Simien v. Mayorkas

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA __________________________________________ ) VINCENT SIMIEN, ) ) Plaintiff, ) v. ) Case No. 23-cv-888 (GMH) ) MARKWAYNE MULLIN, ) Secretary of Homeland Security, ) ) Defendant. 1 ) __________________________________________) MEMORANDUM OPINION This is an employment retaliation matter involving the Federal Emergency Management Agency (“FEMA”), which is a subagency within the Department of Homeland Security headed by Defendant, the Secretary of Homeland Security. For several months in 2016, Plaintiff Vincent Simien was a Reservist Public Assistance Specialist. Issues arose during his deployment to a disaster in Longview, Texas, when there were complaints about his behavior. He was demobilized from the Longview disaster site on June 10, 2016, immediately after which he contacted FEMA’s Office of Equal Rights to complain that he had been discriminated against on the basis of his race and gender. Plaintiff was terminated from FEMA on July 8, 2016. Shortly thereafter, a tentative job offer with a different FEMA cadre was rescinded. Plaintiff’s federal complaint alleged retaliation, racial discrimination, and a hostile work environment in violation of the Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., but the racial discrimination and hostile work environment claims did not survive Defendant’s 1 The current Secretary of Homeland Security is substituted as Defendant pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. motion to dismiss. Following discovery, Defendant moves for summary judgment on the remain- ing claim for retaliation. 2 The motion will be granted. I. BACKGROUND 3 In January 2016, FEMA hired Plaintiff as a Reservist Public Assistance Specialist. ECF No. 71-1, ¶ 1; ECF No. 73-1 at 2, ¶ 1. In April of that year, he was deployed to a disaster in Longview, Texas. ECF No. 71-1, ¶ 2; ECF No. 73-1 at 2, ¶ 2. From May 17, 2016, to June 9, 2016, Plaintiff’s first-line supervisor was Peggy Kemler. ECF No. 71-1, ¶ 4; 73-1 at 2, ¶ 4. 4 The record reflects that Plaintiff’s short tenure in Texas was rocky from the start. Accord- ing to Plaintiff, soon after he was deployed, Kemler instructed him to “‘scout’ some local hotels in Longview.” ECF No. 71-2 at 28 (Plaintiff’s Equal Employment Opportunity (“EEO”) affida- vit); see also ECF No. 71-3 at 50 (Plaintiff’s deposition transcript). Plaintiff has explained that he visited several hotels, asked if they had a lower rate for federal employees, and, in at least one instance, asked hotel personnel whether hotel guests “had experienced any vehicle thefts or bur- glaries” while staying at the establishment. ECF No. 71-2 at 28–29. When he reported back to Kemler, she chastised him for attempting to negotiate a deal for FEMA employees, a charge 2 The relevant docket entries for the purpose of this Memorandum Opinion are: (1) Defendants’ Motion for Summary Judgment, Statement of Material Facts as to Which There is no Genuine Dispute, and attachments, ECF Nos. 71 through 71-20; (2) Plaintiff’s Opposition to Defendant’s Motion for Summary Judgement, Statement of Genuine Is- sues of Material Fact and Additional Material Facts in Dispute, and attachments, ECF Nos. 73 through 73-5; and (3) Defendant’s Reply and Response to Plaintiff’s Statement of Undisputed Material Facts, ECF Nos. 74 through 74-1. The page numbers cited herein are those assigned by the Court’s CM/ECF system. 3 Except where noted, the following facts are undisputed either because the parties have agreed there is no dispute or because they appear in the documentary evidence and are otherwise uncontroverted. 4 Defendant claims that Kemler was Plaintiff’s supervisor until June 10, 2016, presumably because, as discussed be- low, that was the date he was informed of his demobilization; however, Plaintiff’s affidavit, which is the document Defendant cites for that fact, reflects a date of June 9, 2016, presumably because, as also discussed below, that was the date Plaintiff was instructed to leave the disaster site at which he had been working and to report the next day to a superior in Austin, Texas. See ECF No. 71-1, ¶ 4 (citing page designated FEMA_000899); ECF No. 71-2 at 3 (page designated FEMA_000899 reflecting that Kemler was Plaintiff’s supervisor until June 9, 2016). The precise date is not material to the resolution of this motion. 