

Am. Compl. ¶ 28, and on October 26, 2018, the Commission affirmed FEMA’s Final Order, see ¶

27 (citing Defs.’ Ex. 4); Am. Compl. ¶ 29.

16 III. LEGAL STANDARDS

Defendants move to dismiss, pursuant to Federal Rule 12(b)(1), Counts II through V, and

also move for summary judgment, 5 pursuant to Federal Rule 56, as to Count I and any other

intended Title VII-based sex and gender discrimination and retaliation claims. See Defs.’ Mem. at

1.

Subject Matter Jurisdiction

Under Rule 12(b)(1), a plaintiff bears the burden of establishing jurisdiction by a

preponderance of the evidence. Federal courts are courts of limited jurisdiction and the law

presumes that “a cause lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co.

of Am.,

(1994); see also Gen. Motors Corp. v. EPA,

(D.C.

Cir. 2004) (“As a court of limited jurisdiction, we begin, and end, with an examination of our

jurisdiction.”). “[B]ecause subject-matter jurisdiction is ‘an Art[icle] III as well as a statutory

requirement . . . no action of the parties can confer subject-matter jurisdiction upon a federal

court.’” Akinseye v. District of Columbia,

(D.C. Cir. 2003) (quoting Ins. Corp.

of Ir., Ltd. v. Compagnie des Bauxites de Guinee,

(1982)). Further, a court is

required to dismiss an action “at any time” if it determines that the subject matter jurisdiction is

wanting. See Fed. R. Civ. P. 12(h)(3).

When reviewing a challenge pursuant to Rule 12(b)(1), a court may consider documents

outside the pleadings to assure itself that it has jurisdiction. See Land v. Dollar,

, 735

n.4 (1947); Haase v. Sessions,

(D.C. Cir. 1987) (holding same); see also Artis

v. Greenspan,

(D.D.C. 2002) (“A court may consider material outside

5 Defendants also move to dismiss Count I and any Title VII claims pursuant to Rule 12(b)(6). See Defs.’ Mem. at 1. Because, based on its review of the full record, the court finds summary judgment more appropriate at this stage, it declines to address the Rule 12(b)(6) arguments. 17 of the pleadings in ruling on a motion to dismiss for lack of venue, personal jurisdiction or subject-

matter jurisdiction.).” And by considering documents outside the pleadings when reviewing a

motion to dismiss pursuant to Rule 12(b)(1), the court does not convert the motion into one for

summary judgment; “the plain language of Rule 12(b) permits only a 12(b)(6) motion to be

converted into a motion for summary judgment” when documents extraneous to the pleadings are

considered by a court. Haase,

.

Summary Judgment

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); accord Anderson v. Liberty Lobby,

Inc.,

(1986). Moreover, summary judgment is properly granted against a party

who “fails to make a showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.

Catrett,

(1986).

In ruling on a motion for summary judgment, a court must draw all justifiable inferences

in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson,

. A nonmoving party, however, must establish more than “the mere existence of a

scintilla of evidence” in support of their position.

. In addition, the nonmoving party

may not rely solely on allegations or conclusory statements. Greene v. Dalton,

, 675

(D.C. Cir. 1999). Rather, the nonmoving party must present specific facts that would enable a

reasonable jury to find in their favor. Id. If the evidence “is merely colorable, or is not significantly

probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted).

18 IV. DISCUSSION

Section 1981 Claims

The Court may not exercise subject matter jurisdiction over any of Cheatham’s claims for

alleged violations of Section 1981. “[T]he protection offered under

is limited in

its scope,” and “applies only to ‘nongovernmental discrimination and impairment under color of

State law.’ ” Marcus v. Geithner,

(D.D.C. 2011) (citing

(c)). “The statute does not apply to actions taken under color of federal law.”

(citation

and internal quotation marks omitted).

Here, Cheatham’s 1981 claims are raised against a federal instrumentality and its unnamed

employees, and therefore, they cannot survive dismissal. See

(citing Kizas v. Webster,

, 541–43 (D.C. Cir. 1983)); see also DynaLantic Corp. v. Dep't of Defense,

(D.D.C. 2012) (“Section 1981 does not apply to actions taken under the color of federal

law, nor does it permit suit against instrumentalities of the federal government.”), appeal

dismissed, Nos. 12–5329, 12–5330,

(D.C. Cir. July 16, 2013); accord Turner

v. Shinseki,

, 113 n.15 (D.D.C. 2011); Prince v. Rice,

(D.D.C. 2006). And “a federal employee who is covered by [Title VII] may not sue under section

1981.” Torre v. Barry,

(D.C. Cir. 1981).

Furthermore, Cheatham alleges that he suffered retaliation due to his sex and gender, but

“Section 1981 protects the equal right of all persons within the jurisdiction of the United States to

make and enforce contracts without respect to race[,]” Brown v. Sessoms,

(D.C. Cir. 2014) (citations and internal quotation marks omitted). While Section 1981 “proscribes

discrimination based solely on race,” Cromeartie v. RCM of Washington, Inc.,

(D.D.C. 2015), it does not proscribe discrimination based on sex or gender, see Runyon

19 v. McCrary,

(1976); Bello v. Howard Univ.,

(D.D.C.

2012). Because Cheatham has not raised claims for discrimination based on his race, in either his

administrative actions or in this matter, and because Section 1981 is inapplicable to sex or gender

claims, his allegations pursuant to Section 1981 may not proceed.

For all of these reasons, Defendants’ Motion to Dismiss will be granted as to all Section

1981 claims, contained in Counts II through V.

Title VII Claims

While Cheatham cannot raise his claims under Section 1981, he may bring them pursuant

to Title VII. See Brown v. GSA,

(1976) (“[T]he exclusive judicial remedy for

claims of discrimination in federal employment.”). Cheatham has explicitly raised a discriminatory

discharge claims pursuant to Title VII, see Am. Compl. ¶¶ 32–6, and though he attempted to raise

his claims for retaliation under Title VII, because pro se complaints are held “to less stringent

standards than formal pleadings drafted by lawyers[,]” Haines v. Kerner,

, 520–21

(1972), the Court will instead generously construe them under the proper statute. Notwithstanding,

Cheatham’s discrimination and retaliation claims cannot survive summary judgment.

