Webster v. Rumsfeld

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-1739

KIRK E. WEBSTER,

Plaintiff - Appellant,

versus

DONALD H. RUMSFELD, Secretary of Defense;
JAMES R. CLAPPER, JR., National Imagery and
Mapping Agency,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (CA-03-
924-RWT)

Argued: September 19, 2005 Decided: December 1, 2005

Before TRAXLER, KING, and GREGORY, Circuit Judges.

Affirmed in part, reversed in part, and remanded by unpublished
opinion. Judge Traxler wrote the majority opinion, in which Judge
King joined. Judge Gregory wrote an opinion concurring in part and
dissenting in part.

ARGUED: David A. Branch, Washington, D.C., for Appellant. Tarra R.
DeShields-Minnis, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellees. ON
BRIEF: Allen F. Loucks, United States Attorney, Baltimore,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

2
TRAXLER, Circuit Judge:

Kirk E. Webster brought this action against the Secretary of

Defense for race discrimination and retaliation under Title VII of

the Civil Rights Act of 1964, see 42 U.S.C.A. §§ 2000e to 2000e-17

(West 2003), while employed with the National Imagery and Mapping

Agency (“NIMA” or “Agency”) of the Department of Defense, and for

NIMA’s alleged breach of a settlement agreement. Prior to

discovery, NIMA filed a motion to dismiss or for summary judgment,

and the district court granted summary judgment. We affirm in

part, reverse in part, and remand.

I.

Webster, an African-American male, was employed by NIMA as a

cartographer in 1988 and, beginning in 1993, worked the night shift

on the DE Alpha cartography system. In 1997, Webster filed an

Equal Employment Opportunity (“EEO”) complaint of race

discrimination against NIMA, which the parties settled by written

agreement. On April 5, 2000, Webster initiated a second EEO

complaint against NIMA, alleging that he had been subjected to

adverse employment actions during 1999 and 2000 that were motivated

by racial discrimination and in retaliation for his prior EEO

activity. Webster was a GS-11 level employee at the time.

Pending a hearing before the Administrative Law Judge (“ALJ”),

Webster and NIMA engaged in settlement negotiations. In September

3
2001, Webster’s counsel sent an e-mail message to NIMA’s counsel,

purporting to confirm several terms of a settlement agreement

between them, including (1) that Webster would receive a

retroactive promotion to Pay Band IV (equivalent to GS-13, Step 5)

from September 1999 through March 2000, and a retroactive promotion

within Pay Bank IV (equivalent to GS-14, Step 1) from March 2000

forward, as well as back pay in a lump-sum amount; (2) that Webster

would receive retroactive agency contributions to his Thrift

Savings Plan to reflect the back pay and merit increases, and (3)

that the Agency would annotate Webster’s 2001 performance appraisal

to reflect that his position was the equivalent of a Job Lead

position. Webster’s counsel also advised the ALJ of the settlement

negotiations and informed the ALJ that the request for an

administrative hearing would be withdrawn subject to final

confirmation of the settlement terms. On October 2, 2001, the ALJ

dismissed Webster’s complaint.

On October 17, 2001, the parties executed a written Settlement

Agreement in which NIMA agreed to (1) promote Webster to Pay Band

IV, retroactive to September 6, 1999, to include back pay; (2) pay

Webster’s attorneys fees and costs in the amount of $15,987

directly to counsel within 30 days of the execution of the

agreement; (3) pay Webster $10,000 for compensatory damages and

$770 for out-of-pocket medical expenses; and (4) restore 40 hours

of sick leave and 40 hours of annual leave. In return, Webster

4
agreed to relinquish all pending administrative complaints and

waived the right to assert the claims in court. Webster

acknowledged and agreed that there were “no other terms,

obligations or conditions of this agreement for either party to

this agreement, except those expressly stated herein.” J.A. 135.

In December 2001, Webster’s counsel advised NIMA’s counsel

that Webster had not received back pay for his promotion to GS-13,

Step 5, from September 1999 to March 2000, or for his promotion to

the GS-14, Step 1, from March 2000 to the present. Webster asserts

that NIMA’s EEO Complaint Manager John Sutkowsky advised Webster

that he would be promoted to GS-14 effective in the last pay check

for the month of December 2001, but later advised Webster

(consistent with the written agreement) that NIMA had only agreed

to a promotion to Pay Band IV (at GS-13, Step 1).

