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United States District Court for the District of Maryland Grants Summary Judgment For Defendant Employer Where Employee Failed to Demonstrate a “Protected Activity”

Michael Kearns v. Northrop Grumman Systems Corporation
No. ELH-11-1736 (D. Md., May 23, 2014)

by Sarah M. Grago, Summer Associate
Semmes, Bowen & Semmes (

Available at

In Michael Kearns v. Northrop Grumman Systems, the United States District Court for the District of Maryland granted Defendant’s Motion for Summary Judgment on Plaintiff’s claims under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Age Discrimination in Employment Act (“ADEA”). Concerning the Title VII claims, the court found that Plaintiff failed to make a prima facie showing of retaliation or a hostile work environment. Similarly, in regard to the ADEA claim, the court held that Plaintiff failed to demonstrate that the alleged harassment resulted solely from age-animus. In finding Plaintiff’s evidence of harassment insufficient to give rise to an actionable claim, the court further underscores the policy driving Title VII and ADEA —- to prevent substantive and material discrimination in the workplace, not to “immunize . . . employee[s] from those petty slights or minor annoyances that often take place at work.” Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006).

Plaintiff, Michael Kearns contends that Defendant employer, Northrop Grumman, violated Title VII on two counts and the ADEA. Under Title VII, Plaintiff brought a claim for retaliation and hostile work environment and a claim for hostile work environment attributable to age-animus under the ADEA. All claims stemmed primarily from two events that transpired in 2010 when Plaintiff was sixty-six (66) years old. Plaintiff describes the first event as “his refusal to join Mr. Press (his supervisor) in his unlawful gender discrimination and retaliation against a fellow female co-worker.” The next event consisted of Plaintiff filing charges with the Equal Employment Opportunity Commission (“EEOC”) on May 3, 2010, alleging that the same supervisor had retaliated against Plaintiff because of the e-mail incident. Further, in the EEOC charge, Plaintiff alleged that the supervisor and another employee discriminated against Plaintiff because of his age when they asked about Plaintiff’s plans to retire. The court directed most of its analysis to the first claim, retaliation under the EEOC, and used its subsequent findings to inform its holding on the other two claims.

First, the court examined the parameters of Title VII protection, as well as the underlying policy guiding its application. It reiterated that Title VII prohibits adverse employment action against any individual “with respect to his compensation terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000 e-2 (a)(1). Further, it prohibits retaliation against employees who exercise rights under Title VII. Additionally, Title VII prohibits creation or perpetuation of a discriminatory work environment that is so “severe or pervasive” that it alters the conditions of an employee’s employment. Harris v. Forklift Sys., 510 U.S. 17, 21 (1993). While Title VII aims to deter unwanted conduct in the workplace, it does not “set forth a general civility code for the American workplace.” Burlington Northern, 548 U.S. at 68. In keeping with the spirit of Title VII, the court reiterated the importance of distinguishing significant from trivial harms with the latter being afforded no Title VII protection. Id.

The court then addressed the validity of Plaintiff’s first claim under Title VII, retaliation. An actionable retaliation claim requires (1) employee engagement in a “protected activity;” (2) “adverse employment action;” and (3) a causal link between the “protected activity” and the “adverse employment action.” Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010). The court noted that a “protected activity” is action taken by an employee opposing an employment practice on the grounds that it violates Title VII. Generally, filing a charge with the EEOC constitutes a protected activity, but the filing will only be protected if it responds to an employment practice that the employee reasonably believed to be unlawful under Title VII. The court also explained that the watermark for “adverse employment action” is a showing of an act that is “materially adverse” or that significantly changes employment status such as hiring or firing.

The court found Plaintiff’s retaliation claim could not survive summary judgment because Plaintiff could not satisfy the first two elements of an actionable retaliation claim. First, it was unreasonable for Plaintiff to believe that either of the alleged activities constituted a “protected activity.” The first alleged “protected activity” consisted of plaintiff’s refusal, via e-mail, to join in the workplace discrimination and retaliation against a co-worker. The court found that this activity, plaintiff’s refusal, was in response to an e-mail from a supervisor which did not qualify as an act that violates Title VII. The court describes the supervisor’s e-mail as “innocuous” and merely “requesting confirmation that a conversation had taken place” between Plaintiff and the supervisor. Thus, the email did not violate Title VII and therefore Plaintiff’s e-mail response did not constitute a “protected activity.” Similarly, the court found that Plaintiff’s action of filing charges with the EEOC did not amount to a protected action for it, too, failed to respond to an employment practice that the employee reasonably believed to be unlawful under Title VII. In the charge, Plaintiff complained of retaliation for his e-mail response to his supervisor described above and age discrimination stemming from his supervisor’s and co-workers’ inquiry about his retirement plans. The court considered Plaintiff’s allegations that the actions in the EEOC charges violated Title VII “entirely frivolous.”

Even assuming that Plaintiff engaged in a “protected activity,” the court held that Plaintiff had still failed to prove the second element — “adverse employment action.” Plaintiff argued that the following constituted adverse employer action: his supervisor’s criticism of his work, threats of probation or changing his shift, regular reprimands from his supervisor, and his supervisor’s expressed displeasure with Plaintiff’s work. The acts that Plaintiff alleges have previously been precluded from qualifying as “adverse employment action,” and therefore, prevent Plaintiff from succeeding on the retaliation claim. See Wonasue v. University of Maryland Alumni Ass’n, 2013 WL 6158375, at *10 (D. Md. Nov. 22, 2013). The only other actions of which Plaintiff complained, such as his supervisor’s denial of leave to attend and pay for training, were later remedied and therefore caused no harm. Where none of the acts that Plaintiff offered meet the “materially adverse” threshold such that they might dissuade a reasonable worker from making a charge of discrimination, he failed to satisfy the second prong. The court did not extensively examine the third prong of the retaliation claim, as the elements are conjunctive and plaintiff failed to meet the first two.

The court finished its analysis briefly touching on the other claims. First, it held that the hostile work environment claim would not survive summary judgment because, like the retaliation claim, one of the elements required “protected conduct” and as the above analysis reflects; the court found that the Plaintiff did not engage in any protected conduct. In the same way, the court found the ADEA claim failed to survive summary judgment because Plaintiff provided no evidence that the alleged harassment stemmed solely from age-animus which is a requisite element.

The trial court’s granting of Defendant’s Motion for Summary Judgment on all three of Plaintiff’s claims reflects the standards set forth in Title VII and the ADEA functioning as filters keeping complaints of “the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing” out of the courtroom. Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998).