Under Title VII, an employer shall not “fail or refuse to hire or to discharge any individual,

or otherwise to discriminate against any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of such individual’s race [.]” 42 U.S.C. § 2000e-

2(a)(1). In addition, under Title VII's anti-retaliation provision, an employer may not “discriminate

against any of his employees . . . because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Id.

§ 2000e–3(a).

20 Stating a prima facie case of Title VII discrimination or retaliation is not a difficult feat.

To plead discrimination, a plaintiff need only show that he is a member of a protected class who

suffered an adverse employment action that gives rise to an inference of discrimination. Stella v.

Mineta,

(D.C. Cir. 2002). And where, as here, a man raises a claim for sex or

gender discrimination, the court takes account that men, unlike women, are “member[s] of a

historically favored group,” and hence do not belong to a protected class. Potts v. Howard Univ.

Hosp.,

(D.D.C. 2010) (quoting Bell v. Runyon,

, at *2

(D.D.C. July 17, 1997) and citing Bryant v. Leavitt,

, 25–6 (D.D.C. 2007) (other

citation omitted)). Thus, a male plaintiff must establish a prima facie case by presenting evidence

of background circumstances that support an inference of discrimination. Bryant,

(citing Harding v. Gray,

(D.C. Cir. 1993)). Two general categories may

then satisfy indicia of these background circumstances: (1) evidence showing that an employer has

some reason or inclination to discriminate against males, and (2) “evidence indicating that ‘there

is something fishy about the facts of the case at hand that raises an inference of discrimination.’ ”

See Mastro v. Potomac Elec. Power Co.,

(D.C. Cir. 2006), cert. denied,

(2007) (quoting Harding,

).

To sufficiently plead a claim of Title VII retaliation, a plaintiff must sufficiently allege that

he engaged in activity protected under Title VII and, as a direct consequence, suffered a materially

adverse employment action. Forkkio v. Powell,

(D.C. Cir. 2002).

To prove a Title VII violation, however, a plaintiff must demonstrate by a preponderance

of the evidence that the actions taken were “more likely than not based on the consideration of

impermissible factors” such as sex or gender. Tex. Dep't of Cmty. Affairs v. Burdine,

(1981) (internal quotation marks and citation omitted). The claim may be proven by direct or

21 circumstantial evidence. Nurriddin v. Bolden,

(D.C. Cir. 2016), cert. denied,

(2017). Direct evidence of discriminatory intent is, for instance, a statement

explicitly expressing sex or gender bias. See Robinson v. Red Coats, Inc.,

(D.D.C. 2014). But most commonly where, as here, the record contains no direct evidence, Title

VII claims are then analyzed under the burden-shifting framework set forth in McDonnell Douglas

Corp. v. Green,

(1973). See Mastro,

; accord Jones v. Bernanke,

(D.C. Cir. 2009). Under that framework, Cheatham bears the initial burden of

pleading a prima facie case of discrimination and retaliation, and thereafter, the burden shifts to

Defendants to “articulate some legitimate, nondiscriminatory reason” for the adverse employment

action.

Notably, Defendants’ burden is only one of production, and it “need not persuade the court

that it was actually motivated by the proffered reasons.” Burdine,

. As such, “the

McDonnell Douglas framework shifts intermediate evidentiary burdens between the parties, [t]he

ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against

the plaintiff remains at all times with the plaintiff.” Morgan v. Fed. Home Loan Mortgage Corp.,

(D.C. Cir. 2003), cert. denied,

(2003); see also Burdine,

.

Once an employer asserts a legitimate, non-discriminatory reason for the adverse decision,

“the prima-facie-case aspect . . . [becomes] irrelevant” and the Court is left with “one central

inquiry” of whether the plaintiff has “produced evidence sufficient for a reasonable jury to find

that the employer's asserted non-discriminatory reason was not the actual reason and that the

employer intentionally discriminated against the plaintiff on a prohibited basis.” Adeyemi v.

22 District of Columbia,

(citing Brady v. Office of Sergeant at Arms,

(D.C. Cir. 2008)), cert. denied,

(2008).

Put differently, Cheatham “bears the ultimate burden of proving that discriminatory [or

retaliatory] animus was the determining cause of the personnel action.” Lancaster v. Vance–Cooks,

(D.D.C. Sept. 26, 2013) (citing Ford v. Mabus,

(D.C.

Cir. 2010) (other citation omitted)). Pretext may be established by showing either “that a

discriminatory reason more likely motivated the employer or . . . that the employer's proffered

explanation is unworthy of credence.” Burdine,

. However, courts “may not

‘second-guess an employer's personnel decision absent demonstrably discriminatory motive.’ ”

Fischbach v. District of Columbia Dep't of Corrections,

(D.C. Cir. 1996)

(quoting Milton v. Weinberger,

(D.C. Cir. 1982)).

I. Discriminatory Termination

Defendants’ have set forth legitimate non-discriminatory reasons for Cheatham’s

termination. More specifically, FEMA found that Chapman’s sexual harassment charge against

Cheatham was substantiated, and as such, Cheatham failed to demonstrate that he was able to

cooperate with fellow employees or to take responsibility for his actions. See Defs.’ Ex. 1 at 183.

FEMA conducted a well-researched investigation that supported its findings. As discussed,

Chapman, Drake, and Briscoe were all interviewed in detail, and independently corroborated

Chapman’s claims. See Defs.’ Ex. 2 at 12–15, 19–23, 25–8. Ankintola was also interviewed and

separately alleged the Cheatham was sexually inappropriate with her and made her feel

uncomfortable. See

at 30–2.

