Daniels v. Donahoe et al

Filing 55

ORDER GRANTING DEFENDANT PATRICK R. DONAHOE'S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT re 21 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/1/12. " For the foregoing reasons, the court grants Donahoe's motion to dismi ss and/or for summary judgment. The Clerk of Court is directed to enter judgment for Donahoe and to close this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive 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
)
)
Plaintiff,
)
)
vs.
)
)
)
PATRICK R. DONAHOE,
Postmaster General of the
)
)
United States; the UNITED
STATES POSTAL SERVICE, a
)
)
Public Corporation; HERBERT
YOKOYAMA; U.S. POSTAL SERVICE )
)
EMPLOYEES; HONOLULU AIRPORT
)
STATION,
)
)
Defendants.
_____________________________ )
KURT DANIELS,

CIVIL NO. 11-00287 SOM-BMK
ORDER GRANTING DEFENDANT
PATRICK R. DONAHOE’S MOTION
FOR DISMISSAL AND SUMMARY
JUDGMENT

ORDER GRANTING DEFENDANT PATRICK R.
DONAHOE’S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiff Kurt Daniels alleges that his employer, the

United States Postal Service, discriminated against him in
violation of Title VII, 42 U.S.C. §§ 2000e–2000e-17, and 42
U.S.C. §§ 1981, 1981a.1

Daniels is an African-American male who

complains that he was denied a promotion but nonetheless required
to perform the job duties of the position he had sought without
receiving extra pay.

1

Defendant Patrick R. Donahoe, in his

Daniels’s complaint also asserted claims under 42 U.S.C.
§ 1983 and chapter 387 of Hawaii Revised Statutes. The parties
dismissed those claims by stipulation. Stipulation to Dismiss in
Part Plaintiff’s Complaint 2, ECF No. 15. The parties also
stipulated to dismiss all named Defendants except the moving
party, Patrick R. Donahoe, who, according to the stipulation, is
being sued in his official capacity. Id.

official capacity as the Postmaster General of the United States,
moves for dismissal of and summary judgment with respect to
Daniels’s claims.

Although, as explained below, the court is

unpersuaded by the challenge to this court’s subject matter
jurisdiction, the court grants Donahoe’s motion on other grounds.
The court dismisses Daniels’s claims under 42 U.S.C. §§ 1981 and
1981a, and grants summary judgment in Donahoe’s favor on the
remaining claims.
II.

FACTUAL BACKGROUND.
Daniels is an African-American male employed by the

United States Postal Service as a Maintenance Engineering
Specialist.

Concise Statement of Material Facts in Support of

Defendant’s Motion for Summary Judgment2

(“Defendant’s Facts”)

2

The court notes that Daniels’s concise counter-statement
of material facts fails to comply with the Local Rules. Local
Rule 56.1(b) requires that a party opposing a motion for summary
judgment file a concise statement “that admits or disputes the
facts set forth in the moving party’s concise statement, as well
as sets forth all material facts as to which it is contended
there exists a genuine issue necessary to be litigated.” Under
Local Rule 56.1(c), a concise statement “shall particularly
identify the page and portion of the page of the document
referenced. The document referred to shall have relevant
portions highlighted or otherwise emphasized.”
Although Daniels admits or denies the facts set forth in
Donahoe’s concise statement and sets forth facts he contends are
in dispute, Daniels fails to properly direct the court to the
evidence demonstrating those facts. Every paragraph refers to
the “Affidavit of Kurt Daniels,” which the court cannot locate.
Presumably Daniels meant to cite to the declaration of his
counsel, Andre Wooten, which is attached to his concise
statement. ECF No. 39-1. Every paragraph also directs the court
to between 13 and 20 of Daniels’s 23 exhibits without identifying
2

¶ 2, ECF No. 22.

Allegedly first hired in 1985, see Compl. ¶ 1,

ECF No. 1, he has held that position since 2004, and his duties
include analyzing the performance of mail processing machines and
providing expertise to lower-level maintenance employees.
¶ 3.

Daniels is not a supervisor.

Id.

