OPINION
This mаtter comes before the court on three separate motions, First, on September 29, 2016, the Defendant, Charles F. Bolden, Jr. (“the Defendant”), filed a Motion for Summary Judgment and accompanying Memorandum in Support. ECF Nos. 60, 61. On October 12, 2016, the Plaintiff, Saied Emami (“the Plaintiff’), filed a Response, ECF No. 72, and on October 17, 2016, the Defendant filed a Reply. ECF No. 78.
Second, on October 6, 2016, the Defendant filed a Motion to Exclude Plaintiffs Experts and accompanying Memorandum in Support. ECF Nos. 65, 66. On October 20, 2016, the Plaintiff filed a Response, ECF No. 79, and on October 26, 2016, the Defendant filed a Reply. ECF No. 84.
Third, on October 12, 2016, the Defendant filed a Motion in Limine and accompanying Memorandum in Support. ECF Nos. 69, 70. The Plaintiff filed a Response on October 25, 2016, ECF No. 83, and on October 31, 2016, the Defendant filed a Reply. ECF No. 86.
On October 24, 2016, this court referred the above motions to a United .States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Federal Rule of Civil Procedure 72(b), to conduct hearings, including evidentiary hearings, if necessary, and to submit to the undersigned district judge proposed findings of fact, if applicable, and recommendations for the disposition of the motions. ECF No. 81.
Having conducted hearings on the above motions on October 31, 2016, ECF No. 87, the Magistrate Judge filed a Report and Recommendation (“R&R”) on December 20, 2016, addressing the Motion for Summary Judgment and the Motion in Limine, ECF No. 89 (hereinafter “First R&R”), and then filed another R&R, addressing the Motion to Exclude Plaintiffs Experts, on the same day. ECF No. 90 (hereinafter “Second R&R”). In the First R&R, the Magistrate Judge recommended, granting in part and denying in part the Motion for Summary Judgment, granting summary judgment on the Plaintiffs retaliation claim, and directing the parties to proceed to trial on the Plaintiffs claims of intentional discrimination. First R&R at 28-29. The Magistrate Judge also recommended denying in part the Motion in Limine, “to exclude evidence of comparator employees, and consider further objections to comparator evidence at trial.” Id. at 29. In the Second R&R, the Magistrate Judge recommended denying the Motion to Exclude Plaintiffs Experts. Second R&R at 26.
By copy of both R&Rs, the parties were advised of their right to file written objections to the findings and recommendations made by the Magistrate Judge. See First R&R at 29-30; Second R&R at 26-27. On
For the reasons discussed herein, the court ADOPTS Parts I, II, and III.A of the First R&R; the court REJECTS IN PART and MODIFIES Part III.B of the First R&R; and .the court ADOPTS the Second R&R in full. Accordingly, the Motion for Summary Judgment and the Motion to Exclude Plaintiffs Experts are DENIED. For the reasons provided in Part III.C of this Opinion, the Defendant’s Motion in Limine is also DENIED.
I. FACTUAL AND PROCEDURAL HISTORY
This matter arises from the Plaintiffs claims of employment discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), against Charles F. Bol-den, Jr. (“the Defendant”), in his official capacity as Administrator of the National Aeronautics and Space Administration (“NASA”).
The Plaintiff is an engineer who began working for NASA in 2002. Amend. Compl. ¶ 38.
On April 12, 2013, claiming that the Plaintiffs work under the PIP was unacceptable, Rock issued a Notice of Proposed Removal to the Plaintiff. Id. ¶¶ 25, 150. On June 21, 2013, Deputy Director Damador Ambur (“Ambur”) affirmed the Plaintiffs termination. Jd. ¶¶25, 178. The Plaintiff appealed his termination to the Merit Systems Protection Board (“MSPB”), alleging discrimination based on national origin and religion, and retaliation, under Title VII. Id. ¶25. The MSPB ruled against the Plaintiff on November 20, 2014, and its decision became final on December 25, 2014. Id. The Plaintiff timely filed a Complaint in this court within thirty (30) days of that finalized decision. ECF No. 1. The Plaintiff filed an Amended Complaint on April 1, 2015. ECF No. 4.