Thus, whether Cheatham made out a prima facie case is no longer relevant, and the Court

turns directly to the issue of whether he has produced evidence sufficient for a reasonable jury to

23 find that FEMA’s stated reason was not the actual reason for his termination, but rather pretext for

discrimination. See Brady,

; Teneyck v. Omni Shoreham Hotel,

(D.C. Cir. 2004). In order to show pretext, a plaintiff must present evidence that allows “the

trier of fact to infer the ultimate fact of discrimination [or retaliation] from the falsity of the

employer's explanation.” Reeves v. Sanderson Plumbing Prods., Inc.,

(2000).

Such evidence may include: “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, [ ] the employer's pattern of poor treatment of other employees

in the same protected group as plaintiff, or other relevant evidence that a jury could reasonably

conclude evinces an illicit motive.” Wheeler v. Georgetown Univ. Hosp.,

(D.C. Cir. 2016) (quoting Walker v. Johnson,

(D.C. Cir. 2015) (internal

quotation marks omitted)).

Ultimately, however, where “the employer's stated belief about the underlying facts is

reasonable in light of the evidence . . . there ordinarily is no basis for permitting a jury to conclude

that the employer is lying about the underlying facts.” Brady,

. In other words, “an

employer's action may be justified by a reasonable belief in the validity of the reason given even

though that reason may turn out to be false.” George v. Leavitt,

(D.C. Cir. 2005);

see also Fischbach,

(“Once the employer has articulated a non-discriminatory

explanation for its action the issue is not the correctness or desirability of the reasons offered but

whether the employer honestly believes in the reasons it offers.”). The Court is thus concerned

only with “[t]he ultimate question [of] whether the employer intentionally discriminated, and proof

that ‘the employer's proffered reason is unpersuasive . . . does not necessarily establish that the

24 plaintiff's proffered reason . . . is correct.’ ” Reeves, 530 U.S. at 146–47 (quoting St. Mary's Honor

Center v. Hicks,

(1993)).

a. Disparate Treatment

In rebuttal, Cheatham first argues that discriminatory pretext can be gleaned from the

alleged disparate treatment he received, highlighted by the inferior handling of his Complaint

Against Walker, versus FEMA’s alleged preferential treatment of Chapman’s Complaint. In these

circumstances, there is a two-fold analysis of comparability. See Needham v. BI, Inc., No. 00-C-

1550,

at *6–7 (N.D. Ill. May 21, 2001) (assessing whether a male employee and

female employee were similarly situated by reviewing both their respective employment

circumstances and the nature of their sexual harassment complaints).

First, it does not appear that Walker and Chapman are appropriate comparators, in other

words, that the relevant aspects of their employment circumstances are directly comparable in all

material respects. Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO,

(D.C. Cir.

2008). To meet this standard, Cheatham and Chapman must have “dealt with the same supervisor,

have been subject to the same standards and have engaged in the same conduct without such

differentiating or mitigating circumstances that would distinguish their conduct or the employer’s

treatment of them for it.” Phillips v. Holladay Prop. Servs., Inc.,

(D.D.C. 1996)

(internal quotation marks omitted).

Cheatham was as an Accountant with the Internal Controls Unit within the Risk

Management and Compliance Division of the Office of the Chief Financial Officer, Defs.’ Ex. 1

at 97, and Chapman was a Financial Policy Specialist in the Policy Branch,

; see also

Defs. Ex. 2 at 13. Therefore, Cheatham and Chapman were not in the same work group or

department, nor were they in the same chain of command, and though Chapman sometimes crossed

25 paths with Hill, they did not formally report to the same supervisors. See Defs.’ Ex. 1 at 104, 108.

Additionally, Cheatham was a probationary employee, see Am. Compl. ¶¶ 3, 22, and Chapman

was not, see Defs.’ Ex. 2 at 15. The District of Columbia Circuit has held that “probationary

employees and permanent employees are not similarly situated,” and that “under federal

regulations, probationary employees may be terminated for problems even if those problems would

not be good cause for terminating a permanent employee.” George,

(citing cases

and

.801–.806).

Second, the nature of their Complaints differed. Though they both involved some

allegations of sexual harassment, Chapman’s Complaint initially alleged inappropriate physical

contact, see Defs.’ Ex. 1 at 109, a distinction of consequence because it mandated discrete methods

of investigation under FEMA’s policy against violence in the workplace. See Defs.’ Ex. 3 at 10

(citing AJ ex. 4 at 74). Unlike Chapman, Cheatham never alleged that Walker engaged in any

inappropriate physical contact. See Defs.’ Ex. 1 at 97–8. Furthermore, Chapman’s Complaint

ultimately revealed allegations by additional female co-workers, which then also had to be

explored. See Defs.’ Ex. 2 at 19, 25, 30, 98. On the other hand, Cheatham raised sexual harassment

claims against Walker, but the bulk of that Complaint focused on his alleged fabrication of the

charges against Cheatham. In sum, there is little to suggest that Cheatham and Chapman are

similarly situated. See Hayes v. Indianapolis Osteopathic Hosp., Inc., No. 08–cv–0938–RLY–

TAB,

at *8 (S.D. Ind. July 19, 2010) (finding proposed comparators were not

similarly situated where defendant terminated male plaintiff after he engaged in sexually harassing

conduct toward multiple women over a seven-month period causing female employees to avoid

interaction with him, versus the treatment of plaintiff’s complaint against two other co-workers

who allegedly engaged in a single incident of harassing conduct that was only reported by the

26 plaintiff); see also Needham,

at *7 (finding that female employee was not

similarly situated to male employee because the male employee’s complaint consisted of

allegations involving a co-worker’s inappropriate discussion of her social life, and the female

employee’s complaint involved plaintiff’s alleged inappropriate touching and staring).

Even assuming arguendo that Cheatham, Chapman, and their respective Complaints, were

similarly situated, Cheatham nonetheless fails to prove that Chapman was treated more favorably.

