United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge
Vidya Sagar, proceeding pro se, was hired for a
one-year probationary period by the U.S. Department of the
Treasury and was terminated shortly before the year expired.
According to the notice of termination, the Department
decided to fire Sagar based on his conduct and performance.
Sagar, however, sees it differently and alleges that he was
the victim of age discrimination. He brings this action
against the Department to challenge his termination,
asserting three claims under the Age Discrimination in
Employment Act of 1967 (“ADEA”), 29 U.S.C. §
621 et seq. He contends, first, that he was
terminated because of his age; second, that the Department
retaliated against him for engaging in ADEA protected
activity; and, third, that he was subjected to a hostile work
environment because of his age. The matter is now before the
Court on the Department's motion for summary judgment,
Dkt. 104. For the reasons that follow, the Court will
GRANT the Department's motion.
A. Factual Background
December 20, 2010, Sagar was hired by the Internal Revenue
Service (“IRS”) as an Information Technology
Specialist at the GS-15 paygrade. Dkt. 101-20 at 3-4
(Pl.'s SUMF ¶¶ 8, 11); Dkt. 104-21 at 1
(Def.'s SUMF ¶ 1). He was 62 years old at the time.
Dkt. 104-21 at 1 (Def.'s SUMF ¶ 1). Sagar was one of
several Information Technology Specialists hired to help the
IRS implement the Affordable Care Act. Id.
(Def.'s SUMF ¶ 1). He was assigned to the Premium
Tax Credit (“PTC”) project, which was
“build[ing] the application that calculates [the]
applicable tax credit for taxpayers.” Id.
(Def.'s SUMF ¶ 2). Over the course of Sagar's
tenure at the IRS, he had three managers. The first two are
the alleged discriminating officials: Matthew Brady, the PTC
Section Chief and Sagar's direct manager, and Peter
Gianakos, the PTC Branch Chief and Sagar's second-level
manager. Id. at 1-2 (Def.'s SUMF ¶ 3); Dkt.
64-6 at 6 (Interrogatory No. 11). The third, Sagar's
third-level manager, was also the individual who hired him:
Gregory Barry, the Director of Compliance and Document
Matching, within the IRS's Affordable Care Act Program
Management Office. Dkt. 104-21 at 1, 4 (Def.'s SUMF
¶¶ 1, 13).
served as Sagar's direct manager until January or
February 2011, when Gianakos became the Chief of the PTC
Branch and thus Sagar's direct manager. Dkt. 100-25 at
5-7 (Interrogatory No. 18). In July 2011, Brady became the
PTC Section Chief and replaced Gianakos as Sagar's direct
manager. Id. (Interrogatory No. 18). In March 2011,
Sagar was “named the requirements lead for the PTC
project.” Dkt. 101-20 at 7 (Pl.'s SUMF ¶ 27).
His “primary responsibility” was to complete the
Requirements Plan, Dkt. 104-21 at 2-3 (Def.'s SUMF ¶
6), which “document[ed] the activities, methods, and
techniques that w[ould] be used to perform and support
Requirements Development . . . and Requirements Management .
. . for the Premium Tax Credit . . . Project, ” Dkt.
85-8 at 7.
to the Department and one of Sagar's colleagues, Jonathan
Lin, Sagar “began to have negative encounters”
with Lin as early as February 2011. Dkt. 104-21 at 2
(Def.'s SUMF ¶ 4). Although Lin did not immediately
bring these encounters to the attention of management, he
kept a running list of the episodes on his work computer.
Dkt. 104-6 at 7 (Lin Dep. 42:12-44:19); see Id. at
22-23 (Lin's notes). According to those notes, during the
first incident, Sagar (who was not Lin's supervisor)
“lectured” Lin “in the break room, ”
prompting Lin to email Sagar to ask that they “treat
each other with professional courtesies.” Dkt. 104-6 at
22. During subsequent incidents, Sagar purportedly told Lin
that he was “not a team player” and “hung
up” the telephone on him; interrupted Lin at a meeting
with harsh criticism implying that Lin had
“confuse[d]” two distinct concepts; and, at
another meeting, “threw down his pencil and started to
lecture” Lin for having interrupted him, only to then
himself interrupt another participant. Id. at 22-23.
Finally, Lin's notes report that, at a meeting on May 23,
2011, Sagar “grabbed the [telephone] microphone while
[Lin] was speaking and moved it directly in front of
him” and, then, “after he finished [speaking], he
threw it across the table [in Lin's] direction.”
Id. at 22. As the parties describe it, the
“microphone” was an extension of a
“spider” conference phone, which was typically
passed among participants during conference calls.
See Dkt. 104-6 at 16 (Lin Dep. 112:4-16); Dkt.
104-21 at 2 (Def.'s SUMF ¶ 4). Sagar, for his part,
disagrees with Lin's account. He asserts that he
“treated Lin with respect and helped Lin, ” Dkt.
