Davis v. Mabus

162 F. Supp. 3d 467, 2016 U.S. Dist. LEXIS 17365, 2016 WL 592742
CourtDistrict Court, D. Maryland
DecidedFebruary 11, 2016
DocketCivil Action No. TDC-14-0148
StatusPublished
Cited by4 cases

This text of 162 F. Supp. 3d 467 (Davis v. Mabus) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Mabus, 162 F. Supp. 3d 467, 2016 U.S. Dist. LEXIS 17365, 2016 WL 592742 (D. Md. 2016).

Opinion

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge

Plaintiff Gregory L. Davis worked as a photographer for the United States Navy for less than a year before the Navy terminated his employment on June 29, 2012. Davis claims that his termination violated the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34 (2012), and constituted unlawful sex discrimination and retaliation under Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. §§ 2000e-17 (2012). Presently pending before the Court is a Motion for Summary Judgment (“Motion”) filed by Defendant Secretary of the Navy Ray Mabus (“the Navy”) on June 18, 2015. The Motion is fully briefed, and no hearing is necessary. See D. Md. Local R. 105.6. For the reasons set forth below, the Motion is GRANTED.

[470]*470BACKGROUND

The following facts are either undisputed or presented in the light most favorable to the nonmoving party.

I. Hiring

In March 2011, the Naval Test Wing Atlantic (“NTWL”) decided to hire a senior scientific/technical photographer to serve at Naval Air Station Patuxent River in St. Mary’s County, Maryland to provide “photographic support of aircraft design, development and test programs” and expert advice on photographic data. Position Description, Def.’s Renewed Mot. Summ. J. (“Mot. Summ. J.”) Ex. 5, at 2, ECF No. 35-8.1 On October 11, 2011, Gerard Garay, the Technical Director of NTWL’s Air Test and Evaluation Squadron Two Three (“VX-23”), hired Davis, who turned 40 years old in November 2011, as the photographer. Davis was not the first choice for the job. Garay’s first choice was a different man, Noel Hepp; his second choice was a younger woman, Kelly Schindler, who ultimately served as a contract photographer alongside Davis. Because of civil service rules providing a hiring preference for veterans, Garay was required to select Davis, who is a veteran, if he was deemed qualified. Garay had initially concluded that Davis was not qualified for the position because he did not have one year of specialized experience. However, when the Human Relations Office disagreed and determined that Davis was qualified for the job, Garay selected Davis rather than hire no one at all. According to Davis, on his first day the facilities manager pulled him aside to tell him that Garay would try to terminate him because he had wanted to hire Schindler.

II. Alleged Discrimination

Davis was the only NTWL flight photographer employed by the federal government to support VX-23. Pursuant to government contracts, however, NTWL also used the services of two contract flight photographers: Schindler, a 30-year-old woman employed by one of the Bowhead government contractor companies, and Elizabeth Wolter, a 27-year-old woman employed by Wyle Laboratories. Davis’s position description stated that he would serve as “team leader for the supporting photographers convened to support tests.” Position Description at 3. Although Davis sought to exercise oversight responsibility over Schindler and Wolter, Garay repeatedly instructed him not to try to supervise them. For example, on November 21, 2011, after Davis e-mailed Garay reporting that Schindler had not responded to his request for information from which he could “keep track of when she last flew,” Garay e-mailed Davis to direct him not to track the contractors’ flight time, stating “you’re out of your ’swim lane.’” Conduct E-mails, Mot. Summ. J. Ex. 9, at 2-3, ECF No. 35-12. Garay explained: “You’re not a supervisor of either of these ladies, nor do they fall under our commands. Rather they support us, both in different fashions.” Id. at 2. According to Garay, the reference to team leader In the position description “was an outdated remnant of the position when there were multiple government photographers within one organization,” and he never intended for Davis to assume that role over the contract photographers. Garay Deck, Mot. Summ. J. Ex. 2, ¶ 21, ECF No. 35-5 (emphasis in original).

During Davis’s employment, he was both literally and figuratively distant from [471]*471Garay. Physically, Davis worked alone in a “transient building” that was “a smaller metal construction building,” some distance from the building where Garay was located, ostensibly because it was the only space available that could house Davis and the computers, monitors, printers, and scanners used in photographic processing. Garay Dep., Pl.’s Opp’n Def.’s Renewed Mot. Summ. J. (“Opp’n”) Ex. 4, at 25-26, EOF No. 40-6; Garay EEO Decl., Opp’n Ex. 9, at 7 & 9, EOF No. 40-11. During the same time period, Wolter worked outside the base at Wyle’s offices. Schindler worked on base in the Visual Information Department, where she also performed other contractor duties.

Professionally, Davis had little to no relationship with Garay. During his tenure with NTWL, Davis met with Garay approximately four times. By contrast, Davis observed that Garay and Schindler had a close relationship. Davis frequently saw Schindler’s car parked outside of Garay’s office. Wolter, who used to work at Bow-head with Schindler, viewed Schindler as someone who “would often, and successfully, be friends with the supervisor, or the supervisor role [and] would then, in turn, get her way,” such as by being invited to “meetings that she did not necessarily belong at.” Wolter Dep., Opp’n Ex. 6, at 54-55, EOF No. 40-8. Schindler frequently missed or was late to briefings with no apparent consequence.

According to the Rules of Engagement for flight photography, assignments to conduct ground or test photography were supposed to be made in the following priority order: Davis, Wolter, Schindler. High visibility Public Affairs Office (“PAO”) assignments were to be given first to Schindler because of the nature of her contract, to be followed by Davis, then Wolter. Assignments were made by the staff of the VX-23 Operations Department, but the flight schedules were subject to Garay’s approval. Over time, Davis believed that he received progressively fewer and less desirable flight photography assignments than Schindler and Wolter. Garay has acknowledged that although Davis was originally prioritized, at the end of March 2012, Ga-ray requested that the Operations Department make assignments equally among all three photographers, he claims, to ensure that they all had enough flight time to stay proficient. The photographers received a bonus known as “flight pay” for each flight they undertook. Schindler Dep., Opp’n Ex. 5, at 68, EOF No. 40-7. All told, however, from November 2011 until Davis’s termination, Davis received 55.2 flight hours, Wolter had 44.9 hours, and Schindler received 15.9 flight hours.

On February 27, 2012, Davis contacted the Naval Air Warfare Center Aircraft Division (“NAWCAD”) Equal Employment Opportunity (“EEO”) Office and expressed concern that he might be fired “so that a woman could take his position.” Davis EEO E-mails, Opp’n Ex. 21, at 2, ECF No. 40-23.

On April 27, 2012, Garay received an email from the NAWCAD Communications Director raising concerns that Davis may have released a photograph publicly without authorization.

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162 F. Supp. 3d 467, 2016 U.S. Dist. LEXIS 17365, 2016 WL 592742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-mabus-mdd-2016.