Id.

the page and portion of any document. Nor do relevant portions
of any of the documents appear to be highlighted.
Under Local Rule 56.1(f), “this court shall have no
independent duty to review exhibits in their entirety, but rather
will review only those portions of the exhibits specifically
identified in the concise statements.” Daniels fails to properly
direct the court to evidence demonstrating the material facts in
issue, and the court declines to itself comb through his 23
exhibits.
Daniels’s own concise counter-statement merely reasserts his
argument and theory of the case. In essence, he states that
Defendants discriminated against him “by continuing to require
him to perform work on a steady basis which was not in his job
description” without extra pay. Plaintiff’s Concise CounterStatement of the Case ¶ 15, ECF No. 39. This statement is
conclusory and does not set forth the material facts in issue.
It also directs the court to Daniels’s affidavit and 15 exhibits
without identifying page numbers.
The court also notes that Daniels’s counsel has been
admonished numerous times in this district about his disregard of
local rules. See, e.g., Gill v. Waikiki Lanai, Inc., Civ. No.
10-00557 LEK-RLP, 2011 WL 3648772, at *3 (D. Haw. Aug. 8, 2011)
(noting repeated violations of local rules and listing cases);
McNally v. Univ. of Haw., 780 F. Supp. 2d 1037, 1049 (D. Haw.
2011) (noting failures to follow court rules and listing cases);
White v. Pac. Media Group, Inc. et al., 322 F. Supp. 2d 1101,
1111 n.3 (D. Haw. 2004) (noting numerous “typographical errors
and flagrant misstatements” in submissions and complaint filed on
behalf of the plaintiff, leading the court to “strongly admonish
[ ] counsel’s flagrant lack of attention to detail in [the]
court[’s] filings” and “find[ing] that [counsel’s] lack of
diligence falls below the standard of professional competence
required to practice before the federal court”).
3

Around 2004, Daniels’s supervisor, Herbert Yokoyama,
approved Daniels, among others, to serve as a detailee for the
Manager, Maintenance Operations position (“MMO”), which was
vacant at that time.

Defendant’s Facts ¶ 3.

A detail is a

temporary position that comes with a pay raise.

Id.

Daniels

alleges that he performed the MMO duties as a detailee for a year
and a half, and that he received a pay differential of $8,000 per
year.

Compl. ¶¶ 8, 13.
In 2006, Yokoyama selected Bonnie Tomooka to fill the

vacant MMO position.

Defendant’s Facts ¶ 6.

Tomooka had applied

for the position as a downgrade from her then-current position as
the Manager of Distribution Operations.

Id.

Postal Service

regulations gave Yokoyama discretion to hire on a noncompetitive
basis an applicant who sought a downgrade or a lateral move.
¶ 5.

Id.

Yokoyama ended up not considering applicants who, like

Daniels, were seeking a promotion.

Id. ¶ 6.

To promote someone

into the MMO position, Yokoyama would have had to hire that
person through the competitive process, which could have involved
interviews and an applicant review panel.

Id.

Yokoyama

routinely filled positions noncompetitively with applicants
seeking downgrades or lateral moves.

Id. ¶ 7.

Indeed, Yokoyama

had selected Daniels for his Maintenance Engineering Specialist
position that way in 2004 when Daniels sought a lateral move.
Id.

4

Daniels alleges that, although he was no longer a
detailee for the MMO position once Tomooka was hired, he was
still required to perform many of the MMO’s supervisory duties,
such as hiring and training mechanical technicians and handling
union grievances, in addition to his own Maintenance Engineering
Specialist duties.

Compl. ¶ 13, 46, 59.

Daniels says he was

also asked to work the night shift to perform Tomooka’s
management duties.

Id. ¶ 36.

He says that, in his position, he

was not supposed to be supervising employees.

Id. ¶ 47.

Daniels

contends that Yokoyama required him to perform the additional
duties because he is African American, see id. ¶ 20-21, and says
he complained at least once to Yokoyama in 2006 about his
additional work duties.

See Declaration of Andre S. Wooten at

Ex. 5, ECF No. 39-6.
On July 14, 2008, Daniels asked to meet with an
employment discrimination counselor.
filed an administrative complaint.
4 (EEO complaint).

Sometime later, in 2008, he

See Defendant’s Facts at Ex.

Daniels contends that Yokoyama retaliated

against him for having filed the administrative complaint.

In

particular, Daniels asserts that Yokoyama required him to go to
meetings every day, Compl. ¶ 39, gave him a lower performance
evaluation, ¶ 69, and moved him out of his office, ¶ 49.

After

July 2008, Yokoyama stopped assigning Daniels additional duties.

5

Defendant’s Facts ¶ 10.

On April 28, 2011, Daniels filed the

present action.
III.

SUBJECT MATTER JURISDICTION OVER RETALIATION CLAIM.
A.

Rule 12(b)(1) Standard.