It is notable that Cheatham voluntarily withdrew the Complaint Against Walker, explicitly noting

that he considered the case “closed,” Defs.’ Ex. 1 at 132, and in doing so, expressed his satisfaction

with the outcome, see id. at 134. And despite Cheatham’s contentions to the contrary, his claims

were investigated prior to his voluntary withdrawal. Both Hill, see Pl.’s Ex. 3 at 76–82, and

Merriwether, see Defs.’ Ex. 1 at 140–41, took prompt action on the claims and were

communicative with Cheatham.

He also seemingly argues that the Complaint Against Walker was only investigated by Hill,

when Chapman’s Complaint was forwarded to Hill’s first- and second-line supervisors, including

Cason, which he believes indicates some sort of conspiracy. See Opp’n at 6; Defs.’ Ex. 1 at 297.

However, the record reflects that both Complaints were brought to Cason’s attention. See Defs.

Ex. 1 at 106, 108–110. Cheatham is also suspicious as to why Chapman’s Complaint was handled

by the Fraud and Internal Investigation Division, see Opp’n at 6, but as discussed, it required

distinct consideration based on the allegation of unwanted touching under FEMA’s policy against

violence in the workplace, see Defs.’ Ex. 3 at 10 (citing AJ ex. 4 at 74).

Cheatham next contends that disparate treatment is evidenced by his unfulfilled attempts

to reopen the withdrawn Complaint Against Walker. See Opp’n at 7. He also sought to supplement

the reopened Complaint with a disparate treatment charge, and for it to serve as a counterclaim

27 against Chapman. See Opp’n at 7; see also Defs.’ Ex 1 at 122–24. He maintains that Defendants

ignored his requests to initiate EEO counseling, failed to provide him with advice, and did not

investigate his renewed claims. See Opp’n at 7. But the record shows that Merriwether responded

to Cheatham’s request, at least in part. See Defs.’ Ex. 1 at 119–121. It also appears that Chapman

actually filed both an informal and formal internal complaint, see Pl.’s Ex. 1 at 96–8, and Cheatham

did not file either, at least not during his attempt to reopen, see Defs.’ Ex. 1 at 194 (Cheatham

stating that that “[i]n retrospection, I should have entered into the formal process at that time to

keep the matter relevant.”). And per Cheatham’s own admission in the record, after requesting

“assistance from the [FEMA] Employee Assistance Program (EAP) to seek counseling for the way

[he] was being treated by MW [Walker] and KH [Hill][,]” he then, in fact, “attended an EEO

counseling session on August 10, 2012.” Id.

And while FEMA did not separately reopen the Complaint Against Walker, most of

Cheatham’s claims were nonetheless investigated. His request to reopen was, in large part, a direct

response to Chapman’s Complaint; it served as a denial of Chapman’s allegations based on his

contention that Walker had orchestrated them. Therefore, the investigation into Chapman’s

Complaint, in turn, explored many of Cheatham’s renewed claims against Walker, as they were

part and parcel of related circumstances. For example, Walker submitted a written statement

addressing Cheatham’s renewed claims against him. See Pl.’s Ex. 3 at 83–6. Brannigan noted that

she explicitly considered Cheatham’s “counter allegations against both Amanda Fenwick-

Chapman and his Team Lead, Michael Walker. . . (JIB Case Number 214-2012)[,]” but ultimately

found that “[w]itness testimony . . . corroborate[d] the allegations brought forth by Amanda

Fenwick-Chapman[.]” Defs.’ Ex. 2 at 5, 35. Therefore, even if Cheatham and Chapman, and their

respective Complaints, were similarly situated, there is no evidence of disparate treatment.

28 b. Pretext for Discrimination

Cheatham next argues that the Court may glean pretext from what he perceives as “serious

credibility issues with the Defendant[]s[’] witnesses.” Opp’n at 8. For example, he highlights

inconsistencies regarding certain details in Chapman’s testimony, for example: (1) whether the

Post-It would have remained in the trash after custodial services had cleaned to be later retrieved

by Chapman as evidence; (2) whether he would have suggestively discussed plans for his birthday

months beyond the actual date; (3) nuances regarding Chapman’s purported persona as a “black

widow,” and; (4) Chapman’s inability to remember small exhaustive details. See id. at 8–9. None

of these topics, however, standing alone or considered together, are substantive to the issues at

hand, and considering them would intreat the Court to speculate.

Similarly, Cheatham argues that, in their depositions, Hill and Walker sometimes displayed

nervous and/or contrary attitudes, initially forgot certain circumstances, or were occasionally

confused, and refused to answer to particular questions. See id. at 10–11. In support, he points to

a September 26, 2012 email chain between Cason and Hill, in which they discuss the ROI and the

necessity for Cason to review it in relation to the laptop theft investigation. See id. at 10–11, 24;

Pl.’s Ex. 1 at 15–16. In the email chain discussion, there is an inference that one or both of them

may have been reading the ROI for the first time, though it is far from clear. Plaintiff reads this to

mean that Hill terminated his employment prior to reading the ROI. See id.

In Hill’s deposition, however, she testified that while she could not exactly remember, she

was fairly certain that she had received the ROI in early September and that she would likely not

have approved Labor Employee Relations’ termination letter if she had not already reviewed it.

Pl.’s Ex. 3 at 49–50, 63; see also Defs.’ Ex. 1 at 73 (noting that Hill reported that “the Security

Office determined that [Cheatham] had in fact sexually harassed [Chapman]” and that Cheatham

29 “was terminated, after conferring with LER [Labor Relations], based on the outcome, based on the

outcome of the Security Office formal investigation” and that the termination was a “joint decision

made between [Hill] and . . . [LER] after receiving a preliminary report of inquiry conducted by

FEMA’s Office of Equal Rights.”)