2 Plaintiff denied. See id. at 29. Later, a hotel employee apparently informed Kemler that Plaintiff had performed a “safety and security check” on the hotel, which he was not authorized to do. See ECF No. 71-4 at 3. A few weeks later, on the morning of June 8, 2016, one of Plaintiff’s colleagues, Denise Smith, sent an email to Kemler. ECF No. 71-9 at 2. She reported that on June 3, Plaintiff said that he hoped Kemler would get “flat tires on all of her tires” to “inconvenience her.” Id. She further asserted that Plaintiff had said Smith was “stupid,” called other members of the team “old man” and “Kid,” and had “threaten[ed]” to “cut” one of his co-workers. Id. Smith stated she was “not comfortable working around” Plaintiff, who was “negative, aggressive, unprofes- sional[,] . . . insecure,” and “bullying.” 5 Id. Later that same day, another co-worker, Karl Schnei- der, submitted a memorandum to Kemler. See ECF No. 71-8 at 2–3. That memorandum reflects that Schneider had been asked to “document” his “interactions and or observations” of Plaintiff. Id. at 3. Among other things, Schneider reported that Plaintiff complained about his superiors; expressed “disdain” for Kemler; and had remarked that Kemler “should get four flats” on her car, after which he made a “flicking off” gesture. 6 Id. at 3. Schneider further asserted that, while con- versing with a hotel guest, Plaintiff “made gestures of ‘I’ll stab you with this plastic fork’ as a means of stating his point” and had remarked to Schneider, “I’ll stab you,” after which both he and Schneider laughed. Id. at 4. Schneider disapproved of the “wishes of harm” to Kemler and 5 These statements are reflected in the email from Smith to Kemler, which is in the record. See ECF No. 71-9 at 2. Plaintiff does not dispute that the statements were made, but “disputes the[ir] truth and characterization.” ECF No. 73-1 at 3, ¶ 9. 6 Kemler is identified as Plaintiff’s “PACL” or “Public Assistance Crew Leader” in this memo. See, e.g., ECF No. 71-7 at 2 (identifying Kemler as Plaintiff’s “Public Assistance Crew Leader (PACL)”); see also ECF No. 71-8 at 2 (Kemler’s email signature block identifying her as “PA Crew Lead”). Elsewhere, she is identified as Plaintiff’s “PAC Lead.” See, e.g., ECF No. 73-4 at 3. 3 concluded that, although Plaintiff’s “bark may be bigger than his bite,” federal employees are “held to a higher standard” of behavior “whether on the clock or off the clock.” 7 Id. at 3–4. The next day—June 9, 2016—Plaintiff was directed by Kemler’s supervisor, Inter-Branch Director Robert Schulte, to transfer his work product to another employee, check out of his hotel, and report the next day to the Joint Field Office (known as the “JFO”) in Austin, Texas, to meet with Brian Slie, who was the Task Force Lead for that Joint Field Office. See ECF No. 74-1, ¶ 1; see also ECF No. 71-1, ¶ 7; ECF No. 73-1 at 3, ¶ 7. According to Slie, he had been directed by Federal Coordinating Officer Bill Doran to demobilize Plaintiff from the Longview disaster site. 8 See ECF No. 73-2 at 19. On June 10, Plaintiff met in Austin with Slie, who informed him he was being demobilized. ECF No. 71-1, ¶ 10; ECF No. 73-1 at 4, ¶ 10. Plaintiff testified at his deposi- tion that Slie also stated that he would make sure Plaintiff was fired. ECF No. 74-1, ¶ 10; see also ECF No. 71-11 at 3–4 (Plaintiff describing the meeting with Slie in a letter of June 17, 2016). In the meeting, Plaintiff insisted that he had received no counseling or warnings about his job perfor- mance or behavior, ECF No. 74-1, ¶ 2, and an email in the record indicates that Slie left the meeting to contact two of Plaintiff’s supervisors—one of them Kemler—to check the truth of that state- ment; both indicated Plaintiff had received counseling, see ECF No. 71-7 at 2. At the end of that June 10 meeting, Plaintiff requested to speak with an Equal Rights Officer and was escorted to the Office of Equal Rights, where he initiated informal Equal Employment Opportunity (“EEO”) counseling. ECF No. 74-1, ¶¶ 3–4; see also ECF No. 71-1, ¶ 11. Plaintiff acknowledges that his 7 These statements are reflected in the memo from Schneider to Kemler, which is in the record. ECF No. 71-8. Again, Plaintiff does not dispute that those statements were made; he “disputes the[ir] truth and characterization.” ECF No. 73-1 at 3, ¶ 8. 8 “The Federal Coordinating Officer, or FCO, is appointed by the President ‘immediately upon the declaration of a major disaster or emergency’ to appraise the situation, establish field offices, and coordinate the administration of relief.” Wilson v. Noem, No. 20-cv-100, 2025 WL 1000666, at *4 n.15 (D.D.C. Apr. 3, 2025) (quoting 42 U.S.C. § 5143(a)–(b)). 