A motion to dismiss under Rule 12(b)(1) tests the
subject matter jurisdiction of the court.

See, e.g., Savage v.

Glendale Union High Sch., 343 F.3d 1036, 1039–40 (9th Cir. 2003);
White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

A plaintiff

bears the burden of establishing the propriety of the court's
jurisdiction.

Kokkonen v. Guardian Life Ins. Co. of Am., 511

U.S. 375, 377 (1994).

“A Rule 12(b)(1) jurisdictional attack may

be facial or factual.”

Safe Air for Everyone v. Meyer, 373 F.3d

1035, 1039 (9th Cir. 2004).
On the present motion, it does not matter whether
Donahoe is making a facial or factual attack on subject matter
jurisdiction.

If Donahoe’s challenge is a factual attack, he is

disputing “the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.”

See id. at 1929.

“In resolving a factual attack on jurisdiction, the district
court may review evidence beyond the complaint without converting
the motion to dismiss into a motion for summary judgment.”

Id.

(internal quotation marks omitted). Finally, “[f]ew procedural
limitations exist in a factual challenge to a complaint’s

6

jurisdictional allegations.”

HRPT Properties Trust v. Lingle 676

F. Supp. 2d 1036, 1041 (D. Haw. 2009).
B.

This Court Has Subject Matter Jurisdiction With
Respect to Daniels’s Retaliation Claim.

To the extent Daniels is asserting a retaliation claim,
Donahoe argues that this court lacks subject matter jurisdiction
given Daniels’s failure to exhaust his administrative remedies
with respect to such a claim. Donahoe argues that Daniels failed
to assert retaliation or the factual allegations supporting his
retaliation claim in his administrative complaint.
However, the failure to file a timely administrative
administrative complaint is not a jurisdictional prerequisite to
a Title VII claim.

Rather, this shortcoming “relates to the

substantive adequacy” of Daniels’s complaint.
Corp., 546 U.S. 500, 503 (2006).

Arbaugh v. Y & H

Title VII’s broad grant of

jurisdiction “has served simply to underscore Congress’ intention
to provide a federal forum for the adjudication of Title VII
claims.”

Id. at 506.

See also 42 U.S.C. § 2000e-

5(f)(3)(providing that “[e]ach United States district court and
each United States court of a place subject to the jurisdiction
of the United States shall have jurisdiction of actions brought
under [Title VII]”).

As an employee of the United States Postal

Service, Daniels had to comply with 29 C.F.R. § 164.105 in
asserting employment discrimination.

See 29 C.F.R. § 1614.103

(noting that postal employees are covered by the cited
7

regulations).

Section 1614. 105(a)(1) required Daniels to

“initiate contact with a Counselor within 45 days of the date of
the matter alleged to be discriminatory or, in the case of
personnel action, within 45 days of the effective date of the
action.”
Daniels did not meet this administrative requirement.
In other words, he failed to properly and timely exhaust his
administrative remedies before coming to court.

This, however,

is not an issue of subject matter jurisdiction.

The exhaustion

requirement is a condition of bringing a Title VII claim in
court, but Title VII is not a statute in which “the Legislature
clearly states that a threshold limitation on a statute’s scope
shall count as jurisdictional.”

Arbaugh, 546 U.S. at 515.

“[W]hen Congress does not rank a statutory limitation on coverage
as jurisdictional, courts should treat the restriction as
nonjurisdictional in character.”

Id.

In Arbaugh, the Supreme

Court held that the requirement that an employer subject to Title
VII have 15 employees did not go to subject matter jurisdiction.
Id.

The exhaustion requirement is akin to the employee

threshold.

See Kraus v. Presidio Trust Facilities

Div./Residential Mgmt. Branch, 572 F.3d 1039, 1044 (9th Cir.
2009) (noting that the regulatory prefiling exhaustion
requirement is not a jurisdictional prerequisite for suit in

8

federal court).

This court therefore denies the motion to

dismiss for lack of jurisdiction.
IV.

RULE 12(b)(6) DISMISSAL.
A.

Rule 12(b)(6) Standard.

Rule 12(b)(6) of the Federal Rules of Civil Procedure
provides that a party “may assert the following defense[] by
motion: . . . (6) failure to state a claim upon which relief can
be granted[.]”
Dismissal under Rule 12(b)(6) may be based on either
(1) the lack of a cognizable legal theory, or (2) insufficient
facts to support a cognizable legal theory.

Balistreri v.

Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988) (citing
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34
(9th Cir. 1984)).

To state a claim, a pleading must contain a

“short and plain statement of the claim showing that the pleader
is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

While Rule 8

does not demand detailed factual allegations, “it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

On a Rule 12(b)(6) motion, the court takes all
allegations of material fact as true and construes them in the
light most favorable to the nonmoving party.
574 F.3d 1182, 1184 (9th Cir. 2009).

Marcus v. Holder,

To survive a motion to

dismiss, a complaint must contain sufficient factual matter to
9

“state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Bell

“A claim has

facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
at 678.

Iqbal, 556 U.S.

“Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”
Id. (citing Twombly, 550 U.S. at 554).

Whether a complaint

states a plausible claim for relief is “context-specific,” and
such a determination “requires the reviewing court to draw on its
judicial experience and common sense.”

Id. (citing Twombly, 550

U.S. at 555).
B.

Daniels’s Claim That He Was Treated Disparately on
the Basis of Race When He Was Not Promoted Is
Dismissed for Failure to Exhaust.

To the extent Daniels is asserting that he was subject
to disparate treatment when he was not promoted to the MMO
position, that claim is dismissed because Daniels failed to
timely initiate contact with an employment discrimination
counselor.

Federal employees seeking relief under Title VII

must, as a precondition to filing an action in a federal district
court, “seek relief in the agency that has allegedly
discriminated against him.”

Kraus, 572 F.3d at 1043 (quoting

Brown v. Gen. Servs. Admin., 425 U.S. 820, 832 (1976)).

As noted

earlier in this order, under 29 C.F.R. § 1614.105, Daniels had to

10

initiate contact with a postal service employment discrimination
counselor “within 45 days of the date of the matter alleged to be
discriminatory.”

The Ninth Circuit has interpreted this

regulation as satisfied if the complaining employee contacts any
agency official logically connected with the process of handling
employment discrimination complaints.

Id. at 1045-46.

did not timely contact any such official.

Daniels

“[A]bsent waiver,

estoppel, or equitable tolling, ‘failure to comply with this
regulation is fatal to a federal employee’s discrimination claim
in federal court.”

Id. (quoting Lyons v. England, 307 F.3d 1092,

1105 (9th Cir. 2002) (modifications and quotation marks
omitted)).
Tomooka was selected for the MMO position in 2006, but
Daniels concedes in his Complaint that he did not initiate
contact with an employment discrimination counselor or equivalent
official until July 2008.

Compl. ¶ 7.

Daniels does not argue

that waiver, estoppel, or equitable tolling applies.

Daniels’s

failure to promote claim is thus dismissed based on his failure
to exhaust his administrative remedies.

Daniels is not given

leave to amend in this regard because such amendment would be
futile.
C.

Claims Under 42 U.S.C. § 1981 and 42
U.S.C. § 1981a Are Dismissed.

Donahoe also seeks dismissal of Daniels’s §§ 1981 and
1981a claims on the ground that neither statute creates a cause
11

of action against federal employees being sued in their official
capacities.

The court agrees.

Section 1981(c) states:

“The rights protected by this

section are protected against impairment by nongovernmental
discrimination and impairment under color of State law.”
Although in Bowers v. Campbell, 505 F.2d 1155, 1157 (9th Cir.
1974), the Ninth Circuit stated that “section 1981 applies to
employment discrimination by federal officials,” that case was
decided before subsection c was added to § 1981 in 1991.

See

Civil Rights Act of 1991, Pub. L. No. 102-166, sec. 101, 105
Stat. 1071 (1991) (codified as amended at 42 U.S.C. § 1981
(1992)).
Section 1981a creates only supplemental remedies for a
plaintiff that has proved a violation of Title VII, not a
distinct cause of action.

Section 1981(a)(1) states:

In an action brought by a complaining party
under section 706 or 717 of the Civil Rights
Act of 1964 [42 U.S.C.A. § 2000e-5 or
2000e-16] against a respondent who engaged in
unlawful intentional discrimination (not an
employment practice that is unlawful because
of its disparate impact) prohibited under
section 703, 704, or 717 of the Act [42
U.S.C.A. §§ 2000e-2, 2000e-3, or 2000e-16],
and provided that the complaining party
cannot recover under section 1981 of this
title, the complaining party may recover
compensatory and punitive damages as allowed
in subsection (b) of this section, in
addition to any relief authorized by section
706(g) of the Civil Rights Act of 1964, from
the respondent.