A.Review of Magistrate Judge’s R&Rs
Pursuant to Rule 72(b) of the Federal Rules of Civil Procedure, the court, having reviewed the record in its entirety, shall make a de novo determination of those portions of the R&R to which a party has specifically objected. Fed. R. Civ. P. 72(b). The court may accept, reject, or modify, in whole or in part, the recommendation of the magistrate judge, or recommit the matter to him with instructions. 28 U.S.C. § 686(b)(1).
B.Motion for Summary Judgment
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc.,
To defeat a motion for summary judgment, the nonmoving party must go beyond the facts alleged in the pleadings, and rely instead on affidavits, depositions, or other evidence to show a genuine issue for trial. See Celotex,
C.Plaintiff’s Intentional Discrimination Claims
1. General Standards
Title VII prohibits an employer from “discharging] any individual ... because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To succeed on a claim of wrongful termination due to intentional discrimination under Title VII, a plaintiff must carry his burden under the framework established in McDonnell Douglas Corp. v. Green,
Should a plaintiff demonstrate a prima facie case, a defendant must then “rebut the presumption of discrimination by producing evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason.” Burdine,
2. Standard for Comparator Evidence
“Plaintiffs are not required as a matter of law to point to a similarly situated comparator to succeed on a discrimination claim,” Haywood v. Locke,
D. Plaintiff’s Retaliation Claim
Title VII prohibits an employer from discriminating against an employee “[1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The first .clause is known as the “opposition clause,”’and the second is known as the “participation clause.” Crawford v. Metro, Govt. of Nashville & Davidson Cty., Tn.,
For retaliation claims, a plaintiffs prima facie case entails proof of the following elements: (1) the plaintiff “engaged in a protected activity”; (2) “the employer took a materially adverse action against” the plaintiff; and (3) a causal link “between the protected activity and the adverse action.” Mascone v. Am. Physical Soc’y, Inc.,
A materially adverse action is one that “ ‘might have dissuaded a reasonable worker from making or supporting a ehargé of discrimination.’” Mascone,
Temporal proximity can show a causal link, but only if an employer’s knowledge of protected activity and the adverse employment action that follows are very closely related in time. Pettis v. Nottoway Cty. Sch. Bd., 592 Fed.Appx, 158, 161 (4th Cir. 2014). For example, a time period of three to four months is too great, to establish a causal link through temporal proximity alone. See Pascual v. Lowe’s Home Centers, Inc.,
Should a plaintiff demonstrate a prima facie case, the burden shifts to a defendant “to rеbut the presumption of retaliation by articulating a non-retaliatory reason for its action.” Laughlin,
E. Motion to Exclude and Motion in Limine
Generally, relevant evidence is admissible. Fed. R. Evid. 402. Relevant evidence is that which “has any tendency to make a fact more "or less probable than it would be without the evidence,” so long as “the fact is of consequence in determining the action.” Fed. R. Evid. 401. A court can exclude otherwise relevant' evidence, “if its probative value is substantially outweighed” by the risk of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or unnecessarily presenting cumulative evidence. Fed. R. Evid. 403.
“A motion in limine to exclude evidence ... should be granted only when the evidence is clearly inadmissible on all pоtential grounds.” United States v. Verges,
III. ANALYSIS
A. Plaintiffs Objection to the First R&R
The Plaintiff objects to the Magistrate Judge’s recommendation in the First R&R to dismiss his retaliation claim on the basis that the Magistrate Judge improperly-relied on a credibility determination. Pl.’s Obj. at 1-2. The Plaintiff argues instead that “[a] genuine issue of fact in this matter is whether Dr. Emami’s assertions and discussions with the EEO Office constitute protected activity.” Id at 2. The Plaintiff also objects to the Magistrate Judge’s conclusion that there is no evidence of a causal connection between the Plaintiff’s protected activity and the adverse action taken against him. Id. at 2-6.
1. Protected Activity
To the extent that the Plaintiff alleges the Magistrate Judge did not find in his favor regarding protected activity, the Plaintiffs first part of the Objection is moot. The Magistrate Judge specifically found that “a reasonable juror might conclude [the Plaintiff] had engaged in protected activities by complaining to NASA’s EEOC officials about Rock’s treatment of him.” First R&R at 27. Thus, the Magistrate Judge found in favor of the Plaintiff on this issue, determining that the Plaintiff has satisfied the first prong of his prima facie case by demonstrating that he engaged in protected activity. See id. In doing so, the Magistrate Judge made no credibility determination in favor of the Defendant, having wholly resolved the first-prong in the Plaintiffs favor.
