Gallo v. US Investigations Services ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-2134
JAN S. GALLO,
Plaintiff - Appellant,
versus
US INVESTIGATIONS SERVICES, PROFESSIONAL
SERVICES DIVISION, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:06-cv-00198-CMH-TR)
Argued: November 1, 2007 Decided: December 28, 2007
Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Patrick L. Abramowich, FOX & ROTHSCHILD, L.L.P.,
Pittsburgh, Pennsylvania, for Appellant. Ronda Brown Esaw,
MCGUIREWOODS, L.L.P., McLean, Virginia, for Appellee. ON BRIEF:
Jay D. Marinstein, FOX & ROTHSCHILD, L.L.P., Pittsburgh,
Pennsylvania; Paul N. Murphy, TIGHE, PATTON, ARMSTRONG & TEASDALE,
P.L.L.C., Washington, D.C., for Appellant. David L. Greenspan,
MCGUIREWOODS, L.L.P., McLean, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jan S. Gallo, a former employee of US Investigations Services,
Professional Services Division, Inc. (“PSD”), brought this action
alleging federal claims of gender discrimination, hostile work
environment, and retaliation, and a state law claim for breach of
contract, arising out of the termination of her employment for
insubordination.
PSD is a private government contractor that provides security-
related services to federal government agencies. Gallo was hired
by PSD in September 2002 as a program manager for PSD’s contract
with the Department of the Navy Central Adjudication Facility
(DONCAF), where she worked until her termination on March 7, 2005.
In May 2004, David Venturella became Gallo’s immediate
supervisor. By all accounts, Gallo was effective in her job, and
Venturella recommended two separate promotions for her in 2004.
She ultimately received the recommended promotion to Director of
Operation Support and Training, which was to take effect on January
28, 2005. Her duties as program manager for the Navy DONCAF
contract were slated to end as of that date.
In the months leading up to this change in duties, budget cuts
had mandated a reduction in staff on the DONCAF contract, and
discussions between PSD employees, including Gallo and Venturella,
and Navy personnel ensued regarding what positions would remain and
who would fill them. It is undisputed that in the course of
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addressing this issue, conflicts arose between Navy employees and
Gallo regarding the proper way to staff the DONCAF contract in the
wake of the mandated staff reductions, mainly over who would get to
make those decisions. In late January, Gallo had telephone
conferences and a meeting with the Navy customers and provided them
with PSD’s “decision” for the staffing of the contract and advised
them that she would no longer be the program manager due to her
promotion. Patti Ashley and Kim Cristaudo were the primary
contacts for the Navy at the time. For various reasons, they were
unhappy with the decision and a follow-up meeting was demanded to
discuss the staffing. Although the extent of their dissatisfaction
is somewhat in dispute, it is undisputed that complaints about
Gallo were relayed to Venturella at about the same time Gallo was
slated to start her new position.
Upon receiving the complaints from the Navy, Venturella
specifically instructed Gallo not to contact the Navy customers
while he attempted “to get to the heart of [the] concerns.” J.A.
1040a. Gallo vocally disagreed with Venturella’s proposed course
of action for handling the Navy complaint, was defensive about the
matter, blamed Venturella for the problem, and embarked on a
concerted effort to convince Venturella to let her directly
confront the Navy clients. Venturella responded by again directing
Gallo to “distance yourself from this until the dust settles” as
they “need[ed] time to sort this out.” J.A. 393a. Venturella, in
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conjunction with Gallo’s new position, had also assigned her a new
training project at about this time. He advised Gallo that while
he investigated the Navy matter, she was to “begin the training
project” and he would “send . . . examples of the white papers USIS
has prepared in the past” on similar matters. J.A. 393a.
Gallo also disapproved of the training project assignment and
advised Venturella of her feelings in this regard as well. When
Venturella refused to rescind his assignment, Gallo complained to
Bill Harper, the former President of PSD and then-current Chairman
of the Board, who had been a supporter of Gallo on a similar
incident in the past. Gallo also persisted in her efforts to
challenge Venturella’s refusal to allow her to directly confront
the Navy clients. On February 7, 2005, Gallo advised Venturella
that “th[e] resolution would be to meet with the concerned parties
so I can clear up their perceptions or any misunderstandings they
may have had with regard to our recent conversations and what you
have relayed to me.” J.A. 562a. Venturella advised Gallo that he
did not support her request for a client meeting and reiterated
that Gallo was “not to have any contact (written or oral) with the”
Navy clients. He also “reiterate[d] this is not a disciplinary
matter and is not being treated as such. It is an
operational/business decision that I have made based on the request
of the customer. I understand you do not agree with the outcome,
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but the course of action has been accepted and has resolved the
concerns of the client.” J.A. 562a.
