UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1580
JOSEPH LANDINO,
Plaintiff-Appellant,
v.
BETTY J. SAPP, Director, National Reconnaissance Office;
JOHN O. BRENNAN, Director Central Intelligence Agency
Defendants-Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:10−cv−01385−LO−JFA)
Submitted: March 4, 2013 Decided: April 30, 2013
Before AGEE, KEENAN, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
R. Scott Oswald, Subhashini Bollini, THE EMPLOYMENT LAW GROUP,
P.C., Washington, D.C., for Appellant. Neil H. MacBride, United
States Attorney, Stephen J. Obermeier, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Joseph Landino (“Landino”) appeals from the district
court’s dismissal of his complaint, in which Landino alleged
that he suffered gender discrimination by his supervisors at the
National Reconnaissance Office (“NRO”). For the reasons set
forth below, we affirm the judgment of the district court.
I
Landino was a senior intelligence officer with the Central
Intelligence Agency (the “Agency”) assigned to the NRO, where he
served as a Deputy Director under the immediate supervision of
Jan Janssen (“Janssen”). In 2007, shortly after Landino began
working under Janssen, he contacted the Agency’s Office of Equal
Employment Opportunity (“OEEO”) and complained that Janssen and
her supervisor, Ralph Haller (“Haller”), created a hostile work
environment by, among other things, screaming, using profanity,
and slamming doors (the “2007 Complaint”). One incident cited by
Landino involved Janssen yelling at him regarding a colleague’s
failure to complete assigned tasks. During this encounter,
Janssen said “if [the colleague] has a problem with women, tell
him the women are in charge!” J.A. 85. Based on this incident,
an OEEO Counselor asked Landino whether he believed that he was
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a victim of sexual harassment. 1 J.A. 67, 297. Landino replied,
“no.” J.A. 67, 297. Landino’s 2007 Complaint also contained a
list of 23 aggrieved individuals, 11 of whom were women. J.A.
79–81, 90.
In 2008, Landino filed a second complaint (the “2008
Complaint”) with OEEO, alleging that Janssen and Haller had
retaliated against him for filing the 2007 Complaint by giving
him a negative performance review. In a form accompanying the
2008 Complaint, Landino was asked whether he believed he was the
subject of discrimination on the basis of “color, race, age,
sex, disability, national origin, religion or as an act of
reprisal.” Landino answered by writing only “reprisal.” J.A.
106.
Following OEEO’s investigation of the 2007 and 2008
Complaints, Landino signed a four-page Resolution Agreement and
General Release (the “Settlement Agreement”), releasing all
claims relating to those complaints. In exchange for this
release, the Agency expunged Landino’s negative review from his
record and permanently removed Janssen as his supervisor.
1
The parties disagree regarding whether the OEEO Counselor
asked Landino if he was the victim of sexual harassment or
whether she asked Landino if he had been discriminated against
on the basis of gender. Because we must review the facts of this
case in the light most favorable to Landino, we accept his
version of events.
3
Landino later applied for a new assignment within the NRO
in March 2008, and, though a selection committee considered his
application, he ultimately was not selected (the “March 2008
Employment Decision”). He instead accepted a one-year position
outside of the NRO. In February 2009, Landino applied for
another new position in the NRO, but, in April 2009, was told
that he was not eligible for the position because the Settlement
Agreement restricted him from serving in Janssen’s supervisory
chain (the “April 2009 Employment Decision”). Landino instead
accepted assignment as National Space Environmental Monitoring
Liaison (“NSEML”).
One of Landino’s colleagues later informed him that Janssen
and Haller conspired to ensure that the March 2008 and April
2009 Employment Decisions were adverse to Landino. He then
secured counsel and filed a formal administrative complaint of
discrimination and retaliation (the “2009 Complaint”). In his
2009 Complaint, Landino alleged that he had complained of gender
discrimination in his 2007 and 2008 Complaints and that Janssen
and Haller had retaliated against him as a result of those
complaints by ensuring that the March 2008 and April 2009
Employment Decisions were adverse to him and by ensuring his
placement in the NSEML position. Landino contends that position
was not commensurate with his qualifications and experience.
