United States District Court, D. Maryland
CATHERINE C. BLAKE, District Judge.
Todd Kowalewski brings this suit against defendant Robert M. Gates for alleged violations of Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. Kowalewski claims discrimination based on his race and gender, hostile work environment, and retaliation for protected activity. Now pending before the court are (1) the defendant's motion to dismiss or, in the alternative, for summary judgment, (2) the defendant's motion to substitute exhibits, (3) the defendant's motion to file a lengthy reply brief, and (4) Kowalewski's motion to allow time for discovery. The issues in this case have been fully briefed, and no hearing is necessary. See Local R. 105.6. For the reasons stated below, the motion to dismiss or for summary judgment- construed as a motion for summary judgment-will be granted, and the motion to allow time for discovery will be denied. Additionally, the court will grant the motion to substitute exhibits and the motion to file a lengthy document.
On July 20, 2009, Kowalewski started working at the National Geospatial-Intelligence Agency ("NGA") as a staff officer. He was hired with a two-year "trial or probationary period." (Def.'s Mot. to Dismiss, ECF No. 10-2, at 2.) During his probationary period, on March 16, 2010, Kowalewski resigned. The defendant maintains that he resigned following incidents involving disrespectful behavior towards his superiors. Kowalewski, however, asserts that he faced harassment and discrimination prior to his resignation, and denies that he behaved inappropriately towards any co-workers.
Claiming that he was constructively discharged, Kowalewski alleges that problems at work began with his recruitment by Ryan Ross, the son of a supervisor in his chain of command, Ron Ross. According to Kowalewski, Ryan Ross made oral promises that he could not keep; as a result, Kowalewski's salary and relocation expenses were different than he expected, causing personal difficulties with relocating his family. (Def.'s Ex. 8, Kowalewski's Recruitment Compl. to NGA Human Dev.) Kowalewski provided an undated, written complaint to NGA Human Development ("HD") regarding his recruitment experiences, ( see id.; Def.'s Mot. to Dismiss at 7), and also met with his first-level supervisor, Patrick Clancy, and others about Ryan Ross's behavior. (Def.'s Ex. 5, Decl. of Clancy, at 1; see also Def.'s Ex. 4, Decl. of Celia Hopkins, at 1.) Following his complaints, sometime prior to October 2009, Ron Ross came to his desk, stating "Tell me about my son. What's going on with my son?" (Def.'s Ex. 6, Dep. of Kowalewski, at 23:23-24:14.) Kowalewski claims that, during this confrontation, Ron Ross was "angry, " and his voice was loud. ( Id. at 27:13-18.) Ron Ross was eventually removed from Kowalewski's chain of command, although Kowalewski maintains that he was never informed of this decision. (Def.'s Ex. 10, Decl. of Brenda Brooks, at 1-2; see also Pl.'s Ex., July 18, 2013, Aff. of Kowalewski, at 1.)
In October 2009, Lynn Griffin-Bell, an African-American woman, became Kowalewski's first-level supervisor. Griffin-Bell also supervised eight other employees, five of whom were men; additionally, of the eight employees, five were white, and three were African-American. (Def.'s Mot. to Dismiss at 17.) According to Kowalewski, Griffin-Bell engaged in a variety of inappropriate behavior towards him, which he thought was based on his gender. She frequently called him "Sweetie, " "Honey, " and "Love, " and acted "flirty" by smiling and winking at him, although he did not "know what her intention was." (Def.'s Ex. 6, Dep. of Kowalewski, at 37:3-11, 39:3-5, 145:9-19, 146:7-13.) Griffin-Bell told him about the NGA "sex scene" as well as her own sexual relationships, and described the "best locations [at work] to do these things." ( Id. at 231:23-232:12.) On one occasion, she asked Kowalewski to bring her a cup of coffee; without objecting, he did so. ( Id. at 39:6-19, 231:14-20.)
Griffin-Bell denies speaking with Kowalewski about her sexual relationships or places on the Bethesda NGA complex where she engaged in "on the clock transgressions." (Def.'s Ex. 9, Investigative File, Mar. 29, 2010, Email from Griffin-Bell, at 70.) Additionally, she denies talking to him about the NGA "sex scene." (Def.'s Ex. 3, Decl. of Griffin-Bell, at 3.) Other NGA employees indicate that they never heard Griffin-Bell discussing such matters. (Def.'s Ex. 4, Decl. of Hopkins, at 4; Def.'s Ex. 9, Investigative File, Decl. of Ron Ross, at 488.)
