                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




                                       2
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.

                                            5
       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).




                                                   6
                                               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

                                                7
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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