Smith v. Clinton
Filing
37
ORDER GRANTING DEFENDANT'S 28 MOTION FOR SUMMARY JUDGMENT: "On the basis of the foregoing, Defendant's Motion for Summary Judgment, filed on March 15, 2011, is HEREBY GRANTED. The Court GRANTS summary judgment in favor of Defendan t on all counts and directs the Clerk of Court to close this case.IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on July 29, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to rec eive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 10-00587 LEK-BMK
PRESTON L. SMITH,
)
)
Plaintiff,
)
)
vs.
)
)
HILLARY RODHAM CLINTON,
)
SECRETARY, DEPARTMENT OF
)
STATE AGENCY,
)
)
)
Defendant.
_____________________________ )
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Hillary Rodham Clinton’s
(“Defendant”) Motion for Summary Judgment (“Motion”), filed on
March 15, 2011.
Pro se Plaintiff Preston Smith (“Plaintiff”) did
not respond to the Motion.
On June 24, 2011, the Court issued an
order vacating the hearing on the Motion, granting the Motion,
and informing the parties that it would thereafter issue a
written order.
After careful consideration of the Motion and the
relevant legal authority, Defendant’s Motion is HEREBY GRANTED
for the reasons set forth below.
BACKGROUND
I.
Factual History
Plaintiff is a fifty-three-year-old male that
self-identifies as both “African American/Black” and
“African-American/Caucasian”.
[EEO Investigative Aff. (“EEO
Aff.”) at 1, 31).1]
Plaintiff claims that he has suffered from
“Major Depression with Panic/Anxiety and Agoraphobia Disorder”
for over sixteen years.
[Id. at 3.]
The United States Department of State (“State
Department”), Honolulu Passport Agency (“Agency”) hired Plaintiff
as a “Passport Specialist” for a probationary, one-year term
beginning on October 21, 2007.
[CSOF at ¶ 1 (citing Declaration
of Joyleen N. Cohen (“Cohen Decl.”) at ¶ 3).2]
During his first
couple weeks at the Agency, Plaintiff participated in a work
orientation, engaged in classroom study, and received
personalized, on-site training.
[State Dep’t, Evaluation of
Probationary Employee for Preston L. Smith (“Emp. Eval.”), dated
3/11/08, at 1.3]
In early December 2007, the Agency sent
Plaintiff to the National Passport Center (“NPC”) in Charleston,
South Carolina for an intensive training program that “is
mandatory for all newly hired Passport Specialists.”
[Id.]
According to Plaintiff’s first-line supervisor, Joyleen Cohen
1
The EEO Affidavit is attached to Defendant’s Concise
Statement of Facts in Support of Motion for Summary Judgment
(“CSOF”) as part of Exhibit 2 (Excerpts of EEO Record of
Investigation) to the Declaration of Samuel B. Woodworth. [Filed
3/15/11 (dkt. no. 29-4).]
2
The Cohen Declaration is attached to the CSOF.
[Dkt. no.
29-1.]
3
The Employee Evaluation is attached to the CSOF as part
of Exhibit 1 (Notice of Termination) to the Cohen Declaration.
[Dkt. no. 29-2.]
2
(“Cohen”), Plaintiff initially performed as expected following
the NPC training.
[Id.; Cohen Decl. at ¶ 2.]
Supervisors and
managers nonetheless continued to review Plaintiff’s work and
provided him with feedback.
[Emp. Eval. at 1; CSOF, Declaration
of Steven Mullen (“Mullen Decl.”) at ¶ 9.]
In January 2008, Agency supervisors started identifying
“omissions and errors” in Plaintiff’s work.
[Emp. Eval. at 1.]
Plaintiff’s supervisors confronted him about these problems
during a feedback session in mid-January, but he failed to
improve his performance.
[Id.]
“Feedback sheets from February
20, 22, 27 and March 1st show the same frequency and type of
problems that were discussed with him in batch review[4] from a
month earlier.”
[Id.]
According to Cohen, “[o]ther trainees
with even less time on the job . . . showed significantly more
improvement and development” over the same time period.
[Id.]
On January 31, 2008, Plaintiff contacted the State
Department’s Office of Civil Rights to report an incident of
alleged employment discrimination.
[EEO Counselor’s Report (“EEO
Report”), dated 2/26/08, at 1-2.5]
Plaintiff reported that, on
January 30, 2008, he discovered a note written by his third-line
4
Plaintiff’s supervisors assigned him “batches” of passport
applications for “adjudication”. [Empl. Eval. at 1.] The Agency
used batch assignments “to build his skills” as a passport
specialist. [Id.]
5
The EEO Report is attached to the CSOF as part of Exhibit
2 to the Declaration of Samuel B. Woodworth. [Dkt. no. 29-4.]
3
supervisor, Nancy Finn (“Finn”), in one of his batch assignments
that stated: “Joy– this is becoming a waste of my time and your
time.
And if Preston doesn’t can’t (sic) get or know how to fix
it, then we need to come to some kind of approach to resolve
this.”
[Letter dated 2/1/08 to an unnamed EEO counselor from
Preston Smith (“EEO Letter”) at 2.6]
Plaintiff claimed that he
confronted Cohen about the note and that Cohen informed him that
it was intended for her only.
[Id.]
Plaintiff further claimed
that the incident “made me extremely upset and caused me to have
an anxiety attack.”
[Id.]
According to the EEO Report,
Plaintiff “needed to be taken by ambulance to the hospital” as a
result of his anxiety.
[EEO Report at 2.]
Cohen claims that
Plaintiff did not notify his supervisors, the management, or the
Agency’s security personnel about the situation.
[Emp. Eval. at
1.]
The EEO Letter also claimed that Cohen made
“inappropriate sexual advances” towards him on two separate
occasions.
[EEO Letter at 3.]
According to Plaintiff, the first
incident occurred in November 2007 when Cohen “took a sit (sic)
next to [him] and began a conversation with [him] that made [him]
feel uncomfortable because of [their] supervisory relationship.”
Plaintiff claims that the second incident occurred on
[Id.]
6
2.
The EEO Letter is attached to the CSOF as part of Exhibit
[Doc. no. 29-4.]
4
December 21, 2007 when Cohen invited him to her house for a
Christmas dinner.
[Id.]
Finally, the EEO Letter accused an unnamed State
Department security guard of verbal harassment.
According to
Plaintiff, the security guard ridiculed him for not having a
permanent work station and told him to “go back East to New York
City where [he] came from.”
[Id.]
EEO counselor Senora Pittman spoke to Plaintiff, Cohen,
and Finn about his grievances and indicated that the parties
elected to engage in alternative dispute resolution (“ADR”).
[EEO Report at 5.]
The administrative record does not indicate,
however, whether the parties ultimately participated in an ADR.7
On March 5, 2008, Plaintiff refused to meet with Cohen
to discuss his work.
[Emp. Eval. at 1.]
Cohen claims that
Plaintiff stated that “‘his work is perfect’” and that “his
batches need not be reevaluated.”
[Id.]
Cohen subsequently
observed that Plaintiff: “has repeatedly shown that he is
unwilling to apply the written instructions we give him on his
batch work[;]” “is openly confrontational[;]” and, on several
occasions, “loudly assert[ed] his perfection without regard to
coworkers and/or managers who hear his outbursts.”
[Id.]
According to Agency supervisors, Plaintiff was
7
Plaintiff contends that the parties did not engage in ADR
prior to his termination. [Complaint at 3.]
5
adjudicating an inadequate number of passports given both his
training and tenure.
Cohen explained:
As a trainee at his grade level he is expected to
complete a minimum of 50-60 applications per day.
In spite of being assigned to do batch work, his
personal production reports show that he has
adjudicated 134 applications in the 9 workdays
that he was in the office between February 25 and
March 11th. He did not complete more than 30
applications on any single one of those days.
[Id.]
Finn noted that “[o]n or about February 28, 2008, he
ceased to adjudicate any passport applications.”