The record shows that Hill was continuously involved and fully acquainted with the

circumstances and factors giving rise to Cheatham’s termination, both as the Director of Risk

Management, and as his direct supervisor, and that the decision to terminate him was finalized,

not just by Hill, but in conjunction with the Security Office and the Office of Labor Relations,

among others. See id. And these noted negligible credibility issues of witnesses cannot constitute

“[t]he mere existence of a scintilla of evidence in support of” Cheatham’s position. Liberty Lobby,

. Furthermore, at the summary judgment stage in a Title VII action, the Court need

not decide “whether the evidence is credible,” St. Mary's Honor Ctr, 509 U.S. at 518–19, and

cannot serve as a substitute for actual pretext.

Next, Cheatham attempts to highlights as pretext his “assertion that Fenwick-Chapman

kissed him twice on May 11, 2012, [which] is corroborated” by co-worker Omolara Toler’s

testimony. Pl.’s Opp’n at 9 (citing ROI 123-24). Toler testified that, on May 11, Cheatham told

her that Chapman had kissed him. See

The Court notes that, while Toler did testify in this

manner, Toler had no actual personal knowledge of the incident beyond Cheatham’s own self-

reporting, and she admittedly bore witness to nothing. See Defs.’ Ex. 1 at 11. (“Toler asserts that

she did not witness[] the incident between the Complainant and Ms. Fenwick-Chapman; however,

the Complainant informed her that Ms. Fenwick-Chapman entered his office space, kissed him,

and made romantic and sexual advances towards him.”). Thus, the court can put little stock in this

information, given the volume of first-hand information available that supported FEMA’s findings.

30 Cheatham next focuses again on the nature of the investigation into Chapman’s Complaint,

noting that it was incomplete because he “submitted a sworn statement on September 5, 2012” and

that the investigation was closed on the same date, and Cheatham was terminated on September 6,

2012. Opp’n at 15. He states that “[i]n essence, the investigation was closed even before

Cheatham submitted a sworn statement, and Defendant failed to investigate any of Plaintiff’s

concerns and counter allegations[.]” 6

However, Cheatham submitted his written statement on

September 4, see Defs.’ Ex. 1 at 99, Defs.’ Ex. 2 at 35, 40–58, and then certified it on September

5, see Pl.’s Ex. 1, ECF No. 37-1, at 120. The ROI notes that his written statement – and his

arguments and counter-allegations – were all considered, and that his statement was incorporated

therein. See Defs.’ Ex. 2 at 5, 35. Cheatham had also been interviewed in late August, before the

submission of the written statement. See

at 8–9, 35–9; Defs.’ Ex. 1 at 73.

Additionally, most of the witnesses identified by Cheatham, for example, Drake and

Briscoe, see Defs.’ Ex. 1 at 188–89, 198–203, were, in fact, interviewed and did not corroborate

his version of events, see Defs.’ Ex. 2 at 19–23, 25–8. Toler, and another co-worker, Tami Smith

were identified by Cheatham, but were not interviewed by Brannigan, see Defs. Ex. 1 at 190, 201,

but they were interviewed later as part of the formal EEO investigation, see

at 11–12. They

testified that they had never witnessed Cheatham harassing Chapman, but also testified that they

6 To the extent that Cheatham may raise a claim for due process violation, see Am. Compl. ¶¶ 19, 22, 33 he may not do so. A federal probationary employee is considered “at-will” and generally lacks an expectancy of job retention requiring procedural protection under the due process clause. See Piroglu v. Coleman,

(D.C. Cir. 1994) (collecting cases), cert. denied,

(1995); see also Hall v. Ford,

, 311–13 (D.C. Cir. 1988) (finding that probationary federal employees are terminable at will, and therefore, have no due process interest because there is no objective basis for believing that they will continue to be employed indefinitely). Cheatham offers no argument or authority to counter that he was somehow more than an at-will employee. As a result, there is no basis for any claims arising from alleged violation of Cheatham’s due process rights. Additionally, and as noted, Cheatham received ample opportunity to present defenses to the claims against him.

31 had never witnessed Chapman harassing Cheatham in any manner. See id. at 12. Both Smith and

Toler also disavowed “any awareness or knowledge of [Cheatham] being concerned about being

the victim of undesired advances and/or sexual harassment by Mr. Walker.” Id.

Therefore, the record shows that nearly all of the witnesses corroborated Chapman’s

claims, and those who did not corroborate them simply lacked any personal knowledge, and

similarly, could not corroborate any of Cheatham’s allegations. Brannigan conducted multiple

witness interviews, and the Court declines to speculate as to the co-workers were left un-

interviewed, because the Court does not sit as “super-personnel department that reexamines an

entity's business decisions.” Fischbach,

(internal citation and quotation marks

omitted). Here, Brannigan conducted a “comprehensive investigation[,]” and interviewed several

employees, and the Court cannot “play micro-manager and decide whether [she] asked all the right

questions and interviewed all the right people.” Needham,

at *8 (granting

summary judgment as to claims for sex and gender discrimination where some of plaintiff’s

complaints did not make their way to the investigator as there was no evidence of foul-play and

“after all of the interviews were complete, [the investigator] drew her conclusions. . . [and]

honestly believed these conclusions to be true[.]”)

Finally, Cheatham argues that he “is entitled to a spoliation inference[,]” because he

requested in discovery, and did not receive, “all security recordings for July 6, 2012, which would

have disproven Fenwick-Chapman's allegations that Cheatham engaged with Fenwick-Chapman

other than to ask one brief question about travel.” Opp’n at 11. The Court agrees that “[a] party

has a duty to preserve potentially relevant evidence . . . once [that party] anticipates litigation.”

Zhi Chen v. District of Columbia,

(D.D.C. 2011) (internal quotation marks

omitted). “A sanction for failure to preserve evidence is appropriate only when a party has

32 consciously disregarded its obligation to do so.” Shepherd v. Am. Broad. Cos. Inc.,

(D.C. Cir. 1995). “The party seeking sanctions bears an evidentiary burden that is calibrated

to ensure that the gravity of the sanction corresponds to the conduct . . . [;][a] party seeking an

issue-related sanction need only put forth a preponderance of the evidence, but a party seeking a

penal sanction must put forth clear and convincing evidence before sanctions are warranted.”