In January 2002, Webster notified the EEO Director and

Sutkowsky that NIMA had breached the settlement agreement by

failing to (1) retroactively promote him to GS-13, Step 5, and GS-

14, Step 1; (2) make retroactive contributions to his Thrift

Savings Plan; (3) annotate his 2001 performance appraisal; and (4)

timely pay his attorneys’ fees. NIMA admitted that the attorneys’

fee payment was technically late because NIMA had erroneously sent

the check to Webster instead of Webster’s attorney, but denied that

it had agreed to the other terms, which had been set forth in

Webster’s e-mail prior to execution of the written settlement

5
agreement, but not included in the final agreement. With the

exception of the attorneys’ fee error, NIMA advised Webster that

“the settlement terms are clear and unambiguous, and the terms have

been executed as promised.” J.A. 141.

In March 2002, Webster filed a third EEO complaint, alleging

that NIMA had breached the settlement agreement and discriminated

against him because of his race and in retaliation for his prior

EEO activity. The EEOC Office of Federal Operations held that

Webster had not shown a breach of the settlement agreement and

agreed with NIMA’s rejection of the claim. On November 4, 2002,

Webster initiated this action in the United States District Court

for the District of Columbia, alleging breach of the settlement

agreement, discrimination and retaliation. The case was

transferred to the District of Maryland on March 7, 2003.

In the summer and fall of 2002, while Webster’s third EEO

complaint was pending administrative review, Webster alleges that

a number of adverse changes occurred in his employment. Although

the cartographers had been advised that the DE Alpha workstations

were going to be replaced by IEC workstations during the 2004/2005

fiscal year, the replacement occurred ahead of schedule. By

November 2002, the DE Alpha workstations had been replaced in the

NIMA East location, Webster had been reassigned to a different

branch and office, and was no longer working as a DE Alpha

cartographer. By the end of the year, Webster’s work role was

6
formally changed to Geospatial Analyst, a position in which Webster

claims he had expressed no interest and had no skills to perform.

Also in the fall of 2002, Webster received a downgraded annual

evaluation. Although his performance appraisal was termed

“excellent,” he was not recommended for promotion to Pay Band V and

did not obtain a numerical rating high enough to qualify for a

bonus. According to Webster’s supervisor, who had recommended

Webster for promotion in earlier years, Webster was not recommended

in 2002 because he needed to be “more front and center” and “get

[himself] out a little more.” J.A. 40 (internal quotation marks

omitted). According to Webster, the DE Alpha workstations remained

in production in NIMA West until February 2004 and cartographers

similarly situated to him continued to receive promotions.

In January 2003, Webster filed his fourth EEO complaint,

alleging that the changes to his work role, and the subsequent

denial of a promotion recommendation and bonus, were due to

continued racial discrimination and retaliation. Webster did not

participate in the administrative investigation and planned instead

to amend his federal complaint to assert these claims.

The year 2003 brought more changes. Webster again received a

performance rating of “excellent,” as well as a salary increase,

but he failed to garner a score sufficient to qualify for a bonus.

Webster was also moved from night shift to day shift in August

2003, which resulted in the loss of a pay differential.

7
 As noted above, Webster’s complaint was transferred to the

Maryland district court in March 2003, but no discovery had taken

place. Given Webster’s mounting complaints, the parties filed a

joint motion to stay discovery and a consent motion for leave to

allow Webster to file an amended complaint to assert the additional

claims of discrimination and retaliation once the administrative

proceedings were exhausted. The motion was granted and Webster

filed his amended complaint in November 2003, asserting, in

addition to the breach of settlement claim, claims that the change

in his job title and duties, his lower performance ratings, his

failure to be recommended for promotions and bonuses, and his

reassignment from the night shift to the day shift were motivated

by racial and retaliatory animus.

In January 2004, NIMA filed a motion to dismiss or, in the

alternative, for summary judgment. NIMA’s motion was supported by

a number of documents, e-mails and affidavits executed by NIMA

officials which essentially claimed that the changes to Webster’s

job were the result of a restructuring that had taken place within

NIMA and Webster’s subsequent, less-than-stellar job performance.

In response, Webster filed an affidavit setting forth his

personal knowledge of the pending claims and a “Certification”

averring “under penalty of perjury that pursuant to Rule 56(f) [he

could not] present by affidavit or otherwise facts essential to

rebut factual assertions made by defendants without engaging in

8
discovery.” J.A. 98. Specifically, he asserted a need to depose

Sutkowsky, as well as Agency counsel Jack Rickert, to prove “that

the Agency agreed to terms other than those set forth in the

settlement agreement,” and a need to conduct discovery regarding

“the circumstances surrounding [his] change from evening shift to

day shift and the change in [his] work role, as well as the

objective standards for issuing [him] an evaluation in FY 2002

which resulted in denial of promotion recommendation and denial of

bonuses in FY 2003 and FY 2004, and how similarly situated co-

workers were evaluated.” J.A. 98-99.