[CSOF,
Declaration of Nancy K. Finn (“Finn Decl.”) at ¶ 3.]
Plaintiff’s
second-line supervisor, Stephen Mullen, similarly observed that
Plaintiff “virtually stopped doing his job[.]”
[Mullen Decl. at
¶ 13.]
Agency supervisors also reported that Plaintiff acted
inappropriately at work on at least two occasions.
As explained
by Cohen:
On February 20th he walked over to the workstation
of a senior specialist who was consulting with one
of the trainees. Mr. Smith lingered and then
placed a large, fake cockroach on top of the
application being discussed. Another cockroach
incident happened with the secretary on February
22nd. Each incident was accompanied by comments
made by Mr. Smith that were considered
inappropriate and offensive to the targeted
employees.
[Emp. Eval. at 1-2.]
incidents.
Finn received similar reports of such
[Finn Decl. at ¶¶ 5b, 5d.]
According to Cohen,
Mullen, and Finn, Plaintiff’s behavior had a negative impact on
6
Agency employees’ concentration and productivity.
[Emp. Eval. at
1; Cohen Decl. at ¶ 5e; Mullen Decl. at ¶¶ 5-7; Finn Decl. at ¶¶
5c, 5d.]
In her Employee Evaluation, Cohen recommended against
Plaintiff’s retention.
[Emp. Eval. at 1-2.]
Mullen, Finn, and
several other Agency officials agreed with Cohen’s
recommendation.
[Mullen Decl. at ¶ 8; Finn Decl. at ¶¶ 6-7;
CSOF, Declaration of Matthew S. Klimow (“Klimow Decl.”) at ¶ 6.]
On March 17, 2008, the Agency terminated Plaintiff.
[Letter from Matthew Klimow to Preston Smith dated March 17, 2008
(“Termination Letter”) at 1.8]
The Termination Letter states, in
pertinent part:
After numerous counseling sessions, you have not
demonstrated the necessary customer service skills
to perform the duties of your position. You have
exhibited an unwillingness to deal with your
supervisors and co-workers in a professional
manner, on the job and in training sessions, as
attached documentation shows. Further, your
supervisory chain has lost confidence in your
professional abilities and believe it unlikely
that you will change your behavior or improve our
performance. As such, you have failed to
demonstrate fitness for continued employment with
the Agency.
[Id.]
8
The Termination Letter is attached to the CSOF as part of
Exhibit 1 to the Cohen Declaration. [Dkt. no. 29-2.]
7
II.
Procedural History
A.
Administrative Proceedings
On May 7, 2008, Plaintiff filed an equal employment
opportunity (“EEO”) complaint against the Agency.
The complaint
alleged that
the Agency discriminated against him on the bases
of race (Multi-racial), disability, age (51), and
reprisal for prior protected EEO activity [under
Title VII of the Civil Rights Act of 1964] when:
1.
he was subjected to a hostile work
environment; and
2.
he did not receive the tools necessary
to successfully perform his job,
including training, a permanent
workspace, and a mentor, which resulted
in his termination.
Smith v. Clinton, Appeal No. 0120092002, United States Equal
Employment Opportunity Commission (“EEOC”), Office of Federal
Operations, dated 08/23/10 (“EEOC Decision”), at 1.9
The Agency responded to the EEO complaint by conducting
an internal investigation.
Upon completion of the investigation,
the Agency provided Plaintiff with a copy of its investigative
file and informed him of his right to request a hearing before an
EEOC administrative judge.
When Plaintiff did not request a
hearing within the thirty-day window provided by 29 C.F.R. §
1614.108(f), the Agency issued its final decision concluding that
9
The EEOC Decision is attached to the Complaint as Exhibit
A. [Dkt. no. 1-1.] Neither party has provided a copy of the
original EEO complaint.
8
Plaintiff failed to prove that it subjected him to
discrimination.
[Id. at 2-3.10]
On April 19, 2009, Plaintiff appealed the Agency’s
final decision to the EEOC.
The Director of the Office of
Federal Operations, Carlton Hadden (“Director Hadden”), affirmed
the Agency’s decision on August 23, 2010.
With respect to
Plaintiff’s hostile work environment claims, Director Hadden
concluded that Plaintiff failed to show that:
(1) he was subjected to unwelcome verbal or
physical conduct involving his protected classes;
(2) the alleged harassment he complained of was
based on his statutorily protected classes; and
(3) the alleged harassment had the purpose or
effect of unreasonably interfering with his work
performance and/or creating an intimidating,
hostile, or offensive work environment.
[Id. at 4 (citations omitted).]
With respect to Plaintiff’s disparate treatment claims,
Director Hadden concluded that Plaintiff “did not establish
discrimination based on race, disability, age and/or reprisal
with regard to his termination” and that “[t]he Agency has
articulated legitimate, nondiscriminatory reason (sic) for
terminating [Plaintiff].”
[Id. at 4-5.]
According to Director
Hadden, the Agency’s legitimate, nondiscriminatory reasons for
terminating Plaintiff included his unwillingness to take
directions from supervisors, his failure to demonstrate skills in
10
The Court notes that neither party has provided a copy of
the Agency’s final decision.
9
the area of customer service, and his unprofessional behavior
towards coworkers.
[Id. at 4.]
Director Hadden informed
Plaintiff of his right to file a civil action within ninety days
of receiving the EEOC Decision.
B.
[Id. at 6.]
District Court Proceedings
On October 7, 2010, Plaintiff timely filed his
Employment Discrimination Complaint (“Complaint”) with this
district court.
The Complaint appears to allege that the Agency
violated Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e et seq., by: (1) subjecting him to a hostile
work environment on account of his disabilities; (2) failing to
provide him with the proper training and resources to do his job
on account of his disabilities; and (3) wrongfully terminating
him on account of his disabilities.
[Complaint at 2-3.]
While Plaintiff does not explicitly present race, sex,
or age discrimination claims in his Complaint, the Court
liberally construes Plaintiff’s Complaint as incorporating such
claims by reference.
See Haines v. Kerner, 404 U.S. 519, 520-21
(1972) (per curiam) (observing that a pro se litigant’s pleadings
must be read more liberally than pleadings drafted by counsel);
see also Williston Basin Interstate Pipeline Co. v. An Exclusive
Gas Storage Leasehold & Easement in the Cloverly Subterranean
Geological Formation, 524 F.3d 1090, 1096 (9th Cir. 2008)
(finding that, for the purposes of a motion to dismiss, a court
10
may consider not only the “allegations contained in the
pleadings” but also “exhibits attached to the complaint”
(citation omitted)).
Plaintiff attached a copy of the EEOC
Decision – which reviewed allegations of discrimination on the
bases of disability as well as race, sex, and age - to his
Complaint.
The incorporated discrimination claims implicate
Title VII, the Rehabilitation Act of 1973 (“Rehabilitation Act”),
as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination
in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq.
Further, Defendant addressed Plaintiff’s race, sex, and age
discrimination claims in the instant Motion.
As a result, the
Court will consider Plaintiff’s three claims - hostile work
environment, disparate treatment, and wrongful termination - with
respect to all four bases of discrimination: race, disability,
sex, and age.
On December 29, 2010, Defendant filed an answer to the
Complaint admitting that the Agency formerly employed Plaintiff.
[Dkt. no. 18.]
Defendant denied the remainder of Plaintiff’s
allegations.
III. Motion for Summary Judgment
Defendant argues that she is entitled to summary
judgment on all of Plaintiff’s claims because: (1) the disability
and race claims fail because his supervisors were unaware of his
race or disabilities; (2) the hostile work environment claims
11
fail because he cannot establish severe and pervasive harassment,
or any kind of harassment based on race, disability, sex, or age;
(3) the disparate treatment claims fail because he cannot
establish a prima facie case of disparate treatment, and because
the Agency had legitimate, nondiscriminatory reasons for its
actions; and (4) the wrongful termination claims fail because he
cannot establish a prima facie case of wrongful termination, and
because the Agency had legitimate, non-discriminatory reasons for
terminating Plaintiff.