Clarke v. Wash. Metro. Area Transit Auth.,

, 20–1 (D.D.C. 2012) (citing

Shepherd, 62 F.3d at 1477–79), aff’d,

(D.C. Cir. 2013).

Here, however, FEMA attested in discovery responses that “no such footage” existed,

Reply at 9 (citing Pl.’s Ex. 1 at 140–41), which simply cannot necessitate an inference that

Defendants destroyed or knowingly disregarded it, and Cheatham provides nothing else in support

of his spoliation claim. Without any evidence that FEMA destroyed or failed to preserve any

records, sanctions cannot be imposed.

Assessing all the relevant circumstances, and reviewing the entire record, Cheatham has

failed to produce sufficient evidence from which a reasonable jury could find that FEMA

terminated his probationary employment on a prohibited basis. To the contrary, FEMA has

presented substantial support for its legitimate, non-retaliatory reasons for dismissing Cheatham.

If “opposing parties tell two different stories, one of which is blatantly contradicted by the record,

so that no reasonable jury could believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.” Lash v. Lemke,

(D.C. Cir.

2015) (quoting Scott v. Harris,

(2007)).

Ultimately, Cheatham 's speculative assertions are not enough to defeat summary judgment

as to discriminatory discharge. See Dist. Intown Props. Ltd. P'ship v. Dist. of Columbia,

(D.C. Cir. 1999) (“[T]he court must assume the truth of all statements proffered by the

33 non-movant except for conclusory allegations lacking any factual basis in the record.”), cert.

denied,

(2000). An employer is entitled to summary judgment as a matter of law “if

the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and

there was abundant and uncontroverted independent evidence that no discrimination had

occurred.” Reeves,

(citation omitted).

And notably, Cheatham has failed to present evidence showing any connection between

his sex or gender and FEMA’s actions, other than conclusory accusations. His insistence that

Walker allegedly coerced Chapman to file the claims against him actually “undercut[s] a claim of

discrimination because [it] suggest[s]” that it was Walker, and not Chapman, who attempted to

eliminate him, which somehow undermines an animus based on sex or gender. See Durden v.

MTA, No. 17-CV-05558,

at *8–9 (S.D.N.Y. May 18, 2018) (dismissing gender

discrimination claim and finding that an alleged vengeful sexual harassment complaint against

plaintiff “did not sustain the minimal burden of showing discriminatory intent[.]”) (citing

Franchino v. Terence Cardinal Cook Health Care Ctr., Inc.,

(2d Cir. 2017)

(affirming dismissal of sex discrimination claims where plaintiff alleged he was falsely accused

by a female co-worker of sexual harassment and that she was treated more favorably “because she

was a much younger Hispanic woman)).

Put differently, Cheatham does not identify any evidence that provides any “inference that

the conduct of the investigation or its outcome was motivated by the fact that he is male.” Id. at

*9. Though Cheatham contests “the quality of [FEMA’s] investigation into the events that

ultimately led to [his] termination, the fact that the investigation may not have been as thorough

as [he] would have liked does not establish pretext.” Moses v. Correct Care of South Carolina,

No. 8-2358-JFA-SVH,

at *6 (D.S.C. Apr. 14, 2020) (granting summary

34 judgment on behalf of employer for sex discrimination claims where there was no evidence that

termination was motivated by discriminatory animus toward men) (quoting Nnadozie v.

ManorCare Health Servs., LLC,

, 262 (4th Cir. 2019) and citing Bonds v. Leavitt,

(4th Cir. 2011)), report and recommendation adopted, No. 3:18-cv-2358-JFA-

SVH,

(D.S.C. June 3, 2020). Therefore, Defendants’ Motion for Summary

Judgment shall be granted as to the Title VII discriminatory discharge claim.

II. Retaliation

Cheatham alleges several discrete incidents of alleged retaliation. First, while the amended

complaint does not raise a claim for retaliatory discharge, in his opposition, Cheatham insinuates

that he was terminated from his position as a result of his “EEO activity.” See Opp’n at 4 (¶ 1).

As noted, to establish retaliation, Cheatham must show that his protected activity is causally

connected to a materially adverse employment action. Forkkio,

. A causal

connection can be established by showing that “the employer had knowledge of the employee's

protected activity, and . . . the adverse personnel action took place shortly after that activity.

Holcomb v. Powell,

(D.C. Cir. 2006)).

Cheatham began complaining about Walker to Hill internally in June 2012, see Pl’s Ex. 4,

ECF No. 34-4, at 141–43; Defs.’ Ex. 1 at 105–08, 213–15, and then filed the Complaint Against

Walker on June 13, 2012, see Defs.’ Stmt. ¶ 5 (citing Defs.’ Ex. 1 at 97); Defs.’ Ex. 3 at 7 (quoting

ROI 101); Pl.’s Stmt. ¶ 21, which he later withdrew on June 28, 2012, see Defs.’ Stmt. ¶ 6 (citing

Defs.’ Ex. 1 at 134). He then sought to reopen the claims against Walker, by and through Hill and

Merriwether, in late July and August 2012. See Defs.’ Ex. 1 at 122–3. He was terminated on

September 6, 2012. Id. at 73; see also Defs.’ Ex. 2 at 5. Certainly, termination from a job is an

adverse employment action. See Douglas v. Donovan,

, 552–53 (D.C. Cir. 2009).

35 However, it is not entirely clear here which specific “EEO activity” Cheatham contends triggered

his termination from employment. The Court assumes, for Cheatham’s benefit, that he is relying

on all of these noted complaints.

