United States District Court, D. Maryland
ELLEN LIPTON HOLLANDER, District Judge.
Plaintiff Michael Kearns alleges that his former employer, defendant Northrup Grumman Systems Corporation ("Northrup Grumman"), violated Title VII of the Civil Rights Act of 1964, codified, as amended, at 42 U.S.C. §§ 2000e et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621 et seq. See Second Amended Complaint ("SAC, " ECF 44). In particular, Kearns claims that he was subjected to adverse employment actions and a hostile work environment in retaliation for his opposition to workplace discrimination against a co-worker, and for filing his own complaint regarding discrimination. Kearns, who was 66 years old during the events relevant to this case, also alleges that he was subjected to a hostile work environment because of his age, in violation of the ADEA.
Currently before the Court is defendant's Motion for Summary Judgment ("Motion, " ECF 55), supported by a Memorandum of Law ("Memo, " ECF 55-1), and exhibits. Plaintiff filed a response in opposition ("Opp." or "Opposition", ECF 62), also with exhibits. Defendant replied ("Reply, " ECF 63), and submitted additional exhibits. No hearing is necessary to resolve the Motion. See Local Rule 105.6. For the reasons that follow, I will grant the Motion.
Kearns, a Caucasian, began working for Northrop Grumman in 2002 as a Help Desk Analyst. See Deposition of Michael Kearns ("Kearns Dep., " ECF 55-2) at 12. At the time Kearns began working for defendant, he signed an Employment Agreement, which provided, in relevant part: "I will work any shift... to which I am assigned." Ex. 1 to Kearns Dep. In September 2006, Kearns became an Incident Handler, also known as an Incident Analyst, within Northrop Grumman's Security Incident and Analysis Center ("SIAC"). Id. at 15. Incident Analysts are responsible for identifying suspicious activity on Northrop Grumman's IT network. See Ex. 6 to Kearns Dep. The manager of the SIAC was Grant Jewell, and Kearns's shift manager was Mike Mundi. See Ex. 5 to Kearns Dep.; Kearns Dep. at 16, 31.
On March 26, 2007, Jewell drafted a performance assessment for Kearns for the 2006 calendar year. Jewell wrote, Ex. 4 to Kearns Dep.:
Michael Kearns joined the SIAC from the helpdesk at ES and... his learning curve is greater coming into Information Security because of his lack of experience in networking and incident response. Michael has displayed his dedication to the job asking the appropriate questions and ensure he reports to work even through difficult times. Michael has been a good addition to the team
he just needs to focus a little further on attention to detail when completing RT tickets.
However, by February 2008, Jewell and Mundi had less favorable views of Kearns. On February 27, 2008, Mundi emailed Jewell about Kearns, stating, Ex. 5 to Kearns Dep.:
I have done the best I can to work with Michael Kearns.... I now give up on trying to work with him because it is rather counter productive. What is even worse is his demeanor when tasked. He is constantly mumbling, swearing and in so doing, makes our work environment uncomfortable. I have talked to him about this before, but again he does not hold on to what I say for long. This is frustrating for me and I really hate giving up on people.
Jewell responded to Mundi the same day. He advised: "This is something I'm addressing with Mary Jo from HR and we are putting together a performance improvement plan.... If he isn't able to turn around the performance after being presented with the PIP then we will address this accordingly via HR." Id. at 5.
Shortly thereafter, Jewell gave Kearns a "Below Expectations" performance rating on his annual evaluation for the 2007 calendar year. See Kearns Dep. at 36. On March 18, 2008, Jewell placed Kearns on a Performance Improvement Plan ("PIP"). See Ex. 6 to Kearns Dep. The PIP stated that Kearns had "not progressed along the learning curve as expected, " did "not follow the outlined procedures, " and should be "identifying a higher volume of suspicious activity in the system." Id. The PIP also noted that Kearns's "stats are among the lowest in the department." Id.
In addition, a number of SIAC employees complained about plaintiff making inappropriate comments in the workplace. See Exs. 7-9 to Kearns Dep. Jewell gave plaintiff a written warning in March 2008 and, in December 2008, issued a Final Written Warning to Kearns regarding his inappropriate comments. Kearns Dep. at 39-40. In the Final Written Warning, Jewell noted that plaintiff had made "an extremely disrespectful comment" on November 20, 2008, which violated Northrop Grumman's policy against "[u]sing epithets, slurs, or explicit or offensive language directed at persons or protected characteristics." Ex. 8 to Kearns Dep. The Final Written Warning provided: "Any future incidents of this nature or failure to abide by company policies, procedures, and conduct standards will result in your termination from the company." Id.