4 request for “Equal Rights/EEO assistance on June 10, 2016,” is the protected activity on which he bases his retaliation claim. ECF No. 73 at 2. According to the initial EEO Counselor’s Report in the record—dated July 19, 2016—shows that Plaintiff complained on June 10, 2016, about dis- crimination at the hands of Slie, Kemler, and Smith. See ECF No. 73-4 at 2 (“On June 10, 2016, Complainant filed a complaint stating he believed he was discriminated against based on his Race and Sex due to his treatment [by Slie] upon arrival at the Austin, TX JFO on this same date and other experiences during his deployment.”), 5 (“Complainant believes he was discriminated against because he was verbally humiliated continually by his white female team lead”—Kemler— “and falsely accused by a black female trainee”—presumably Smith—“of making threats to do physical harm to individuals on his team and making a comment about how flat tires might be a method by which to increase the time frame the Team had to complete a project.”), 13. That report also reflects that, because Plaintiff asserted that he had not received counseling “regarding poor work performance or inappropriate behavior,” Kemler began soliciting statements on June 10, 2016, from Plaintiff’s colleagues and senior staff members “in an effort to document previously undocumented or false acts attributed to [Plaintiff] and other untrue statements in an effort to show that [Plaintiff] received formal counseling regarding his performance and behavior.” Id. at 3. On the evening of June 10, 2016, Slie sent an email to Laycee Kent, a Supervisory Reservist Program Manager, thanking her for her “guidance during [their] conversation [that] afternoon” and “re- cap[ping] the information provided during [that] phone call,” including that Plaintiff had consulted with the Equal Rights Office. 9 See ECF No. 71-7 at 2; ECF No. 71-1, ¶ 5; ECF No. 73-1 at 3, ¶ 5; ECF No. 74-1, ¶ 3. 9 The email reflects that it also included Plaintiff’s performance evaluation, which Slie apparently drafted. See ECF No. 71-7 at 2; ECF No. 73-2 at 19–20. The evaluation is not in the record before the Court. 5  On June 13, 2016, Kent—who was responsible for addressing performance issues for Re- servists in the Public Assistance Cadre 10—had a phone conversation with Plaintiff about the events leading up to his demobilization. ECF No. 71-1, ¶¶ 5, 12; ECF No. 73-1, ¶¶ 5, 12; ECF No. 71-4 at 2. In an incident report created afterwards, Kent asserted that Plaintiff admitted to making a comment about “flattening all 4 tires of his supervisor” and “mention[ing] that he would stab a co- worker with a plastic fork.” ECF No. 71-10 at 2. The incident report reflects that during the June 13 call, Kent asked Plaintiff to submit a written account of the incidents leading up to his demobi- lization. See id. In an email to Slie on June 13, Kent also requested “[s]upporting documentation from field leadership,” regarding “the events that led to [Plaintiff’s] demobilization.” ECF No. 71-5 at 6; see also ECF No. 73-5 at 1. Plaintiff submitted a statement on June 17, 2016, which, in large part, provided Plaintiff’s account of his meeting with Slie on June 10. See ECF No. 71-11. On June 20, Kent emailed Kemler to ask for an email Kemler sent on June 8 to “leadership regard- ing [Plaintiff’s] recent behavior.” 11 ECF No. 71-12 at 2; see also ECF No. 71-1, ¶ 14; ECF No. 73-1 at 4, ¶ 14. On July 8, 2016, Kent sent Plaintiff a Notice of Termination, effective immediately. ECF No. 74-1, ¶ 15. The notice cited four instances of inappropriate conduct: (1) in May 2016, when Plaintiff was attempting to find a hotel that could be used during the Texas deployment, Plaintiff performed an unauthorized safety and security check on the hotel, (2) on June 3, 2016, Plaintiff told coworkers that he hoped Kemler would get “four flat[] [tires] and into a[] [car] accident” and not return, (3) on June 3, 2016, Plaintiff referred to one coworker as an “old man,” another as a 10 Kemler’s supervisor Schulte, who ordered Plaintiff to report to Slie in Austin, was not in Kent’s chain of command. See ECF No. 71-5 at 4. 11 That June 8, 2016, email from Kemler does not appear to be in the record before the Court. 