On April 21, 2004, the district court denied Webster’s request

to conduct discovery and granted summary judgment to NIMA. The

district court ruled that Webster’s Rule 56(f) request was

deficient because it was labeled a “certification” instead of an

“affidavit,” was based upon Webster’s “knowledge, information, and

belief,” instead of his “personal knowledge,” and lacked the

requisite specificity regarding the discovery sought. With regard

to the merits, the district court ruled that the breach of

settlement claim failed because Webster sought to include terms not

included in the executed contract, and that the Title VII claims

failed because he had not identified any adverse employment action

that had been taken against him. The district court also ruled

that Webster had failed to exhaust his claim that the reassignment

from night shift to day shift was the result of retaliation.

9
 II.

We review the district court’s grant of summary judgment de

novo, see Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,

1167 (4th Cir. 1988), construing the evidence in the light most

favorable to the nonmoving party and drawing all reasonable

inferences in his favor, see Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 255 (1986). The standard for granting summary judgment

is well-settled. Summary judgment should be granted only “if the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“The party seeking summary judgment has the initial burden to show

absence of evidence to support the nonmoving party’s case.” Nguyen

v. CNA Corp., 44 F.3d 234, 237 (4th Cir. 1995) (internal quotation

marks omitted). Once he has done so, the nonmoving party “may not

rest upon the mere allegations or denials,” id. (internal quotation

marks omitted), but must “go beyond the pleadings and, by his own

affidavits, or by the ‘depositions, answers to interrogatories, and

admissions on file,’ designate ‘specific facts showing that there

is a genuine issue for trial.’ Celotex, 477 U.S. at 324.

As a general rule, however, summary judgment is not

appropriate prior to the completion of discovery. See id. at 322

10
(“[T]he plain language of Rule 56(c) mandates the entry of summary

judgment, after adequate time for discovery and upon motion,

against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party’s case, and on

which that party will bear the burden of proof at trial.” (emphasis

added)). Rule 56(f) provides the district court with the

discretionary authority, in appropriate cases, to deny a premature

motion for summary judgment where the nonmoving party demonstrates

that he has not had adequate time for discovery or needs additional

time to complete it. See Fed. R. Civ. P. 56(f) (“Should it appear

from the affidavits of a party opposing the motion that the party

cannot for reasons stated present by affidavit facts essential to

justify the party’s opposition, the court may refuse the

application for judgment or may order a continuance to permit

affidavits to be obtained or depositions to be taken or discovery

to be had or may make such other order as is just”); see also

Celotex, 477 U.S. at 326. Thus, “the non-moving party’s duty to

respond specifically to a summary judgment motion is expressly

qualified by Rule 56(f)’s requirement that summary judgment be

refused where the non-moving party has not had the opportunity to

‘discover information that is essential to his opposition.’” Strag

v. Board of Trustees, 55 F.3d 943, 953 (4th Cir. 1995) (quoting

Nguyen, 44 F.3d at 242); see also Anderson, 477 U.S. at 250 n.5

(noting that Rule 56(e) requirement that the nonmoving party come

11
forth with specific facts demonstrating a genuine issue for trial

“is qualified by Rule 56(f)’s provision that summary judgment be

refused where the nonmoving party has not had the opportunity to

discover information that is essential to his opposition”);

Celotex, 477 U.S. at 326 (“Any potential problem with [a] premature

[summary judgment motion] can be adequately dealt with under Rule

56(f), which allows a summary judgment motion to be denied, or the

hearing on the motion to be continued, if the nonmoving party has

not had an opportunity to make full discovery.” (footnote

omitted)).

We review a district court’s denial of a Rule 56(f) motion for

an abuse of discretion. See Nguyen, 44 F.3d at 242. However,

“[t]he denial of a Rule 56(f) motion for extension should be

affirmed where the additional evidence sought for discovery would

not have by itself created a genuine issue of material fact

sufficient to defeat summary judgment.” Strag, 55 F.3d at 954; see

also Anderson, 477 U.S. at 248 (“Only disputes over facts that

might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment. Factual disputes

that are irrelevant or unnecessary will not be counted.”).