However, the Plaintiff also objects that the Magistrate Judge “either overlooked or ignored” particular instances of protected activity. Pl.’s Obj. at 2. These instances of allegedly protected activity merit discussion because they share a closer temporal relationship with the alleged adverse employment actions discussed below in Part III.A.3, thus impacting the causation analysis. The Plaintiff identifies “two crucial pieces of evidence that were submitted to Rock prior to his placement on the PIP and his termination.” Pl.’s Obj. at 3 (citing PL’s Exs. 28, 53). The first piece of evidence is Exhibit 28 to the Plaintiffs Response to the Motion for Summary Judgment, which contains an email from the Plaintiff to Nicole Smith, a human resources specialist, with a copy to Andrea Bynum, an EEO specialist, forwarding an email exchange between the Plaintiff and Rock. See PL’s Ex. 28, EOF No. 72-28. The second piece of evidence is an email exchange between Rock and the Plaintiff, wherein Rock denies the Plaintiffs request for the presence of an EEO representative at a performance evaluation meeting. See PL’s Ex. 53, EOF No. 72-53. The Plaintiff alleges that these email exchanges constitute protected activity. Each of these email exchanges will be addressed in turn.
The content of the first email between the Plaintiff and Rock includes the following language from the Plaintiff, via an attached statement to Rock:
However, the Laws of Equal Employment Opportunity (EEO) protecting an individual could be violated when the foregoing promotion standards/methods are used selectively to promote the interest of all employees in the branch while at the same time excluding another employee from the same standard of promotion.
PL’s Ex. 28, EOF No. 72-28, at 2. In that same statement, the Plaintiff also writes to
The Plaintiff argues that the statement in the email demonstrates he was “сlearly opposing a violation of the EEO laws, providing specific examples of employees not being treated in a similar way,” and that it constitutes protected activity under Title VII. Pl.’s Obj. at 4. Moreover, the Plaintiff argues that this protected activity, falling within six months of his placement on a Performance Improvement Plan (“PIP”), is temporally proximate enough to an adverse employment action for survival of the Defendant’s Motion for Summary Judgment. Id. The email to Rock is dated July 12, 2012, and that forwarded email to Smith and Bynum is dated August 1, 2012. ECF No. 72-28, at 1. The Plaintiff was placed on his first PIP on January 18, 2013. See Compl. ¶¶ 118-22; PL’s Ex. No. 15, Resp. to Mot. for Summ. J., ECF No. 72-15. Based on this temporal proximity, the Plaintiff argues that “[t]he court incorrectly claims ... that there was at least a year between Dr. Emami’s complaints and his changes to his performance plan or termination.” PL’s Obj. at 4 (citing First R&R at 28).
The second piece of evidence, Exhibit 53 to the Plaintiffs Response to the Motion for Summary Judgment, is an email exchange between the Plaintiff and Rock involving the Plaintiffs request for “two additional people to participate” in a discussion between the Plaintiff and Rock regarding performance review. See PL’s Ex. 53, ECF No. 72-53. In the request, which was sent on January 14, 2013, the Plaintiff specifically asks for an EEO representative to be one of these participants. Id.
Neither email was referenced in the First R&R. The first question the emails present is whether they include “protected activity” under the first prong of Emami’s prima facie case. “Protected activity” is that which falls under the participation or opposition clauses of Title VIPs retaliation provision. Laughlin,
The Plaintiffs first email invokes equal employment opportunity laws in the most general sense. See PL’s Ex. 28, ECF No. 72-28, at 2. However, while there is no specific reference to discrimination based on religion or national origin, the Plaintiffs reference to anti-discrimination laws in general, especially in the context of the whole statement, would place a reasonable reader on notice that the Plaintiff was concerned that his employer could be discriminating against him, in violation of anti-discrimination laws. Therefore, the statement in the email constitutes “protected aсtivity” under the first prong of the Plaintiffs prima facie case.
A reasonable juror might conclude that the Plaintiff engaged in protected activity when hé sent the July 12, 2012 and January 14, 2013 emails. Accordingly, the court will consider these emails for purposes of evaluating the alleged causal link between the protected activity and the adverse employment action. The Plaintiffs Objection that the aforementioned emails were instances of protected activity is SUSTAINED.