In early 2009, Jewell gave Kearns a "Below Expectations" performance rating for the 2008 calendar year. See Kearns Dep. at 37. And, Jewell placed Kearns on another PIP on April 22, 2009. See Ex. 7 to Kearns Dep. Once again, the PIP noted that Kearns had not progressed along the learning curve as expected, did not follow procedures, should have identified a higher volume of suspicious activity, and was rated at the bottom of the department. Id.
In May 2009, Kearns and the other SIAC members were moved to the Cyber Security Operations Center ("CSOC") in Annapolis Junction, Maryland. Kearns Dep. at 45. After the move, Jewell assigned plaintiff and another employee, Jeannette Simpkins,  the task of "server log monitoring." Kearns Dep. at 46. In this role, rather than looking for suspicious activity on Northrop Grumman's networks, Kearns and Simpkins were responsible for monitoring the system logs for all of the servers within Northrop Grumman and attempting to find anomalies and infected servers. See Deposition of Roderick Press, Kearns's supervisor from July 2009 through Kearns's termination ("Press Dep., " ECF 55-4) at 36. Kearns and Simpkins were assigned to work a shift from 12:00 p.m. to 8:30 p.m. Kearns Dep. at 17.
Roderick Press, "a middle age black male, " Opp. at 2, replaced Jewell as manager of the CSOC in July 2009 and became Kearns's supervisor. See Kearns Dep. at 45. Kearns described Press's managerial style as "intimidating" and testified that other employees also found Press to be intimidating. Id. at 49. Similarly, Mundi testified that Press utilized a "military style of management, " had a "strong personality, " and could be "very patronizing." Deposition of Michael Mundi ("Mundi Dep., " ECF 55-5) at 17.
Press gave Kearns a "Meets Expectations" evaluation for the 2009 calendar year. Ex. 12 to Kearns Dep. As a result of the evaluation, Kearns received a raise for the first time since March 2007. Kearns Dep. at 58-59.
Press emailed Kearns on April 26, 2010, asking Kearns to confirm that Press had discussed with Kearns and Simpkins that "there may be a change in the direction of the Server Security Log monitoring." Ex. 22 to Kearns Dep. Kearns confirmed that he and Press had discussed the topic, but wrote that he "cannot speak for Jeanette and [does] not feel comfortable commenting about her role on things." Id. Kearns forwarded the email chain to Human Resources on April 30, 2010, claiming, id.:
[Press] has continuously used intimidation tactics to pull me in and turn me against Jeanette Simpkins.... Per the following email he did not provide additional information that took place during our conversation and questioning me in regards to her. Rod has threatened that if I do not go against Jeanette that he will place me on a 30 day PIP. I do not feel comfortable with this type of intimidating/harassing behavior to turn me against my co worker Jeanette that I work with on a daily basis.... It appears since I did not reply to his [attached] email in according to his liking on Monday, that he has constantly made intimidating comments such as "Are you my Corporate Spy."
Kearns sent another email to Human Resources on May 4, 2010, claiming that Press "is continuing to harass [him]" and "made degrading comments of [Kearns's] job knowledge." Id.
Stacey Wyland, an employee in Northrup Grumman's HR department, emailed Kearns to "set up some time to talk" about Kearns's concerns. Ex. 23 to Kearns Dep. In his reply, Kearns stated: "In all due respect, I do not feel comfortable discussing conditions with you. This is based on several incidents of Rod berating another employee. I have witnessed these incidents on more than one occasion." Id. Kathy Floyd, another HR employee, also reached out to Kearns. Floyd and Kearns met on May 17, 2010, but the meeting "lasted for less than 5 minutes" before Kearns told Floyd that "everything I need to say is in the emails" and then walked out of the office. Id.
