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Davis v. Mabus

United States District Court, D. Maryland

August 15, 2014

GREGORY L. DAVIS, Plaintiff,
RAY MABUS, in his official capacity as Secretary of the Navy, Defendant.


THEODORE D. CHUANG, District Judge.

Plaintiff Gregory L. Davis is an aerial photographer formerly employed by the Department of the Navy (the "Navy"). When the Navy terminated Davis's employment abler less than a year, Davis sued, alleging age discrimination in violation of the Age Discrimination in Employment Act ("AREA"), 29 U.S.C. §§ 621 et seq. (2012) (Count I), sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"). 42 U.S.C. §§ 2000e et seq. (2012) (Count II), and retaliation in violation of Title VII (Count III). Presently pending before the Court is the Navy's Motion to Dismiss, or in the Alternative, for Summary Judgment. ECF No. 7. Having reviewed the Complaint and the parties' memoranda, the Court finds no hearing necessary. See Local Rule 105.6 (D. Md. 2014). Because Davis fails to state a plausible claim for age or sex discrimination, the Motion, construed as one to dismiss, is granted as to Counts I and Davis is granted leave to amend the Complaint as to those Counts within 14 days. The Motion is denied as to Count III.


The following facts are presented as alleged in the Complaint. See ECF No. 1. On October 11, 2011, the Navy hired Davis, then 39 years old, as a senior scientific/technical photographer at Naval Air Station Patuxent River, Maryland. He worked specifically with Air Test and Evaluation Squadron Two Three ("VX 23"), one of three test squadrons that partly comprise Naval Test Wing Atlantic ("NTWL"), an air wing responsible for testing and evaluating aircraft and weapon systems. At VX 23. Davis's primary role was to produce high resolution images of the aircraft and weapon systems during tests. High quality images are an integral part of the testing and evaluation process, and the Navy relies heavily on aerial photographers not only to provide good images, but also to play an active role in analyzing them.

As a senior scientific/technical photographer, Davis was required to have a broad knowledge of the aircraft and weapon systems, the Navy's testing and evaluation processes, and advanced photographic equipment. He was also required to have the expertise necessary to assist in planning tests, specifically as it related to how photographs and video would be captured under difficult conditions and what camera equipment should be used.

Notably, Davis's job also required him to serve as a team leader for other professional photographers. Two such photographers, Kelly Schindler and Elizabeth Wolter, women in their twenties who were government contractors employed by NTWL and Wyle Laboratories. Inc., respectively, served at VX 23 with Davis on a pan-time basis. As Davis understood his role, he was the team leader to Schindler and Wolter. He was to direct Schindler and Wolter in completing their assignments and to take ultimate responsibility for the quality of the team's overall work.

Davis's direct supervisor was Gerald Garay, the Technical Director of VX 23. According to Davis, Garay assigned work to Schindler and Wolter and treated them preferentially, Although Davis was supposed to be first in line for aerial photography assignments and had more training, experience, and relevant knowledge than Schindler and Wolter, Garay gave them more flight assignments, and more favorable flight assignments, while Davis received so little flight time that he failed to maintain the minimum flight requirement. Wolter repeatedly failed to perform scheduled flight duties without consequence, even though a medical condition she had was not serious enough to classify her as not able to fly. Schindler was repeatedly late for. or did not attend, flight briefs and, on one occasion, arrived only after the pilot reached her by telephone. Despite VX 23's policy to ground photographers who did not attend the flight brief, Schindler flew anyway and was never held accountable. Though Schindler and Woke's photographs were of interior quality, Garay gave them each a 25 percent flight pay bonus.

According to Davis's coworkers. Garay, had a history of hiring younger women who "looked good in a flight suit, " Compl. ¶ 46, ECF No 1, and he specifically had an overly friendly, unprofessional relationship with Schindler. Garay met privately with Schindler at least twice a week for several months, and Schindler was seen in Garay's office so often that others referred to her as Garay's "girl toy. Id. ¶ 49. In contrast, during the nearly nine-month period. that Davis worked at VX 23, Garay met with him privately only four times - two of which were on Davis's first and last days of employment. Garay also prohibited Davis from serving as team leader and isolated Davis by placing hint in a building by himself, where Davis would miss calls about potential flight assignments if he left the building to perform required tasks at a different location.

Throughout Davis's service, Garay allowed others to treat Davis disrespectfully, and he sent Davis multiple condescending and hostile emails. At some point, allegedly in violation of the Navy's policy on addressing employment matters, Garay emailed a "survey that put [Davis] in a bad light with all aircrew." Id. ¶ 89. After the email survey, Davis "was treated as a novice by coworkers." id. ¶ 92, which, Davis alleges, created an unnecessary flight risk because it caused a lack of trust among the crew. Moreover, Garay accused Davis of damaging aircraft and directed Davis to eschew regulations of the United States Department of Defense on reviewing and releasing photographs. On May 15, 2012, Garay emailed Davis to accuse him of releasing a photograph for public use without authorization.

On May 16, 2012, Davis filed a formal complaint for age and sex discrimination and hostile working environment with the Navy's Equal Employment Opportunity ("EEO") office. That same day, Garay directed Schindler and Wolter to stop referring to Davis as the team leader. On June 20, 2012, Garay directed Davis to create a log sheet that would allow the contractors to sign out high-value government equipment without Davis's involvement and directed the security office to issue to Schindler and Wolter keys to the building in which Davis worked. When Davis arrived at work on June 25, 2012, he discovered he was locked out of the building where he worked alone. Finally, on June 28, 2012, Garay informed Davis, then 40 years old, that he had been terminated.

Following Davis's termination, Garay unsuccessfully tried to install Schindler as a senior scientific/technical photographer and later created a support contract position specifically for her. After pursuing EEO administrative remedies, Davis filed this action on January 17, 2014, the Navy now moves to dismiss.


I. Legal Standard

The Navy has moved to dismiss or, in the alternative, for summary judgment, and has attached 18 exhibits to its Motion. Typically, when deciding a motion to dismiss under Federal Rule of Civil Procedure 12(h)(6), the Court considers only the complaint and any attached documents "integral to the complaint." Sec'y of State far Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Rule 12(d) requires courts to treat such a motion as a motion for summary judgment where matters outside the pleadings are considered and not excluded. Fed.R.Civ.P. 12(d). Before converting a motion to dismiss to one for summary judgment, courts must give the nonmoving party "a reasonable opportunity to present all the material that is pertinent to the motion." Id. "Reasonable opportunity" has two requirements: (1) the nonmoving party must have some indication that the court is treating the 12(b)(6) motion as a motion for summary judgment, and (2) the nonmoving party "must he afforded a reasonable opportunity for discovery" to obtain information essential to oppose the motion. Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985) (citation and internal quotations omitted). Although the notice requirement is not onerous, requiring only that the nonmoving party be aware that material outside the pleadings is pending before the Court. id, the reasonable opportunity requirement is more demanding. To show that a reasonable opportunity for discovery has not been ...

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