Swindell v. Cacinss, Inc., No. 5:17-CV-617-D

CourtUnited States District Courts. 4th Circuit. Eastern District of North Carolina
Writing for the CourtJAMES C. DEVER III United States District Judge
Decision Date30 September 2020
PartiesCHRISTOPHER SWINDELL, Plaintiff, v. CACINSS, INC., and QUICK SERVICES, LLC, Defendants.
Docket NumberNo. 5:17-CV-617-D

CHRISTOPHER SWINDELL, Plaintiff,
v.
CACINSS, INC., and
QUICK SERVICES, LLC, Defendants.

No. 5:17-CV-617-D

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA WESTERN DIVISION

September 30, 2020


ORDER

On January 29, 2018, Christopher Swindell ("Swindell") filed an amended complaint against CACINSS, Inc. ("CACI") and Quick Services, LLC ("QSL"; collectively, with CACI, "defendants") [D.E. 13]. Swindell alleges four causes of action: (1) racially hostile work environment under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.; (2) retaliation under Title VII; (3) race discrimination under 42 U.S.C. § 1981; and (4) wrongful discharge in violation of North Carolina public policy. See id. On October 18, 2019, CACI moved for summary judgment [D.E. 61] and filed a memorandum and statement of material facts in support [D.E. 62, 63]. On October 21, 2019, QSL moved for summary judgment [D.E. 68] and filed a memorandum and statement of material facts in support [D.E. 69, 70]. On December 4, 2019, Swindell responded in opposition [D.E. 74, 75, 76, 77, 81]. On December 16, 2019, Swindell moved to amend his memorandum in opposition [D.E. 86]. On January 8, 2020, CACI replied [D.E. 87] and QSL replied [D.E. 90]. As explained below, the court grants Swindell's motion to amend his memorandum in opposition, and grants defendants' motions for summary judgment.

I.

In November 2009, the United States Department of Defense selected L-3 National Security

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Solutions ("L-3")1 as the prime contractor on a contract, "Dagger II," to provide "Imagery Analysis Services." [D.E. 76] ¶¶ 1-2. QSL was one of multiple subcontractors on the Dagger II contract. Under the contract, L-3 provided 24-hour imagery intelligence to the United States Special Operations Command ("SOCOM"). Id. at ¶¶ 5-6. SOCOM oversees the special operations commands of the United States military's individual branches, and is part of the United States Department of Defense. SOCOM conducts "covert and clandestine missions, such as direct action, special reconnaissance, counter-terrorism, foreign internal defense, unconventional warfare, and counter-narcotics operations." Id. at ¶ 7. All services associated with Dagger II were performed at Fort Bragg, a US Army installation. The United States government controlled access to the JSOC compound on Fort Bragg. See id. at ¶ 8.

Individuals working on Dagger II were assigned to the Geospatial Intelligence Exploitation Troop ("GET"). Id. at ¶ 11. Geospatial intelligence involves gathering information concerning the activities of target individuals that is "derived from the exploitation and analysis of imagery and geospatial information that describes, assesses, and visually depicts physical features and geographically referenced activities on the Earth." Id. Three individuals lead the GET: a military commander, a senior civilian deputy, and a senior enlisted advisor. See id. at ¶ 12.

Individuals working on Dagger II had to have a Top Secret with Sensitive Compartmented Information security clearance. Id. at ¶ 14. Additionally, the United States established training standards that applicants were required to meet to work on Dagger II, and L-3 and QSL conducted a "skill verification" process to ensure the applicants met those standards. See id. at ¶ 13; Moore

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Dep. [D.E. 80-21] 5;2 Swindell Decl. [D.E. 80-1] ¶ 12.

Full motion video analysts ("FMVs") are referred to as geospatial intelligence analysts in the Dagger II contract. [D.E. 76] ¶ 19. As part of Dagger II, government civilians, military personnel, and contact personnel work on various teams. See id. ¶ 34.

When working missions, personnel work in teams of two - a screener and an imagery analyst ("IA"). The screener watches the live video feed, makes calls as specified by the government, and touch types the information into a database. Id. ¶ 40. The information recorded by the screener appears in a chat room. Id. The video feed and the chat room can be viewed live at JSOC or remotely, by military members and government personnel with requisite clearances, including the President of the United States. Id.

The IA uses the information entered by the screeners to create PowerPoint products that document the mission. The government also uses the information for future missions. See id. at ¶ 41. For example, the product may be used to identify a target for a military strike. Id. Military and other personnel also often rely on the IA's and FMV's work during live missions. Failure to perform the job competently can jeopardize special operations missions and potentially cause injuries or deaths to civilians and military personnel. See Swindell Dep. [D.E. 63-2] 113; Ulloa Dep. [D.E. 63-2] 172-77.

