UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

YACINE DIENG

Plaintiff, v. No. 18-cv-1220 (EGS) AMERICAN INSTITUTES FOR RESEARCH IN THE BEHAVIORAL SCIENCES,

Defendant.

MEMORANDUM OPINION

Plaintiff Yacine Dieng (“Ms. Dieng”) brings this action

against Defendant American Institutes for Research in the

Behavioral Sciences (“AIR”) claiming: (1) “Termination Taken

Against Plaintiff on the Basis of Race” in violation of Title

VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. (“Title

VII”) (Count III); (2) “Termination Action Taken Against

Plaintiff on the Basis of Race in violation of the District of

Columbia’s Human Rights Act (“DCHRA”), D.C. Code § 2–1401.01

(Count IV); (3) “Termination Action Taken Against Plaintiff on

the Basis of Retaliation” in violation of Title VII (Count V);

and (4) “Termination Action Against Plaintiff on the Basis of

Retaliation” in violation of the DCHRA (Count VI). 1 Pending

1 On September 26, 2019, the Court dismissed without prejudice Ms. Dieng’s hostile work environment and discrimination claims based on gender. See Mem. Op., ECF No. 14 at 32.

1 before the Court is Defendant’s Motion for Summary Judgment.

Upon careful consideration of the motion, the opposition, the

reply thereto, the applicable law, and the entire record herein,

and because no reasonable juror could conclude that Defendant

discriminated against Plaintiff when it terminated her

employment, the Court GRANTS Defendant’s Motion for Summary

Judgment.

I. Background

A. Factual Background

Except where indicated, the following facts are undisputed.

AIR hired Ms. Dieng as a Senior Database Engineer on its

reporting team (the “ORS team” or “ORS department”) in February

2013. See Def.’s Reply to Pl.’s Corrected Counterstatement of

Material Facts (“Parties’ SOMF”), ECF No. 60 ¶¶ 1–2, 9. 2 While

employed at AIR, Ms. Dieng’s supervisor was Jeffrey Burger (“Mr.

Burger”), a white male. Id. ¶¶ 16–18. Sachin Shah (“Mr. Shah”),

an Asian male from India, was the ORS team’s Project Manager.

Id. ¶¶ 13–14. Ms. Dieng’s claims arise from several key

incidents, which the Court describes below.

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF header 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. Ms. Dieng’s 2015 Meeting with Human Resources

As the Project Manager, Mr. Shah led daily meetings with

the ORS team where the team “discuss[ed] tasks and [got] input

from the entire team.” Id. ¶¶ 19–20. During a daily meeting in

September 2015, Mr. Shah began to discuss something with Ms.

Dieng that did not involve the rest of the team. Id. ¶ 22. Ms.

Dieng responded, “Well, can we take it off line [sic]”—a

response she had heard others say to Mr. Shah in the past. Id.

¶¶ 23–24. In response, Mr. Shah stated that “he was sick and

tired of this[,] and he wasn’t going to take anymore comments

like this,” and asked Ms. Dieng to leave “if she was not happy

with the meeting.” Id. ¶¶ 25–26. Feeling disrespected, Ms. Dieng

stopped attending the daily meetings in-person and joined via

telephone. Id. ¶¶ 28–29; see also Pl.’s Ex. 17, Dep. of Jeffrey

Burger (“Burger Dep.”), ECF No. 55-2 at 59:16-18.

When Mr. Burger inquired about why Ms. Dieng stopped

attending the team’s daily meetings, Ms. Dieng explained the

incident with Mr. Shah and “asked Mr. Burger to mediate or

resolve the issue.” Parties’ SOMF, ECF No. 60 ¶¶ 30–31. Mr.

Burger suggested that she speak with Mr. Shah directly,

responding that “he did not want to get involved.” Id. ¶ 32.

Thereafter, on September 28, 2015, Ms. Dieng reached out to

Kasey Mutzel (“Ms. Mutzel”) in Human Resources (“HR”) for

assistance. See id. ¶¶ 33–34. When speaking about the incident,

3 Ms. Dieng told Ms. Mutzel that she had never seen Mr. Shah react

in such a way to anyone else on their team. Id. ¶¶ 35-36. Ms.