A.
Plaintiff’s Race- and Disability-Based Claims
Defendant argues that all of Plaintiff’s race- and
disability-based claims fail because his supervisors were unaware
of his race or alleged disabilities.
Defendant explains that, to
state a claim of race and disability discrimination under Title
VII and the Rehabilitation Act, respectively, a plaintiff must
establish that the alleged discrimination was suffered because of
his or her membership in a protected class.
[Mem. in Supp. of
Motion at 9 (citing 42 U.S.C. § 2000e-2(a)(1); Walton v. U.S.
Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007)).]
Defendant
argues that Plaintiff “will be unable to show that this (sic)
supervisors were even aware of his race and disability, much less
that they harassed or discriminated against him on the basis of
those protected characteristics.”
12
[Id.]
B.
Plaintiff’s Hostile Work Environment Claims
Defendant argues that Plaintiff’s hostile work
environment claims fail because he cannot establish a prima facie
case that he suffered harassment, much less “severe and pervasive
harassment”, based on his race, disability, sex, or age.
10.]
[Id. at
Defendant contends that “nothing in the specifics of the
verbal or physical conduct alleged by plaintiff and recounted in
the Concise Statement of Facts even suggests that it was done on
the basis of Plaintiff’s race, sex, age, or disability.”
[Id.]
Defendant identifies two alleged instances of
harassment in Plaintiff’s filings.
The first instance of
harassment concerns a statement by “Mr. CAD”, a State Department
security guard, to Plaintiff that “he should go back to New York
because there were already too many people from the East Coast in
Hawai`i.”
[Id. at 10-11 (citing CSOF at ¶ 4).]
Defendant
contends that the security guard’s statement does not support
Plaintiff’s hostile work environment claims because it “has
nothing to do with Plaintiff’s race, sex, age, or claimed
disabilities of depression and anxiety.”
[Id. at 11.]
The second alleged instance of harassment concerns
Cohen’s “attempt to engage in small-talk with plaintiff over
lunch, and her undesired invitation to her family’s Christmas
dinner[.]”
[Id. (citing CSOF at ¶ 4).]
Defendant argues that
nothing about these acts suggests that they were motivated by
13
Plaintiff’s race, disability, sex, or age.
[Id.]
Defendant argues that, even assuming, arguendo, that
Plaintiff could produce evidence of harassment based on a
protected characteristic, such harassment would qualify as
neither severe nor pervasive.
[Id. at 12.]
Defendant argues
that “[a] few allegedly improper comments by a security guard on
the basis of plaintiff’s residency in New York City plainly do
not amount to discriminatory changes in the terms and conditions
of employment.”
[Id. at 13 (citation and internal quotation
marks omitted).]
Defendant further contends that “Cohen’s
gestures in the cafeteria, or with respect to her Christmas
dinner,” do not constitute “‘severe or pervasive’ acts of sex
discrimination.”
[Id.]
Defendant argues, moreover, that “the alleged instances
of ‘harassment,’ taken together,” do not “yield even a modest
inference of discrimination.”
[Id.]
According to Defendant,
“the Ninth Circuit has held far more serious workplace language
or conduct insufficient to defeat judgment as a matter of law for
the employer in hostile work environment cases.”
C.
[Id.]
Plaintiff’s Disparate Treatment Claims
Defendant argues that Plaintiff’s disparate treatment
claims fail because he is unable to establish a prima facie case
that the Agency provided similarly-situated employees with
training, resources, or opportunities that it did not provide to
14
Plaintiff.
Defendant further argues that the Agency had
legitimate, non-discriminatory reasons for its decisions
affecting Plaintiff.
First, Defendant argues that there is no evidence
suggesting that the Agency denied Plaintiff training given to
similarly-situated employees who were not members of Plaintiff’s
protected classes.
[Id. at 15 (citing CSOF at ¶¶ 6-11).]
According to Defendant, “[o]ther than a black employee named
‘Ted’ who plaintiff claims received a mentor, plaintiff has not
identified any employees who received anything he claims to have
been denied.”
[Id.]
Moreover, Defendant contends that, “since
both Ted and plaintiff are African-American males, Ted does not
qualify as a valid comparator, except possibly with regard to
plaintiff’s claimed disability, which lacks even the faintest
connection to plaintiff’s lack of a mentor.”
[Id.]
Second, Defendant argues that the Agency’s equal
treatment of all employees due to its time, space, and resource
limitations “provides a legitimate, nondiscriminatory, and indeed
obvious explanation for the allegedly wrongful conduct identified
by plaintiff.”
[Id.]
Defendant contends that Plaintiff received
identical training and resources as other passport specialist
trainees.
[Id. at 16 (citations omitted).]
Finally, Defendant argues that Plaintiff’s allegation
that the Agency discriminated against him by failing to assign
15
him a personal mentor also fails.
Defendant explains that, due
to staffing constraints, none of the trainees were assigned
permanent mentors.
[Id. at 16 n.4 (citing Finn Decl. at ¶¶
17-18; Cohen Decl. at ¶ 18).]
Defendant contends that
Plaintiff’s claim that the Agency assigned a fellow trainee,
Ted Palmer, a mentor is incorrect.
According to Defendant,
Ted Palmer “merely sat next to a slightly more experienced
individual, Sean Ballentyne, who was available to answer
Mr. Palmer’s procedural questions. . . .
There was no formal
mentor relationship between Mr. Palmer and Mr. Ballentyne, and
Mr. Ballentyne did not review any of Mr. Palmer’s work.”
(citing Cohen Decl. at ¶ 18).]
[Id.
Moreover, “Mr. Ballentyne and
others, including Ms. Cohen, were equally available to answer
plaintiff’s questions.”
D.
[Id. (Cohen Decl. at ¶ 18).]
Plaintiff’s Wrongful Termination Claims
First, Defendant argues that Plaintiff was not
performing his job well enough to rule out the possibility that
he was terminated for poor performance.
Although Plaintiff had
“more than sufficient time in January and February 2008 to learn
and apply the procedures for adjudicating passport
applications[,]” and “frequent attempts were made to assist
plaintiff in improving his performance, his work consistently
contained the same types of omissions and errors as were
discussed during his early feedback sessions.”
16
[Id. at 17-18
(citing Cohen Del. at ¶¶ 5a, 5b, 5d, 15, 16; Finn Decl. at ¶¶
11-13; Mullen Decl. at ¶ 3; EEO Aff. at 1, 3).]
In addition,
Defendant argues that Plaintiff adjudicated applications at a
rate far lower than the Agency expected of him given his tenure.
According to Defendant, Plaintiff was completing as few as two
applications per day while other trainees with equivalent tenure
were averaging fifty to sixty applications per day.
(citing Finn Decl. at ¶ 3).]
[Id. at 18
Defendant claims that, as of late
February 2008 or early March 2008, Plaintiff stopped adjudicating
passports altogether.
[Id. (citing Finn Decl. at ¶ 3; Emp. Eval.
at 1; Mullen Decl. at ¶ 13).]
Second, Defendant argues that “Plaintiff showed little
or no respect for his superiors, including their experience and
knowledge, and refused to take feedback from them, claiming that
his work was ‘perfect.’”
[Id. (citing Cohen Decl. at ¶¶ 5a, 5b,
16; Finn Decl. at ¶ 4; Mullen Decl. at ¶¶ 5, 13).]
Defendant
claims that Plaintiff told Cohen that, for undisclosed reasons,
he did not feel comfortable with her evaluating his work, and
Plaintiff ultimately refused to let her evaluate it.
18-19 (citing Cohen Decl. at ¶ 16).]
[Id. at
Defendant also claims that
Plaintiff was argumentative, questioning “virtually everything
that came from his superiors[,]” and “took to shouting at the
managers on multiple occasions.”
[Id. at 19 (citing Cohen Decl.
at ¶¶ 5c, 5e, 16; Mullen Decl. at ¶¶ 5, 7, 13; Finn Decl. at ¶
17
2).]