6 “kid,” and a third as “stupid,” and (4) on June 8, 2016, Plaintiff stated to a hotel guest that he would “stab her with a plastic fork.” ECF No. 71-4 at 2–3. Citing “FEMA Instruction 1200.1,” which reportedly states that “it is the responsibility of all employees, including other persons supporting FEMA’s mission, to: . . . Respect all persons and government property, and refrain from behavior that could be perceived as threatening, harassing, intimidating, or dangerous to yourself or oth- ers,” 12 Kent concluded that Plaintiff’s behavior was “perceived as threatening and reflected poor judgment,” was “improper, unsuitable, and detracted from [Plaintiff’s] character and reputation,” and thus was “inconsistent with what is expected of FEMA employees.” Id. at 3–4. Considering the circumstances and the evidence, which included “numerous witness statements,” Kent deter- mined that Plaintiff should be terminated from the agency. Id. at 4. On July 18, 2016, Plaintiff appealed his termination in a 16-page letter to John Wilmot, a Certifying Official in the Public Assistance Division. See ECF No. 71-6; see also ECF No. 71-1, ¶ 17; ECF No. 73-1 at 5, ¶ 17. He asserted that he was first made aware of the reasons for his demobilization when he received the termination letter from Kent and noted that he had not been “formally or informally advised that [he] was being counseled” during his tenure in Texas. ECF No. 71-6 at 2 (emphasis omitted). Plaintiff then addressed the four specifications of inappropriate conduct. As to the allegation that he had performed an unauthorized safety and security check at a hotel, Plaintiff offered details as to his scouting of various hotels in Longview in May 2016, including that he asked personnel at one hotel “if any of the lodging guests had experienced any vehicle thefts or burglaries” because he had been informed that the area “was prone to vehicle thefts and burglaries.” Id. at 4. Plaintiff denied that he had falsely informed any hotel personnel that he was conducting a safety and security check. See id. at 3. Plaintiff likewise denied that he 12 The regulation itself is not in the record, but Plaintiff does not contend that Kent misrepresented its content in the termination letter. 7 “stated or implied” that he hoped Kemler would get into a car accident or that she would not return. Id. at 8. Rather, he admitted that he “made a joke” to Schneider that Kemler “should get four flat tires” so that the team would have more time to finish their work before Kemer returned from an errand. Id. at 7. As to his use of the terms “old man,” “kid,” and “stupid,” Plaintiff allowed that he might have referred to team members as “old man” or “kid” in jest and might have stated that a joke was “stupid,” but he “never told or implied to any of [his] team members that they were stupid.” Id. at 10. Finally, Plaintiff “categorically den[ied] that [he] engaged in any inappropriate conduct and commented to any female hotel guest that [he] would ‘stab her with a plastic fork.’”13 Id. Wilmot denied Plaintiff’s appeal on July 27, 2016. See ECF No. 71-13. Meanwhile, Plaintiff apparently had a job interview—it is unclear from the record precisely when that interview occurred—with Ash Hayes, Security Cadre Coordinator, for a position in FEMA’s Security Cadre. See ECF No. 71-15 at 3. According to Hayes—without contradiction from Plaintiff—he was unaware of Plaintiff’s demobilization or termination status and did not ask about it at the interview. Id. Similarly, Plaintiff points to no evidence that Hayes was aware that Plaintiff had sought EEO counseling on June 10, 2016. ECF No. 74-1, ¶ 18. On July 11, 2016, Christina Meissinger, a FEMA Human Resources Specialist in the Talent Acquisition Division, tentatively offered Plaintiff a position as a Security Manager, subject to a “favorable security back- ground investigation.” ECF No. 71-16 at 3–4. Plaintiff accepted the offer and FEMA initiated the security background investigation. ECF No. 74-1, ¶ 16. On July 21, 2016, Meissinger emailed 13 Plaintiff maintained materially similar positions during his deposition. See ECF No. 71-3 at 52 (asserting that he did not conduct “a safety and/or security check for FEMA” but he might have asked hotel personnel about “safety”), 54 (asserting that he “may have said, well, if [Kemler] got four flat tires, we would have more time to complete our document” but “at no time did [he] ever say she should get into a car accident nor that [he] hope[d] she wouldn’t return”), 57–61 (stating that he might have called Schneider “old man” as “playful fodder,” denying that he called anyone “kid,” and explaining that if he used the term “stupid,” he would have been referring to a joke rather than the individual making the joke), 61–62 (stating that he had “absolutely no knowledge” about the specification alleging he stated he would stab someone with a plastic fork). Defendant has since admitted that Plaintiff did not state he wanted Kemler to get into a car accident. See ECF No. 74-1, ¶ 14. 