2, Materially Adverse Action
Additionally, because the temporal proximity of the materially adverse action to protected activity is an essential matter for resolving the third prong of the Plaintiffs prima facie case — which was the basis for the Magistrate Judge’s recommendation to dismiss the retaliation claim, ‘as well as the subject of the Plaintiffs Objection— the court must determine when the Plaintiff first suffered a materially adverse action in this case. The general fulfillment of the second prong of the Plaintiffs prima facie case is not in dispute, because the parties agree that the Plaintiff was terminated. See First R&R at 27. Nevertheless, the, parties do contest when the Plaintiff first suffered a materially adverse action,
Some of this disagreement may stem from a misunderstanding of the controlling standard for retaliation claims. Numerous courts have ■ incorrectly stated “adverse employment action,” rather than “materially adverse action,” as the controlling standard for the second prong of the retaliation prima face case.
The Supreme Court has not resolved the issue of whether a negative performance plan or placement on a PIP constitutes a materially adverse action. Moreover, the Fourth Circuit has not categorically held that a negative performance plan or placement on a PIP constitutes, or fails to constitute, a materially adverse action.. The Fourth Circuit recently held that a plaintiff failed to state a plausible discrimination claim because the PIP in question did not permit the court to “reasonably infer” an adverse employment action, where the plaintiff had pled no facts showing harm. Jensen-Graf v. Chesapeake Employers’ Ins. Co.,
The Magistrate Judge stated that the Plaintiff “was first disciplined and eventually terminated,” and that, “[i]f related to his complaints of discrimination, either of these might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination’ and are thus materially adverse actions.” First R&R at 27 (quoting Burlington,
The court agrees with the Magistrate Judge that the Plaintiffs being “first disciplined” could constitute a materially adverse action, satisfying the second prong of the Plaintiffs prima facie, ease of retaliation.. Id. at 27. However, the point deserves further explanation. A negative performance review, alone, or a placement on a PIP, alone, does not constitute a materially adverse action. Here, the Plaintiffs PIP was actually implemented, and-it imposed conditions with which his failure to comply ultimately led to termination of employment. See Def.’s Reply to Pl.’s Resp., EOF No. 78, at 7v& Indeed, on its face, the PIP imposed a requirement that the Plaintiff meet the “Needs Improvement” level in order to keep his job. PIP and Position Description, EOF No. 61-1, at 1. Further, by virtue of the Plaintiffs placement on the PIP, he became “subject to reduction in grade Or removal action without being afforded another PIP.” Id. These conditions, particularly in light of the requirements imposed by the PIP, could dissuade a reasonable employee from making a charge of discrimination. Resolving all factual disputes in the Plaintiffs favor, he has presented sufficient evidence for a reasonable juror to conclude that his placement on the' PIP was a materially adverse action.
3. Causal Connection
The Plaintiffs objection also challenges the Magistrate Judge’s finding that the Plaintiffs retaliation claim fails on the third prong of his prima facie case, regarding a causal connection between the first two prongs of engagement in protected activity and a materially adverse action. PL’s Obj. at 3-6. On this third prong, the Magistrate Judge concluded that the
The Plaintiff raises only two materially adverse actions for the court to consider in evaluating any causal link: his placement on the PIP and his termination of employment. In his Objection, the Plaintiff points out that the July 12, 2012 email was sent six months prior to his placement on the PIP. Pl.’s Obj. at 4. While the Plaintiff is correct that six months is a shorter time period than the year-long period discussed in the First R&R, six months is still insufficient, on its own, to infer a causal link based on temporal proximity. See supra Part II.D. However, thе Plaintiff further objects that only four days elapsed between the January 14, 2013 email and his placement on the PIP. Id. This time period is short enough that a reasonable juror could infer a causal link between an instance of protected activity and a materially adverse employment action based on temporal proximity. Accordingly, the Plaintiffs Objection that the January 14, 2013 email was temporally proximate enough to his placement on the PIP to infer a causal link is SUSTAINED. The Plaintiffs Objection that the July 12, 2012 email was sufficiently temporally proximate to his placement on the PIP to infer a causal link is OVERRULED.