Finally, Defendant argues that Plaintiff “engaged in
highly disruptive and disturbed behavior in the workplace,
causing other employees to fear for their safety.”
[Id.]
Defendant claims that Finn received multiple complaints about
Plaintiff’s behavior from his coworkers, some of whom “no longer
felt safe at work as a result of plaintiff’s presence.”
[Id.
(citing Finn Decl. at ¶¶ 5a-e).]
In summary, Defendant argues that the facts prevent
Plaintiff from establishing a prima facie case of discrimination
and provide legitimate, nondiscriminatory explanations for
Plaintiff’s termination.
[Id.]
STANDARDS
I.
Summary Judgment
Pursuant to Rule 56(a) of the Federal Rules of Civil
Procedure, a party is entitled to summary judgment “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
As explained by this district court in Rodriguez v.
General Dynamics Armament & Technical Products, Inc.:
Summary judgment must be granted against a party
that fails to demonstrate facts to establish what
will be an essential element at trial. See
Celotex [Corp. v. Catrett], 477 U.S. [317,] 323
[(1986)]. A moving party has both the initial
burden of production and the ultimate burden of
persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
18
F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls on the moving party to identify
for the court “those portions of the materials on
file that it believes demonstrate the absence of
any genuine issue of material fact.” T.W. Elec.
Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex
Corp., 477 U.S. at 323). “A fact is material if
it could affect the outcome of the suit under the
governing substantive law.” Miller [v. Glenn
Miller Prods., Inc.], 454 F.3d [975,] 987 [(9th
Cir. 2006)].
When the moving party fails to carry its
initial burden of production, “the nonmoving party
has no obligation to produce anything.” In such a
case, the nonmoving party may defeat the motion
for summary judgment without producing anything.
Nissan Fire, 210 F.3d at 1102-03. On the other
hand, when the moving party meets its initial
burden on a summary judgment motion, the “burden
then shifts to the nonmoving party to establish,
beyond the pleadings, that there is a genuine
issue for trial.” Miller, 454 F.3d at 987. This
means that the nonmoving party “must do more than
simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted). The nonmoving
party may not rely on the mere allegations in the
pleadings and instead “must set forth specific
facts showing that there is a genuine issue for
trial.” Porter v. Cal. Dep’t of Corr., 419 F.3d
885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
“A genuine dispute arises if the evidence is such
that a reasonable jury could return a verdict for
the nonmoving party.” California v. Campbell, 319
F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000)
(“There must be enough doubt for a ‘reasonable
trier of fact’ to find for plaintiffs in order to
defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving
party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that
party’s favor.” Miller, 454 F.3d at 988
19
(quotations and brackets omitted).
696 F. Supp. 2d 1163, 1176 (D. Hawai`i 2010) (some citations
omitted).
As further explained by this district court in Aga v.
Winter:
When a motion for summary judgment is
unopposed, the motion should be granted only when
the movant’s papers are themselves sufficient to
support the motion and they do not reveal a
genuine issue of material fact. In re Rogstad,
126 F.3d 1224, 1227 (9th Cir. 1997) (noting that
it is in error to grant a motion for summary
judgment simply because the opponent failed to
oppose the motion); Cristobal v. Siegel, 26 F.3d
1488, 1494-95 & n.4 (9th Cir. 1994) (noting that
an unopposed motion may be granted only after the
court determines that there are no material issues
of fact).
Additionally, in a motion for summary
judgment, “material facts set forth in the moving
party’s concise statement will be deemed admitted
unless controverted by a separate concise
statement of the opposing party.” L.R. 56.1(g)
(effective Dec. 1, 2009). Thus, while this court
is not permitted to grant an unopposed motion for
summary judgment as a matter of right, Siegel, 26
F.3d at 1494-95, it must deem all facts proffered
in [the defendant’s] concise statement as admitted
by [the plaintiff]. Therefore, the court must
determine whether the facts, as asserted in [the
defendant’s] concise statement, warrant a grant of
summary judgment.
Civ. No. 08-00509 SOM/LEK, 2009 WL 4406086, at *2-3 (D. Hawai`i
Dec. 1, 2009) (some alterations in original).
II.
Framework for Employment Discrimination Claims
The Court follows the framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for Title
20
VII, Rehabilitation Act, and ADEA discrimination claims.
McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973),
provides a “useful tool at the summary judgment
stage” in addressing Title VII claims. See
McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122
(9th Cir. 2004). Under this framework, Plaintiff
has the initial burden to establish a prima facie
case of discrimination. E.E.O.C. v. Boeing Co.,
577 F.3d 1044, 1049 (9th Cir. 2009) (citation and
quotation omitted). “The requisite degree of
proof necessary to establish a prima facie case
for Title VII . . . on summary judgment is minimal
and does not even need to rise to the level of a
preponderance of the evidence.” Cordova v. State
Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.
1997) (citation omitted).
Hughes v. Mayoral, 721 F. Supp. 2d 947, 957 (D. Hawai`i 2010)
(alteration in original); see also Rose v. Wells Fargo & Co., 902
F.2d 1417, 1420 (9th Cir. 1990) (applying the McDonnell Douglas
framework to an ADEA claim); Kim v. Potter, Civil No. 05-00332
JMS/LEK, 2008 WL 483596, at *11 (D. Hawai`i Feb. 22, 2008)
(citations omitted) (applying the McDonnell Douglas framework to
a Rehabilitation Act claim).
A prima facie case under McDonnell Douglas generally
requires a plaintiff to offer proof that: (1) he belongs to a
protected class;11 (2) he performed his job adequately or
11
For disability discrimination claims, a plaintiff may
satisfy this requirement by showing that he was “regarded as”
having a disability. See Coons v. Sec’y of the U.S. Dep’t of the
Treasury, 383 F.3d 879, 884 (9th Cir. 2004) (citations omitted)
(explaining that an individual qualifies as “disabled” under the
Rehabilitation Act “if that individual (1) has a physical or
mental impairment that substantially limits one or more of the
(continued...)
21
satisfactorily; (3) he suffered an adverse employment action; and
(4) other similarly-situated employees who do not belong to the
same protected class were treated differently.
McDonnell
Douglas, 411 U.S. at 802 (footnote omitted); See, e.g., Noyes v.
Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007) (citation
omitted); Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018,
1028 (9th Cir. 2006) (citation and footnote omitted).
After a plaintiff establishes a prima facie
showing of discrimination, the burden under the
McDonnell Douglas framework shifts to a defendant
to put forward a legitimate, non-discriminatory
reason for its actions. McDonnell Douglas Corp.,
411 U.S. at 802, 93 S. Ct. 1817. A defendant’s
burden to articulate some legitimate,
nondiscriminatory reason for the challenged action
is merely a burden of production, not persuasion.
Chuang v. Univ. of Cal. Davis Bd. of Trs., 225
F.3d 1115, 1123-24 (9th Cir. 2000). If a
defendant puts forth a legitimate,
nondiscriminatory reason, the burden shifts back
to the plaintiff to show that the given reason is
merely pretext for a discriminatory motive.
Boeing Co., 577 F.3d at 1049 (citation and
quotation omitted).
Hughes, 721 F. Supp. 2d at 957.
“[A] plaintiff’s burden is much less at the prima facie
stage than at the pretext stage.”
Hawn v. Exec. Jet Mgmt., Inc.,
615 F.3d 1151, 1158 (9th Cir. 2010) (citations omitted).
That
is, “[c]ircumstantial evidence of pretext must be specific and
11
(...continued)
individual’s major life activities; (2) has a record of such an
impairment; or (3) is regarded as having such an impairment”
(emphasis added)).
22
substantial[,]” see Becerril v. Pima Cnty. Assessor’s Office, 587
F.3d 1162, 1163 (9th Cir. 2009) (per curiam) (some alterations in
original) (citation and internal quotation marks omitted), and a
plaintiff must do more than merely deny the credibility of the
defendant’s proffered reason, see Schuler v. Chronicle Broad.