In addition to claiming gender discrimination, Kowalewski alleges that Griffin-Bell treated him differently from his African-American peers. She called him "[b]lond-haired, blue-eyed, " and made reference to "black solidarity." (Def.'s Ex. 6, Dep. of Kowalewski, at 145:3-19; Def.'s Ex. 9, Investigative File, Decl. of Kowalewski, at 412.) Griffin-Bell told him that "African-Americans watch each others' [sic] backs." (Def.'s Ex. 9, Investigative File, Decl. of Kowalewski, at 402.) If Kowalewski's African-American co-workers missed deadlines, Griffin-Bell would give them a "friendly reminder;" but if he missed a deadline, she threatened him or implied that he was an incompetent employee. (Def.'s Ex. 6, Dep. of Kowalewski, at 82:23-85:1.) Likewise, Griffin-Bell "publicized" an African-American employee's success by telling management; however, when she received positive feedback regarding Kowalewski's work, she did not share this information with management. (Def.'s Ex. 9, Investigative File, Decl. of Kowalewski, at 416.) Griffin-Bell also made herself available to African-American employees through implementing an "open door policy." ( Id. at 406.) Kowalewski, by contrast, had to make appointments with Griffin-Bell if he wanted to speak with her. ( Id. ) Kowalewski additionally claims that he had to follow a different process for requesting leave than his African-American co-workers. (Def.'s Ex. 6, Dep. of Kowalewski, at 97:2-100:8.)
According to Kowalewski, Griffin-Bell deprived him of a number of opportunities to further his career. At one point, Griffin-Bell "implied" that she had prevented Kowalewski from applying for a job at the Pentagon, telling him that an African-American man had received the job and referring to "black solidarity." ( Id. at 70:24-73:5.) Griffin-Bell also removed him from an advanced clearance assignment, and gave the assignment to an African-American co-worker who "did not have the skills or abilities for" the job. ( Id. at 260:15-261:25.) Unlike certain African-American co-workers, Kowalewski was discouraged from working in the front office, which Griffin-Bell referred to as the "boys club." ( Id. at 256:10-23; Pl.'s Ex., July 18, 2013, Aff. of Kowalewski, at 3; see also Def.'s Ex. 3, Decl. of Griffin-Bell, at 4.)
Griffin-Bell denies treating Kowalewski differently from his African-American colleagues. She maintains that she never made any racial comments, and other NGA employees confirm that they never heard her make such remarks. (Def.'s Ex. 9, Investigative File, Decl. of Griffin-Bell, at 467; id., Decl. of Ron Ross, at 488; Def.'s Ex. 12, Decl. of Carter, at 2.) As for Kowalewski's claims that African-American co-workers received preferential treatment, the defendant points out that African-American employees were dissatisfied with how Griffin-Bell treated them. (Def.'s Ex. 12, Decl. of Carter, at 1; Def.'s Ex. 13, Decl. of Kristyl Grierwhite, at 1.) Moreover, according to Carter, Griffin-Bell did not maintain an open-door policy with him, and Griffin-Bell likewise denies maintaining an open door policy with anyone. (Def.'s Ex. 12, Decl. of Carter, at 3; Def.'s Ex. 9, Investigative File, Decl. of Griffin-Bell, at 468-69.) Griffin-Bell also explains that she "never had to forward positive emails about Todd's behavior to the chain of command, " because those emails "already  included [the] supervisory chain on them;" she did, however, share Kowalewski's successes at staff meetings. (Def.'s Ex. 3, Decl. of Griffin-Bell, at 4.) Next, asserting that she had "absolutely nothing to do" with the hiring decision, Griffin-Bell denies blocking Kowalewski from applying for the Pentagon job. ( Id. at 2; see also Def.'s Ex. 5, Decl. of Clancy, at 2 (explaining that Griffin-Bell was not "in a position to block any employee from a promotion").) In fact, she disagreed with the hiring decision, and recommended against it, as the person hired "did not have the