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Smith v. Integral Consulting Services, Inc

United States District Court, D. Maryland

August 26, 2016



          DEBORAH K. CHASANOW United States District Judge

         Presently pending and ready for resolution in this breach of contract case are: (1) a motion for summary judgment filed by Defendant Integral Consulting Services, Inc. (“Defendant” or “Integral”) (ECF No. 70); (2) a motion to seal filed by Plaintiff Stephen Smith (“Plaintiff”) (ECF No. 84); (3) Plaintiff's motion to strike (ECF No. 87); and (4) Defendant's motion for leave to file supplemental briefing (ECF No. 90). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion for summary judgment will be granted in part and denied in part; the motion to seal will be denied; the motion to strike will be denied; and the motion for leave to file supplemental briefing will be denied.

         I. Background

         A. Factual Background[1]

         Defendant Integral Consulting Services, Inc. is an information technology solutions company headquartered in Gaithersburg, Maryland. (ECF No. 71-1, at 41-43). Integral staffs the Biometric Intelligence Program Support Services Contract (“BIP Contract”), which is run by the National Ground Intelligence Center, a division of the Intelligence and Security Command of the United States Army. (Id. at 51-52). Integral was awarded the BIP Contract in September 2012, and BIP operations are carried out in Charlottesville, Virginia.

         Plaintiff Stephen Smith is a United States Air Force and Army veteran with training and experience in interrogation and human intelligence. From November 2011 to March 2012, Plaintiff worked in Charlottesville for Scientific Applications International Corporation, a subcontractor for the BIP Contract-holder before Integral, as an analytical support/intelligence analyst. (Id. at 59-60).

         In spring 2012, Integral was preparing a bid to be the prime contractor for the BIP Contract and contacted Plaintiff regarding a potential position on the BIP Contract. On April 6, 2012, Integral sent Plaintiff an offer to work on the BIP Contract, contingent upon Integral winning the bid, which Plaintiff signed and returned. (Id. at 64-65). Integral submitted Plaintiff's resume as part of its bid. The following month, not yet having been awarded the BIP Contract, Integral offered Plaintiff a position on a different contract, “subject to final confirmation” by the government client. (ECF No. 83-10, at 2). Plaintiff was reportedly not approved by the government to work on that contract and was not hired for that position. (ECF No. 83-3, at 20-24).

         In June 2012, Plaintiff was offered a CI Analyst position in Kabul, Afghanistan, with military contractor Mission Essential Personnel. (ECF No. 71-1, at 75). Plaintiff accepted the position, and left the United States to work in Afghanistan on July 15.

         Integral was awarded the BIP Contract on September 5, 2012, and became the prime contractor for the BIP Contract. (Id. at 77). Under the BIP Contract, Integral was required to provide ninety employees within sixty days of being awarded the contract. Integral was to receive a fee based on a percentage of the total value of the labor and services it provided. Integral had committed to giving preference in staffing the BIP Contract to incumbents working for the previous contractor in its bid proposal, and primarily filled the BIP Contract slots with those incumbents. Integral Vice President of Intelligence Operations Mary Pearl was charged with identifying candidates and obtaining government approval to place employees on the BIP Contract. (ECF No. 83-4, at 31).

         Integral recruiter Katrin Kassiri contacted Plaintiff on September 7, informing him that Integral had won the contract and inquiring as to his availability. (ECF No. 71-1, at 79-83). Plaintiff informed Integral that he was working in Afghanistan but would be interested in the position, and they began negotiations. Plaintiff had several email and telephone conversations with Ms. Kassiri regarding the position, both before and after receiving a formal offer. During these negotiations, they discussed Plaintiff's salary, relocation expenses, start date, and notice to his current employer. Ms. Kassiri repeatedly told Plaintiff that Integral had an open position available for him on the Contract. (See Id. at 80 (“You can start as soon as possible. Once we send you the offer letter how soon can you be here? . . . The start date is Sep. 17th. So the sooner you can be here [the] better. . . . You need to be here ASAP so you won't lose your spot.”)).

         On September 11, Integral Director of Human Resources Thomas Williams emailed Plaintiff a signed offer letter dated September 10.[2] The cover email stated, “I am pleased to announce that Integral has won the BIP contract and we would like to have you come on board ASAP. Please let me know when you would be available to start with us.” (Id. at 85). The offer letter stated: “This offer is an offer for employment at will and is not in any way an offer either implied or expressed, for employment for any term or guarantee of employment for any term.” (Id. at 87-88). It offered an annual salary of $83, 000 and a joining bonus of $2, 000, with a start date of September 17. A Confidentiality and Non-Solicitation Agreement was attached to the letter. The letter did not disclose that the offer was subject to government approval or contain other contingencies.