8 Jessica Willard, a Human Resources Specialist, regarding Plaintiff’s “transfer from [Public Assis- tance]” to his new cadre, which was to occur on August 7, 2016. ECF No. 71-17 at 2–3; see also ECF No. 71-1, ¶ 24; ECF No. 73-1 at 6, ¶ 24. That same day, Willard informed Meissinger that FEMA had “terminated [Plaintiff] on July 8, 2016, for threatening his co-workers while deployed.” ECF No. 71-1, ¶ 25; ECF No. 73-1 at 6, ¶ 25. Meissinger in turn informed Hayes and instructed him to consult with Employee Relations Specialist Patricia Silva about the situation. ECF No. 71- 1, ¶ 26; ECF No. 73-1 at 6, ¶ 26. It appears Hayes and Silva spoke on July 22 and, afterwards, Hayes instructed HR to rescind the tentative job offer “[b]ased on the circumstances of the termi- nation (inappropriate conduct while on deployment).” ECF No. 74-1, ¶ 19; see also ECF No. 71- 15. Meissinger informed Plaintiff of the rescission on July 25, 2016. ECF No. 71-1, ¶ 30; ECF No. 73-1 at 7, ¶ 30. The communications in the record before the Court reflect emails relevant to the rescission of Plaintiff’s tentative job offer among only those four FEMA personnel (Hayes, Meissinger, Willard, and Silva), the Security Cadre’s Reserve Coordinating Manager (Tiffany Ed- wards), another FEMA official whose position is unclear (Sabrina McEvoy); Plaintiff points to no evidence that Kent was contacted about the job offer, provided input relating to it, or was involved in any way in the decision to rescind it. See ECF Nos. 71-14, 71-15, 71-17, 71-18; ECF No. 73-2 at 21. Plaintiff also fails to point to evidence that Meissinger, Willard, Silva, Edwards, or McAvoy were aware of his protected activity. Plaintiff filed a formal complaint with FEMA’s Office of Equal Rights on August 6, 2016—which post-dates the conduct he challenges as retaliatory here. See ECF No. 71-20. Plaintiff initiated this action in the U.S. District Court for the Central District of California in September 2022 and the parties later stipulated to its transfer here. See ECF No. 1; ECF No. 23. In March 2024, Judge Cooper granted Defendant’s motion to dismiss Plaintiff’s claims for 9 discriminatory and retaliatory hostile work environments and for racial discrimination. See Simien v. Mayorkas, No. 23-cv-888, 2024 WL 1213397 (D.D.C. Mar. 21, 2024). Thereafter, the parties consented to the jurisdiction of a Magistrate Judge and the case was assigned to this Court with only the retaliation claim intact. ECF No. 49; Minute Entry (June 3, 2024). Following discovery, Defendant moved for summary judgment on the retaliation claim. See ECF No. 71. That motion is now ripe for adjudication. II. LEGAL STANDARDS A. Summary Judgment Summary judgment is appropriate when the moving party demonstrates that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A fact is material if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about a material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Ini- tially, the moving party has the burden of demonstrating the absence of a genuine dispute as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the non-moving party must designate “specific facts showing that there is a genuine issue for trial.” Id. at 324. To establish that a fact is or is not genuinely disputed, a party must (a) cite specific parts of the record—including deposition testi- mony, documentary evidence, affidavits or declarations, or other competent evidence—in support of its position, or (b) demonstrate that the materials relied upon by the opposing party do not ac- tually establish the absence or presence of a genuine dispute. Fed. R. Civ. P. 56(c)(1). While the court must view the evidence in the light most favorable to the non-moving party and draw all 10 reasonable inferences in the non-movant’s favor, Grosdidier v. Broad. Bd. of Governors, 709 F.3d 19, 23–24 (D.C. Cir. 2013), the non-moving party must show more than “[t]he mere existence of a scintilla of evidence in support of” his or her position; instead, “there must be evidence on which the jury could reasonably find” for the non-moving party. Anderson, 477 U.S. at 252. Moreover, the non-moving party “‘may not rest upon mere allegation or denials of his pleadings’ but must present ‘affirmative evidence’ showing a genuine issue for trial.” Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (quoting Anderson, 477 U.S. at 256–57); Ass’n of Flight Attend- ants v. Dep’t of Transp., 564 F.3d 462, 465–66 (D.C. Cir. 2009) (conclusory assertions without support from record evidence cannot create a genuine dispute). Indeed, a moving party may suc- ceed on summary judgment simply by pointing to the absence of evidence proffered by the non- moving party. Anderson, 477 U.S. at 249 (“If the [non-movant’s] evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” (internal citations omitted)). In short, “[s]ummary judgment is the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of the events.” Nasser v. District of Columbia, 962 F. Supp. 2d 234, 242 (D.D.C. 2013) (quoting Springer v. Durflinger, 518 F.3d 479, 484 (7th Cir. 2008)). It is well established that “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at sum- mary judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C. Cir. 2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604 (D.C. Cir. 2010)). A court’s role in deciding a summary judgment motion is not to “determine the truth of the matter, but instead [to] decide only whether there is a genuine issue for trial.” Barnett, 715 F.3d at 358. Moreover, district courts approach summary judgment motions in employment discrimination or retaliatory action cases 11 with “special caution” due to the “potential difficulty for a plaintiff . . . to uncover clear proof of discrimination or retaliatory intent.” Nurriddin v. Bolden, 40 F. Supp. 3d 104, 115 (D.D.C. 2014) (quoting Aka v. Wash. Hosp. Ctr., 116 F.3d 876, 879–80 (D.C. Cir. 1997), vacated on other grounds, 156 F.3d 1284 (D.C. Cir. 1998) (en banc)). Nonetheless, a plaintiff is still obligated to support his or her allegations by competent evidence, and a plaintiff may not avoid summary judg- ment through “conclusory allegations and speculation.” Nurriddin, 40 F. Supp. 3d at 115. B. Title VII Retaliation Title VII, 42 U.S.C. § 2000(e) et seq., prohibits the federal government from retaliating against employees who complain of employment discrimination. Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009). Retaliation claims based on circumstantial evidence are analyzed under the McDonnell Douglas burden-shifting framework. Jones, 557 F.3d at 677; see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973). “Under that framework, a plaintiff must first establish a prima facie case of retaliation by showing (1) that he engaged in statutorily protected activity; (2) that he suffered a materially adverse action by his employer; and (3) that a causal link connects the two.” Jones, 557 F.3d at 677 (citing Wiley v. Glassman, 511 F.3d 151, 155 (D.C. Cir. 2007)); If the plaintiff establishes a prima facie case, the burden shifts to the employer to provide a “legit- imate non[retaliatory] reason” for the adverse employment actions. Jones, 557 F.3d at 677 (quot- ing Wiley, 511 F.3d at 155). On a motion for summary judgment, if the employer establishes a legitimate nonretaliatory reason, the court should not consider whether the plaintiff has established a prima facie case. Id. at 678 (“At this stage in the litigation, . . . asking whether [the plaintiff] satisfied his prima facie burden is an unnecessary and improper ‘sideshow.’” (quoting Brady v. Off. of Sergeant at Arms, 12 520 F.3d 490, 494 (D.C. Cir. 2008)). Instead, “the burden-shifting framework disappears, and a court . . . looks to whether a reasonable jury could infer . . . retaliation from all the evidence.” Id. at 677. At that point, “the only question is the ‘ultimate factual issue in the case’—‘[retaliation] vel non.’” Id. at 678 (quoting USPS Bd. of Gov. v. Aikens, 460 U.S. 711, 714–15 (1983)); see also Brady, 520 F.3d at 494 (“[B]y the time the district court considers an employer’s motion for sum- mary judgment . . . , the employer ordinarily will have asserted a legitimate, non-[retaliatory] rea- son for the challenged decision—for example, through a declaration, deposition, or other testimony from the employer’s decisionmaker.”). In other words, “the only question is whether the em- ployee’s evidence creates a material dispute on the ultimate issue of retaliation ‘either directly by [showing] that a [retaliatory] reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.’” Jones, 557 F.3d at 678 (first alteration in original) (quoting Aikens, 460 U.S. at 716). Significantly, “Title VII retaliation claims require proof that the desire to retaliate was the but-for cause of the challenged employment ac- tion.