skills" for the position. (Def.'s Ex. 3, Decl. of Griffin-Bell, at 2.) Turning to Kowalewski's claim that he was removed from an advanced clearance assignment, Griffin-Bell and Ron Ross explain that the assignment was part of his training, so it was merely temporary. ( Id. at 3; see also Def.'s Ex. 9, Investigative File, Decl. of Ron Ross, at 485.) Finally, responding to Kowalewski's claim that he was discouraged from working in the front office, Griffin-Bell claims that she never discouraged him from working there. (Def.'s Ex. 3, Decl. of Griffin-Bell, at 4.) She explains that working in the front office required more experience than Kowalewski had as a newly hired employee and, thus, a more experienced co-worker worked there. ( Id. )
According to Kowalewski, Griffin-Bell threatened him, although she maintains that she merely reminded him of his probationary status when he behaved disrespectfully towards his superiors. (Def.'s Ex. 9, Investigative File, Decl. of Griffin-Bell, at 469-70 ("A senior executive made a complaint that Todd had displayed aggressive and unacceptable behavior.... I explained to Todd that he was on probation, this type of behavior would not be tolerated, ... and  he could be written up for such behavior.").) Kowalewski, however, asserts that she referred frequently to Ron Ross and to Kowaleski's former co-worker, Joi Grieg, who was removed from NGA after working for Griffin-Bell. (Def.'s Ex. 6, Dep. of Kowalewski, at 90:16-91:24; see also Kowalewski's Opp, ECF No. 19, at 4.) Additionally, she told Kowalewski that she was "untouchable, " and she could "write [him] up." (Def.'s Ex. 9, Investigative File, Decl. of Kowalewski, at 408, 417.)
Kowalewski states that he informally complained of Griffin-Bell's behavior to Brenda Brooks, Ron Ross, Pat Clancy, and Brenda Meyer, among others. (Def.'s Ex. 6, Dep. of Kowalewski, at 203:18-204:5; see also Pl.'s Ex., July 18, 2013, Aff. of Kowalewski, at 2.) According to Brooks, however, the first time Kowalewski told her of the alleged discrimination was during the meeting when he tendered his resignation. (Def.'s Ex. 9, Investigative File, Decl. of Brooks, at 502; see also Def.'s Ex. 10, Decl. of Brooks, at 3.) Ron Ross also denies that Kowalewski reported harassment to him. (Def.'s Ex. 9, Investigative File, Mar. 26, 2010, Email from Ron Ross, at 91-92.) Likewise, Meyer indicates that Kowalewski never told her that Griffin-Bell was harassing him or subjecting him to a hostile work environment. ( Id., Decl. of Meyer, at 498.)
Kowalewski claims that he met with Griffin-Bell and Brooks on February 4, 2010, for what he was told would be a confidential mediation. (Def.'s Ex. 6, Dep. of Kowalewski, at 107:6-23, 157:10-15.) During the meeting, Kowalewski told them that he was working in a hostile environment, but he did not allege that he was being treated differently because of his race. ( Id. at 158:18-159:5.) He also expressed that certain co-workers lacked writing skills. ( Id. at 105:23-106:15, 159:13-16.) Although Griffin-Bell acknowledges the February 4, 2010, meeting with Kowalewski and Brooks, she said it was held to discuss "mounting issues with Todd's aggressive and agitated behaviors." (Agency Response to Complainant's Discovery Requests, ECF No. 31-6, at 4.)
Following the meeting with Griffin-Bell and Brooks, in late February 2010, Kowalewski claims that he contacted the Office of Diversity Management and Equal Employment Opportunity ("ODE") by phone. (Pl.'s Ex., July 18, 2013, Aff. of Kowalewski, at 5.) Then, on March 5, 2010, he physically went to ODE to file a complaint. ( Id.; see also Def.'s Ex. 14, Decl. of Gloria Cunningham, at 1.) Records at ODE show that Kowalewski filed an informal complaint on March 12, 2010. (Def.'s Ex. 14, Decl. of Cunningham, at 1.) Additionally, Patricia Langford, the Assistant Inspector General of Investigations at NGA, indicates that, on March 9, 2010, the NGA Office ...