4. Non-retaliatory Reason for Materially Adverse Action
The Defendant does not specifically raise a legitimate reason for the Plaintiffs placement on the PIP, having relied on the assumption that the only adverse employment action that has taken place is the Plaintiffs ultimate termination. Dеf.’s Resp. to PL’s Obj., EOF No. 94, at 3. Still, the Defendant makes apparent that the rationale for placing the Plaintiff on the PIP is the same as the rationale for termination: allegedly poor performance. Mem. in Supp. of Summ. J., EOF No.61, at 2, 5, 9. Rock clearly communicated to the Plaintiff that he was being placed on the PIP because his “performance was failing to meet” expectations. PIP and Position Description, EOF No. 61-1, at 1. Additionally, the declarations of both Rock and Fer-lemann indicate that poor performance was the reason for Emami’s placement on the PIP. Rock Deck, EOF No. 61-3, ¶¶ 8-11; Ferlemann Decl., EOF No. 61-4, ¶ 7. Accordingly, the Defendant has rebutted the presumption of retaliation by articulating a non-retaliatory reason for the materially adverse action.
5. Pretext
Because the Defendant has met his burden of articulating a non-retaliatory reason for the materially adverse action,
B. Defendant’s Objection to the First R&R
The Defendant objected to the First R&R, arguing that NASA employee Troy Middleton should not be deemed a comparator and requesting the court “to exclude the comparison of Middleton’s work product, performance plans, and performance evaluations, to those of the Plaintiff.” Defi’s Obj., EOF No. 92, at 1.
If a plaintiffs discrimination claim hinges on comparator evidence, the validity of that plaintiffs prima facie case hinges on “whether those comparators are in fact similarly situated.” Perrin v. Fennell, No. 1:10cv810,
Haywood is often cited for its explanation of comparators. Notably, this frequently relied upon statement from Haywood is a quotation from a Sixth Circuit case, Mitchell. See Haywood,
Viewing the facts in the light most favorable to the Plaintiff, a reasonable juror could conclude that Middleton and the Plaintiff engaged in the same conduct without the sort of differentiating circumstances that would justify the differential treatment of them. The court agrees with the Magistrate Judge’s statement that, for summary judgment purposes, the Plaintiffs supported identification of “at least one comparator” is sufficient. First R&R at 20-21. Having reviewed the portion to which the Defendant objected de novo, the
C. Motion in Limine
1. Troy Middleton
As discussed above in Part III.B of this Opinion, having reviewed the portion to which the Defendant objected de novo, the court agrees with the Magistrate Judge’s conclusion that Middleton is an appropriate comparator. Thus, the court ADOPTS the Magistrate Judge’s recommendation in the First R&R, with regard thereto, and DENIES the Motion in Limine' as to Troy Middleton.
,2. Robert Baurle, Jeffrey Balia, and David Witte
The Magistrate Judge did not evaluate the admissibility of additional comparator evidence, and instead left the matter for the trial judge, noting that considerations of cumulative proof may be “best evaluated at trial.” First R&R at 21, n.7. Accordingly, the additional comparator evidence related to Robert Baurle, Jeffrey Balia, and David Witte must be addressed.
The issue before the court, for purposes of the Defendant’s Motion in Limine, is whether “the work product, performance plans, performance evaluations, and any testimony relevant to those documents as to NASA employees Jeff Balia, Robert Baurle, Troy Middleton, and David Witte” are clearly inadmissible. See Mot. in Li-mine, EOF No. 69, at 1. The Defendant moves to exclude this evidence because “these individuals are not comparators, by law, and this information should therefore not be before the jury.” See Mem. in Supp. of Mot. in Limine, EOF No. 70, at 1.