Co., 793 F.2d 1010, 1011 (9th Cir. 1986) (citation omitted).
“A
plaintiff can show pretext directly, by showing that
discrimination more likely motivated the employer, or indirectly,
by showing that the employer’s explanation is unworthy of
credence.”
Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th Cir.
2003) (footnote omitted); see also Coghlan v. Am. Seafoods Co.,
413 F.3d 1090, 1094–95 (9th Cir. 2005).
“Direct evidence
typically consists of clearly sexist, racist, or similarly
discriminatory statements or actions by the employer.”
413 F.3d at 1095 (citations omitted).
Coghlan,
“Circumstantial evidence,
in contrast, is evidence that requires an additional inferential
step to demonstrate discrimination.”
Id.
Despite this “useful tool” of the McDonnell
Douglas framework, there is nothing that “compels
the parties to invoke the McDonnell Douglas
presumption.” McGinest, 360 F.3d at 1122. “When
responding to a summary judgment motion . . . [the
plaintiff] may proceed by using the McDonnell
Douglas framework, or alternatively, may simply
produce direct or circumstantial evidence
demonstrating that a discriminatory reason more
likely than not motivated [the employer].”
Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
2007) (quoting McGinest, 360 F.3d at 1122). If
the plaintiff submits direct or circumstantial
evidence, “a triable issue as to the actual
23
motivation of the employer is created even if the
evidence is not substantial.” Id. (quoting Godwin
v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
Cir. 1998)).
Hughes, 721 F. Supp. 2d at 957-58 (alterations in original).
DISCUSSION
I.
Race and Disability Discrimination Claims
Defendant argues that Plaintiff’s race discrimination
claims under Title VII and his disability discrimination claims
under the Rehabilitation Act fail because his supervisors were
unaware of his race or alleged disabilities.
Defendant claims
that “[a]ll three of his direct line supervisors and the
terminating official were either unaware of his race, or believed
he was Caucasian, possibly of Italian descent.”
[CSOF at ¶ 2
(citing Cohen Decl. at ¶ 7; Mullen Decl. at ¶ 12; Finn Decl. at ¶
8; Klimow Decl. at ¶ 8).]
Defendant similarly claims that his
supervisors were unaware of Plaintiff’s claimed disabilities –
depression and agoraphobia:
Plaintiff’s first line supervisor, Ms. Cohen, was
not aware of any disability, other than
plaintiff’s sensitive stomach and blood pressure
issues; his second line supervisor, Mr. Mullen,
had no knowledge of any disability; and
plaintiff’s third line supervisor, Ms. Finn, was
unaware of any medical condition affecting
plaintiff until February 2008, when he submitted a
statement from his physician to support his use of
emergency sick leave.[12]
12
The Court notes that Plaintiff’s use of emergency sick
leave did not put Agency officials on notice of Plaintiff’s
(continued...)
24
[Id. at ¶ 3 (citations omitted).]
Defendant notes that Plaintiff
declined to self-report any disabilities in his initial hiring
paperwork for the Agency.
[Id. (citation omitted); CSOF, Finn
Decl., Exh. 3 (Pltf.’s Standard Form 256, Self-Identification of
Handicap) at 1.]
Under Title VII, it is unlawful “to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race . . . .”
42 U.S.C. § 2000e-2(a)(1).
To
establish a prima facie case of race discrimination under Title
VII, a plaintiff must show, inter alia, that the discrimination
suffered was on account of his or her race.
See, e.g., Beck v.
United Food & Commercial Workers Union, Local 99, 506 F.3d 874,
882 (9th Cir. 2007).
The Rehabilitation Act provides the exclusive remedy
for federal employees claiming discrimination based on a
disability.
Johnston v. Horne, 875 F.2d 1415, 1420 (9th Cir.
1989) (citation and footnote omitted), overruled on other
grounds, Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990).
To state a prima facie case under the Rehabilitation Act, a
12
(...continued)
alleged disabilities. Plaintiff himself observes that he was
advised, presumably by his supervisors, “to take some sick time
off because of job-related illness[.]” [EEO Aff. at 4.]
25
plaintiff must demonstrate, inter alia, that the discrimination
suffered was on account of his or her disability.
See, e.g.,
Walton v. U.S. Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007)
(citation omitted).
Since Defendant’s CSOF was not controverted, all
“material facts” set forth in the document are deemed admitted.
See Local Rule LR56.1(g).
The Ninth Circuit has defined a
material fact as “[a] fact . . . [that] could affect the outcome
of the suit under the governing substantive law.”
Miller v.
Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006)
(citation omitted).
The Court finds that the CSOF’s statements
that the Agency supervisors were unaware of Plaintiff’s race and
alleged disabilities are “material facts” because the
supervisors’ awareness of his membership in said protected
classes is critical to proving discrimination under both Title
VII and the Rehabilitation Act.
As a result, the Court deems
Plaintiff to have admitted that his direct-line supervisors,
Cohen, Mullen, and Finn, and the terminating official, Klimow,
were unaware of Plaintiff’s race throughout his tenure at the
Agency.
The Court further deems Plaintiff to have admitted that
all of Plaintiff’s direct-line supervisors were unaware of
Plaintiff’s alleged disabilities during his tenure at the Agency.
The CSOF does not indicate whether Klimow was aware of
Plaintiff’s alleged disabilities prior to his termination.
26
In
his Complaint, Plaintiff alleges that his “[e]mployer knew that I
had a disability prior to termination[,]” but he offers no
evidence in support of this allegation.
[Complaint at 2.]
Moreover, none of the exhibits attached to his Complaint indicate
that Klimow was aware of his claimed disabilities.
In his EEO Affidavit, Plaintiff claimed that, in early
February 2008, he provided the Agency with documentation
identifying his alleged disabilities.
[EEO Aff. at 4.]
Specifically, Plaintiff claimed that he informed “security
personnel” that he experienced a panic attack at work and was
going to Queens Hospital for psychiatric help.
[Id.]
When asked
to identify the individuals who received documentation about his
alleged disabilities, he exclusively identified Cohen.
5.]
[Id. at
This Court has already found that Plaintiff’s direct-line
supervisors, including Cohen, were unaware of his alleged
disabilities.
The Court further notes that Plaintiff has not
furnished any documentation regarding his mental health problems.
The only medical document attached to Plaintiff’s Complaint is a
letter from Dr. Mohamed M. Aboyoussef, a doctor in Straub
Hospital’s Rheumatology Department, stating that Plaintiff “is
under [his] professional care for severe pain, and severe
osteoarthritis of the knees.”
[Complaint, Exh. B (Letter dated
10/5/10 to Preston Smith from Dr. Mohamed M. Aboyoussef) at 1.]
Summary judgment must be granted against a plaintiff
27
that fails to demonstrate facts to establish what will be an
essential element at trial.
Celotex, 477 U.S. at 323.
Since
Plaintiff provides no evidence that Klimow or his supervisors
were aware of his race or alleged disabilities, the Court FINDS
that Plaintiff has failed to establish an essential element of
his race and disability discrimination claims: that the relevant
authorities were aware of his race or alleged disabilities.
Accordingly, the Court GRANTS Defendant’s Motion as to
Plaintiff’s Title VII race discrimination claims for hostile work
environment, disparate treatment, and wrongful termination.
The
Court further GRANTS Defendant’s Motion as to Plaintiff’s
Rehabilitation Act disability discrimination claims for hostile
work environment, disparate treatment, and wrongful termination.
II.
Remaining Hostile Work Environment Claims
Defendant argues that Plaintiff’s hostile work
environment claims fail because he cannot establish a prima facie
case of harassment, much less severe and pervasive harassment,
based on his membership in a protected class.
According to
Defendant, none of Plaintiff’s allegations even suggests that he
was harassed due to his race, disability, sex, or age.
Plaintiff makes the general allegation that his
“[e]mployer knew that I was was (sic) in a hostile work
environment.”
[Complaint at 2.]
The Complaint fails to
identify, however, any specific instances of discrimination
28
creating a hostile work environment.