4
The OEEO investigated Landino’s claims and concluded that
Landino settled the claims contained in his 2007 and 2008
Complaints. It further concluded that Landino’s claims relating
to the March 2008 and April 2009 Employment Decisions were time-
barred because Landino failed to contact the OEEO within the 45-
day time limit. It accepted for investigation Landino’s claim
that his placement in the NSEML position was discriminatory, but
ultimately concluded that no discrimination had occurred.
In December 2010, Landino filed a complaint in the United
States District Court for the Eastern District of Virginia,
alleging gender discrimination (Count I), retaliation in the
March 2008 and May 2009 Employment Decisions, (Counts II–III)
and retaliation by his placement in the NSEML position (Count
IV). Landino also alleged three additional retaliation claims,
not at issue in this appeal (Counts V–VII).
In lieu of an answer, the Agency filed a Motion to Dismiss
and a Motion for Summary Judgment. Landino opposed both motions
and also filed a Rule 56(d) motion to stay consideration of the
Agency’s Motion for Summary Judgment. The district court denied
Landino’s Rule 56(d) motion and granted the Agency’s Motion to
Dismiss, dismissing Counts I–IV with prejudice and dismissing
Counts V–VII without prejudice. Landino then filed a motion for
reconsideration pursuant to Rule 59(e), which the district court
also denied.
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Landino timely appealed. We have jurisdiction under 28
U.S.C. § 1291.
II
We review de novo a district court’s grant of a
Rule 12(b)(6) motion to dismiss. Decohen v. Capital One, N.A.,
703 F.3d 216, 222 (4th Cir. 2012). On review, we accept as true
all factual allegations contained in the complaint and consider
whether the complaint contains sufficient facts to “state a
claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
By virtue of the significant discretion district courts
have to manage their own dockets, we will not overturn a
district court’s decision regarding the mechanics of the trial
process, including the denial of a Rule 56(d) motion, “unless
there is a clear abuse of discretion, or unless there is a real
possibility the party was prejudiced by the denial of the
extension.” Strag v. Bd. of Trustees, 55 F.3d 943, 954 (4th Cir.
1995). We review a district court’s denial of a Rule 59(e)
motion for an abuse of discretion. Sloas v. CSX Transp., Inc.,
616 F.3d 380, 388 (4th Cir. 2010).
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III
Landino raises three issues on appeal. He first contends
that the district court wrongly dismissed Count I of his
complaint by enforcing the Settlement Agreement against him. He
then argues that the district court improperly dismissed Counts
II–IV of his complaint by wrongly concluding that his 2007 and
2008 Complaints were not protected activity within the meaning
of Title VII. He last asserts that the district court improperly
denied two procedural motions.
With respect to Count I, Landino entered into a binding
Settlement Agreement with the Agency, thereby releasing the
claim he asserts in this count of his complaint. See 29 C.F.R.
§ 1614.504(a) (“Any settlement agreement knowingly and
voluntarily agreed to by the parties, reached at any stage in
the complaint process, shall be binding on both parties.”).
Landino argues that we should invalidate the Settlement
Agreement because he was given only ninety minutes to review it
and because he did not have the assistance of counsel.
Considering the totality of the circumstances, however, we
conclude that Landino knowingly and voluntarily executed the
Settlement Agreement. Cf. Melanson v. Browning-Ferris Indus.,
Inc., 281 F.3d 272, 276 n.4 (1st Cir. 2002) (reviewing the
voluntariness of a settlement agreement under the totality of
the circumstances). Landino is a highly educated individual, he
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negotiated the terms of the Settlement Agreement, the Settlement
Agreement is short and is written in clear language, and the
consideration provided in the Settlement Agreement is adequate.
Though Landino did not benefit from the advice of counsel, he
affirmatively declined his opportunity to secure the assistance
of counsel in his OEEO proceedings. Thus, the Settlement
Agreement is binding upon Landino and permanently resolves the
claim he asserts in Count I of his complaint.