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013). The court should consider all evidence in the record, including evidence introduced to support the prima facie case; evidence of pretext—evidence the plaintiff offers to “attack the employer’s proffered explanation”; and other evidence of retaliation. Id. (quoting Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004)). III. DISCUSSION Although it is not entirely clear from his briefing, Plaintiff appears to argue that the first retaliatory act was his demobilization on June 10, 2016; he also claims that his termination on July 8, 2016, and the withdrawal of his tentative job offer in late July 2016 were retaliatory. See ECF No. 73-1 at 7, ¶ 31 (“Plaintiff alleges that his demobilization, termination, and the withdrawal of 13 his Tentative Job Offer were in retaliation for his June 10, 2016 protected EEO activity.”); but see ECF No. 73 at 1 (Plaintiff asserting, “The only remaining claims are retaliation claims arising from Plaintiff’s July 8, 2016 termination and FEMA’s subsequent withdrawal of a tentative Security Manager offer.”). The parties agree that, because Defendant has proffered a legitimate non-dis- criminatory reason for its actions—Plaintiff’s alleged inappropriate conduct—the relevant ques- tion is whether a jury could find that reason was a pretext for retaliation. See ECF No. 73 at 2 (Plaintiff stating, “The question, then, is whether a reasonable jury could find that FEMA acted because Plaintiff sought Equal Rights/EEO assistance on June 10, 2016, or whether the agency’s stated reasons reflect an ordinary, non-retaliatory process.”); ECF No. 74 at 1 (“Plaintiff concedes that the sole issue for this Court to decide is whether FEMA’s stated reasons for the adverse em- ployment actions were a pretext for retaliation for Equal Employment Opportunity (‘EEO’) contact on June 10, 2016.”). The Court will therefore address each of the alleged retaliatory actions in turn, focusing on that question. A. Demobilization Timing matters in a retaliation claim, because both law and logic dictate that a retaliatory act must post-date the conduct motivating it. See, e.g., Barnes v. Hegseth, No. 23-cv-932, 2025 WL 915564, at *4 (D.D.C. Mar. 26, 2025) (“[T]he fact that the alleged retaliatory actions preceded the protected activity precludes a determination that the protected activity caused the defendant to retaliate against the plaintiff.” (quoting Lewis v. Columbia, 653 F. Supp. 2d 64, 79 (D.D.C. 2009))). “[A]n adverse employment action that was already contemplated before a plaintiff engaged in protected activity cannot be evidence of retaliation.” Terveer v. Billington, 34 F. Supp. 3d 100, 119 (D.D.C. 2014) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001) (“Employ- ers need not suspend previously planned transfers upon discovering that a Title VII suit has been 14 filed, and their proceeding along lines previously contemplated, though not yet definitively deter- mined, is no evidence whatever of causality.”)). It is clear from the record that Plaintiff’s protected activity—his request to speak to an EEO counselor at the close of his meeting with Slie on June 10, 2016—came after the decision to demobilize him. On June 9, 2016, Inter-Branch Director Robert Schulte directed Plaintiff to transfer his work product to another employee, check out of his hotel, and report to the Joint Field Office in Austin, Texas, to meet with Slie. See ECF No. 74-1, ¶ 1; see also ECF No. 71-1, ¶ 7; ECF No. 73-1 at 3, ¶ 7. Slie asserted that he had been instructed to demobilize Plaintiff by the Federal Coordinating Officer, Doran. See ECF No. 73-2 at 19. Plaintiff describes the June 10 meeting with Slie in some detail in his June 17, 2016, letter to Kent. Plaintiff asserts that he traveled to Austin to meet with Slie, who asked him repeatedly if Plaintiff knew why Plaintiff was there; Plaintiff professed ignorance. See ECF No. 71-11 at 2. Slie left the room, then returned and repeatedly asked whether Plaintiff “had been counseled”; Plaintiff said he had not, after which Slie again left the room. Id. Slie returned and again asked Plaintiff if he had been counseled; Plaintiff again replied that he had not. See id. at 3. Slie said that he had been informed Plaintiff had been counseled numerous times “for behavior problems and failing to produce a work product.” Id. Plaintiff then described a meeting in Denton, Texas on June 1, 2016, with two supervisors who assured Plaintiff that he was “need[ed]” and encouraged him to “learn the Public Assistance Pro- gram in baby steps.” Id. Slie then stated that he had received “numerous phone calls and emails” concerning Plaintiff’s comment about Kemler getting four flat tires. See id. According to Plaintiff, Slie “then stated, ‘I have known these people for nine years and I have never known them to lie to me. I do not think that there is a conspiracy against you. You are done here.” Id. Plaintiff “interrupted [Slie] by saying, ‘In all fairness to me and this process, don’t I get an opportunity to 15 defend myself and make a statement?’” 