Dieng testified that she did not tell Ms. Mutzel that Mr. Shah’s

treatment of her was based on her race because she “didn’t know

what it was originally.” Def.’s Reply Ex. 2, Dep. of Yacine

Dieng (“Dieng Dep.”), ECF No. 60-3 at 79:6-14. She also

testified that in an email discussion with Ms. Mutzel she told

Ms. Mutzel that the disrespect and verbal abuse “seems to be

related to the fact that I am the only black woman in the

group.” Id. at 82:20-22; see also Pl.’s Ex. 1, Email from Y.

Dieng to K. Mutzel Re: Follow Up (“HR Follow-Up Email”), ECF No.

55-1 at 2-3. AIR, however, challenges the authenticity of this

exhibit. See Parties’ SOMF, ECF No. 60 ¶ 181.

On October 2, 2015, Ms. Dieng, Mr. Shah, and Ms. Mutzel met

to discuss the incident. See id. ¶¶ 37–38. During the meeting,

Mr. Shah apologized, stating that “he didn’t realize that he had

offended Ms. Dieng.” Id. Ms. Dieng testified that she did not

talk about race during the meeting, but that she did say she

felt discriminated against. Dieng Dep., ECF No. 60-3 at 87:7-13.

After the meeting, HR issued a Form Issue Report stating that

Ms. Dieng had contacted HR because she felt “disrespected and

targeted” by Mr. Shah and that during the meeting, Ms. Dieng and

Mr. Shah “agreed to communicate more with one another[ ] and

4 appeared to be satisfied with the outcome of the meeting.” Pl.’s

Ex. 6, Sept. 28, 2015 Form Issue Rep., ECF No. 55-1 at 22.

2. Ms. Dieng’s 2016 Evaluation Report

Mr. Burger completed Ms. Dieng’s 2016 performance appraisal

on December 31, 2016. See Parties’ SOMF, ECF No. 60 ¶¶ 50–51.

Ms. Dieng believes that the evaluation contains one negative

statement: “Yacine pretty consistently gets feedback from others

on bugs or issues in her code when code reviews are completed.”

Id. ¶ 54. The remainder of the performance evaluation rated Ms.

Dieng’s performance as “consistently met expectations” and noted

that “[s]he is a key contributor to the team.” Id. ¶¶ 58–60.

While Mr. Burger testified that he believed he received some

feedback for the evaluation from Mr. Shah, id. ¶ 52; Mr. Shah

testified that he did not provide any information about Ms.

Dieng’s work for this evaluation. Id.

When asked about factors leading to Ms. Dieng’s

termination, Stephen Kromer (“Mr. Kromer”), President of AIR

Assessment, testified that he believed that “bugs” in Ms.

Dieng’s code was a performance issue that contributed to her

termination. Id. ¶ 56; Pl.’s Ex. 13, Dep. of Stephen Kromer

(“Kromer Dep.”), ECF No. 36-7 at 42-43. 3

3 AIR points to Mr. Kromer’s testimony that he did not review Ms. Dieng’s 2016 performance evaluation, Parties’ SOMF, ECF No. 60 ¶¶ 56-57; but this does not negate his testimony that the “bugs” in Ms. Dieng’s code contributed to her termination.

5 3. Teleworking Agreement

After Ms. Dieng teleworked “pretty regularly” throughout

2016 and into 2017, see Parties’ SOMF, ECF No. 60 ¶ 61; Mr.

Burger informed Ms. Dieng that if she was going to be

teleworking on a more permanent basis it needed to be approved

by Selina Tolosa (“Ms. Tolosa”) and Mr. Kromer. Id.; Pl.’s Ex.

8, Email Chain Between J. Burger & Y. Dieng Re: Working from

Home (“Pl.’s Ex. 8”), ECF No. 55-1 at 26–27. Ms. Tolosa, the

Vice President of Software Engineering, is an Asian female, and

Mr. Kromer is a white male. See Parties’ SOMF, ECF No. 60 ¶¶ 4–

7.

At the time, AIR’s teleworking policy provided: “Although

an individual’s work location arrangement may be modified to

accommodate needs outside of work, the primary focus of any

teleworking arrangement must be on satisfying work demands and

job performance. Telework is not designed to be a replacement

for childcare or eldercare.” Id. ¶ 77.