         The offer letter had been signed by Mr. Williams and included a section for Plaintiff's signature that stated: “I fully understand the terms of employment stated herein, and wish to accept this employment offer of Integral Consulting Services, Inc. AGREED AND ACKNOWLEDGED.” (Id. at 88). Plaintiff signed and dated the letter September 12, 2012. The same day, he emailed the signed copy to Mr. Williams and Ms. Kassiri and confirmed that he would report to Charlottesville, Virginia, on October 1. (Id. at 87-95). Plaintiff also gave notice of his resignation to Mission Essential Personnel and arranged to relocate to the United States at that time. (Id. at 27).

         Between September 12 and 24, Integral and Plaintiff exchanged emails regarding transferring Plaintiff's security clearance to Integral and a possible salary increase. On September 24, Plaintiff sent Mr. Williams an update on his travel delay in returning from Afghanistan. He explained that he was in Kuwait awaiting a flight to the United States, and asked for a start date of October 8 and information on where he was to report in Charlottesville. (ECF No. 83-18, at 3).

         After Plaintiff had resigned his former position and while he was in transit to the United States on September 27, Integral emailed him a revised offer letter for employment. (ECF No. 71-1, at 106-07). The revised offer reduced Plaintiff's base salary to $76, 000 and eliminated the joining bonus. In all other terms, including a September 17 start date, it was identical to the September 10 offer Plaintiff had signed. Plaintiff received the emailed offer letter while in Kuwait, but was unable to sign and return the letter from there. Plaintiff arrived in the United States in Indiana for out-processing, then traveled to Pennsylvania. Plaintiff testified that he signed the September 27 offer in early October while in Pennsylvania, and faxed the signed letter to Integral from Pennsylvania. (ECF Nos. 83-6, at 14; 71-1, at 33). Integral accepts this testimony as true for the purposes of this motion, but disputes whether Plaintiff returned the signed revised offer letter (ECF Nos. 71, at 10; 86, at 11), and offers testimony that it never received a signed copy of the revised letter at all (ECF No. 86-1, at 20-21).

         After arriving in the United States without having received an updated start date, Plaintiff contacted Ms. Kassiri. (ECF No. 83-6, at 20). Ms. Kassiri informed him that the government was staggering start dates and new start dates were being assigned. On October 10, still not having been told when he should report to Charlottesville, Plaintiff contacted Mr. Williams. (ECF No. 83-18, at 2-3). Mr. Williams emailed Charlottesville office manager Carrie Coviello for Plaintiff's start date, who in turn emailed Ms. Pearl. Ms. Pearl responded to Ms. Coviello and Mr. Williams on October 11, “Stephen Smith has not been approved. I know he was sent a contingent but has no confirmation to return to the program so there is no start date.” (ECF No. 83-21, at 2). Mr. Williams told Plaintiff: “We are working on your request with our Integral colleagues in Charlottesville, VA in order to get a start date for you. They are aware of your situation, but they have to go through the necessary processes to provide a start date for all employees.

         Thank you for your patience and as soon as we have more information we will contact you.” (ECF No. 83-18, at 2).

         Plaintiff then contacted Integral Executive Vice President Abhai Johri directly regarding the delay, who informed Plaintiff that he did not have a start date because the government client had not yet approved Plaintiff to work on the BIP Contract. (ECF No. 83-6, at 26). At the time he returned from Afghanistan, Plaintiff believed that the government had already consented to hiring him onto the BIP Contract and “would have never left” his job otherwise. (Id. at 22). After Mr. Johri told Plaintiff he had not yet been approved, Plaintiff contacted Ms. Kassiri, who was unaware that Plaintiff had not already been approved. Ms. Kassiri states that in her nearly six years of employment at Integral, it was Integral's practice to check the clearances of prospective employees before sending non-contingent offers of the sort sent to Plaintiff. (ECF No. 83-8, at 4).

         On October 19, Mr. Williams sent a letter to Plaintiff rescinding the offer. (ECF No. 71-1, at 109). The rescission letter stated that the offer was rescinded because the government did not consent Plaintiff's hiring.

         B. Procedural Background

         Plaintiff initiated this case in Pennsylvania state court. After removal to the United States District Court for the Western District of Pennsylvania, Defendant moved to dismiss for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). (ECF No. 6). The motion was granted and the case was transferred to this district under 28 U.S.C. § 1631. (ECF Nos. 19; 20).

         After the case was transferred, Defendant moved to dismiss for failure to state a claim, or in the alternative for partial judgment on the pleadings. (ECF No. 34). Plaintiff sought leave to amend his complaint in response and filed the Amended Complaint on February 12, 2015. (ECF No. 40). Defendant again moved to dismiss the Amended Complaint for failure to state a claim (ECF No. 41), which was denied (ECF No. 48).

         Discovery closed on September 18, 2015. (ECF No. 58). Prior to the close of discovery, Plaintiff moved to compel Defendant to produce a discrete set of responsive documents and answer interrogatories concerning its corporate earnings on the BIP Contract and wealth. (ECF No. 56). The court denied the motion to compel without prejudice to renewal later. (ECF No. 57). Defendant then filed a motion for leave to conduct the deposition of a former employee, Ms. Kassiri, whose declaration was filed with Plaintiff's reply concerning the motion to compel. (ECF No. 61). Defendant recited that the taking of the deposition would not affect the schedule for the filing of a dispositive motion. The court therefore concluded that the witness' testimony was only relevant to the issue involved in the motion to compel and not relevant to the issues to be raised in the dispositive motion. Defendant's motion was accordingly denied without prejudice to renewal after resolution of the dispositive motion. (ECF No. 66).

