Kubicko v. Odgen Logistics Services

• Decision Date: 26 January 1999
• Docket Number: No. 97-2527,97-2527
• Citation: 181 F.3d 544
• Parties: (4th Cir. 1999) RICHARD KUBICKO, Plaintiff-Appellant, v. OGDEN LOGISTICS SERVICES, a joint venture between Ogden Allied Services and System Planning Corporation; OGDEN ALLIED BUILDING AIRPORT SERVICES, INCORPORATED, t/a Ogden Allied Services Corporation; SYSTEM PLANNING CORPORATION; EDWARD G. STUCKRATH; DAVID FRANCK, Defendants-Appellees, PRINCE GEORGE'S COUNTY, MARYLAND, Movant
• Court: U.S. Court of Appeals — Fourth Circuit

Page 544

181 F.3d 544 (4th Cir. 1999)

RICHARD KUBICKO, Plaintiff-Appellant, v. OGDEN LOGISTICS SERVICES, a joint venture between Ogden Allied Services and System Planning Corporation; OGDEN ALLIED BUILDING AIRPORT SERVICES, INCORPORATED, t/a Ogden Allied Services Corporation; SYSTEM PLANNING CORPORATION; EDWARD G. STUCKRATH; DAVID FRANCK, Defendants-Appellees, PRINCE GEORGE'S COUNTY, MARYLAND, Movant.

No. 97-2527

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

January 26, 1999, Argued

June 7, 1999, Decided

[Copyrighted Material Omitted]

ARGUED: Jack L. Gould, Fairfax, Virginia, for Appellant. Karen Ann Khan, JACKSON, LEWIS, SCHNITZLER & KRUPMAN, Washington, D.C.; Kevin Michael Hodges, WILLIAMS & CONNOLLY, Washington, D.C., for Appellees. ON BRIEF: Maria L. Acebal, WILLIAMS & CONNOLLY, Washington, D.C., for Appellees.

Before WIDENER, MURNAGHAN, and HAMILTON, Circuit Judges.

Vacated and remanded by published opinion. Judge HAMILTON wrote the opinion, in which Judge MURNAGHAN joined. Judge WIDENER wrote a separate concurring and dissenting opinion.

OPINION

HAMILTON, Circuit Judge:

Richard Kubicko (Kubicko) appeals the district court's grant of summary judgment in favor of Ogden Logistics Services, Ogden Allied Building Airport Services, Inc., t/a Ogden Allied Services, and System Planning Corporation (the Defendants) on his claim alleging retaliation for his opposition to sexual harassment visited on one of his subordinates by his immediate supervisor and for his participation in a related protected proceeding in violation of 704 of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. 2000e-3(a). We hold that Kubicko proffered sufficient evidence of retaliatory animus to trigger application of the mixed-motive proof scheme first annunciated in Price Waterhouse v. Hopkins, 490 U.S. 228, 104 L. Ed. 2d 268, 109 S. Ct. 1775 (1989) (plurality), and that genuine issues of material fact exist making summary judgment in favor of the Defendants inappropriate. See Fed. R. Civ. P. 56. Accordingly, we vacate the district court's judgment and remand for further proceedings consistent with this opinion.

I.

From early April 1989 until early January 1995, Ogden Logistics Services (OLS) employed Kubicko as a logistics engineer in its integrated logistics support branch (ILS Branch).¹ OLS is an unincorporated joint venture of two defense contractors--Ogden Allied Building Airport Services, Inc., t/a Ogden Allied Services, and System Planning Corporation. At all times relevant to this appeal, OLS had a contract with the National Aeronautics Space Administration (NASA) to provide logistical support services for the Hubble Space Telescope Project at Goddard Space Flight Center, which is located in Greenbelt, Maryland.² The contract terminated on April 16, 1995.

From the time Kubicko began working at OLS until the beginning of 1993, he received almost no criticism of his work and consistently received positive performance evaluations. The most recent performance evaluation contained in the record is for the period of April 1, 1991 through March 31, 1992, which rates Kubicko's overall performance as "exceptional," the highest rating possible. (J.A. 80). The record also contains several letters written to Kubicko in 1992 by higher-ups at OLS commending him on his cooperation and team effort in the completion of certain projects. Additionally, the record contains certificates of achievement awarded to Kubicko by NASA, dated as late as September 16, 1994. The record also shows that some of Kubicko's coworkers at OLS and some of his contacts and counterparts at NASA viewed with approval his job performance and his overall professionalism. As the district court summarized in its memorandum opinion accompanying its order granting the Defendants' motions for summary judgment:

For example, James Barcus, the [NASA] Program Manager for the Hubble Space Telescope project, testified that Kubicko's "services were always excellent for the work he did for me." Similarly, Robert Herrick, a co-employee[of Kubicko], testified that Kubicko handled the "communication aspects" of his job in a "superb" fashion. Linda Bingham, a supply systems analyst at NASA, testified that Kubicko "always got things in on time" and "never got a bad rating on a PEB, the Performance Evaluation Board write-ups."