When Venturella refused to budge, Gallo took her complaints to
Human Resources and sought its permission to contact the Navy
clients. Human Resources denied the request and advised Gallo that
this was a business decision that would have to be addressed
through her chain of command. Although Harper was not technically
in her chain of command, Gallo again complained to him and now
asserts that Harper authorized her to contact the Navy customer.
Harper, for his part, disputes that he supported Gallo’s activities
regarding the training project and denies authorizing her to
contact the Navy. However, it is undisputed that Gallo did not
tell Venturella, Venturella’s supervisor, or Human Resources of the
alleged authorization, and Harper, as Chairman of the Board, was
not in her direct line of supervisory authority.
As Gallo’s complaints about the DONCAF matter and the training
project continued, Gallo also began to raise various “workplace”
complaints, asserting, for example, that she had been excluded from
some emails and meetings and that the communication within the
organization was unacceptable. When she was advised that there
were no miscommunications or a need for a meeting about these
matters, Gallo demanded a meeting with Human Resources and sent an
email message to Venturella requesting that he attend the meeting
since there was no “communication . . . present in this
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organization.” J.A. 1043a. Venturella responded that “[t]here
will be no meeting and no more discussion on the matter.” J.A.
1043a. Gallo responded by lodging a complaint of “hostile work
environment” with Human Resources. She did not mention gender or
age, complaining only that she could not work in an environment
with “no communication, no direction, prevention from working with
the Navy customer and the truth of the matter not pursued.” J.A.
1043a.
On March 3, 2005, Human Resources and Venturella met with
Gallo and refused to rescind the directive that she not contact the
Navy client or the directive that she prepare the requested
training project. Gallo then returned to her office and, in direct
contravention of Venturella’s repeated directives to the contrary,
contacted Ashley to directly confront her about the Navy issue. As
she was “headed out for the day,” Gallo sent an email message to
Human Resources advising that she had contacted Ashley and was told
that Ashley “did not ask for [her] removal off the contract because
of tone, mannerisms, or style.” J.A. 406a. Gallo expressed
“confiden[ce]” that HR would “speak to them and get this otherwise
resolved.” J.A. 406a. As an aside, Gallo added that “[s]ince this
situation has taken place, I have been faced with working in a
hostile work environment . . . [of] constantly excluding females
from ‘male’ company activities.” J.A. 406a.
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On March 7, 2005, Gallo was terminated for cause based upon
two acts of insubordination: (1) her act of contacting the
disgruntled Navy customer in contravention of the repeated
directives not to do so, and (2) her refusal to work on the
training project assigned by her supervisor. This action followed.
On October 3, 2006, the district court granted PSD’s motion
for summary judgment as to all claims. With regard to Gallo’s
employment claims, the district court held that Gallo had failed to
establish a prima facie case of employment discrimination based on
gender because she failed to demonstrate that she was performing
her job duties at a level that met her employer’s legitimate
expectations at the time of the adverse employment action. In
addition, the district court noted that PSD had articulated
legitimate nondiscriminatory reasons for terminating Gallo which
Gallo had failed to show were a mere pretext for gender
discrimination. See Hill v. Lockheed Martin Logistics Mgmt., Inc.,
354 F.3d 277, 285 (4th Cir. 2004) (en banc). The district court
rejected Gallo’s hostile work environment claim because plaintiff
failed to establish a prima facie case that the activities she
complained about were motivated by her gender and, in any event,
were not sufficiently severe or pervasive to establish an abusive
working environment. See Baqir v. Principi, 434 F.3d 733, 745-46
(4th Cir. 2006). With regard to Gallo’s retaliation claim, the
district court rejected the claim because Gallo failed to present
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sufficient evidence of a causal link between her termination and
the complaint of gender discrimination or of a hostile work
environment. Gallo’s breach of contract claim arises from a
written stock option agreement which provides an employee such as
Gallo thirty days following termination to exercise her options,
unless the termination is for cause. Because plaintiff’s
termination for insubordination constituted cause under the
agreement, the district court granted summary judgment to PSD on
this state law claim as well.
Having thoroughly reviewed the district court’s opinion and
the parties’ briefs and submissions on appeal, and having heard
oral argument in this case, we conclude that the district court did
not err in granting summary judgment in favor of PSD. To the
extent the district court did not separately address Gallo’s claim
that she could not be terminated for contacting the Navy customer
in contravention of her employer’s directives not to do so because
this act constituted protected activity under the opposition clause
of Title VII, see 42 U.S.C.A. § 2000e-3(a) (West 2003), we find no
merit to this additional assertion. Because we affirm the district
court’s grant of summary judgment on the merits of all claims, we
need not address Gallo’s appeal of the district court’s decision to
grant PSD’s motion to strike her demand for a jury trial.
AFFIRMED
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