Ms. Dieng testified that Mr. Burger told her not to worry

about filling out a form, and he would talk to Ms. Tolosa and

Mr. Kromer about her teleworking. Id. ¶ 70. However, Mr.

Burger’s emails indicate that he told her to fill out the form.

Id. Ms. Dieng submitted the teleworking form on September 22,

2017. Id. ¶ 204. Ms. Tolosa never approved Ms. Dieng’s

teleworking form. Id. ¶ 80.

6 4. Ms. Dieng’s Insubordination and Termination

In September 2017, Ms. Dieng received a formal

insubordination charge for her failure to follow directives from

Mr. Shah and Mr. Burger. While working on a software performance

issue with Maneesh Rampally (“Ms. Rampally”), Ms. Dieng decided

that she needed to change the code to avoid “deadlocks.” Id. ¶¶

91–92. Mr. Shah requested that Ms. Dieng run her proposed

solution to the deadlocks by Daniel Nagdimunov (“Mr.

Nagdimunov”), a Database Engineer on the AIR networking team.

Id. ¶¶ 94–95, 102. Ms. Dieng declined to run the issue by Mr.

Nagdimunov because she felt like she was being treated

differently than the rest of her team by being required to have

someone on another team review her code. Id. ¶ 118. When she did

not work with Mr. Nagdimunov, Mr. Burger told Ms. Dieng he would

have to write her up for insubordination. See Def.’s Ex. 21,

Sept. 21, 2017 Form Issue Rep., ECF No. 25-3 at 187. After this

incident, Mr. Burger and Ms. Dieng met with HR, where Mr. Burger

also made Ms. Dieng aware of five other performance issues.

Parties’ SOMF, ECF No. 60 ¶ 122.

A few months later, in February 2018, Ms. Dieng’s

employment was terminated after AIR discovered that she violated

the Production Control Board (“PCB”) Policy. The PCB Policy

requires a team member to submit a PCB document, “outlin[ing]

steps to deploy the fix to the software” to the board for

7 approval prior to deploying a change to a client’s production

system. Id. ¶¶ 128–134. On January 10, 2018, “Ms. Dieng added an

index to [a] client’s production system without a PCB.” Id. ¶

144. Ms. Dieng asserts that Mr. Shah told her to move forward

with the deployment. See id. ¶ 145. However, “Mr. Shah advised

Mr. Burger that he was not aware that Ms. Dieng was going to

deploy her solution into production.” Id. After Ms. Tolosa

became aware of Ms. Dieng’s violation of the PCB Policy, Ms.

Tolosa emailed HR recommending termination of her employment.

Id. ¶¶ 148–150. Ms. Dieng’s employment was terminated on

February 2, 2018. Id. ¶ 158.

B. Procedural History

Pending before the Court is AIR’s Motion for Summary

Judgment as to Ms. Dieng’s remaining claims. See Def.’s Mem. in

Support of Mot. for Summ. Judgment (“Def.’s Mot. Summ. J.”), ECF

No. 25-1. After the Court granted several motions for extensions

of time, Ms. Dieng filed her opposition. See Pl.’s Opp’n to Def.

AIR’s Mot. Summ. J. (“Pl.’s Opp’n”), ECF No. 36. AIR filed its

reply on February 12, 2021. See Def.’s Reply in Support of Mot.

Summ. J. (“Def.’s Reply”), ECF No. 37. However, Ms. Dieng

repeatedly failed to comply with the Court’s Standing Order to

provide a statement of material facts not in dispute, and on

September 15, 2022, the Court stayed proceedings. See Minute

Order (Sept. 15, 2022). The Court lifted the stay and ordered

8 that the facts in Defendant’s Statement of Material Facts were

deemed admitted on November 15, 2022. See Minute Order (Nov. 15,

2022).