Before releasing work product to the government, a senior analyst performs a quality control ("QC") review of it. [D.E. 76] ¶ 43. The QC person can review the recorded video feed and compare it to the information typed into a secret database by the screener to ensure accuracy. See id. Every entry in the database can be traced to the person who made it. Id. at ¶ 44. Each entry reflects a user identification and an associated date time stamp. Id. The original date and any changes made to it are preserved—each reflecting a unique user identification and date time stamp.

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See id. Personnel are prohibited from using another individual's user identification. Id. at ¶ 45.

FMVs on the Dagger II contract worked twelve hour shifts, on average—alternating four day and three day workweeks. Id. at ¶ 47. Shifts which began in the evening would span two calendar days (e.g., 6:00 p.m. to 6:00 a.m.). See id.

Given the mission-critical nature of the Dagger II contract, if the government lost faith in a team or team member, the government had the authority to remove contractors, civilians, or military personnel from the mission floor. See Byers Dep. [D.E. 63-2] 13-14; Joel Harrison Dep. [D.E. 63-2] 24-29. On the other hand, removing team members results in significant costs; therefore, the government does not remove personnel "willy-nilly." Sargent Dep. [D.E. 63-2] 70.

On March 3, 2015, Swindell was hired as an FMV on Dagger II. See Swindell Dep. [D.E. 63-2] 108-09. QSL paid Swindell and provided Swindell's employment benefits. See [D.E. 76] ¶ 22; Swindell Dep. [D.E. 63-2] 109, 154. L-3 was responsible for supervising Swindell (and all other QSL analysts). See [D.E. 77] ¶¶ 12-13; Sawyer Dep. [D.E. 80-19] 8-9.

Before being hired as an FMV on Dagger II, Swindell served in the United States Air Force from 2009 until February 25, 2015. See [D.E. 76] ¶ 17. While in the Air Force, Swindell gained some experience as a geospatial analyst. See id. at ¶ 18. FMV analysts are considered geospatial analysts under Dagger II, and the pool of applicants qualified for this work is limited. See id. at ¶¶ 19-20.

On March 9, 2015, Swindell began a two-week FMV analyst training course for Dagger II. At the end of training, the evaluators provided a detailed critique of Swindell's performance and recommended that Swindell repeat the training session, and stated that he "[w]ould not make a good addition to the GET at this time." [D.E. 63-2] 5. Swindell states that he was recycled because he missed class with pink eye and that two of the three other individuals in Swindell's training were

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recycled. See Swindell Dep. [D.E. 80-26] 18; Swindell Decl. [D.E. 80-1] ¶ 12.3

It is uncommon for individuals to go through FMV analyst training more than once. See Sargent Dep. [D.E. 63-2] 71; Ulloa Dep. [D.E. 80-23] 5-6. After recycling through FMV analyst training, the evaluators again provided a detailed critique of Swindell's performance, but "recommended with reservations" that Swindell work on the GET. See [D.E. 63-2] 7. The evaluators noted that Swindell "will need to be monitored closely on his processes and production." Id.

On April 9, 2015, Swindell was assigned to the "Red Team" on Dagger II. See Swindell Dep. [D.E. 63-2] 114-15. There were five teams working on Dagger II to provide imagery analysis services. The teams rotated to provide these services 24 hours per day, 7 days per week. See Byers Decl. [D.E. 70-1] 3. FMVs generally worked twelve-hour shifts for three or four days per week. See id. Every team had a Government Team Chief who was a government civilian, a Non-commissioned Officer in Charge who was a military member, and a Team Lead from L-3. See id. Additionally, other government civilians, military members, and contract personnel were assigned to each team. See id. The Government Team Chief had responsibility for government civilians and military members, and neither L-3 nor QSL had authority over either. See id. Matt Craig ("Craig") was the Government Team Chief for Red Team. See Malave Dep. [D.E. 70-1] 48. Craig reported to Joel Harrison, who was the senior civilian government employee for Dagger II. Id.

When Swindell started with the Red Team, William Malave ("Malave") was the L-3 Team Lead. See Malave Dep. [D.E. 63-2] 47, 55-56. The Red Team had approximately 35 people. See Swindell Dep. [D.E. 80-26] 13-16. Those people included, inter alia, Marion Spencer ("Spencer")

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from QSL, Rob Harrison from QSL, Kevin Brower ("Brower") from subcontractor GeoOwl, Justin Shaw ("Shaw") from subcontractor Xcellent Technologies, Inc., Felix Ulloa ("Ulloa") from L-3, and Megan Welch ("Welch") from subcontractor Riverside Research. See Byers Decl. [D.E. 70-1] ¶ 29. Throughout Swindell's time working on Dagger II, Swindell was assigned a team trainer. See Ulloa Dep. [D.E. 63-2] 170. Additionally, Ulloa reviewed Swindell's work product as part of his responsibilities as an L-3 senior analyst. See id. at 164, 170-71. Ulloa's general responsibilities included ensuring that every work product was accurate and timely. See id. at 160-61. Ulloa testified that "[i]f you have a team trainer assigned to you, you're not meeting the standard." See id. at 190.

On May 20, 2015, Swindell...

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