The Court observes that, during the administrative
stage of this case, Plaintiff made more detailed allegations in
support of his hostile work environment claims.
As summarized by
Director Hadden:
In support of his hostile work environment claim,
Complainant stated that a security guard (SG) made
inappropriate remarks to him about being from the
east coast and ridiculed him for not having a
permanent workspace. (S2), another manager,
stated that her supervisor (S3) met with SG’s
supervisor after becoming aware of the situation.
S3 stated that he instructed the guard crew to
refrain from making offensive comments to
Complainant. Complainant also contends that he
discovered a note from S2 while reviewing one of
his batches. The note stated that S2 and S1
needed to find a solution to the problems
associated with Complainant’s work. [Plaintiff’s
supervisor,] S1 stated that she told Complainant
that the note was meant for her, and that the note
indicated that S1 needed to find a better way to
train Complainant. Complainant also mentioned an
incident in which another employee (E1) sent him
an email stating that she wanted him to stop
bothering her at work. Complainant responded to
this email and S3 verbally reprimanded him for
doing so. S3 stated that he discussed the issue
with E1 and reprimanded her for sending the
initial email as well. S3 avers that he did not
discipline or threaten discipline to either
employee over the incident.
Lastly, although he did not allege discrimination
based on sex in his formal complaint, Complainant
claims that S1 made inappropriate sexual advances
toward him. Complainant relates two instances in
which he states this occurred. During the first
instance Complainant claims that S1 followed him
to the cafeteria and, without his permission, sat
down at his table and started a conversation with
him. S1 states that she was in the cafeteria and
saw Complainant while she was looking for an empty
29
table. S1 states that she eats lunch with many of
her employees, especially those new to the island.
Complainant states that on another occasion S1
invited him to her house for Christmas dinner. S1
stated that she invited all of the trainees as
well as approximately fifty (50) of her friends
and family members. S1 stated that she often
invites employees and coworkers with no family on
the islands as it is a local custom.
[EEOC Decision at 2.]
Since the Court has already granted summary judgment in
favor of Defendant with respect to all of Plaintiff’s race and
disability discrimination claims, the Court will only consider
Plaintiff’s hostile work environment claims that concern sex and
age discrimination.
A.
Title VII Hostile Work Environment Claim
To assert a hostile work environment claim under Title
VII on the basis of sex, a plaintiff must make a prima facie
showing: “(1) that he was subjected to verbal or physical conduct
of a . . . sexual nature; (2) that the conduct was unwelcome; and
(3) that the conduct was sufficiently severe or pervasive to
alter the conditions of the plaintiff’s employment and create an
abusive work environment.”
Vasquez v. Cnty. of L.A., 349 F.3d
634, 642 (9th Cir. 2003) (footnote omitted).
As explained by
this district court in Abbey v. Hawaii Employers Mutual Insurance
Co.:
Whether conduct was sufficiently severe or
pervasive to violate Title VII turns on “all the
circumstances, including the frequency of the
discriminatory conduct; its severity; whether it
30
is physically threatening or humiliating, or a
mere offensive utterance; and whether it
unreasonably interferes with an employee’s work
performance.” Vasquez v. Cnty. of L.A., 349 F.3d
634, 642 (9th Cir. 2003).
Civil No. 09-000545 SOM/BMK, 2010 WL 4273111, at *4 (D. Hawai`i
Oct. 10, 2010).
Plaintiff claims that he experienced “inappropriate
sexual advances” on two occasions.
[EEO Letter at 3.]
In, the
first instance, Cohen allegedly followed Plaintiff into the
cafeteria and, without permission, sat down at his lunch table.
[Id.]
According to Plaintiff, they engaged in a conversation
“that made [him] feel uncomfortable because of [their]
supervisory subordinate relationship.”
[Id.]
The second
instance concerns Cohen’s invitation to her Christmas dinner.
Plaintiff claims that the invitation “made [him] feel confused
and uncomfortable since prior to this date she was not training
[him] correctly and talking to [him] in a very disrespectful tone
in front of [his] coworkers about minor mistakes and treating
[him] differently as compare (sic) to [his] other colleagues.”
[Id.]
As the Supreme Court explained in Oncale v. Sundowner
Offshore Services, Inc., “[w]hatever evidentiary route the
plaintiff chooses to follow [in establishing a hostile work
environment claim based on sexual harassment], he or she must
always prove that the conduct at issue was not merely tinged with
31
offensive sexual connotations, but actually constituted
‘discrimina[tion] . . . because of . . . sex.’”
523 U.S. 75, 81
(1998) (some alterations in original) (emphasis in original).
Moreover, “[t]he critical issue, Title VII’s text indicates, is
whether members of one sex are exposed to disadvantageous terms
or conditions of employment to which members of the other sex are
not exposed.”
Id. at 80 (citation and quotation marks omitted).
While Plaintiff used the phrase “inappropriate sexual advances”
to describe Cohen’s conduct, he failed to explain why such
interactions, which appear devoid of both sexual content and
connotation, were “verbal or physical conduct of a . . . sexual
nature[.]”
See Vasquez, 349 F.3d at 642 (footnote omitted).
Even assuming, arguendo, that her conduct could be construed as
sexual in nature, Plaintiff failed to show how these isolated
interactions constituted or resulted in discrimination on the
basis of sex.
The Court FINDS that Plaintiff has failed to make a
prima facie showing that Cohen or any other employee at the
Agency subjected him to discrimination on the basis of sex.
Accordingly, the Court GRANTS Defendant’s Motion as to
Plaintiff’s Title VII hostile work environment claim based on sex
discrimination.
B.
ADEA Hostile Work Environment Claim
To assert a hostile work environment claim under the
32
ADEA, a plaintiff must meet similar requirements.
Sischo-Nownejad v. Merced Cmty. Coll. Dist., 934 F.2d 1104, 1109
(9th Cir. 1991) (“A hostile work environment [under both Title
VII and the ADEA] requires the existence of severe or pervasive
and unwelcome verbal or physical harassment because of a
plaintiff’s membership in a protected class.” (citations
omitted)), superceded by statute on other grounds as recognized
by Dominguez-Curry v. Nev. Trans. Dist., 424 F.3d 1027 (9th Cir.
2005); accord Sai v. H & R Block Enters., Inc., Civil No.
09-00154 SOM/BMK, 2010 WL 520633, at *7 (D. Hawai`i Feb. 11,
2010) (citations omitted).
To assert a hostile work environment
claim under the ADEA, a plaintiff must make a prima facie case by
demonstrating that “(1) she [or he] was subjected to verbal or
physical conduct based on age[13], (2) this conduct was
unwelcome, and (3) this conduct was sufficiently severe or
pervasive to alter the conditions of her [or his] employment and
to create an abusive working environment.”
Sai, 2010 WL 520633
at *7 (citing Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir.
2006); Hardage v. CBS Broadcasting, Inc., 427 F.3d 1177, 1187
(9th Cir. 2005)).
The record contains no evidence that the Agency treated
13
To bring a claim under the ADEA, including disparate
treatment and wrongful termination claims, the plaintiff must
show that he was “at least 40 years of age” at the time of the
alleged discrimination. 29 U.S.C. § 631(a).
33
Plaintiff differently on account of his age.
The Court notes,
moreover, that when an EEO investigator asked Plaintiff to
explain why he believed age was a factor in his treatment at the
Agency, he merely replied that “Mrs. Cohen would always try to
gauge my age by asking me privately (During my December 21, 2007
meeting in her office) and in front of Mr. Wilkenson and Ted (Who
both had military experience) whether I had any military
experience or not.”
[EEO Aff. at 6.]
While Plaintiff may have considered some of the
aforementioned conduct to be unwelcome, Plaintiff has failed to
show that such conduct was “based on [his] age”.
WL 520633 at *7 (citations omitted).
See Sai, 2010
Moreover, Plaintiff has
failed to demonstrate that said conduct “was sufficiently severe
or pervasive to alter the conditions of [his] employment and to
create an abusive working environment.”