On November 29, 2022, Ms. Dieng’s counsel notified the

Court of his inability to represent her due to a medical

disability. See Pl.’s Mot. to Restore Stay & Notice of

Disability, ECF No. 40. Over AIR’s objection, the Court granted

Ms. Dieng’s Motion to Restore the Stay, Minute Order (Feb. 17,

2023); and after Ms. Dieng obtained new counsel, the Court

vacated its Minute Order from November 15, 2022, ordering that

the facts in Defendant’s Statement of Material Facts were deemed

admitted, see Minute Order (Nov. 21, 2023). The Court permitted

the parties to submit supplemental briefing. See Pl.’s Supp.

Brief in Opp’n to Def.’s Mot. Summ. J. (“Pl.’s Supp. Brief”),

ECF No. 54; Def.’s Supp. Brief in Reply to Pl.’s Supp. Brief in

Opp’n to Def.’s Mot. Summ. J. (“Def.’s Supp. Brief”), ECF No.

61. AIR’s Motion for Summary Judgment is now fully briefed and

ripe for the Court’s adjudication.

II. Legal Standard

Summary judgment is proper when “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). A

“material” fact is one that could “affect the outcome of the

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

9

(1986). A dispute is “genuine” if “the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.”

The moving party bears the burden

of “informing the district court of the basis for its motion” as

well as “identifying 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); see also Fed. R. Civ. P. 56(c)(1)(A).

To defeat summary judgment, the nonmoving party must “go

beyond the pleadings” and “designate specific facts showing that

there is a genuine issue [of material fact] for trial.” Celotex

Corp.,

(internal quotation marks omitted). In

evaluating a summary judgment motion, “[t]he evidence of the

nonmovant is to be believed, and all justifiable inferences are

to be drawn in his favor.” Anderson,

. However,

the nonmoving party's opposition “must consist of more than mere

unsupported allegations or denials and must be supported by

affidavits or other competent evidence” in the record. Musgrove

v. District of Columbia,

(D.D.C. 2011);

see also Celotex Corp.,

. If the evidence

favoring the nonmoving party is “merely colorable, or is not

10 significantly probative, summary judgment may be granted.”

Anderson, 477 U.S. at 249–50 (internal citations omitted).

III. Analysis

Ms. Dieng alleges two claims under Title VII and the DCHRA:

(1) discrimination based on her race; and (2) retaliation. See

Pl.’s Opp’n, ECF No. 36; Pl.’s Supp. Brief, ECF No. 54. Because

the legal standards for establishing these claims under Title

VII and the DCHRA are substantively the same, see Carpenter v.

Fed. Nat’l Mortg. Ass’n,

(D.C. Cir. 1999)

(explaining that, “[i]n interpreting its Human Rights Act[,] the

District of Columbia . . . generally seems ready to accept the

federal constructions of Title VII, given the substantial

similarity between it and the [DCHRA]”); the Court will analyze

Ms. Dieng’s claims under these statutes together. First, the

Court addresses AIR’s argument that Ms. Dieng failed to exhaust

her administrative remedies and is thus barred from bringing

this lawsuit.

A. Exhaustion of Administrative Remedies

Prior to filing a civil action, “Title VII requires that a

person complaining of a violation file an administrative charge

with the [United States Equal Employment Opportunity Commission

(“EEOC”)] and allow the agency time to act on the charge.” Park

v. Howard Univ.,

(D.C. Cir. 1995). While the

charge-filing requirement is not a jurisdictional prerequisite,

11 it is a mandatory procedural hurdle, see Fort Bend Cty v. Davis,

, 552 (2019); intended to “giv[e] the charged party

notice of the claim and narrow[ ] the issues for prompt

adjudication and decision.” Park,

(citation and

internal quotations omitted). As an affirmative defense, the

defendant bears the burden of proving that the plaintiff failed

to exhaust. See Bowden v. United States,

(D.C.

Cir. 1997). “If the defendant meets its burden, the plaintiff

then bears the burden of pleading and proving facts supporting

equitable avoidance of the defense.”

Ms. Dieng filed a charge of discrimination on February 22,

2018, just twenty-days after she was fired from AIR. Def.’s Ex.

2, Charge of Discrimination (“EEOC Charge”), ECF No. 25-3 at 73.

In response to the form’s question on what basis she was

discriminated on, Ms. Dieng checked the box for “other.”

Ms.