         On February 1, 2016, Defendant filed a motion for summary judgment. (ECF No. 70). Plaintiff filed a response in opposition on March 22 (ECF No. 83), and an unopposed motion for leave to file confidential material under seal regarding two exhibits attached to his filing (ECF No. 84). Defendant replied on April 8. (ECF No. 86). Plaintiff filed a motion to strike exhibits attached to Defendant's reply and references to those exhibits in the reply on May 12 (ECF No. 87), to which Defendant filed a response on May 31 (ECF No. 88). Plaintiff replied on June 14. (ECF No. 89). Finally, Defendant filed a motion for leave to file a supplemental brief in support of its motion for summary judgment on June 24. (ECF No. 90).

         II. Plaintiff's Motion to Strike

         After this motion was fully briefed, Plaintiff moved to strike two exhibits to Defendant's reply: the errata sheet prepared by Ms. Pearl following her deposition (ECF No. 86-1, at 11-13), and an email from Ms. Pearl to Mr. Johri referenced in the errata sheet (ECF No. 86-1, at 15-16). (ECF No. 87). The motion to strike must be resolved first because Defendant relies on the evidence that Plaintiff seeks to strike in connection with the motion for summary judgment. See Stanley Martin Cos. v. Universal Forest Prods. Shoffner LLC, 396 F.Supp.2d 606, 611 (D.Md. 2005) (stating that prior to reviewing motion for summary judgment, the court must evaluate the admissibility of the evidence used in support of or in opposition to the motion).

         Many of the corrections which Plaintiff argues should be struck refer to pages of Ms. Pearl's deposition that are not in the record. Ms. Pearl's corrections to pages 55, 65, and 70 will be disregarded because those pages of her deposition were not included in the record by either party. Both parties have included additional deposition testimony in their briefing on the motion to strike which was not provided during the briefing of the motion for summary judgment. This supplemental evidence will be disregarded.

         Fed.R.Civ.P. 30(e)(1) permits “changes to deposition testimony in ‘form or substance' if the changes are made within 30 days of notification that the transcript is available and accompanied by the reasons for making them.” Wyeth v. Lupin Ltd., 252 F.R.D. 295, 296 (D.Md. 2008). “[C]ourts have differed in the latitude granted to deponents seeking to alter their testimony, ” Maryland Elec. Indus. Health Fund v. MESCO, Inc., Civ. Action No. ELH-12-505, 2014 WL 853237, at *16 (D.Md. Feb. 28, 2014), but recent decisions of this court “interpret the rule as foreclosing changes that materially alter the testimony or contradict the testimony, ” id. (quoting Wyeth, 252 F.R.D. at 295).

         Ms. Pearl's correction to page 60, line 14 seeks to add to her response in order to clarify that she was “unsure whether Mr. Smith's resume was disapproved or whether he was never approved.” Ms. Pearl testified repeatedly that she did not recall whether Plaintiff was disapproved or never approved (see, e.g., ECF No. 86-1, at 8-9), and therefore this correction does not contradict or materially alter her testimony.

         The remaining disputed corrections and the email that they reference go to whether Ms. Pearl and Mr. Johri discussed Plaintiff's employment on the BIP Contract after October 2012. A year after the events in dispute, Ms. Pearl sent an email to Mr. Johri in which she stated that the government had disapproved Plaintiff as a candidate on the BIP Contract. (ECF No. 86-1, at 15). The corrections and email do not contradict Ms. Pearl's testimony that she does not recall whether Plaintiff was submitted for approval and did not recall having further discussions about Plaintiff's candidacy. (ECF No. 83-4, at 17). The email provides a more accurate answer to Plaintiff's question in showing that Ms. Pearl did discuss Plaintiff the following year in that email, but does not contradict her testimony at the time that she did not recall such a discussion.

         Although Ms. Pearl's corrections do not materially alter her testimony, the errata corrections regarding the email and the October 2013 email are immaterial to Plaintiff's claims. Whether Ms. Pearl and Mr. Johri discussed Plaintiff's candidacy between the time his offer letter was sent and rescinded is not addressed by the errata or email, and would in any event not be evidence of a material false statement to Plaintiff on which he could have reasonably relied or provide support for an inference of intent to defraud. Such a conversation necessarily would have taken place after the alleged misrepresentations were made. Similarly, their email exchange the following year cannot provide a basis for Plaintiff's claims, and it is not offered for its truth (although whether or not Plaintiff was disapproved by the government is also immaterial to his claim, as discussed more fully infra).

         Plaintiff's motion to strike will be denied, but those references in the errata to testimony outside the record will be disregarded.

         III. Integral's Motion ...

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