There is no rule that would exclude evidence of other employees sim-. ply because the Plaintiff has not proven that they qualify as comparators under McDonnell Douglas. Indeed, “[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts apd arguments in a particular case,- and thus are generally not amenable to broad per se rules.” - Sprint/United Mgmt. Co. v. Mendelsohn,
If adverse treatment of employees that share the same protected class as the plaintiff would be relevant under Mendel-sohn and Calobrisi, it follows, that better treatment of employees who do not share that protected class would also be relevant, After all, “the very term ‘discrimination’ invokes the notion of treating two persons differently on the basis of a certain characteristic that only one possesses.” Laing v. Fed. Exp. Corp.,
The Fourth Circuit clarified “the significance of comparator evidence” when it reiteratеd that evidence of more favorably-treated, similarly situated employees would be “ ‘especially relevant’ ” to a showing of pretext. Id. (quoting McDonnell Douglas,
There is nothing before the court indicating that the evidence Defendant has moved to exclude would be inadmissible. On the contrary, there are numerous factors that point to its relevance. The Plaintiff worked “as an Aerospace Engineer in the Hypersonic Air-Breathing Propulsion Branch (“Branch”) within the Research Directorate (“Directorate”) at the Langley Air Force Base in Hampton, Virginia.” PL’s Resp. to Mot. in Limine, ECF 83, at 2. Baurle, Balia, and Witte are all listed as members of the same Isolator Dynamics Research Lab (“IDRL”) Research Team as the Plaintiff and Middleton. Research Team, ECF No. 72-7. On this list, the names of Baurle, Witte, Middleton, and the Plaintiff are all marked with an- asterisk, indicating membership in the Hypersonic Airbreathing Propulsion Branch.
The Defendant focuses on the distinction between supervisory and reporting requirements of the Plaintiff, who was a GS-13 employee, and the proposed comparators, who held higher ranks of GS-14 and GS-15, comparing the differences between a GS-13 and a GS-14 to those “between a legal assistant and a senior attorney.” ECF No. 51 at 6.
Moreover, some evidence indicates that the duties and requirements of GS-13 and GS-14 researchers were not very different. Diego Capriotti, a NASA employee who had worked on a project with the Plaintiff, testified that “[a] GS-13 or 14 researcher would have the same reporting require
The comparator issue in this case is exceedingly complex and peppered with factual disputes, and to rule on it now would require factual findings best reserved for a jury. Accordingly, at this juncture, the court DENIES the Defendant’s Motion in Limine. If it later becomes apparent that comparator evidence would be irrelevant, cumulative, confusing, or misleading, the issue can be revisited at that time.
D. Motion to Exclude
There were no objections to the Second R&R. The court hereby ADOPTS the Second R&R in full and DENIES the Defendant’s Motion to Exclude.
IV. CONCLUSION
The court ADOPTS Parts I, II, and III.A of the First R&R, REJECTS IN PART and MODIFIES Part III.B of the First R&R, and ADOPTS the Second R&R in full. Accordingly, the Motion for Summary Judgment, ECF No. 60, the Motion to Exclude Plaintiffs Experts, ECF No. 65, and the Motion in Limine, ECF No. 69, are DENIED.
The Clerk is DIRECTED to send a copy of this Opinion to counsel for the parties.
IT IS SO ORDERED.
Notes
. These claims were initially brought, as well, against the United States, and additional state tort claims were initially brought against the Plaintiffs former supervisor at NASA, Kenneth Rock. However, both parties have been dismissed from this case. See Memorandum Order of March 30, 2016. ECF No. 33.
. The facts recited here come from the Amended Complaint. However, these recitations are not presumed to be true for the sake of the court’s ruling on the Defendant’s Motion for Summary Judgment. See infra Section II.B.
. Although the Plaintiff states that Rock was aware of the entire protected communication, see PL's Obj. at 4, the exhibit reveals that Rock was not necessarily aware of the Plaintiff's subsequent forwarding of the email exchange to human resources staff, as Smith and Bynum were the only recipients of the forwarded message. See Pl.'s Ex. 28, ECF No. 72-28. Regardless, the exhibit does show that Rock himself was aware of the statement, which suffices for the first prong of the Plaintiff’s prima facie case.
. Because Emami raises оnly termination and the PIP as materially adverse actions, the court will only address these actions.
. The Magistrate Judge ultimately applied the correct standard, see First R&R at 27, and the ■ court MODIFIES Part III.B of the First R&R to eliminate references to the "adverse employment action1’ standard.
.However, in a Memorandum for a previous motion, the Defendant stated that placement on a PIP "cannot be considered an adverse employment action,” Mem-, in Supp. of First Mot. for Summ. J., ECF No. 12, at 18 n.8. This is not a correct statement of law, as the court explains below.
. Balia's name is marked indicating membership in the Advance Sensing & Optical Measurements Branch. Research Team, ECF No. 72-7, at 1.
. The Defendant incorporated its Opposition to Plaintiff's Motion to Compel Production of Documents Relevant to Comparator Job Performance, ECF No. 51, into its Memorandum in Support of Defendant's Motion in Limine. ECF No. 70 at 2.