Dieng noted that the discrimination occurred on February 2,

2018, and wrote: “I was formerly employed by Respondent. On

February 2, 2018, I was discharged. I believe I was wrongfully

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

1964, as amended.”

The EEOC issued Ms. Dieng a notice of her

right to sue on the same day. Def.’s Ex. 3, Notice of Dismissal

from EEOC, ECF No. 25-3 at 75.

AIR argues that Ms. Dieng’s administrative charge fails to

meet the procedural hurdle under Title VII—and thus failed to

12 put it on notice of her claims—because it “says nothing about

termination based on race or retaliation.” Def.’s Mot. Summ. J.,

ECF No. 25-1 at 28. In response, Ms. Dieng asserts that her

charge, when “liberally construed,” sufficiently put AIR on

notice of her claims because it stated that she was “wrongfully

terminated, in violation of Title VII,” and “AIR was aware of

her race and sex[ ] and had notice of her previous complaints of

disparate treatment while employed.” Pl.’s Supp. Brief, ECF No.

54 at 24–25.

The Court concludes that AIR did not carry its burden of

establishing that Ms. Dieng’s charge did not provide them with

sufficient notice such that she failed to exhaust her

administrative remedies. While sparse in detail, Ms. Dieng’s

charge explicitly states that she believed she was terminated in

violation of Title VII. Moreover, AIR fails to cite any

authority indicating that the failure to check the box for

“race” on the charge is fatal to exhaustion. Ms. Dieng’s charge—

together with the fact that she had spoken with HR about being

discriminated against—was sufficient to notify AIR that she

might file a Title VII action based on her termination, allowing

13 AIR to investigate whether her termination was discriminatory or

retaliatory. 4

Accordingly, the Court concludes that Ms. Dieng exhausted

her administrative remedies for her claims based on her

termination. 5

B. Ms. Dieng’s Discrimination and Retaliation Claims

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

“discriminate against any individual with respect to her

compensation, terms, conditions, or privileges of employment,

because of her race, color, religion, sex, or national

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

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.

4 Because whether Ms. Dieng informed HR that her treatment was race-based is disputed, the Court does not rely on that in making this determination. 5 It is unclear from Ms. Dieng’s summary judgment briefing the

extent to which she claims that she was subject to additional adverse employment actions. To the extent she is arguing that her prior insubordination or the denial of a permanent telework schedule are separate adverse employment actions, the Court concludes that these are unexhausted claims because the only one mentioned in the EEOC charge was her termination. EEOC Charge, ECF No. 25-3 at 73. “Each discrete adverse employment action triggers the statutory exhaustion requirement.” Reshard v. Lahood, No. 87-2794,

, at *13 (D.D.C. Apr. 7, 2010) (citing Nat’l R.R. Passenger Corp. v. Morgan,

(2002)). Accordingly, Defendant’s Motion for Summary Judgment is GRANTED as to the unexhausted claims.

14 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) (brackets omitted) (quoting [Brady v. Off. of Sergeant at Arms,

(D.C. Cir. 2008)]); 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

15 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).

1. Ms. Dieng’s Discriminatory Termination Claim

Ms. Dieng claims that she was terminated because of her

race in violation of Title VII and the DCHRA. Pl.’s Opp’n, ECF

No. 36 at 15. There is no dispute that Ms. Dieng’s termination

constitutes an adverse employment action. See generally Def.’s

Mot. Summ. J., ECF No. 25-1 at 21; Douglas v. Donovan,

, 552–53 (D.C. Cir. 2009) (holding that an employment

decision such as termination is “conclusively presumed to be

[an] adverse employment action[ ]”). However, AIR has identified

a legitimate, non-discriminatory reason for terminating Ms.

Dieng—her insubordination and subsequent violation of company

policy. See Def.’s Mot. Summ. J., ECF No. 25-1 at 22–23.

Accordingly, the Court must not address whether Ms. Dieng has

stated a prima facie case, and instead, turns directly to

whether Ms. Dieng “produced sufficient evidence for a reasonable

jury to find that [AIR’s] asserted non-discriminatory reason was

not the actual reason.” Brady,

(“[W]here an

employee has suffered an adverse employment action and an

16 employer has asserted a legitimate, non-discriminatory reason

for the decision, the district court need not—and should not—

decide whether the plaintiff actually made out a prima facie

case under McDonnell Douglas.”) (emphasis in original). The

Court concludes that she has not.