12
 III.

With these standards in mind, we begin with Webster’s

contention that the district court erred in granting summary

judgment on his breach of settlement claim and erred in refusing to

allow him to conduct discovery into the terms of the settlement.

Settlement agreements are contracts and are therefore governed

by general principles of contract law. See Byrum v. Bear Inv. Co.,

936 F.2d 173, 175 (4th Cir. 1991). “[W]hen a written contract is

clear and unambiguous, it is the duty of the court, not the jury,

to determine its meaning.” Nehi Bottling Co. v. All-American

Bottling Corp., 8 F.3d 157, 161 (4th Cir. 1993). The parties’

intent may be “discerned from the four corners of the contract.”

United States v. Liranzo, 944 F.2d 73, 77 (2d Cir. 1991).

In the instant case, the terms of the settlement agreement are

quite specific. NIMA agreed to (1) promote Webster to Pay Band IV,

retroactive to September 6, 1999; (2) pay Webster’s attorneys’ fees

and costs directly to counsel within 30 days; (3) pay Webster

$10,000 for compensatory damages and $770 for out-of-pocket medical

expenses; and (4) restore 40 hours of sick leave and 40 hours of

annual leave to him. Webster agreed to relinquish all pending

administrative complaints, waived the right to assert these claims

in court, and agreed that there were “no other terms, obligations

or conditions of this agreement for either party to this agreement,

except those expressly stated herein.” J.A. 135.

13
 With the exception of Webster’s claim that NIMA breached the

provision that his attorneys’ fees be timely paid, however,

Webster’s claim is not that NIMA breached the terms set forth in

the written settlement agreement, but rather that NIMA breached

terms that the parties failed to include in the written settlement

agreement. These additional terms find their origin in the

unilateral e-mail sent by Webster’s counsel to NIMA’s counsel

during the course of the settlement negotiations, prior to

execution of the written settlement document.

Webster argues that NIMA acknowledged receipt of the

settlement e-mail from Webster’s attorney and, thereby, agreed to

its terms as well. NIMA, on the other hand, denies that it ever

agreed to these terms and asserts that this was communicated to

Webster’s counsel via a telephone call placed after the e-mail

message. From this alleged factual dispute, Webster asserts an

entitlement to discovery regarding the “actual” terms of the

settlement agreement, specifically the right to depose Rickert and

Sutkowsky to demonstrate “that the Agency agreed to terms other

than those set forth in the settlement agreement.” J.A. 98.

We are unpersuaded. The written contract is clear and

unambiguous, does not include the terms from the e-mail message

that Webster seeks to enforce, and cannot be varied by extrinsic

evidence. We also agree that Webster failed to demonstrate a need

for further discovery on this claim. The information Webster seeks

14
to establish via the requested depositions is not relevant or

necessary to the resolution of his breach of contract claim, and

would not create a genuine issue of material fact. Accordingly, we

affirm the district court’s grant of summary judgment to NIMA on

Webster’s breach of contract claim.1

IV.

We turn now to Webster’s claim that the changes in his work

role, his lowered performance ratings, his failure to receive

promotion recommendations and bonuses, and his transfer from the

night shift to the day shift were the result of race discrimination

and retaliation for his prior EEO activity, as well as his claim

that the district court erred in refusing to allow him an

opportunity to explore these claims through discovery.

1
Webster’s claim that NIMA failed to timely pay his attorneys’
fees is undisputed. The parties agree that the check was
inadvertently sent to Webster instead of his attorney and,
therefore, not made within 30 days. NIMA issued a second check to
Webster’s attorney in March 2002 and, thereafter, Webster returned
the money he had erroneously received the previous November. It
was also undisputed that Webster suffered no damage as a result of
the late payment to counsel. Thus, the district court correctly
observed that NIMA’s failure to pay the attorneys’ fees in a timely
manner was not a substantial or material breach of the settlement
agreement and that, even if it were, NIMA was entitled to summary
judgment because Webster suffered no damages.