12

As explained by the Fifth Circuit, “Section § 1981a does not
create a new substantive right or cause of action.

Rather, the

plain language of the statute shows that it merely provides an
additional remedy for ‘unlawful intentional discrimination . . .
prohibited under . . . 42 U.S.C. § 2000e-2 or 2000e-3.’”
Huckabay v. Moore, 142 F.3d 233, 241 (5th Cir. 1998) (quoting 42
U.S.C. §§ 2000e-2, 2000e-3).
Because Daniels does not state claims for relief under
either § 1981 or § 1981a, these claims are dismissed.
V.

SUMMARY JUDGMENT ON TITLE VII CLAIMS.
A.

Summary Judgment Standard.

Summary judgment shall be granted when “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.”
R. Civ. P. 56(a).

Fed.

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 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify “the 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. Catrett, 477 U.S.
317, 323 (1986)); accord Miller v. Glenn Miller Prods., Inc., 454

13

F.3d 975, 987 (9th Cir. 2006).

“A fact is material if it could

affect the outcome of the suit under the governing substantive
law.”

Miller, 454 F.3d at 987.

When the moving party bears the

burden of proof at trial, that party must satisfy its burden with
respect to the motion for summary judgment by coming forward with
affirmative evidence that would entitle it to a directed verdict
if the evidence were uncontroverted at trial.

Id. (quoting

C.A.R. Transp. Brokerage Co., Inc. v. Darden Rest., Inc., 213
F.3d 474, 480 (9th Cir. 2000)).

When the nonmoving party bears

the burden of proof on one or more issues at trial, the party
moving for summary judgment may satisfy its burden with respect
to those issues by pointing out to the court an absence of
evidence from the nonmoving party.

Miller, 454 F.3d at 987.

When the moving party meets its initial burden on a
summary judgment motion, “[t]he burden then shifts to the
nonmoving party to establish, beyond the pleadings, that there is
a genuine issue for trial.”

Id.

The court must not weigh the

evidence or determine the truth of the matter but only determine
whether there is a genuine issue for trial.

See Balint v. Carson

City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).

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 (brackets omitted)

(quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).

14

B.

None of Daniels’s Remaining Title VII Theories
Involves a Triable Issue.

At the hearing on the summary judgment motion,
Daniels’s counsel clarified that Daniels’s Title VII claim was
based on three theories of discrimination: disparate treatment,
retaliation, and hostile work environment.

Daniels does not show

that he has a triable issue with respect to any of those
theories.
1.

Disparate Treatment.

Earlier in this order, this court, noting a failure to
exhaust administrative remedies,

dismissed Daniels’s Title VII

disparate treatment claim relating to the failure to promote.
The court turns now to other alleged bases for Daniels’s
disparate treatment claim.
Daniels appears to be asserting that he was also
subject to disparate treatment in the form of being required to
perform additional duties without extra pay.

He says the extra

duties were assigned because he is African American.

The court

first determines that this particular disparate treatment claim
is timely.

Although Daniels’s complaint fails to specify the

dates on which he was allegedly required to perform additional
work, Donahoe’s own evidence shows that Daniels timely contacted
an employment counselor with respect to this circumstance.
administrative complaint states that Yokoyama attempted to

15

The

reassign Daniels to the night shift on July 10, 2008, and that
Daniels continues to perform MMO duties “to this day.”

Id.

The court, of course, recognizes that Daniels cannot
proceed on a continuing violations disparate treatment theory.
The Supreme Court held in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 113 (2002), that “discrete discriminatory
acts are not actionable if time barred, even when they are
related to acts alleged in timely filed charges. Each discrete
discriminatory act starts a new clock for filing charges alleging
that act.”

But Daniels’s claim is not based on continuing

violations.

Even if each new assignment is a “discrete

discriminatory act,” Daniels says that he was required to perform
additional duties at least until he filed his administrative
complaint.

And even though any assignment that did not occur

within 45 days of July 14, 2008, is time-barred, Daniels may rely
on prior acts as background evidence in support of any timely
claim.

See id. (stating that Title VII does not “bar an employee

from using the prior acts as background evidence in support of a
timely claim”).
Notwithstanding the timeliness of at least a part of
the “additional duties” disparate impact claim, the claim fails
because there is no triable issue of fact with respect to whether
Daniels was required to perform any additional duties based on
race discrimination.