AIR produced deposition testimony indicating that Ms. Dieng

was terminated due to a violation of the PCB Policy combined

with prior insubordination. See Def.’s Ex. 7, Dep. of Selina

Tolosa (“Tolosa Dep.”), ECF No. 25-3 at 22:1-4, 55:6–56:16.

Additionally, AIR provided additional supporting evidence,

including the emails recommending Ms. Dieng’s termination,

reports filed with HR, and other testimony regarding the nature

of the PCB Policy. See, e.g., Def.’s Ex. 20, Email Chain Between

L. Sepanloo, D. Kilpatrick & M. Fanning Re: Y. Dieng Recommend

Termination of Employment, ECF No. 25-3 at 185–86; Def.’s Ex.

19, Aff. of Lesley Sepanloo, ECF No. 25-3 at 183-84; Tolosa Dep,

ECF No. 25-3 at 41:2-19, 48:16-49:15. Ms. Dieng attempts to show

that AIR’s stated reason for her termination was not the actual

reason—and thus pretexual—in two ways.

First, Ms. Dieng argues that she never violated the PCB

Policy. Pl.’s Supp. Brief, ECF No. 54 at 22–23. Ms. Dieng,

through her deposition testimony and affidavit, asserts that a

PCB document was not required because the problem with the

client’s code required an urgent fix, and Mr. Shah gave her

17 verbal approval to deploy the index. See Pl.’s Ex. 20, Aff. of

Yacine Dieng (“Dieng Aff.”), ECF No. 55-2 at 45-49; Pl.’s Supp.

Brief, ECF No. 54 at 22–23. Regardless, Ms. Dieng claims that it

was Mr. Shah’s responsibility to create the PCB document, and

his failure to do so does not mean she violated the PCB Policy.

See Pl.’s Supp. Brief, ECF No. 54 at 22–23.

However, Ms. Dieng’s argument ignores the remainder of the

evidence, which indicates that in making its decision to

terminate Ms. Dieng, AIR relied on Mr. Shah’s statement that he

was unaware that Ms. Dieng was deploying an index to the

client’s production without PCB approval. See Parties’ SOMF, ECF

No. 60 ¶ 145. The question is not whether Ms. Dieng actually

violated the policy, but rather “whether [AIR] honestly and

reasonably believed that the underlying [PCB violation]

occurred.” Brady,

. Ms. Dieng has not produced

any evidence demonstrating that Ms. Tolosa, Mr. Kromer, or Mr.

Burger knew that she did not violate the PCB Policy or that

their belief that the violation occurred was unreasonable.

Accordingly, the Court concludes that Ms. Dieng has not provided

sufficient evidence to allow a reasonable juror to conclude that

AIR did not honestly believe that Ms. Dieng violated the PCB

Policy, such that this evidence shows pretext.

Next, Ms. Dieng attempts to establish that AIR treated

other employees of a different race more favorably. Ms. Dieng

18 points to AIR developer, Mr. Nagdimunov, a white and Asian male,

who was not terminated after violating the PCB Policy. See Pl.’s

Opp’n, ECF No. 36 at 22. 6 While the evidence clearly establishes

that Mr. Nagdimunov also violated the PCB policy, the Court

concludes that no reasonable juror could find that he is an

adequate comparator to Ms. Dieng. Unlike her employment history

at AIR, Ms. Dieng has presented no evidence that Mr. Nagdimunov

was formerly written up for insubordination or that anyone

expressed concern about his performance at work prior to when he

violated the PCB Policy. See, e.g., Webster v. U.S. DOE,

, 86 (D.D.C. 2020) (concluding that plaintiff was not

similarly situated to named comparators because there was no

evidence comparators had the same behavioral or performance

issues). Additionally, when Mr. Nagdimunov violated the PCB

Policy, he had only been working at AIR for a couple months,

while Ms. Dieng had been at AIR for almost five years and knew

the significance of abiding by the PCB Policy. See Parties’

SOMF, ECF No. 60 ¶ 225. The differing circumstances fail to

establish that AIR treated other employees of a different race

more favorably than Ms. Dieng.