See id. (citations
omitted).
The Court FINDS that Plaintiff has failed to establish
a prima facie case of hostile work environment on the basis of
age discrimination.
Accordingly, the Court GRANTS Defendant’s
Motion as to Plaintiff’s ADEA claim for hostile work environment.
III. Remaining Disparate Treatment Claims
Defendant argues that Plaintiff’s disparate treatment
claims fail because there is no evidence that the Agency denied
Plaintiff training or resources given to similarly-situated
34
employees who were not members of Plaintiff’s protected classes.
Defendant further argues that the Agency’s equal treatment of all
employees due to its time, space, and resource limitations
provides a legitimate, nondiscriminatory explanation for its
allegedly disparate conduct.
Plaintiff alleges that his “[e]mployer never provided
[him] with the proper work-space, tools and correct training to
do [his] job effectively[,]” and that his “immediate supervisor,
Mrs. Joy Cohen admitted to [him] that she failed too (sic)
provide [him] the (sic) proper training so [he] could do [his]
job effectively.”
[Complaint at 2.]
The Court observes that, during the administrative
stage of this case, Plaintiff made more detailed allegations in
support of his disparate treatment claims.
In his EEO Affidavit,
Plaintiff asserted that he did not receive the necessary
training, workspace, and mentorship to successfully perform his
job.
With respect to training, Plaintiff claimed:
I was trained by 8 different specialists on how to
annotate and adjudicate passport application (sic)
without any consistency from any of them. . . .
Also, Mrs. Cohen was almost never available for
consultations to answer job related question
(sic); she was too busy doing special projects for
the Director and Deputy Director, plus, she had to
supervise, answer and training (sic) all new and
more experienced specialist (sic) who required her
assistance throughout the day. I had to propose
to Mrs. Cohen and Mr. Mullen a series of steps to
help stream-line the training process with some
consistency, especially for new passport
specialist (sic).
35
[EEO Aff. at 11.]
Plaintiff described his workspace grievance in the EEO
Affidavit as follows:
I and two other newly passport specialist
trainings (sic) were working out of a cold,
confined training room with very little space to
organize my work material and work on passport
apparitions (sic). We were not part of the main
work area where the other specialist was assigned.
After I became Senior Steward at the Honolulu
passport office I informed Mr. Colin Patrick Walle
of the horrible working conditions I and the two
other passport specialists was (sic) working
under. . . . I and the other two new specialists
did not know where we were going to be sitting on
a daily basis. We were moved and bounced around
from other passport specialist work station (sic)
either while they were on detail, out sick or on
vacation. Management, also, had promised me and
Mr. Wilkerson permanent work stations after we
completed our training a (sic) NPC after we return
(sic) in late December 2007. They then rescinded
and reneged on their promised (sic) after me and
Mr. Wilkenson got back in December 2007.
[Id.]
Finally, Plaintiff described his mentorship grievance
in the EEO Affidavit as follows:
I was not assigned a mentor as promised to me
after I return (sic) from my NPC training back in
December 2007: and also, I had requested and
complain (sic) to my supervisor Mrs. Cohen and
management after being confused by be (sic)
training by more than 8 specialist and staff
members. I was told that: “We are short on
staff.” But, Ted (The black specialist) after his
return from his training at the NPC, he was
assigned a permanent work station and permanent
mentor (Sean Bell) too (sic) assist him with any
question or problems he might experienced (sic)
while working on his batches and working at the
Front Counter area with the public, and he had
36
only started a week before I did.
[Id.]
When the investigator asked Plaintiff to explain why
his membership in protected classes were factors in the alleged
disparate treatment, he referred to his statement regarding his
workspace grievance and to unspecified “attachments and referral
(sic) from other EEO Counselors and Union President of Local
1998.”
[Id. at 13.]
The Court is unaware of any such documents
in the record.
Since the Court has already granted summary judgment in
favor of Defendant with respect to all of Plaintiff’s race and
disability discrimination claims, the Court will only consider
Plaintiff’s disparate treatment claims that concern sex and age
discrimination.
A.
Title VII Disparate Treatment Claim
To assert a disparate treatment claim under Title VII,
a plaintiff must make a prima facie showing that:
(1) he is a member of a protected class; (2) he
was qualified for his position; (3) he experienced
an adverse employment action; and (4) similarly
situated individuals outside his protected class
were treated more favorably, or other
circumstances surrounding the adverse employment
action give rise to an inference of
discrimination.
Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir.
2004) (citations omitted).
“[A]n adverse employment action is
one that ‘materially affect[s] the compensation, terms,
37
conditions, or privileges of . . . employment.’”
Davis v. Team
Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (some alterations
in original) (quoting Chuang v. Univ. of Cal. Davis Bd. of Trs.,
225 F.3d 1115, 1126 (9th Cir. 2000); Kang. v. U. Lim. Am., Inc.,
296 F.3d 810, 818-19 (9th Cir. 2002)).
According to the Ninth
Circuit, only “non-trivial” employment actions, such as
“termination, dissemination of a negative employment reference,
issuance of an undeserved negative performance review and refusal
to consider for promotion” qualify as adverse employment actions.
Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000)
(footnote omitted).
Assigning more – or more burdensome – work
responsibilities may be an adverse employment action.
520 F.3d at 1089-90 (citations omitted).
See Davis,
The relocation of a
plaintiff’s workspace may also constitute an adverse employment
action where it materially affects the terms, conditions, or
privileges of his employment.
See Chuang, 225 F.3d at 1125-26.
The record indicates that the Agency provided Plaintiff
with the same training it provided to other passport specialist
trainees.
Plaintiff, similar to the other two passport
specialists hired in October 2007, attended a mandatory training
program at the NPC for all newly-hired passport specialists.
In
addition, Plaintiff attended an Agency work orientation, engaged
in classroom study, and received on-site training.
Moreover,
throughout Plaintiff’s tenure with the Agency, supervisors
38
reviewed one hundred percent of his work and provided him with
ongoing feedback.
[Emp. Eval. at 1; Finn Decl. at ¶¶ 11-13;
Mullen Decl. at ¶ 9; Cohen Decl. at ¶ 15.]
As explained by Finn:
After the trainee showed proficiency in
accomplishing the work with minimal errors and
demonstrated process towards meeting the numerical
goals of his or her performance elements, he or
she was removed from 100% review. Mr. Smith never
showed that he had the potential to perform those
standards.
[Finn Decl. at ¶ 13.]
Finally, Cohen made herself available to
Plaintiff as much as possible, meeting with him on several
occasions to discuss his performance.
[Cohen Decl. at ¶ 16.]
With respect to workspace, the Court finds that the
Agency provided Plaintiff with the same type of workspace
conditions that it provided to other passport specialist trainees
during the time of Plaintiff’s employment.
When the Agency hired
Plaintiff and the two other passport specialists in October 2007,
it told them that office renovations prevented the immediate
assignment of permanent workspaces.
[Finn Decl. at ¶ 14.]
They
were further advised that, when permanent workspaces became
available, they would have the opportunity to move to such
workspaces based on their seniority.
[Id. at ¶ 15.]
Ultimately,
space constraints prevented the Agency from assigning Plaintiff a
permanent workspace.
[Id. at ¶ 16; Cohen Decl. at ¶ 17.]
As
explained by Finn: “During Mr. Smith’s tenure at the Agency, no
workstations came available.
After November 1, 2007, multiple
39
passport specialists in our office continued to have no permanent
workspace.
They remained assigned to small workstations that
were designed for contract support staff.”
[Finn Decl. at ¶ 16.]
With respect to mentorship, the Court finds that the
Agency offered Plaintiff the same type of mentor opportunities
that it provided to other passport specialist trainees during his
tenure at the Agency.
During Plaintiff’s employment, staffing
shortages prevented the Agency from formally assigning a
permanent mentor to each trainee.
Decl. at ¶ 18.]
[Finn Decl. at ¶ 18; Cohen
Instead, experienced Agency employees, including
Cohen, were available to answer the passport specialist trainees’
questions.
