UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 06-2134

JAN S. GALLO,

Plaintiff - Appellant,

versus

US INVESTIGATIONS SERVICES, PROFESSIONAL SERVICES DIVISION, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:06-cv-00198-CMH-TR)

Argued: November 1, 2007 Decided: December 28, 2007

Before WILLIAMS, Chief Judge, and TRAXLER and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Patrick L. Abramowich, FOX & ROTHSCHILD, L.L.P., Pittsburgh, Pennsylvania, for Appellant. Ronda Brown Esaw, MCGUIREWOODS, L.L.P., McLean, Virginia, for Appellee. ON BRIEF: Jay D. Marinstein, FOX & ROTHSCHILD, L.L.P., Pittsburgh, Pennsylvania; Paul N. Murphy, TIGHE, PATTON, ARMSTRONG & TEASDALE, P.L.L.C., Washington, D.C., for Appellant. David L. Greenspan, MCGUIREWOODS, L.L.P., McLean, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jan S. Gallo, a former employee of US Investigations Services,

Professional Services Division, Inc. (“PSD”), brought this action

alleging federal claims of gender discrimination, hostile work

environment, and retaliation, and a state law claim for breach of

contract, arising out of the termination of her employment for

insubordination.

PSD is a private government contractor that provides security-

related services to federal government agencies. Gallo was hired

by PSD in September 2002 as a program manager for PSD’s contract

with the Department of the Navy Central Adjudication Facility

(DONCAF), where she worked until her termination on March 7, 2005.

In May 2004, David Venturella became Gallo’s immediate

supervisor. By all accounts, Gallo was effective in her job, and

Venturella recommended two separate promotions for her in 2004.

She ultimately received the recommended promotion to Director of

Operation Support and Training, which was to take effect on January

28, 2005. Her duties as program manager for the Navy DONCAF

contract were slated to end as of that date.

In the months leading up to this change in duties, budget cuts

had mandated a reduction in staff on the DONCAF contract, and

discussions between PSD employees, including Gallo and Venturella,

and Navy personnel ensued regarding what positions would remain and

who would fill them. It is undisputed that in the course of

2 addressing this issue, conflicts arose between Navy employees and

Gallo regarding the proper way to staff the DONCAF contract in the

wake of the mandated staff reductions, mainly over who would get to

make those decisions. In late January, Gallo had telephone

conferences and a meeting with the Navy customers and provided them

with PSD’s “decision” for the staffing of the contract and advised

them that she would no longer be the program manager due to her

promotion. Patti Ashley and Kim Cristaudo were the primary

contacts for the Navy at the time. For various reasons, they were

unhappy with the decision and a follow-up meeting was demanded to

discuss the staffing. Although the extent of their dissatisfaction

is somewhat in dispute, it is undisputed that complaints about

Gallo were relayed to Venturella at about the same time Gallo was

slated to start her new position.

Upon receiving the complaints from the Navy, Venturella

specifically instructed Gallo not to contact the Navy customers

while he attempted “to get to the heart of [the] concerns.” J.A.

1040a. Gallo vocally disagreed with Venturella’s proposed course

of action for handling the Navy complaint, was defensive about the

matter, blamed Venturella for the problem, and embarked on a

concerted effort to convince Venturella to let her directly

confront the Navy clients. Venturella responded by again directing

Gallo to “distance yourself from this until the dust settles” as

they “need[ed] time to sort this out.” J.A. 393a. Venturella, in

3 conjunction with Gallo’s new position, had also assigned her a new

training project at about this time. He advised Gallo that while

he investigated the Navy matter, she was to “begin the training

project” and he would “send . . . examples of the white papers USIS

has prepared in the past” on similar matters. J.A. 393a.

Gallo also disapproved of the training project assignment and

advised Venturella of her feelings in this regard as well. When

Venturella refused to rescind his assignment, Gallo complained to

Bill Harper, the former President of PSD and then-current Chairman

of the Board, who had been a supporter of Gallo on a similar

incident in the past. Gallo also persisted in her efforts to

challenge Venturella’s refusal to allow her to directly confront

the Navy clients. On February 7, 2005, Gallo advised Venturella

that “th[e] resolution would be to meet with the concerned parties

so I can clear up their perceptions or any misunderstandings they

may have had with regard to our recent conversations and what you

have relayed to me.” J.A. 562a. Venturella advised Gallo that he

did not support her request for a client meeting and reiterated

that Gallo was “not to have any contact (written or oral) with the”

Navy clients. He also “reiterate[d] this is not a disciplinary

matter and is not being treated as such. It is an

operational/business decision that I have made based on the request

of the customer. I understand you do not agree with the outcome,

4 but the course of action has been accepted and has resolved the

concerns of the client.” J.A. 562a.