112-4 at 4 (Pl.'s Response to Def.'s SUMF); that Lin
was “uncooperative [and had an] antagonistic attitude,
” id. at 10; and that Lin “made up [some
of the] events [and] distorted facts . . . to get [an]
outstanding [performance] rating, ” id. at 9.
parties also disagree about the quality of Sagar's work
as a Technology Specialist. According to Brady, when the
template for the Requirements Plan was changed, the Plan
“needed to be updated to follow the new template,
” but Sagar failed to do so in a timely manner. Dkt.
104-8 at 4 (Brady Dep. 35:20-22). The Requirements Plan, in
Brady's view, “was not that complicated, ”
and Sagar should have been able to update it more quickly and
without assistance from others. Id. (Brady Dep.
37:20-22). But, because Sagar did not do so, the Project
Manager, Walter Kirkland, needed to ask Sagar “numerous
times” when the Plan would be completed, and Kirkland
eventually “asked other team members, including Matthew
Sikowitz, the only other GS-15 [Technology] Specialist in
PTC[, ] [to assist] in completing the . . . Plan.” Dkt.
104-21 at 2-3 (Def.'s SUMF ¶¶ 6, 8). Moreover,
the Department adds, Sagar once “called a meeting to
discuss the . . . Plan, but[, ] because he was not prepared
to go forward, [Brady was forced to] cancel the
meeting.” Id. (Def.'s SUMF ¶ 7).
Sagar, again, paints a very different picture. He alleges
that, even though “[t]he project requirements were
changing, ” he successfully completed the Requirements
Plan in a timely fashion. Dkt. 101-20 at 7 (Pl.'s SUMF
¶ 29); see Id. at 7-8 (Pl.'s SUMF
¶¶ 30-32); Dkt. 101 at 27 (“Sagar['s]
three commitments . . . were completed [on] time, [and his]
performance exceeded [the relevant standards].”);
id. at 31 (“[E]vidence . . . show[s] that
[Sagar] performed at an outstanding/exceptional level . . .
.”). He further asserts- albeit in arguably
contradictory terms-that he did so without assistance from
others. Dkt. 56-17 at 3 (“With team input, the [Plan]
was completed by me from start to finish.”). As to the
meeting that Brady claims to have adjourned prematurely,
Sagar contends that the meeting was scheduled to last for
“one hour” and that the meeting, in fact,
“lasted an hour.” Oral Arg. Tr. (Rough at
September 2011, Brady turned his attention to whether
Sagar's employment with the Department should be
terminated before the end of his probationary period.
According to Brady, he was not only concerned about
Sagar's performance, but had personally observed a number
of “ongoing behavioral issues” involving
“antagonistic” interactions with “other
team members.” Dkt. 64-6 at 34; see Id. at
33-35 (Brady's narrative explanation, which was submitted
to the Labor Relations Department, for why he recommended
Sagar's dismissal). Brady noted, for example, that
“[w]hen someone wished to speak[, ] [Sagar] would hold
up his hand and instruct [the person] in a firm voice not to
interrupt him and” would admonish that person for
“being rude, ” and that, as a result, “many
of his team members [would] not speak while in a meeting with
him due to intimidation and fear of being shut down.”
Dkt. 64-6 at 34. On other occasions, according to Brady, when
“confronted with” a disagreement, Sagar would
“say angrily[, ] ‘I'll shut up now, ' and
[would then] stop talking and . . . [would stop] provid[ing]
input to the team.” Id. Around this time,
Brady asked other PTC staff whether they had had difficulties
working with Sagar, and Lin showed Brady the notes that he
had kept regarding Sagar's behavior. Dkt. 104-8 at 3
(Brady Dep. 33:14-19); Dkt. 104-6 at 7 (Lin Dep. 43:10-44:3).
the end of September, Brady completed Sagar's annual
evaluation, which referred to these conduct issues. Brady
wrote, for example, that Sagar needed “to work more
cooperatively with peers to promote a team
environment;” that he “should . . . provide input
even when there are disagreements with team members and
[should] not shut down as [he has done] in meetings;”
and that his demeanor at meetings “contribute[d] to a
hostile environment.” Dkt. 104-9 at 7. The evaluation
also raised performance issues, noting that, “[a]s a
senior technical staff member, [Sagar] should be able to
complete assigned tasks without the intervention of the
manager and project manager[, ] as was the case for
completing the Requirements Plan, ” and that a
“meeting had to be shut[ ]down by the manager”
because Sagar's presentation “was not ready to be
reviewed.” Id. Based on these stated concerns,
the review rated Sagar's performance as
“[m]inimally [s]atisfactory.” Id. at 9.
September 29, 2011, Brady met with Sagar to present the
evaluation. Dkt. 104-1 at 3-4 (Brady Decl. ¶ 7).