[Cohen Decl. at ¶ 18.]
While Plaintiff alleges that
the Agency assigned a mentor to fellow trainee Ted Palmer, that
claim appears to be based on nothing more than speculation.
As
explained by Cohen:
Although I understand that Mr. Smith believed
another trainee (Mr. Palmer) had been assigned a
mentor (passport specialist Mr. Ballentyne), there
was no formal mentor relationship; rather, Mr.
Ballentyne merely sat next to Mr. Palmer and was
therefore available to answer procedural questions
Mr. Palmer might have. Mr. Ballentyne and others,
such as myself, were equally available to Mr.
Smith to answer such questions. Mr. Ballentyne
did not conduct any review of Mr. Palmer’s work.
[Id.]
In summary, the Court FINDS that Plaintiff has failed
to show that similarly-situated Agency employees outside of his
protected class received more favorable treatment.
40
The Court
also FINDS that the Agency had legitimate, non-discriminatory
reasons for its training, workspace, and mentorship decisions,
and that all passport specialist trainees were provided with
similar resources and opportunities.
The Court further FINDS
that Plaintiff has failed to show other circumstances that gave
rise to an inference of discrimination.
Accordingly, the Court
GRANTS Defendant’s Motion as to Plaintiff’s Title VII disparate
treatment claim based on sex discrimination.
B.
ADEA Disparate Treatment Claim
The analysis for an ADEA disparate treatment claim is
similar to that of a Title VII claim.
See Wallis v. J.R. Simplot
Co., 26 F.3d 885, 888 (9th Cir. 1994) (“We combine the Title VII
and ADEA claims for analysis because the burdens of proof and
persuasion are the same.” (footnote and citations omitted)).
Thus, to assert a disparate treatment claim under the ADEA, a
plaintiff must make a prima facie showing that: (1) he was at
least forty years old; (2) he was qualified for his position; (3)
he experienced an adverse employment action; and (4) he was
treated less favorably than a “substantially” younger employee
with equal or inferior qualifications.
See id. at 891 (citation
omitted).
As explained supra, Section III.A., Plaintiff has
failed to show that similarly-situated Agency employees outside
of any of his protected classes received more favorable treatment
41
than he did.
Moreover, the record indicates that the Agency
acted legitimately and in a nondiscriminatory manner with respect
to its training, workspace, and mentorship decisions for passport
specialist trainees during Plaintiff’s tenure at the Agency.
Insofar as Plaintiff has failed to provide any evidence that he
was treated less favorably than a substantially younger employee
with equal or inferior qualifications, the Court FINDS that
Plaintiff has failed to establish a prima facie case of disparate
treatment on the basis of age discrimination.
Accordingly, the
Court GRANTS Defendant’s Motion as to Plaintiff’s ADEA disparate
treatment claim.
IV.
Remaining Wrongful Termination Claims
Defendant contends that the Agency fired Plaintiff for
legitimate and nondiscriminatory reasons.
Defendant argues that
the “record is replete with evidence that plaintiff’s poor
performance deteriorated to the point that he stopped
adjudicating passport applications altogether, and that his
behavior in the workplace was inappropriate, disruptive, and
perceived as threatening[.]”
[Mem. in Supp. of Motion at 17.]
Plaintiff offers little support for his wrongful
termination claims.
Plaintiff argues in his Complaint that he
was illegally terminated because the Agency “knew he had a
disability prior to terminating[.]”
[Complaint at 2-3.]
In his
EEO Affidavit, Plaintiff claimed that his Notice of Termination
42
was “filled with lies, false, misleading, and slanderous and
libel comments about my work performance and character.”
Aff. at 13.]
[EEO
Plaintiff did not specify, however, which
statements in his Notice of Termination were false.
Since the Court has already granted summary judgment in
favor of Defendant with respect to all of Plaintiff’s race and
disability discrimination claims, the Court will only consider
Plaintiff’s wrongful termination claims that concern sex and age
discrimination.
A.
Title VII Wrongful Termination Claim
To assert a wrongful termination claim under Title VII
for sex discrimination, a plaintiff must make a prima facie
showing that:
1.
he was within the protected class;
2.
he was performing his job well enough to
rule out the possibility that he was fired
for inadequate job performance; and
3.
his employer sought a replacement with
qualifications similar to his own, thus
demonstrating a continued need for the same
services and skills.
Pejic v. Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir.
1988) (citation omitted).
Plaintiff has not offered any evidence that he was
performing his job in a satisfactory manner or that his employer
sought a replacement with qualifications similar to his own.
Rather, Plaintiff has confessed that, notwithstanding his claimed
43
disabilities, he was not able to perform the required functions
and duties of his former position at the Agency.
5.]
[EEO Aff. at
Thus, Plaintiff has not identified a genuine issue of
material fact as to the second and third prima facie
requirements.
The Court observes, moreover, that Defendant presented
evidence that the Agency terminated Plaintiff for legitimate and
non-discriminatory reasons and Plaintiff has not identified any
contradictory evidence.
Agency supervisors reported that
Plaintiff was adjudicating as few as two applications per day
while other trainees with equivalent tenure were averaging fifty
to sixty applications per day and that, by late February 2008 or
early March 2008, Plaintiff stopped adjudicating passports
altogether.
[Emp. Eval. at 1; Cohen Decl. at ¶ 5d; Finn Decl. at
¶ 3; Mullen Decl. at ¶ 13; Klimow Decl. at ¶ 5.].
The record
further indicates that, on multiple occasions, Plaintiff was
disrespectful to his supervisors, [Cohen Decl. at ¶¶ 5b, 5c; Finn
Decl. at ¶¶ 2, 4; Mullen Decl. at ¶¶ 4, 5, 13; Klimow Decl. at ¶¶
3, 4, 6, 7,] and engaged in disruptive workplace behavior, [Cohen
Decl. at ¶¶ 5c, 5e; Finn Decl. ¶¶ 5a-e; Mullen Decl. ¶¶ 2, 5, 7,
13; Klimow Decl. at ¶ 7].
The Court FINDS that Plaintiff has failed to make the
requisite prima facie showing that: (1) he was performing his job
well enough to rule out the possibility that he was fired for
44
inadequate job performance; and (2) his employer sought a
replacement with qualifications similar to his own.
Accordingly,
the Court GRANTS Defendant’s Motion as to Plaintiff’s Title VII
wrongful termination based on sex discrimination.
B.
ADEA Wrongful Termination Claim
To assert a wrongful termination claim under the ADEA
for age discrimination, a plaintiff must make a prima facie
showing that he was:
(1) a member of a protected class [age 40-70];
(2) performing his job in a satisfactory manner;
(3) discharged; and
(4) replaced by a substantially younger employee
with equal or inferior qualifications.
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 917 (9th Cir.
1996) (alteration in original) (citations omitted).
Plaintiff has failed to provide any evidence that he
was performing his job in a satisfactory manner.
Plaintiff has
also failed to show that he was replaced by a substantially
younger employee with equal or inferior qualifications.
Thus,
Plaintiff has not identified a genuine issue of material fact as
to the second and fourth prima facie requirements.
At the same
time, as explained supra, Section IV.A., the record contains
uncontroverted evidence that the Agency fired Plaintiff for
legitimate and nondiscriminatory reasons.
The Court FINDS that Plaintiff failed to make the
45
requisite prima facie showing that he: (1) was performing his job
in a satisfactory manner; and (2) replaced by a substantially
younger employee with equal or inferior qualifications.
Accordingly, the Court GRANTS Defendant’s Motion as to
Plaintiff’s ADEA claim for wrongful termination.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion for
Summary Judgment, filed on March 15, 2011, is HEREBY GRANTED.
The Court GRANTS summary judgment in favor of Defendant on all
counts and directs the Clerk of Court to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 29, 2011.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
PRESTON L. SMITH V. HILLARY RODHAM CLINTON; CIVIL NO. 10-00587
LEK-BMK; ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
46
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