(J.A. 21).

In early January 1993, OLS failed to select Kubicko for the position of ILS Branch Head, choosing instead a man named Troy Shirley (Shirley). Believing he possessed superior qualifications and experience as compared to Shirley, Kubicko wrote a memorandum to OLS's then program manager, Al Walke (Walke), complaining about his non-selection. After outlining his own qualifications and experience and comparing them to those of Shirley, Kubicko stated: "I find your decision insulting, demeaning, belittling, and embarrassing to me." (J.A. 949). Kubicko closed the memorandum by stating:

I will continue as always, to loyally support OLS but I protest your actions. This letter documents my displeasure with your designation of the Branch Chief of ILS. I feel your selection was, among other things, biased, unfair, unjustified, disloyal, prejudicial, and discriminatory.

I am grieved by your decision, formally take exception to it, and respectfully request that you reconsider.

(J.A. 949).

OLS did not reconsider its decision to hire Shirley as ILS Branch Head, and therefore, in a self-performance evaluation dated March 15, 1993, Kubicko wrote that his goal was to finish what he started and to make the contract a success, thus making himself and OLS synonymous with superb logistics support. To this end, Kubicko stated that he has been an understanding, dedicated, loyal, successful, and productive employee, for which he expected support, reward, and recognition from management. Kubicko then complained that instead he was "deceived, demeaned, disappointed, dejected, disrespected, degraded, discriminated against, maligned, insulted, slandered and suspected." (J.A. 952-53). Kubicko closed with the following statement: "Gee, I wonder what it would be like if I was a 'screw-off.'" (J.A. 953). OLS failed to select Kubicko for the position of ILS Branch Head again in June 1993 when it replaced Shirley with a man named David Franck (Franck).³

Kubicko had grown so dissatisfied with OLS by the fall of 1993 that he allowed one of OLS's competitors, Cortez III Service Corporation (Cortez III), to use his name in a contract bid to provide logistics services to the Goddard Space Flight Center. Additionally, Kubicko signed a letter of commitment stating that he would accept the position of Project Logistics Branch Head if Cortez III was awarded a contract. Apparently, Cortez III was not awarded the sought after contract, because Kubicko never left OLS in order to work for Cortez III.

Many of the events at issue in the present suit occurred in the fall and winter of 1994 and in the first week of January 1995. First, at some point in September 1994, the exact day is not specified in the record, Kubicko sent an e-mail to Franck, Lindy Bingham (Bingham), Goddard Space Flight Center's manager for the inactive equipment storage program, and Tom White, NASA's chief of the logistics management division at Goddard Space Flight Center, in which Kubicko openly criticized in sarcastic language a certain proposal by Franck to NASA management. The proposal suggested that two particular OLS employees, John Galloway and Gary King, temporarily perform data entry functions with respect to a portion of a project referred to as "SIMS." Kubicko closed the e-mail with a direct criticism of his immediate supervisor:

This cc mail is dangerous. If people would just talk before they put things in writing, all this typing would be unnecessary. I'm a lousy typist and don't do data entry either! My fingers hurt!

(J.A. 72). Shortly before Kubicko sent this e-mail, Bingham had requested that Kubicko relay to Franck that she did not think John Galloway and Gary King should perform data entry for the SIMS project. She made this request of Kubicko, because she felt Kubicko could relay how she felt without anger to Franck. Kubicko sent the e-mail in response to her request. Subsequently, Bingham testified that Kubicko's e-mail in response to her request did not upset her.

On or about the second or third week of September 1994, Leslyn Joyner (Joyner), an OLS data entry clerk and subordinate of Kubicko, complained to Kubicko that Franck had sexually harassed her on numerous occasions. Kubicko promptly discussed Joyner's complaint with Kyle Worrell (Worrell), OLS's human resources manager. Kubicko informed Worrell that Franck's actions constituted sexual harassment of Joyner, he had witnessed some of the actions, and Franck must be stopped. Kubicko then informed Joyner that he would support her if she desired to pursue the matter further.

Approximately two days after Joyner first informed Kubicko of her allegations of sexual harassment against Franck, she took those allegations to Worrell, who began an internal investigation.⁴ At the conclusion of his approximately two week investigation, Worrell concluded that Joyner's allegations were true and recommended to Walke and Franck's immediate supervisor Edward Stuckrath (Stuckrath) that Franck be terminated.⁵ The record is undisputed that Worrell, Walke, and Stuckrath were aware of similar complaints in the past about Franck made by other female employees at OLS.

After Stuckrath learned of Worrell's internal investigation, Stuckrath ordered it stopped and began his own internal investigation. At the conclusion of this second internal investigation, Stuckrath agreed that some evidence supported Joyner's allegations, but believed that Franck deserved a reprimand and counseling as opposed to termination.

At around this same time, on October 3, 1994, Franck physically handed Stuckrath a memorandum addressed to Kubicko. The memorandum...