United States District Court, D. Maryland
DEBORAH K. CHASANOW United States District Judge
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
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,
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).
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).
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.
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).
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.”)).
September 11, Integral Director of Human Resources Thomas
Williams emailed Plaintiff a signed offer letter dated
September 10. 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.
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).
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).
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).
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
you for your patience and as soon as we have more information
we will contact you.” (ECF No. 83-18, at 2).
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).
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.
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).
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
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).
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).
Plaintiff's Motion to Strike
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).
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.
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
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.
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.
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
motion to strike will be denied, but those references in the
errata to testimony outside the record will be disregarded.
Integral's Motion ...