Although the exact timeline is not crystal clear, at some
point, Sagar “informed” Brady and Gianakos that
the evaluation “was not consistent and was not
true.” Dkt. 101-3 at 5. In addition, Sagar asserts that
he met with Gianakos “around October 3, 2011” for
“a few minutes” and told him that “the
review was incorrect, biased and vindictive, ” and that
he met with Brady later that same afternoon, who said he
would “look into the review on receipt of [Sagar's]
response.” Id. Sagar sent his
“response” to Brady on October 5, 2011.
Id. Among other things, his response asserted that
“there seems to be some misunderstanding since I
don't interrupt the thought processes of others that may
be equally applicable or don't know the complete
picture/context of the issue/discussion.” Dkt. 56-17 at
2. Sagar's response also suggested that, going forward,
he could improve workplace relations by bringing his
experience as a graduate school teacher to bear in fostering
the expression of “diverse opinions.”
Id. And, with respect to the Requirements Plan, the
response noted that there was a “new template;”
that “[t]he contents were still getting revised as we
proceeded to complete” the Plan; that “we got it
done relatively quickly;” and that, “[w]ith team
input, the [Plan] was completed by me from start to
finish.” Id. at 2-3.
and Gianakos, nonetheless, decided to “recommend
termination during [Sagar's] probationary period.”
Dkt. 104-21 at 4 (Def.'s SUMF ¶ 12). On October 27,
2011, Gianakos met with Sagar and gave him the option of
either resigning or waiting to receive “a written
proposal/termination letter.” Dkt. 41 at 23. When Sagar
declined to resign, Gianakos sent Sagar a letter, dated
October 27, 2011, notifying Sagar of his decision to
terminate his employment with the IRS. Dkt. 104-4 at 2-4. The
letter noted that Sagar was a probationary employee and that
“[t]he purpose of the probationary period was to allow
[Sagar] the opportunity to demonstrate the skills,
performance, and conduct necessary for continued employment
with the Federal Government.” Id. at 2. The
letter then listed five “incidents in which [Sagar]
failed to meet the expectations of [his] position [or]
displayed unprofessional behavior, ” including:
(1) On May 23, 2011, you displayed unprofessional behavior
during a [meeting when] you grabbed the microphone from a
colleague while he was speaking[, ] placed it in front of
you[, ] [and, after] you spoke[, ] . . . threw it across the
table in the other employee's direction, which was very
disruptive to others in attendance.
(2) On May 26, 2011, you proceeded to chastise another
employee after he interrupted you during a group discussion.
You were visibly upset and proceeded to tell this employee
that “gentlem[e]n should not interrupt other people
while they speak[, ]” [y]et . . . you displayed this
very behavior when another team member was speaking.
(3) On August 12, 2011, you were assigned as Requirements
Manger for the PTC Project and were responsible for producing
the Requirements Plan. The template for this project had been
updated but follow-up conversations were required to further
explain your responsibility to revise the plan documentation.
You still did not understand your role as Requirements
Manager, even after several follow-up meetings regarding the
same. As a result, it became necessary to assign several
junior staff members to assist you with the [P]lan.
(4) On August 22, 2011, you scheduled a meeting and invited
the entire team; however, you were not prepared to present
and proceeded to make corrections during the discussion.
Consequently, your manager made an executive decision to
adjourn the meeting and asked others to step in and complete
the document to avoid further delay.
(5) On September 29, 2011, your manager met with you to
discuss both performance and conduct issues. At this time, he
offered advice on how to improve your communication and
leadership skills. Unfortunately, you did not agree that
there was any need for improvement.
Id. at 2-3. The letter concluded that,
“[a]lthough you have been counseled regarding the
deficiencies in your performance[, ] there has been no
improvement in your performance as an Information Technology
Specialist, ” and thus “[i]t is my decision to
separate you from the Federal Service during your
probationary period for your performance deficiencies.”
Id. at 3.
days later, Sagar wrote to Barry-his third-level manager-to
alert Barry to “certain events” that had affected
Sagar's “career at the IRS.” Dkt. 100-20 at
2. He explained that his annual performance review came as
“a shock” and that the evaluation was a
“180 [-]degree distortion.” Id. He went
on to assert that he was “one of the best in the
technology field;” that he had “undertaken all
assigned tasks;” and that, based on his “superior
performance, there [was] no cause for the proposed threat of
removal action.” Id. Sagar also asked that
Barry “consider [him] for one of the vacant positions
[on] other projects.” Id. at 3. Barry was
unpersuaded, and he executed the Standard Form 52,
terminating Sagar's employment with the IRS, effective
November 2, 2011. Dkt. 104-20 at 2-3. On that same day,
moreover, Sagar received Gianakos's letter dated October
27, 2011, setting forth the grounds for termination. Dkt.