15
 A.

Webster seeks to establish his claims of race discrimination

under the burden-shifting scheme of McDonnell Douglas Corporation

v. Green, 411 U.S. 792 (1973). Under this framework, Webster must

first establish a prima facie case of discrimination, i.e., that

(1) he “is a member of a protected class”; (2) that he “suffered

adverse employment action”; (3) that he “was performing [his] job

duties at a level that met [his] employer’s legitimate expectations

at the time of the adverse employment action”; and (4) the adverse

employment action occurred under circumstances raising an inference

of unlawful discrimination. Hill v. Lockheed Martin Logistics

Mgmt., Inc., 354 F.3d 277, 285 (4th Cir. 2004) (en banc). If

established, the burden then shifts to the defendant to come

forward with a legitimate, nondiscriminatory reason for the

challenged employment decision. See id. If the defendant meets

this burden, the onus returns to Webster to demonstrate that the

reason is pretextual and that discrimination was the motivating

force behind the decision. See id.

Webster’s retaliation claim also proceeds under the McDonnell

Douglas framework. See Karpel v. Inova Health Sys. Servs., 134

F.3d 1222, 1228 (4th Cir. 1998). To establish a prima facie case

of retaliation, a plaintiff must demonstrate that he “engaged in a

protected activity,” that his employer “took an adverse employment

action against [him],” and that “a causal connection existed

16
between the protected activity and the asserted adverse action.”

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 650 (4th Cir.

2002) (internal quotation marks omitted).

Here, the district court granted summary judgment because

Webster failed to establish any adverse employment action. See

James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir.

2004) (noting that “[r]egardless of the route a plaintiff follows

in proving a Title VII action, the existence of some adverse

employment action is required”) (internal citation and footnote

omitted). And, the district court concluded that Webster failed to

specify sufficiently the need for further discovery on these

issues. For the following reasons, we hold that, with the

exception of Webster’s claim arising from his transfer from the

night shift to the day shift, the district court prematurely

granted summary judgment to NIMA on Webster’s Title VII claims.

B.

“An adverse employment action is a discriminatory act which

adversely affects the terms, conditions, or benefits of the

plaintiff’s employment. Conduct short of ultimate employment

decisions can constitute adverse employment action.” Id. at 375-76

(internal citation, footnote, and quotation marks omitted). “A

tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote,

17
reassignment with significantly different responsibilities, or a

decision causing a significant change in benefits.” Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (emphasis added).

Thus, a reassignment can “form the basis of a valid Title VII

claim if the plaintiff can show that the reassignment had some

significant detrimental effect.” Boone v. Goldin, 178 F.3d 253,

256 (4th Cir. 1999). However, a mere change in an employee’s job

assignment, even if “less appealing to the employee, . . . does not

constitute adverse employment action.” Booz-Allen, 368 F.3d at

376. “Absent any decrease in compensation, job title, level of

responsibility, or opportunity for promotion, reassignment to a new

position commensurate with one’s salary level does not constitute

an adverse employment action even if the new job does cause some

modest stress not present in the old position.” Id. (internal

quotation marks and alteration omitted).

As an initial premise, we note that Webster has been afforded

no opportunity to conduct discovery into his claims of

discrimination and retaliation. The district court granted summary

judgment not because Webster had no evidence of discriminatory or

retaliatory motives, but because he had failed to allege an adverse

employment action as a matter of law. We disagree. In his

complaint and affidavit filed in opposition to the motion to

dismiss and for summary judgment, Webster asserts that NIMA changed

his job from cartographer to geospatial analyst, even though he did

18
not have the skills to perform in this new position, that he

thereafter received lower evaluation ratings from his supervisor (a

fact that does not appear to be disputed by NIMA) and that,

although his evaluations were termed “excellent,” his numerical

score was insufficient to qualify him for the yearly bonuses and

promotion recommendations that he had previously enjoyed. This

reassignment and its accompanying financial impact took place

shortly after Webster filed EEO complaints alleging race

discrimination and retaliation. He further asserts that similarly

situated employees were not reclassified and continued to advance

in their careers.

Under the circumstances, Webster has alleged adverse

employment actions sufficient to at least pursue discovery into his

claims. As noted above, a reassignment can “form the basis of a

valid Title VII claim if the plaintiff can show that the

reassignment had some significant detrimental effect,” such as a

“decrease in compensation, job title, level of responsibility, or

opportunity for promotion.” Boone 178 F.3d at 256-57; see also Von

Gunton v. Maryland, 243 F.3d 858, 867 (4th Cir. 2001) (noting that

“downgrade of a performance evaluation could effect a term,

condition, or benefit of employment”). Webster has alleged and

presented at least some evidence that the changes in his job and

evaluations that occurred in 2002 had a significant detrimental

19
effect upon him because they resulted in his not being recommended

for promotions and his being denied bonuses.