Regarding Counts II and III, Landino failed to timely
assert the Title VII retaliation claims he asserts in those
counts of his complaint. A Title VII plaintiff “must initiate
contact with [an EEOC] Counselor within 45 days of the date of
the matter alleged to be discriminatory.” 29 C.F.R.
§ 1614.105(a)(1). Landino does not dispute that he first raised
these retaliation claims on July 14, 2009, more than 45 days
after the occurrence of the March 2008 and April 2009 Employment
Decisions. The district court therefore properly dismissed
Counts II and III.
In addition, Landino cannot establish that he was
retaliated against because of protected activity. A plaintiff
asserting a retaliation claim under Title VII must establish
that “(1) [he] engaged in protected activity, (2) the employer
took adverse action, and (3) there was a causal connection
between the two.” Karpel v. Inova Health Sys. Servs., 134 F.3d
8
1222, 1228 (4th Cir. 1998). Protected activity under Title VII
includes complaints of discrimination based upon “race, color,
religion, sex or national origin.” Balazs v. Liebenthal, 32 F.3d
151, 159 (4th Cir. 1994). To demonstrate a causal connection
between the protected activity and the adverse action, a
plaintiff must also show that his employer knew that he engaged
in protected activity. Dowe v. Total Action Against Poverty, 145
F.3d 653, 657 (4th Cir. 1998). Here, Landino did not engage in
protected activity. A review of Landino’s 2007 and 2008
Complaints demonstrates that Landino had serious concerns about
Janssen’s general behavior toward all of her subordinates. The
record simply does not support Landino’s claim that he was
asserting a gender discrimination claim. Still, even assuming
that Landino’s 2007 and 2008 Complaints were protected activity
within the meaning of Title VII, Landino presents no evidence
that any of his supervisors responsible for the alleged
discrimination knew that he was claiming discrimination based on
a protected status. Landino affirmatively denied that he was
asserting a sexual harassment or gender discrimination claim in
his 2007 and 2008 Complaints. 2 And it was not until after his
2
Landino argues that he answered “no” when asked whether he
was the victim of sexual harassment only because he did not
understand that this term encompassed gender discrimination.
Regardless, Landino was clearly asked on a form accompanying his
2008 Complaint whether he believed he was discriminated against
(Continued)
9
placement in the NSEML position in 2009 and he secured counsel
that he clearly indicated that he believed he had been
discriminated against on the basis of gender. Therefore, the
district court properly dismissed Count IV of Landino’s
complaint.
To succeed on a Rule 56(d) motion, the movant must show
“that, for specified reasons, [he] cannot present facts
essential to justify [his] opposition.” Fed. R. Civ. P. 56(d).
The administrative record before the court is robust and
contains a number of supporting affidavits. Landino does not
explain what information he expected to obtain by conducting
discovery that he did not already have access to in the existing
administrative record. Regardless, no further discovery would
change the fact that Landino settled his Count I claim in a
binding settlement agreement, that his Count II and Count III
claims are untimely, or that he asserted gender discrimination
for the first time after the alleged retaliation asserted in
Count IV. He therefore fails to demonstrate that the district
court abused its discretion in denying the motion.
“because of your color, race, age, sex, disability, national
origin, religion or as an act of reprisal” and to “indicate all
that apply.” J.A. 106. In response to this question, Landino
answered only “reprisal.” J.A. 106.
10
Last, a district court may grant a Rule 59(e) motion to
alter or amend a judgment “to correct a clear error of law or
prevent manifest injustice.” Hutchinson v. Staton, 994 F.2d
1076, 1081 (4th Cir. 1993). Landino argues that the district
court should have granted his Rule 59(e) motion because it
weighed the evidence instead of viewing it in a light most
favorable to him. Landino fails to present with any specificity
what facts or inferences the district court drew in favor of the
Agency or what inferences it should have drawn in his favor, but
did not. He therefore fails to demonstrate that the district
court abused its discretion in denying that motion.
IV
For all the foregoing reasons, the judgment of the district
court is affirmed. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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