To prevail on a disparate treatment claim,

16

Daniels must establish a prima facie case of discrimination by
showing that (1) he belongs to a protected class, (2) he was
qualified for his position, (3) he was subject to an adverse
employment action, and (4) similarly situated individuals outside
his protected class were treated more favorably.

See Davis v.

Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).

See also

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

If he

does so, the burden shifts to Donahoe to articulate a
“legitimate, nondiscriminatory reason for the challenged action.”
See Davis, 520 F.3d at 1089.

If Donahoe satisfies his burden,

Daniels must finally show that the “reason is pretextual either
directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that
the employer’s proffered explanation is unworthy of credence.”
Id. (quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 112324 (9th Cir. 2000) (quotation marks omitted)).
With respect to Daniels’s prima facie case, there is no
dispute that Daniels belongs to a protected class and is
qualified for his position.

The court looks, therefore, at

whether Daniels suffered an adverse employment action.
An adverse employment action is one that “materially
affects the compensation, terms, conditions, or privileges of
employment.”

Davis, 520 F.3d at 1089 (quoting Chuang, 225 F.3d

at 1126 (quotation marks and modifications omitted)).

17

Daniels

contends that he was required to perform additional duties
without pay.

Donahoe describes the additional duties as

“collateral,” and asserts that performing those duties was not an
adverse employment action because Daniels was not “overwhelmed.”
The Ninth Circuit has held that “assigning more, or
more burdensome, work responsibilities, is an adverse employment
action.”

Davis, 520 F.3d at 1089 (internal citations omitted).

Daniels says he falls within the Davis rubric because he was
assigned a number of duties outside his job description.
Decl. Ex. 5, ECF No. 39-6.

Wooten

Daniels also says that the additional

duties were burdensome in that they “at times delayed [him] from
completing his regular duties.”

Plaintiff Kurt Daniels Concise

Statement Opp. Def.’s Mot. Summ. J. ¶ 11, ECF No. 39.
Assuming Daniels did suffer an adverse employment
action in the form of being assigned more duties, he still does
not make out a prima facie case because he does not show that he
was assigned more duties than similarly situated persons outside
his class.

In Davis, 520 F.3d at 1090, the plaintiff established

an adverse employment action on a summary judgment motion by
alleging that she had been assigned a disproportionate amount of
hazardous work compared to her male co-workers.

Yokoyama’s

undisputed declaration, however, says that he routinely assigned
collateral duties to all of his subordinates, including Daniels.
Herbert H. Yokoyama Decl. Ex. 2 at ¶¶ 8-10, ECF No. 21-3.

18

The

record establishes at most that Daniels, like his coworkers, was
assigned duties beyond his job description.

Because nothing in

the record suggests that, as an African American, Daniels was
assigned disproportionately more collateral duties than similarly
situated non-African American employees, the court concludes that
Daniels fails to make out a prima facie case in this respect.
Even assuming Daniels did make out a prima facie case,
the court would grant summary judgment to Donahoe on the
“additional duties” disparate treatment claim.

Donahoe provides

a legitimate, nondiscriminatory reason for assigning extra
duties.

Yokoyama says he routinely assigned additional duties

based on his assessment of each employee’s workload. Id. ¶ 8. No
employee ever received additional pay for performing collateral
duties.

Id.
The burden then shifts to Daniels to show that

Donahoe’s reason is pretextual. Notably, when Daniels complained
about his collateral duties, Yokoyama asked Daniels to provide a
written breakdown of his workload so that Yokoyama could
determine if Daniels’s assignments should be reallocated.
¶ 9.

Id.

Daniels failed to adequately comply with this request.

See

Def.’s Opp. Ex. 5, Email from Kurt Daniels to Herbert Yokoyama.
While Daniels told Yokoyama that he would “attempt to develop a
time management outline . . . as soon as possible,” there is no

19

indication in the record that Daniels followed through on this
promise.
Asserting that he was assigned additional duties
unequally, id., Daniels points to no evidence demonstrating that
Yokoyama assigned him more duties based on his race.

Daniels

does point to a number of exhibits supposedly demonstrating that
Tomooka was treated more favorably than Daniels and other
employees and that Tomooka was not performing her job adequately.
Even if Daniels is correct about Tomooka, it does not demonstrate
that Yokoyama assigned Daniels more duties based on his race.

A

preference for one employee that may result in additional work
for another employee is not the same as assigning an employee
additional work based on race.

Daniels presents no evidence at

all demonstrating that Yokoyama’s reasons were a pretext for race
discrimination.