In retaliation cases, “the adverse action concept has a broader meaning” than in

discrimination cases. Baird v. Gotbaum,

(D.C. Cir. 2011) (internal quotation

marks omitted). “[A]ctions giving rise to [retaliation] claims are ‘not limited to discriminatory

actions that affect the terms and conditions of employment,’ but reach any harm that ‘well might

have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ”

(quoting Burlington N. & Santa Fe Ry. Co. v. White,

(2006)). Opposing an

unlawful employment practice qualifies as protected activity, even when the opposition is

informal, i.e., occurs outside of the EEO administrative process. See Broderick v. Donaldson,

(D.C. Cir. 2006).

Regardless upon which protected activity Cheatham relies, the temporal proximity between

these complaints and Cheatham’s removal was “very close.” Davis v. Gables Residential/H.G.

Smithy,

(D.D.C. 2007) (citing Clark County Sch. Dist. v. Breeden,

, 273–74 (2001) (collecting cases where three- and four-month periods were insufficient)).

However, even though Cheatham may raise an inference of causation due to temporal proximity,

he must still show that FEMA’s proffered justification is pretext for retaliation. Ajisefinni v. KPMG

LLP,

(D.D.C. 2014) (citing Brady,

) (other citations omitted).

And as with the discriminatory discharge claim, the critical question as to retaliation is whether

Cheatham has produced sufficient evidence to show that FEMA’s non-retaliatory reason was not

the actual reason for its actions and that the agency intentionally retaliated against him on a

prohibited basis. See id at 47–8 (awarding summary judgment to defendants as to discrimination

36 and retaliatory termination claim where the same proffered evidence was insufficient to show

pretext for any unlawful behavior) (citing Brady,

).

Cheatham relies on the same evidence presented as to discriminatory discharge to prove

his retaliation claim relating to his termination. For the same reasons already discussed however,

Cheatham's evidence fails to show that the Defendants’ reasons for termination were pretext for

unlawful retaliation. He has offered no evidence, aside from his own self-serving and

uncorroborated testimony, that the results of the investigation against him, which occasioned his

termination, were fabricated to retaliate against him for filing complaints against Walker. To the

contrary, none of the witnesses in either Brannigan’s investigation or the formal EEO investigation

testified in support of any of Cheatham’s allegations surrounding Walker. And Cheatham has also

failed to adduce any competent evidence from which a reasonable jury could conclude that

FEMA’s investigation irregularities, if any, rose to a retaliatory level. Clark v. Johnson,

, 661 (D.D.C. 2016) (finding that any alleged procedural irregularities in internal

FEMA investigation regarding employee were not sufficiently harmful to dissuade a reasonable

employee from making or supporting a charge of discrimination) (citing Velikonja v. Gonzales,

(D.C. Cir. 2006)).

In sum, any retaliatory discharge claim “is duplicative” of Cheatham’s discriminatory

discharge claim “and suffers from the same deficiencies; namely, []he has provided no evidence

calling into question [FEMA’s] stated reason for h[is] termination that would permit a reasonable

jury to conclude that” Defendants’ “reasons were not its true reasons for its allegedly retaliatory

actions.” Young v. Covington & Burling LLP,

, 169–70 (D.D.C. 2012).

Accordingly, summary judgment is appropriate to the extent that Cheatham raises a retaliatory

discharge claim.

37 Second, Cheatham argues that FEMA’s theft investigation into the unreturned laptop

computer was also retaliation for the aforementioned protected activity. 7 Am. Compl. ¶¶ 23, 38.

The investigation, initiated by Cason on September 25, 2012, Def.’s Ex. 3 at 11 (citing AJ Ex. 4

at 11, 178), was conducted internally by the agency and closed in Cheatham’s favor on November

16, 2012, upon Cheatham’s return of the laptop, Defs.’ Stmt. ¶ 16 (citing Defs.’ Ex. 3 at 11).

Cheatham argues that this investigation constituted a retaliatory conspiracy to hinder his future job

prospects, see Opp’n at 6–8, 14–15, 24–5, but there is nothing in the record to suggest that any

potential new employers were made aware of the investigation. And the record does not

demonstrate that the personnel overseeing the open position at FEMA were personally aware of it.

Nor is there any indication that any of the positions Cheatham unsuccessfully applied for were

denied based on same. Most importantly, Cheatham was non-selected for the first time on January

24, 2013, two months after FEMA’s investigation had already concluded in his favor. See Defs.

Ex. 1 at 250.

Nothing indicates that FEMA was outside of agency policy in (1) investigating the

retention of the laptop as theft, or (2) making attempts to recover government property still in

Cheatham’s possession after his termination. The preponderance of the evidence of record supports

FEMA’s proposed reasons for seeking the return of its property in the manner conducted. There

is no evidence of a relationship between the laptop investigation and Cheatham’s prior EEO

activity, and Cheatham was equally unable to suggest any such connection in his own EEO filings.

See Defs.’ Ex. 1 at 322. Consequently, summary judgment is proper as to this retaliation claim.

7 The laptop investigation could not have been taken in response to Cheatham’s First EEO Complaint. The laptop investigation was initiated on September 25, 2012, see Def.’s Ex. 3 at 11 (citing AJ Ex. 4 at 11, 178), and was closed in Cheatham’s favor upon return of the laptop on November 16, 2012, Defs.’ Stmt. ¶ 16 (citing Defs.’ Ex. 3 at 11). Cheatham’s First EEO Complaint was not filed until November 16, 2012. See Compl. ¶ 27; Defs.’ Ex. 1 at 45. 38 Third, Cheatham maintains that FEMA’s retaliation prohibited him from achieving other

gainful employment with FEMA, the Navy, and the DCAA, based on their responses to reference

requests. Am. Compl. ¶¶ 24–6. Notably, these requests for references were handled by Stevens,

and not any of the individuals involved in his investigation or termination from FEMA. See Defs.’

Ex. 3 at 12 (citing AJ Ex. 5 at 514).