6 Ms. Dieng asserts that Mr. Shah also violated the PCB Policy but was not fired. See Pl.’s Opp’n, ECF No. 36 at 23. However, Ms. Dieng has failed to produce evidence that AIR knew or believed that Mr. Shah violated the policy.

19 Finally, Ms. Dieng asserts that the “disproportionate”

decision to terminate her and her prior insubordination write-

ups were racially motivated, tainting her termination. While Mr.

Kromer testified that he was the final decision-maker for

terminating Ms. Dieng’s employment, Ms. Dieng argues that Mr.

Kromer made that decision based on Ms. Tolosa’s recommendation,

and that racial animus can be inferred from Ms. Tolosa’s

actions. Pl.’s Opp., ECF No. 36 at 16-18. 20–22. However, as

explained above, Ms. Dieng has failed to support an inference of

racial animus with any evidence establishing that Ms. Tolosa’s

recommendations were unreasonable, against AIR policy or

procedure, or differed from how she treated similarly situated

employees of a different race.

Accordingly, the Court GRANTS AIR’s Motion for Summary

Judgment as to Ms. Dieng’s claims of discrimination on the basis

of her race.

2. Ms. Dieng’s Retaliation Claims

To establish a claim of retaliation, an employee must

establish that she: (1) “engaged in protected activity,” (2) was

“subjected to adverse action by the employer,” and (3) that

“there existed a causal link between the adverse action and the

protected activity.” Smith v. District of Columbia,

(D.C. Cir. 2005) (internal quotation marks omitted).

20 Ms. Dieng’s retaliation claims initially stated that she

engaged in protected activity when she met with AIR’s HR staff

after the daily meeting incident with Mr. Shah. Am. Compl., ECF

No. 7-1 ¶ 11. However, Ms. Dieng’s briefing fails to address

AIR’s arguments that there is no connection between this meeting

and her termination. See generally Pl.’s Opp’n, ECF No. 36;

Pl.’s Supp. Brief, ECF No. 54. Nevertheless, even if the

nonmoving party fails to respond to the motion for summary

judgment, or portions thereof, a court cannot grant the motion

for the reason that it was conceded. Winston & Strawn, LLP v.

McLean,

(D.C. Cir. 2016). The burden is always

on the movant to demonstrate why summary judgment is

warranted.

A district court “must determine for itself that

there is no genuine dispute as to any material fact and that the

movant is entitled to judgment as a matter of law, and then

‘should state on the record the reasons for granting or denying

the motion.’”

at 508–09 (quoting Fed. R. Civ. P. 56(a)).

Ms. Dieng has failed to establish that she engaged in

protected activity when she met with HR to discuss the daily

meeting incident. There is no factual dispute that Ms. Dieng met

with Mr. Shah and Ms. Mutzel on October 2, 2015 to discuss the

September 2015 daily meeting incident. See Parties’ SOMF, ECF

No. 60 ¶¶ 37–38. There is also no factual dispute that Ms. Dieng

did not raise her race as a reason for Mr. Shah’s behavior

21 toward her either when she met with Ms. Mutzel on September 28,

2015,

¶¶ 33–34; see also Dieng Dep., ECF No. 60-3 at 79:6-14

(Ms. Dieng testified that she did not tell Ms. Mutzel that Mr.

Shah’s treatment of her was based on her race because she

“didn’t know what it was originally”); nor during the meeting

with Mr. Shah and Ms. Mutzel on October 2, 2015, Dieng Dep., ECF

No. 60-3 at 87:7-13. Ms. Dieng did testify that she later

informed Ms. Mutzel via email that the disrespect and verbal

abuse “seems to be related to the fact that I am the only black

woman in the group.” Id. at 82:20-22; see also HR Follow-Up

Email, ECF No. 55-1 at 2-3. AIR, however, challenges the

authenticity of the email exhibit. See Parties’ SOMF, ECF No. 60

¶ 181. Plaintiff has failed to attest to the authenticity of the

email. Therefore, the Court will disregard it. And in any event,

it is undisputed that Ms. Dieng did not discuss race during the

October 2, 2015 meeting. For these reasons, Ms. Dieng has not

established that she engaged in protected activity.