NIMA contends that Webster’s job changes were the result of

internal reorganization and that he was not recommended for a

promotion and denied bonuses because he was not an exceptional

employee. That may be, but Webster has had no opportunity to

conduct discovery on his claims, which could very well matter. For

example, Webster argues that he cannot respond to NIMA’s position

that the bonus was discretionary and that it was denied based upon

his job performance, as Webster has been unable to obtain discovery

concerning the bonus policy, the reasons underlying the denial of

the benefits to him, or the manner in which similarly-situated

employees were treated in this regard. Similarly, NIMA argues that

it was entitled to summary judgment because Webster was required to

point to someone who was similarly situated, outside his protected

class, and who was recommended for a promotion. NIMA glosses over

the fact, however, that this is precisely the allegation that

Webster seeks to establish through discovery.

For similar reasons, we are unpersuaded by NIMA’s claim that

Webster’s Rule 56(f) affidavit was deficient. Webster filed

affidavits setting forth the facts upon which he held personal

knowledge and filed a certification stating that he needed

additional discovery of NIMA personnel to corroborate his claims of

discrimination and retaliation. Given the lack of any discovery

20
and the lack of any meaningful opportunity on Webster’s part to

conduct discovery, we are satisfied that Webster’s Rule 56(f)

certification,2 along with his Rule 56(e) affidavit, were

sufficient to alert the court of the need for some discovery. Cf.

Nguyen, 44 F.3d at 242 (affirming denial of discovery pursuant to

Rule 56(f) where plaintiff failed to file any affidavit); Strag, 55

F.3d at 953 (finding affidavit, filed after discovery had been

conducted, was insufficient because it made only vague assertions

as to the additional discovery sought). In sum, although we

express no opinion as to the ultimate merit of Webster’s claims (or

whether they might ultimately survive summary judgment), we hold

that the district court prematurely dismissed Webster’s claims that

his reassignment, lowered evaluations, and denials of promotion

recommendations and bonuses that resulted, were adverse employment

actions motivated by discriminatory and retaliatory animus.

Accordingly, we remand the case for further discovery.

2
See 28 U.S.C.A. § 1746 (West 1994) (“Wherever, under any law
of the United States or under any rule, regulation, order, or
requirement made pursuant to law, any matter is required or
permitted to be supported, evidenced, established, or proved by the
sworn declaration, verification, certificate, statement, oath, or
affidavit, in writing of the person making the same . . ., such
matter may, with like force and effect, be supported, evidenced,
established, or proved by the unsworn declaration, certificate,
verification, or statement, in writing of such person which is
subscribed by him, as true under penalty of perjury, and dated, in
substantially the following form: . . . (2) If executed within the
United States, its territories, possessions, or commonwealths: “I
declare (or certify, verify, or state) under penalty of perjury
that the foregoing is true and correct. . . .”).

21
 C.

We affirm, however, the district court’s grant of summary

judgment to NIMA on Webster’s claim is that his transfer from the

night shift, which paid better, to the day shift was retaliatory.

Although we conclude that the district court erred in ruling that

Webster was required to exhaust his administrative remedies before

amending his federal complaint to include this additional

retaliation claim,3 we affirm the district court’s grant of summary

judgment as to the merits of the claim.

Viewing the facts in the light most favorable to Webster,

Webster cannot demonstrate a viable claim that the shift change was

made with a retaliatory motive. Webster and seventeen other

employees were notified that their night shift was being eliminated

due to a decreased workload, but were also invited to inform the

employer if the transfer to the day shift would create a hardship

upon any of them in terms of child care and the like. Webster “did

not object to the day shift change because his supervisor made it

clear that if he was going to advance, that he needed to accept

this change from a night shift to a day shift.” J.A. 521.

3
See Nealon v. Stone, 958 F.2d 584, 590 (4th Cir. 1992)
(holding that “a separate administrative charge is not [a]
prerequisite to a suit complaining about retaliation for filing the
first charge” (internal quotation marks omitted)); King v. Seaboard
Coast Line R.R. Co., 538 F.2d 581, 583 (4th Cir. 1976) (noting that
the scope of a Title VII suit is limited to those discrimination
claims stated in the initial EEO charge, claims reasonably related
to the original complaint, and claims developed by reasonable
investigation of the original complaint).

22
Accordingly, even if Webster could demonstrate that the loss of his

night shift differential occurred and that it was an adverse

employment action, he cannot demonstrate that he was singled out

and transferred to the day shift in retaliation for his engaging in

protected activities. We therefore affirm the district court’s

grant of summary judgment as to this claim.