Daniels’s “additional duties” disparate

treatment claim therefore fails.
The court notes also that, because Yokoyama hired
Daniels in 2004, Yokoyama is entitled to the “same actor”
inference.

When “the same actor is responsible for both the

hiring and the firing of a discrimination plaintiff, and both
actions occur within a short period of time, a strong inference
arises that there was no discriminatory action.”

Coghlan v. Am.

Seafoods Co. LLC., 413 F.3d 1090, 1096 (9th Cir. 2005) (quoting
Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270-71 (9th Cir.

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1996)).

The inference also applies in cases in which a

“plaintiff was not actually fired but merely offered a less
desirable job assignment.”

Id.

“The same-actor inference is neither a mandatory
presumption (on the one hand) nor a mere possible conclusion for
the jury to draw (on the other).

Rather, it is a ‘strong

inference’ that a court must take into account on a summary
judgment motion.”

Id. (citing Bradley, 104 F.3d at 271).

Examining whether Daniels “has made out the strong case of bias
necessary to overcome this inference,” see id., this court
concludes that Daniels fails to do so.
Two other issues raised by Daniels provide no basis for
recovery by him.

First, Daniels points to Tomooka’s sexual

harassment claim against Yokoyama.

Daniels appears to argue that

Yokoyama was romantically interested in Tomooka and therefore
treated her more favorably than Daniels.

Although, under 29

C.F.R. § 1604.11(g), an employer may be held liable for sex
discrimination when “employment opportunities or benefits are
granted because of an individual’s submission to the employer’s
sexual advances or requests for sexual favors,” Daniels himself
was not the subject of sexual advances or requests for sexual
favors.

His Complaint explicitly states that he was

discriminated against because of his “race, color and national
origin.”

Compl. ¶ 87.

There is no mention of sex

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discrimination.

Not only is Daniels barred from asserting a new

theory of discrimination, Daniels cites neither facts nor
authority for the proposition that any alleged sexual harassment
of Tomooka by Yokoyama can, without more, give rise to a Title
VII claim by Daniel.
Second, Daniels seeks a favorable ruling based on
alleged spoliation of evidence by Donahoe.

While complaining

that Donahoe has lost a spreadsheet and other documents relating
to Tomooka’s work, Daniel presents no evidence that any such loss
was the result of bad faith.

See Medical Lab. Mgmt. Consultants

v. Am. Broad. Cos., Inc., 306 F.3d 806, 823-25 (9th Cir. 2002)
(affirming a district court’s ruling declining to allow an
inference that lost evidence was unfavorable to the party that
lost the evidence when there was no evidence that the party had
acted in bad faith).

Moreover, it is unclear to the court how

Tomooka’s work habits or treatment would establish anything more
than possibly personal favoritism, as opposed to race
discrimination.
Donahoe is entitled to summary judgment on Daniels’s
“additional duties” disparate treatment claim.
2.

Retaliation.

While this court noted earlier in this order that it
has jurisdiction over Daniels’s retaliation claim, that claim
does not survive summary judgment review.

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As Donahoe argues,

Daniels did not contact an employment discrimination counselor or
equivalent official to file an administrative complaint alleging
any retaliation claim with respect to this action.

Daniels

alleges in his Complaint that, in retaliation for his having
filed an administrative complaint, Yokoyama required him to go to
meetings, gave him a low performance evaluation, and moved him
out of his office.

Daniels did not allege those facts in his

administrative complaint.

He could not have, as those discrete

acts allegedly occurred after Daniels had filed the
administrative complaint.

Nor are they similar to the

discriminatory acts Daniels alleged in his administrative
complaint, as that complaint focused on Daniels’s assignment to
the night shift and performance of supervisory MMO duties, and
Yokoyama’s alleged preferential treatment of Tomooka.

A

reasonable administrative investigation based on the
administrative complaint would not have encompassed Yokoyama’s
alleged retaliatory acts. Daniels therefore failed to
administratively exhaust his retaliation claims before filing
this action, and Donahoe is entitled to summary judgment on the
retaliation claim on that ground.
At the hearing on this motion, Daniels belatedly moved
to file two additional exhibits.

Daniels’s proposed Exhibit 24

is a decision from the EEOC dated April 2, 2009, which includes
authorization to file a civil action.

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Daniels’s proposed Exhibit

25 is a letter dated June 29, 2011, from the EEOC dismissing his
EEOC complaint because he had filed the present suit with this
court.