When Venturella refused to budge, Gallo took her complaints to

Human Resources and sought its permission to contact the Navy

clients. Human Resources denied the request and advised Gallo that

this was a business decision that would have to be addressed

through her chain of command. Although Harper was not technically

in her chain of command, Gallo again complained to him and now

asserts that Harper authorized her to contact the Navy customer.

Harper, for his part, disputes that he supported Gallo’s activities

regarding the training project and denies authorizing her to

contact the Navy. However, it is undisputed that Gallo did not

tell Venturella, Venturella’s supervisor, or Human Resources of the

alleged authorization, and Harper, as Chairman of the Board, was

not in her direct line of supervisory authority.

As Gallo’s complaints about the DONCAF matter and the training

project continued, Gallo also began to raise various “workplace”

complaints, asserting, for example, that she had been excluded from

some emails and meetings and that the communication within the

organization was unacceptable. When she was advised that there

were no miscommunications or a need for a meeting about these

matters, Gallo demanded a meeting with Human Resources and sent an

email message to Venturella requesting that he attend the meeting

since there was no “communication . . . present in this

5 organization.” J.A. 1043a. Venturella responded that “[t]here

will be no meeting and no more discussion on the matter.” J.A.

1043a. Gallo responded by lodging a complaint of “hostile work

environment” with Human Resources. She did not mention gender or

age, complaining only that she could not work in an environment

with “no communication, no direction, prevention from working with

the Navy customer and the truth of the matter not pursued.” J.A.

1043a.

On March 3, 2005, Human Resources and Venturella met with

Gallo and refused to rescind the directive that she not contact the

Navy client or the directive that she prepare the requested

training project. Gallo then returned to her office and, in direct

contravention of Venturella’s repeated directives to the contrary,

contacted Ashley to directly confront her about the Navy issue. As

she was “headed out for the day,” Gallo sent an email message to

Human Resources advising that she had contacted Ashley and was told

that Ashley “did not ask for [her] removal off the contract because

of tone, mannerisms, or style.” J.A. 406a. Gallo expressed

“confiden[ce]” that HR would “speak to them and get this otherwise

resolved.” J.A. 406a. As an aside, Gallo added that “[s]ince this

situation has taken place, I have been faced with working in a

hostile work environment . . . [of] constantly excluding females

from ‘male’ company activities.” J.A. 406a.

6 On March 7, 2005, Gallo was terminated for cause based upon

two acts of insubordination: (1) her act of contacting the

disgruntled Navy customer in contravention of the repeated

directives not to do so, and (2) her refusal to work on the

training project assigned by her supervisor. This action followed.

On October 3, 2006, the district court granted PSD’s motion

for summary judgment as to all claims. With regard to Gallo’s

employment claims, the district court held that Gallo had failed to

establish a prima facie case of employment discrimination based on

gender because she failed to demonstrate that she was performing

her job duties at a level that met her employer’s legitimate

expectations at the time of the adverse employment action. In

addition, the district court noted that PSD had articulated

legitimate nondiscriminatory reasons for terminating Gallo which

Gallo had failed to show were a mere pretext for gender

discrimination. See Hill v. Lockheed Martin Logistics Mgmt., Inc.,

, 285 (4th Cir. 2004) (en banc). The district court

rejected Gallo’s hostile work environment claim because plaintiff

failed to establish a prima facie case that the activities she

complained about were motivated by her gender and, in any event,

were not sufficiently severe or pervasive to establish an abusive

working environment. See Baqir v. Principi,

(4th Cir. 2006). With regard to Gallo’s retaliation claim, the

district court rejected the claim because Gallo failed to present

7 sufficient evidence of a causal link between her termination and

the complaint of gender discrimination or of a hostile work

environment. Gallo’s breach of contract claim arises from a

written stock option agreement which provides an employee such as

Gallo thirty days following termination to exercise her options,

unless the termination is for cause. Because plaintiff’s

termination for insubordination constituted cause under the

agreement, the district court granted summary judgment to PSD on

this state law claim as well.

Having thoroughly reviewed the district court’s opinion and

the parties’ briefs and submissions on appeal, and having heard

oral argument in this case, we conclude that the district court did

not err in granting summary judgment in favor of PSD. To the

extent the district court did not separately address Gallo’s claim

that she could not be terminated for contacting the Navy customer

in contravention of her employer’s directives not to do so because

this act constituted protected activity under the opposition clause

of Title VII, see 42 U.S.C.A. § 2000e-3(a) (West 2003), we find no

merit to this additional assertion. Because we affirm the district

court’s grant of summary judgment on the merits of all claims, we

need not address Gallo’s appeal of the district court’s decision to

grant PSD’s motion to strike her demand for a jury trial.

AFFIRMED

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