Furthermore, Ms. Dieng cannot establish a causal connection

between the October 2, 2015 meeting and her termination nearly

two and a half years later on February 2, 2018. “When ‘mere

temporal proximity’ is the only ‘evidence of causality,’ the

Court has held that ‘the temporal proximity must be very

close.’” Spence v. United States Dep’t of Veteran’s Affairs,

(D.C. Cir. 2014) (quoting Clark Cnty. Sch. Dist.

22 v. Breeden,

(2001) (per curiam) (cleaned up)).

“We sometimes accept an adverse employment action occurring

within three to four months of the protected activity as

sufficient to allow an inference of causation.”

For the same

reason, assuming without deciding, that the performance

evaluation completed on December 31, 2016 and the September 2017

denial of her request to telework constitute adverse employment

actions, Ms. Dieng cannot establish a causal connection between

the October 2, 2015 meeting and either putative adverse

employment actions.

For these reasons, no reasonable juror could find that Ms.

Dieng was retaliated against when she was terminated, nor as a

result of certain statements on her December 31, 2016

performance evaluation, nor when her formal request to telework

was not approved.

In her supplementary briefing, Ms. Dieng argues that she

engaged in protected activity when she refused to follow the

“discriminatory” order from Mr. Shah and Mr. Burger on September

21, 2017 to review her code with Mr. Nagdimunov. Pl.’s Supp.

Brief, ECF No. 54 at 11–12; Pl.’s Corrected Counter-Statement of

Material Facts, ECF No. 54-1 ¶ 164. Not only does AIR challenge

the merits of Ms. Dieng’s argument, but it also points out that

this is a “new theory of liability” that Ms. Dieng is not

23 permitted to raise at this juncture. Def.’s Supp. Brief, ECF No.

61 at 5–9.

The Court agrees that Ms. Dieng’s attempt to raise her

refusal to review her code with Mr. Nagdimunov as the protected

activity giving rise to retaliation is impermissible. Until now,

the only protected activity Ms. Dieng claimed to have engaged in

was her 2015 meeting with AIR’s HR staff after the incident with

Mr. Shah during a daily meeting. See Pl.’s Opp’n to Def.’s Mot.

to Dismiss, ECF No. 11 at 14–15 (stating that Ms. Dieng engaged

in protected activity when she reported her supervisor’s race

discrimination to HR); Def.’s Reply Ex. 1, Pl.’s Answers to

Def.’s Interrogs., ECF No. 60-2 at 3–4 (listing only the 2015

meeting with HR as a protected activity). Nor did Ms. Dieng list

the incident with Mr. Nagdimunov in her first attempt to respond

to AIR’s Statement of Material facts. See generally Pl.’s

Counter-Statement of Facts, ECF No. 34-1. The attempt to salvage

Ms. Dieng’s retaliation claims through her summary judgment

opposition is clearly not allowed where, as here, these

allegations were not raised in her Amended Complaint, discovery

responses, or any prior briefing. See, e.g., Weatherspoon v.

Azar,

(D.D.C. 2019) (“Plaintiffs cannot

use summary judgment briefing to press claims not raised in

their complaints.”); Simpkins v. Jacobs Eng’g Grp., No. 19-cv-

0447,

, at *6 n.3 (D.D.C. Sept. 29, 2021)

24 (concluding that plaintiff’s attempt to “change her theory of

when she took part in protected activity” through her summary

judgment briefing was improper). Therefore, the Court will not

consider Ms. Dieng’s new argument that her refusal to follow Mr.

Shah and Mr. Burger’s order to seek assistance with her code was

a protected activity for which she was retaliated against. For

this reason, the Court need not reach the merits of Ms. Dieng’s

argument.

For these reasons, the Court GRANTS AIR’s Motion for Summary

Judgment as to Ms. Dieng’s retaliation claims.

IV. Conclusion

For the foregoing reasons, the Court GRANTS Defendant’s

Motion for Summary Judgment, ECF No. 25-1. A separate order

accompanies this Memorandum.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge April 8, 2025

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