V.

For the foregoing reasons, the decision of the district court

granting summary judgment to NIMA is hereby affirmed in part,

reversed in part, and remanded for further proceedings.

AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED

23
GREGORY, Circuit Judge, concurring in part and dissenting in part:

I respectfully dissent from the majority’s conclusion that the

district court properly granted NIMA’s motion for summary judgment

on Webster’s breach of contract claim regarding his promotion to

Pay Band IV and his retaliation claim regarding his lateral

transfer, as set forth in Sections III and IV.C, respectively. In

my view, discovery into both of those matters was necessary prior

to entering summary judgment against Webster. I concur with the

majority’s opinion in all other respects.

I.

The majority asserts that the terms of the settlement

agreement between Webster and NIMA were “quite specific,” “clear,”

and “unambiguous.” Op. at 12, 13. The majority thus concludes

that the discovery Webster requested regarding his promotion to Pay

Band IV was neither relevant nor necessary to resolving his breach

of contract claim. Op. at 13. However, I find that discovery was

warranted to clarify the meaning of the term “Pay Band 4” prior to

entering summary judgment on this claim.

We generally apply commercial contract principles to

government contract claims. United Kingdom Ministry of Def. v.

Trimble Navigation Ltd., 422 F.3d 165, 172 (4th Cir. 2005) (citing

Franconia Assocs. v. United States, 536 U.S. 129, 141 (2002);

United States v. Bankers Ins. Co., 245 F.3d 315, 321 (4th Cir.

24
2001)). For instance, “[i]f the terms of the contract are clear

and unambiguous, then we must afford those terms their plain and

ordinary meaning; however, if the terms are vague or ambiguous,

then we may consider extrinsic evidence to interpret those

provisions.” Providence Square Assocs., LLC v. G.D.F., Inc., 211

F.3d 846, 850 (4th Cir. 2000) (internal citations omitted). A

contract is ambiguous where it is capable “of admitting of two or

more meanings, of being understood in more than one way, or of

referring to two or more things at the same time.” Nehi Bottling

Co. v. All-American Bottling Corp., 8 F.3d 157, 161 (4th Cir. 1993)

(internal quotations and citations omitted).

The settlement agreement states that “[t]he agency will

promote the complainant to Pay Band 4, retroactive to 6 September

1999 within 30 days of the date that all parties have signed this

agreement.” J.A. 134. However, the term “Pay Band 4” is ambiguous

since it potentially refers to more than one GS-level and several

steps to which Webster could have been promoted. Although the

record is unclear as to the precise scope of Pay Band IV, Webster’s

supervisor testified that Pay Band IV was approximately the

equivalent of GS-13. J.A. 309.1 Webster has asserted that NIMA

1
According to the 1999 pay table issued by the United States
Office of Personnel Management (“OPM”), GS-13, Step 1 establishes
an annual base compensation of $53,793, while GS-13, Step 10
establishes an annual base compensation of $69,930. See
http://www.opm.gov/oca/99TABLES/GSannual/fsc/99GSf.htm (last
visited Nov. 14, 2005). GS-14, Step 1 sets forth an annual base
compensation of $63,567, while GS-14, Step 10 sets forth an annual

25
promoted him to GS-13, Step 2, which is within Pay Band IV, instead

of promoting him to GS-13, Step 5, which could also be within Pay

Band IV. J.A. 140.2 Moreover, the settlement agreement on its

face provides no clarification into the precise nature of Webster’s

promotion. Contrary to what the majority suggests, Webster’s

breach of contract claim regarding his promotion therefore rests

entirely on the ambiguity of the term “Pay Band 4,” as it is

employed in the settlement agreement, as opposed to terms

unincorporated into the agreement.

I find that discovery regarding the intent of the parties was

necessary with respect to the term “Pay Band 4” prior to entering

summary judgment on Webster’s breach of contract claim. Yet the

district court denied Webster’s Rule 56(f) motion to conduct

depositions of NIMA counsel Jack Rickert and EEO Complaints Manager

John Sutkowsky regarding the precise GS-level and step contemplated

base compensation of $82,638. Id. The official NIMA web site does
not provide information regarding Pay Band IV, as it was
established in 1999, but states that, as of January 9, 2005, Pay
Band IV encompasses an annual base compensation range of $64,478 to
$104,133 and is the equivalent of GS-13 through GS-14.
http://www.nga.mil/portal/site/nga01/index.jsp?epi-content=GENERI
C&itemID=85286150617abf00VgnVCMServer3c02010aRCRD&beanID=16296300
80&viewID=Article (last visited Nov. 14, 2005).
2
According to the 1999 OPM pay table, GS-13, Step 5 yields an
annual base compensation of $60,965, while GS-13, Step 2 yields an
annual base compensation of $55,586. J.A. 146.
To the extent that Webster further asserts that the parties
had agreed to promote him retroactively to GS-14, Step 1 from March
2000, however, this second promotion is not incorporated into the
settlement agreement and is therefore barred on the face of the
agreement.