14 Id. at 4. Slie said that Plaintiff would not be afforded that opportunity, instead Plaintiff would be “leaving this disaster. We are done here. Pack your stuff. You are out of here.” Id. Slie instructed Plaintiff to retrieve his work laptop, scanner, and printer from his car to return to the property officer. See id. Only after he had collected his work hardware did Plaintiff tell Slie that he “wanted to speak with an Employee Resource Officer.” Id. Slie then led Plaintiff to the Office of Equal Rights, where Plaintiff initiated informal counseling. ECF No. 74-1, ¶¶ 3–4. Thus, the evidence in the record shows that Plaintiff’s demobilization was in the works since, at the latest, June 9, 2016, when Schulte ordered Plaintiff to pass off his work to a colleague, leave the disaster site, and report to headquarters Austin—the day before Plaintiff met with Slie and thereafter asked to speak to an EEO counselor, which is the relevant protected activity. See, e.g., Terveer, 34 F. Supp. 3d at 119 (“[A]n adverse employment action that was already contem- plated before a plaintiff engaged in protected activity cannot be evidence of retaliation.”). And Plaintiff’s own description establishes that he was actually demobilized before that request. Ac- cordingly, the demobilization cannot have been in retaliation for Plaintiff’s protected activity. See, e.g., Barnes, 2025 WL 915564, at *4 (“[T]he fact that the alleged retaliatory actions preceded the protected activity precludes a determination that the protected activity caused the defendant to retaliate against the plaintiff.” (quoting Lewis, 653 F. Supp. 2d at 79). 14 At one point in his brief, Plaintiff seems to imply that his request to Slie during the meeting “for a fair opportunity ‘to defend myself and make a statement’” constituted protected activity. ECF No. 73 at 13 (quoting ECF No. 71-11 at 4). If that is his position, he is mistaken. To garner protection under Title VII, an informal complaint to a supervisor “must in some way allege unlawful discrimination—that is, discrimination on the basis of a protected characteristic.” Dodson v. U.S. Capitol Police, 633 F. Supp. 3d 235, 261 (D.D.C. 2022) (quoting Brady v. U.S. Capitol Police, 200 F. Supp. 3d 208, 214 (D.D.C. 2016)). The statement Plaintiff offers does not do so. 16  B. Termination The legitimate, non-retaliatory reasons FEMA proffers for Plaintiff’s termination on July 8, 2016 (approximately one month after his meeting with Slie and subsequent contact with an EEO counselor) are the four specifications in Kent’s July 8, 2016, termination letter. The D.C. Circuit has recognized several ways that a plaintiff may “support an inference that the employer’s stated reasons were pretextual, and the real reasons were prohibited discrimination or retaliation, such as by citing the employer’s better treatment of similarly situated employees outside the plaintiff’s protected group, its inconsistent or dishonest explanations, its devia- tion from established procedures or criteria, or the employer’s pattern of poor treat- ment of other employees in the same protected group as the plaintiff, or other rele- vant evidence that a jury could reasonably conclude evinces an illicit motive. Walker v. Johnson, 798 F.3d 1085, 1092 (D.C. Cir. 2015). Here, Plaintiff claims that a reasonable jury could find that FEMA’s explanation was dishonest. See, e.g., ECF No. 73 at 10–13. The relevant question when a plaintiff “attempt[s] to demonstrate that the employer is making up or lying about the underlying facts that formed the predicate for the employment decision” is not “whether the underlying . . . incident[s] occurred; rather, the issue is whether the employer hon- estly and reasonably believed that the underlying . . . incident[s] occurred.” Brady, 520 F.3d at 495–96; see also, e.g., Kama v. Mayorkas, 107 F.4th 1054, 1063 (9th Cir. 2024) (“[E]ven if there were a genuine dispute as to Plaintiff’s [conduct], an employer’s ‘objectively false’ or ‘baseless’ reason for taking adverse action does not establish pretext, so long as the employer ‘honestly be- lieved its reasons for its actions.’” (quoting Villiarimo v. Aloha Island Air, 281 F.3d 1054, 1063 (9th Cir. 2002))). Importantly, a retaliation plaintiff ordinarily “must show that the decisionmaker” did the retaliating. Onyebuchi v. Howard Univ. Hosp., 731 F. Supp. 3d 1, 8 (D.D.C. 2024) (em- phasis in original). “More, ‘to defeat FEMA’s summary judgment motion,’ Plaintiff ‘must demon- strate pretext as to all of FEMA’s proffered neutral explanations, not just some of them.’” Hartzler 17 v. Mayorkas, No. 20-cv-3802, 2022 WL 15419995, at *34 (D.D.C. Oct. 27, 2022) (citation modi- fied) (quot