Daniels presumably had Exhibit 24 before filing the

present suit, and received Exhibit 25 after commencing the
present action.

Neither exhibit is relevant to the issues before

the court.

See Def.’s Opp. To Pl.’s Mot. File Supp. Exs., ECF

No. 53, 2.

The exhaustion required by 29 C.F.R. § 1614.105 is

contact with an administrative officer within 45 days of the
alleged discrimination.

The filing of a charge with the EEOC did

not satisfy 29 C.F.R. § 1614.105.

Accordingly, the court denies

Daniels’s request for leave to file the additional exhibits.
Even if Daniels had exhausted his administrative
remedies, Daniels’s allegations fall short of establishing a
retaliation claim.

To establish a prima facie case of

retaliation under Title VII, Daniels must demonstrate: (1) a
protected activity; (2) an adverse employment action; and (3) a
causal link between the protected activity and the adverse
employment action.”

Cornwell v. Electra Cent. Credit Union, 439

F.3d 1018, 1034-35 (9th Cir. 2006).

“The antiretaliation

provision [in Title VII] protects an individual not from all
retaliation, but from retaliation that produces an injury or
harm.”

Burlington N. & Santa Fe. Ry. Co. v. White, 548 U.S. 53,

68 (2006).

Accordingly, Daniels “must show that a reasonable

employee would have found the action materially adverse, which in

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this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.”
White, 548 U.S. 53, 68 (2006)(internal quotation marks omitted).
Daniels does not satisfy this burden.

Title VII “does

not set forth a general civility code for the American
workplace.”

White, 548 U.S. at 68.

Daniels makes bold

assertions, but the record does not suggest a retaliatory motive.
To the contrary, Yokoyama indicates that he backed away from
taking actions that Daniels complained about.

Yokoyama Decl.

¶¶ 9-10.
3.

Hostile Work Environment.

Daniels also argues that he was subjected to a hostile
work environment.

To establish a prima facie case for a hostile

work environment claim, Daniels “must raise a triable issue of
fact as to whether (1) the defendants subjected [him] to verbal
or physical conduct based on [his] race; (2) the conduct was
unwelcome; and (3) the conduct was sufficiently severe or
pervasive to alter the conditions of [his] employment and create
an abusive working environment.”

Surrell v. Cal. Water Serv.

Co., 518 F.3d 1097, 1108 (9th Cir. 2008).
Daniels fails to establish a triable issue of fact as
to whether defendant subjected him to verbal or physical conduct
based on his race.

To the extent Daniels is arguing that

Yokoyama assigned him collateral duties because of his race,

25

including attending meetings, Daniels’s assertions are
unsupported by the record.

In fact, Yokoyama assigned collateral

duties to all of his immediate subordinates.

Yokoyama Decl. ¶ 8.

To the extent Daniels is arguing that he was deprived
of an office because of his race, this claim is also unsupported
by the record.

Unlike managers and supervisors with offices,

Daniels did not have subordinates.

Id. ¶ 12. Accordingly,

Yokoyama did not believe Daniels needed an office, but
nonetheless informed Daniels that he could have an office built
for him if he took the initiative.

Id. ¶ 12.

Daniels did not.

Id. ¶ 12.
To the extent Daniels is contending that he was
evaluated poorly because of his race, this claim is similarly
unsupported by the record.

Yokoyama slightly downgraded Daniels

in one of four evaluation categories because, Yokoyama says, he
believed this accurately reflected Daniels’s performance.
¶ 13.

Id.

The evaluation does not rise to the level of an adverse

personnel action.

The evaluation as a whole was not negative; in

fact, it was above average.

Specifically, Yokoyama rated Daniels

“above average” in three categories, “average” in one, and “above
average” overall.

Daniels’s allegations fail to rise to the

level of an actionable claim.
Viewed collectively or individually, the matters
Daniels points to were not “sufficiently severe or pervasive to

26

alter the conditions of [Daniels’s] employment,” and there is no
evidence they “create[d] an abusive working environment.”
Surrell, 518 F.3d at 1108.

Accordingly, Daniels’s claim relating

to a hostile work environment fails.
VI.

CONCLUSION
For the foregoing reasons, the court grants Donahoe’s

motion to dismiss and/or for summary judgment.

The Clerk of

Court is directed to enter judgment for Donahoe and to close this
case.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 1, 2012.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Daniels v. Donahoe; Civil No. 11-00287 SOM/RLP; ORDER GRANTING DEFENDANT PATRICK R.
DONAHOE’S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT

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