26
for his promotion. J.A. 98, 536-37. Accordingly, I conclude that

the district court abused its discretion in denying Webster’s

motion for discovery regarding his promotion, and erred in granting

summary judgment on this claim. See Nguyen v. CNA Corp., 44 F.3d

234, 242 (4th Cir. 1995); Harrods Ltd. v. Sixty Internet Domain

Names, 302 F.3d 214, 245 (4th Cir. 2002).

II.

The majority further acknowledges that Webster’s transfer and

attendant loss of night pay differential could be considered an

adverse employment action for the purposes of his retaliation

claim. Op. at 21. The majority nevertheless concludes that, even

if the transfer constituted an adverse employment action, Webster

“cannot demonstrate that he was singled out and transferred to the

day shift in retaliation for his engaging in protected activities.”

Id. In so doing, the majority relies on Webster’s counsel’s

representation at oral argument on the motion for summary judgment

that Webster “did not object to the day shift change because his

supervisor made it clear that if he was going to advance, that he

needed to accept this change from the night shift to a day shift.”

J.A. 521.

The majority thus suggests that Webster himself viewed the

transfer as a positive change, to the extent that he cannot show

pretext. However, the record reflects that when Webster’s first-

27
line supervisor, David Bialek, directly asked him whether he had

any concerns regarding the transfer, Webster “gave me the

impression that he felt it was mandatory and that he had no

choice.” J.A. 232. Construed fairly, Webster’s failure to object

to the transfer reveals his sense of futility regarding the

situation, rather than any perceived concurrence with his

employer’s view that the transfer would enhance his promotion

opportunities.

Even assuming that Webster could increase his promotion

opportunities by heightened visibility on the day shift, Webster

never had the opportunity to demonstrate that this reason was not

the true reason for his transfer, but was merely a pretext for

retaliation. By ending the analysis with NIMA’s proffered reason,

the majority skips the third step of the McDonnell Douglas burden-

shifting framework, which affords Webster the opportunity to show

pretext or other evidence probative of retaliation. McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 804 (1973) (noting that after

the employer presents its nondiscriminatory reason for the adverse

employment action, the plaintiff “must . . . be afforded a fair

opportunity to show that [the employer’s] stated reason . . . was

in fact pretext”); see also Sutera v. Schering Corp., 73 F.3d 13,

18 (2d Cir. 1995) (summary judgment inappropriate where the

plaintiff, who admitted that he engaged in forgery, never had the

opportunity to demonstrate that his “forgery of physicians’

28
signatures was not the true reason he was discharged, but was

merely a pretext and that his discharge was motivated by

discrimination”); Paquin v. Fed. Nat’l Mortgage Ass’n, 119 F.3d 23,

28 (D.C. Cir. 1997); Kachmar v. SunGard Data Sys. Inc., 109 F.3d

173, 183 (3d Cir. 1997).

Significantly, information regarding the circumstances of

Webster’s transfer was exclusively in the hands of his employer.

Yet NIMA moved for summary judgment prior to the taking of any

discovery, thereby precluding Webster from opposing the motion in

a meaningful way. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 250 n.5 (1986) (summary judgment inappropriate where “the

nonmoving party has not had the opportunity to discover information

that is essential to his opposition”); Harrods, 302 F.3d at 246-47

(“‘[S]ufficient time for discovery is considered especially

important when the relevant facts are exclusively in the control of

the opposing party.’”) (quoting 10B Charles Alan Wright, Arthur R.

Miller & Mary Kay Kane, Federal Practice & Procedure § 2741, at 419

(3d ed. 1998)). Accordingly, I conclude that the district court

abused its discretion in denying Webster’s motion for discovery

regarding his transfer pursuant to Rule 56(f) of the Federal Rules

of Civil Procedure, and erred in granting summary judgment on this

claim at that juncture. See Nguyen, 44 F.3d at 242; Harrods, 302

F.3d at 245.

29