104-21 at 4-5 (Def.'s SUMF ¶ 14); Dkt. 104-4 at 2.
November 4, 2011, Sagar sought equal employment opportunity
(“EEO”) counseling regarding “[w]hether [he
was] disparately treated on the basis of [a]ge” when he
was fired. Dkt. 104-10 at 2-3 (EEO Counseling Report). About
a week later, he lodged a formal complaint with the
Department, asserting that his termination was the product of
age discrimination and retaliation and requesting
reinstatement and backpay. Dkt. 104-11 at 3. The Department
conducted an “administrative investigation.” Dkt.
104-21 at 5 (Def.'s SUMF ¶ 18). Although neither
party has directed the Court to any formal findings or
decisions rendered in the Department's administrative
process, the Department presumably upheld Sagar's
the conclusion of the Department's “administrative
investigation, ” Sagar filed this action. Dkt. 104-21
at 5 (Def.'s SUMF ¶ 18); see Dkt. 1. His
amended complaint, Dkt. 41, initially asserted six claims,
which the Court construed in an earlier memorandum opinion as
follows: age discrimination, retaliation, and hostile work
environment claims under the ADEA, 29 U.S.C. § 621
et seq. (Counts 1, 4, and 6); two claims based on
the Department's alleged violation of ethical rules and
regulations under the Administrative Procedure Act
(“APA”), 5 U.S.C. § 701 et seq.
(Counts 2 and 3); and a claim under the Whistleblower
Protection Act, 5 U.S.C. § 2302(b)(8) (Count 5).
Sagar v. Lew, 211 F.Supp.3d 262, 265 (D.D.C. 2016).
On the Department's motion to dismiss, the Court
dismissed Sagar's claims under the APA and the
Whistleblower Protection Act. Id. at 263.
Accordingly, the only claims remaining are Sagar's three
claims under the ADEA. Id. Sagar and the Department both
moved for summary judgment. See Dkt. 101
(Sagar's motion); Dkt. 104 (Department's motion). The
Court heard oral argument on March 14, 2018, and the Court
denied Sagar's motion because he “failed to offer
uncontroverted evidence” establishing that he was
entitled to judgment as a matter of law on any of his three
claims. Minute Order (Mar. 31, 2018). Accordingly, all that
remains before the Court is the Department's motion for
summary judgment on Sagar's three ADEA claims.
moving party is entitled to summary judgment under Federal
Rule of Civil Procedure 56 if he can “show that there
is no genuine dispute as to any material fact and [that he]
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The party seeking summary judgment
“bears the initial responsibility” of
“identifying those portions” of the record that
“demonstrate the absence of a genuine issue of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986). A fact is “material” if it could
affect the substantive outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). And a dispute is “genuine” if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party. See Scott v.
Harris, 550 U.S. 372, 380 (2007). The Court, moreover,
must view the evidence in the light most favorable to the
nonmoving party and must draw all reasonable inferences in
that party's favor. See Talavera v. Shah, 638
F.3d 303, 308 (D.C. Cir. 2011).
moving party carries this initial burden, the burden then
shifts to the nonmoving party to show that sufficient
evidence exists for a reasonable jury to find in the
nonmoving party's favor with respect to the
“element[s] essential to that party's case, and on
which that party will bear the burden of proof at
trial.” Id. (quoting Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006)). The
nonmoving party's opposition, accordingly, must consist
of more than unsupported allegations or denials and must be
supported by affidavits, declarations, or other competent
evidence, setting forth specific facts showing that there is
a genuine issue for trial. See Fed. R. Civ. P.
56(c); Celotex, 477 U.S. at 324. That is, once the
moving party carries its initial burden on summary judgment,
the nonmoving party must provide evidence that would permit a
reasonable jury to find in his favor. See Laningham v.
U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). If the
nonmoving party's evidence is “merely
colorable” or “not significantly probative,
” the Court should grant summary judgment. Liberty
Lobby, 477 U.S. at 249-50.
ADEA prohibits the federal government from discriminating
against its employees aged forty or older on the basis of
age, 29 U.S.C. § 633a(a), and from retaliating against
them for complaining about age discrimination, 29 U.S.C.
§ 623(d). See Gomez-Perez v. Potter, 553 U.S.
474, 479 (2008); Kilby-Robb v. DeVos, 246 F.Supp.3d
182, 193 (D.D.C. 2017). The statute's prohibition on age
discrimination, moreover, takes two forms: it bars federal
employers from taking age-based adverse employment actions
against their employees, and it bars them from subjecting
their employees “to ‘discriminatory intimidation,
ridicule, and insult' that is ‘sufficiently severe
or pervasive to alter the conditions of the victim's
employment and create an abusive working
environment.'” Baloch v. Kempthorne, 550
F.3d 1191, 1201 (D.C. Cir. 2008) (citation omitted). Invoking