On May 3, 2010, Kearns filed a charge of discrimination (the "Charge") with the Equal Employment Opportunity Commission ("EEOC"), Ex. 39 to Kearns Dep. at 6, which he supplemented on July 8, 2010. Id. at 7. In the initial charge, Kearns stated, id. at 6:
Recently, a co-worker had filed a formal complaint of abusive treatment against my Supervisor. As a result I believe I have been unjustly implicated in the issues that have occurred between the Supervisor and my co-worker. I am now being subjected to retaliatory treatment from Mr. Press. The retaliation has taken the form of being intimidated, subjected to a hostile work environment, and threatened with disciplinary actions.... Furthermore, I have been asked on several occasions about my plans to retire; therefore, this leads to me believe Mr. Press has taken issue with me and may be subjecting me to age discrimination.
Press sent Kearns an email on May 5, 2010, expressing disapproval of Kearns's job performance. See Ex. 25 to Kearns Dep. In particular, Press questioned Kearns's "job awareness, " expressed concern about Kearns's failure to follow guidelines, and pointed out Kearns's "lack of knowledge and lack of initiative." Id. Additionally, Press noted his displeasure at Kearns's practice of "recording what [Press says] in a green notebook" and then "sharing [Press's comments] with third parties." Id. The next day, May 6, 2010, Press sat with Kearns at his desk and reviewed a number of issues related to Kearns's job duties and performance. See Press Dep. at 67, 70-71; Ex. 31 to Kearns Dep.; Kearns Dep. at 150. Press also wrote a summary of the meeting, in which he noted that "Kearns needs to show significant improvement... in his ability to apply accepted industry methodology to event detection and analysis, improve his situational awareness..., and follow  policies, processes and guidelines for event detection and triage." Ex. 31 to Kearns Dep. Press added that he had not "seen the initiative and commitment from Mr. Kearns to excel in his current role. Mr. Kearns may be able to function in another area under [Northrop Grumman] and that opportunity should be explored...." Id.
Floyd contacted Kearns on June 9, 2010, to talk further with him about Press. Ex. 26 to Kearns Dep. According to Floyd, Kearns told her that "things were going good" and that he wanted to "hold off" on further discussing the situation. Id. Kearns met with Floyd again on June 28, 2010. See Ex. 27 to Kearns Dep. According to Kearns, he was courteous in the meeting and "answered what he felt were the direct relevant elements." Kearns Dep. at 125. Kearns again directed Floyd to various emails he had already provided to HR and asked Floyd not to contact him (Kearns) again. Kearns Dep. at 126; see Ex. 27 to Kearns Dep.
Nevertheless, plaintiff and Floyd met again on July 23, 2010. Ex. 29 to Kearns Dep. According to Floyd's notes, Kearns detailed numerous complaints about Press, most of which relate to above-described incidents or other similar encounters in which Press questioned Kearns's efficiency and/or effectiveness. Id. Kearns also told Floyd that "he felt like there is age discrimination" because "he's the oldest person in the section and that all the new people seem to be college age. He feels he is perceived as slower and that doesn't help him." Id. Kearns told Floyd that in October of 2009, Press asked Kearns when he was going to retire, and that in January 2010, a different Northrup Grumman employee asked him the same question. Id.
As noted, Press had previously advised Kearns about a "change in the direction of the server log monitoring team." Ex. 22 to Kearns Dep. Press's plan was to reintegrate Kearns and Simpkins with the rest of the Incident Analysts and not to limit server log monitoring to the hours between noon and 8:30 p.m. See Kearns Dep. at 131-32. Press explained at his deposition that he wanted to reintegrate Kearns and Simpkins into the overall analyst team "rather than just having two individuals that were responsible for covering [all] three shifts." Press Dep. at 88; see Kearns Dep. at 131-32. Press sent Kearns and Simpkins an email on June 3, 2010, asking them which shift they would like to work once they were reintegrated with the rest of the team. See Ex. 32 to Kearns Dep.
The ensuing email chain between Press, Kearns, and Simpkins was somewhat contentious; Press insisted that Kearns and Simpkins provide an immediate response, while Kearns and Simpkins repeatedly requested extra time to decide their shift preference. Id. At one point, Press wrote that Kearns had previously informed him that "he preferred to work 2nd shift, " i.e., from 4:00 p.m. to 12:30 a.m. Id. Kearns requested that Press forward him the email to which he referred; Press responded: "The email was sent by you. I apologize if you cannot find it but I will not forward the email." Id. On June 28, 2010, Press again asked Kearns and Simpkins to let him know which of the three standard shifts in the CSOC they wanted to work after their reintegration on July 31, 2010. Ex. 33 to Kearns Dep.; see Kearns Dep. at 160. Kearns did ...