Cheatham’s first non-selection occurred on January 24, 2013, when Cheatham was notified

of his ineligibility for the FEMA position. See Defs. Ex. 1 at 250. This denial occurred

approximately five months after Cheatham’s attempts to internally renew the Complaint Against

Walker. See Defs.’ Ex. 1 at 122–23. Although “neither the Supreme Court nor the [D.C. Circuit]

has established a bright-line three-month rule,” Hamilton v. Geithner,

, 1357–58

(D.C. Cir. 2012), the District of Columbia Circuit has generally found that a two- or three-month

gap between the protected activity and the adverse employment action does not establish the

temporal proximity necessary for causation, Jones v. District of Columbia Water and Sewer

Authority,

(D.D.C. 2013) (collecting cases). But Cheatham’s First EEO

Complaint was filed on November 16, 2012, only two months prior to the non-selection for FEMA

position GS-0510-13/14. See Compl. ¶ 27; see Defs.’ Ex. 1 at 45.

This temporal proximity as to the latter is, however, ultimately of little consequence. The

FEMA position was open only to “Current FEMA Status Candidates,” in other words, current

qualified FEMA employees. See Defs.’ Ex. 1 at 241, 250. Cheatham had been fired three months

before the position had even been announced. See id. at 241. Thus, he was notified that he was

“outside of the area of consideration as defined under ‘Who May Be Considered.’ ” Id. at 250.

Title VII retaliation claims “require proof that the desire to retaliate was the but-for cause of the

challenged employment action.” Univ. of Texas Sw. Med. Ctr. v. Nassar,

(2013).

39 Here, FEMA’s documented reasons for denying Cheatham employment establish no such

connection, and Cheatham offers no evidence to the contrary aside from his own personal belief.

Next, it is undisputed that Cheatham received a tentative offer from the United States

Marine Corps, vis-à-vis, the Navy. Defs.’ Ex. 3 at 11 (citing ROI 266); Am. Compl. ¶ 25; Opp’n

at 4–5 (¶ 3). During the consideration process, Navy advised Cheatham that “[f]irm or final offers

are not made until verification of employment documents and completion of all pre-appointment

requirements,” which included “receiving and reviewing employment information to confirm

eligibility and fitness for an appointment[.]” Defs.’ Ex. 1 at 263. Navy rescinded its tentative

offer to Cheatham on April 30, 2013, approximately six months after Cheatham filed the First EEO

Complaint, but only approximately one and a half months after filing the Second EEO Complaint.

See Defs. Stmt. ¶¶ 20–1 (citing Defs.’ Ex. 1 at 82).

Even with this temporal proximity to the Second EEO Complaint, and noting the ongoing

nature of the EEO proceedings, the record still reflects the Navy’s clear and undisputed reasons

for its rescission of employment. Navy declined to fulfill the tentative offer because Cheatham

had admittedly reported to Navy that his FEMA terminated him based on a RIF, when in fact, a

subsequent reference check revealed that he had been terminated for, among other reasons,

“inappropriate conduct towards others.” Defs.’ Ex. 1 at 263. Navy specifically informed

Cheatham that this misrepresentation regarding his termination mandated the offer rescission, as

did the actual bases for his termination. See

While the Court recognizes that Cheatham

fundamentally disagrees with FEMA’s reasons for his termination, it is unquestionable that

Cheatham was not forthcoming with Navy about the reasons for his removal.

Finally, DCAA declined to hire Cheatham for four different auditor positions. See Am.

Compl. ¶ 24; Def.’s Ex. 1 at 278–79. DCAA notified Cheatham in May 2013 that he was not

40 chosen due to the nature and recency of his separation from his position with FEMA. See

Cheatham has again failed, however, to rebut FEMA’s valid, nondiscriminatory reasons for his

termination, which also served as the basis for non-selection by DCAA. It is unclear if DCAA

actually received this information in response to a reference request to FEMA, or merely from

Cheatham’s own submissions to DCCA, which included copies of his OF-306 and his SF-50,

which listed the reasons for his termination. See

at 288–89. Notwithstanding, there is nothing

to support Cheatham’s speculation that the information supplied to DCCA regarding his FEMA

termination was “false, inaccurate, and unsupported information.” Am. Compl. ¶ 44. The Court

has already found that FEMA’s internal investigation, resulting in Cheatham’s termination, was

sufficient to warrant its findings, therefore, the submission of this information to DCAA upon

request cannot be, standing alone, retaliatory.

Additionally, while adverse references by a former employer to a prospective employer

can constitute an illegal employment practice, even if such reference “is sent maliciously and

productive of a devastating impact[,]” Cheatham must still produce evidence of “disparate

treatment based on . . . sex [or gender].” Shehadeh v. Chesapeake and Potomac Telephone Co. of

Maryland,

(D.C. Cir. 1978); Passer v. American Chemical Soc.,

(D.C. Cir. 1991). There is absolutely no evidence presented that FEMA’s responses to these

references were motivated by animus toward Cheatham’s sex or gender, and no counterexamples

of comparators in similar circumstances are cited.

Consequently, Cheatham has not carried his burden of persuasion as to his any of his claims

for retaliation. He has failed to produce probative evidence to rebut FEMA’s legitimate

nondiscriminatory reasons for his termination, and in turn, the submission of that information to

potential employers upon request. Therefore, summary judgment is appropriate as to the

41 remaining retaliation claims.

V. CONCLUSION

For all of the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss and/or

for Summary Judgment. More specifically, the Court dismisses without prejudice Counts II, III,

IV, and V, pursuant to the Federal Rule 12(b)(1). The Court also dismisses all of the “Doe

Defendants.” Defendants’ Motion for Summary Judgment is GRANTED as to any due process

claims, and also as to Count I and any other claims for sex and gender discrimination and retaliation

arising from violations of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-16, and

as such, the due process and Title VII claims are dismissed with prejudice. A separate Order will

issue contemporaneously.

________/s/__________________ COLLEEN KOLLAR-KOTELLY Date: September 13, 2021 United States District Judge

42