Yonemoto v. Shinseki
ORDER (1) DENYING PLAINTIFF'S MOTION TO VACATE, IN PART, THE COURT'S ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS OR FOR SUMMARY JUDGMENT, DOC. NO. 135 ; AND (2) GRANTING PLAINTIFF'S REQ UEST TO LIMIT HIS TITLE VII RETALIATORY HOSTILE WORK ENVIRONMENT CLAIM. Signed by JUDGE J. MICHAEL SEABRIGHT on 4/22/2015.Excerpt of order:"Plaintiff has filed a Motion to Vacate, in Part, t he March 10, 2014 Order. Plaintiff seeks to (1) limit his Title VII retaliatory hostile work environment claim to events starting April 29, 2010 as opposed to August 2008 as he alleged in his pleadings; and (2) broaden his Rehabilitation Act clai m based on an argument he never properly or previously raised. Based on the following, the court construes Plaintiff's first argument as a motion to withdraw this portion of his claim and GRANTS such request. The court otherwise DENIES Plain tiffs Motion to Vacate the March 10, 2014 Order." "[T]he court...GRANTS Plaintiff's request to limit his Title VII retaliatory hostile work environment claim. For trial, Plaintiff's claims include the following:(1) Plaintiff's Title VII retaliation claim based on the June 16, 2010 denial of authorized absence, and the removal of Plaintiff from his private office.(2) Plaintiff's Title VII retaliatory hostile work environment claim based on a refusal to assign Plaintiff meaningful work, actionable beginning April 26, 2010;(3) Plaintiff's denial of reasonable accommodation Rehabilitation Act claim based on discrete acts occurring on or after July 3, 2011; and (4) Pl aintiff's hostile work environment Rehabilitation Act claim, occurring from November 30, 2010 to the present." (afc)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). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RONALD M. YONEMOTO,
ROBERT A. McDONALD, Secretary, )
United States DEPARTMENT OF
CIVIL NO. 11-00533 JMS/RLP
ORDER (1) DENYING PLAINTIFF’S
MOTION TO VACATE, IN PART,
THE COURT’S ORDER GRANTING
IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO
DISMISS OR FOR SUMMARY
JUDGMENT, DOC. NO. 135; AND
(2) GRANTING PLAINTIFF’S
REQUEST TO LIMIT HIS TITLE VII
RETALIATORY HOSTILE WORK
ORDER (1) DENYING PLAINTIFF’S MOTION TO VACATE, IN PART,
THE COURT’S ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION TO DISMISS OR FOR SUMMARY
JUDGMENT, DOC. NO. 135; AND (2) GRANTING PLAINTIFF’S
REQUEST TO LIMIT HIS TITLE VII RETALIATORY HOSTILE WORK
This action is set for trial to commence on May 5, 2015 on Plaintiff
Ronald M. Yonemoto’s (“Plaintiff”) claims against his employer, Defendant
Robert A. McDonald,1 Secretary, United States Department of Veterans Affairs
(“Defendant”), for retaliation in violation of Title VII of the Civil Rights Act of
1964 based on both discrete acts and hostile work environment, and for disability
Robert McDonald replaced Eric Shinseki as the Secretary, Department of Veterans
Affairs on July 29, 2014.
discrimination and retaliatory hostile work environment in violation of the
Throughout this case, the scope of Plaintiff’s claims has been a
moving target, with Plaintiff repeatedly attempting to expand his claims beyond
what was alleged in his pleadings and what was part of the EEOC investigations.
In a March 10, 2014 Order granting in part and denying in part Defendant’s
Motion for Summary Judgment (the “March 10, 2014 Order”), the court held,
among other things, that (1) to be timely, the discrete acts that are the basis of
Plaintiff’s retaliation and disability claims must have occurred no more than fortyfive days prior to Plaintiff’s first contact with an EEO counselor regarding those
acts; and (2) Plaintiff’s hostile work environment claims are timely so long as one
act that is the basis of such claim occurred within forty-five days of Plaintiff’s first
contact with an EEO counselor. Doc. No. 79; Yonemoto v. Shinseki, 3 F. Supp. 3d
827 (D. Haw. 2014).
Now, over a year after the March 10, 2014 Order and on the eve of
trial, Plaintiff has filed a Motion to Vacate, in Part, the March 10, 2014 Order.
Plaintiff seeks to (1) limit his Title VII retaliatory hostile work environment claim
to events starting April 29, 2010 as opposed to August 2008 as he alleged in his
pleadings; and (2) broaden his Rehabilitation Act claim based on an argument he
never properly or previously raised. Based on the following, the court construes
Plaintiff’s first argument as a motion to withdraw this portion of his claim and
GRANTS such request. The court otherwise DENIES Plaintiff’s Motion to Vacate
the March 10, 2014 Order.
Throughout this action, the court has struggled to determine the scope
of Plaintiff’s claims. Plaintiff, who is in the best position to articulate his claims,
has provided little assistance -- Plaintiff’s claims have been a moving target, with
the EEOC Complaints, the First Amended Complaint (“FAC”), and Plaintiff’s
arguments before the court containing ever-expanding allegations forming the
basis of Plaintiff’s claims. And when given the opportunity, Plaintiff has by and
large failed to clearly articulate his arguments, offering at times contradictory
arguments. The court therefore provides the following background to provide
context to Plaintiff’s current Motion.
Plaintiff’s Expanding Claims and Defendant’s Motion for Summary
Plaintiff’s FAC broadly alleges discriminatory conduct by Defendant
dating back as early as 2008 based on a panoply of events, only some of which
were included in the EEOC Complaints and investigations that are the basis of this
action.2 See Doc. No. 18. Defendant therefore filed a Motion to Dismiss or for
Summary Judgment, arguing that (1) Plaintiff failed to exhaust his administrative
remedies as to many of Plaintiff’s allegations because they were not asserted in the
EEOC Complaints, and (2) other allegations are untimely because Plaintiff failed
to report the alleged discriminatory acts to the EEOC within forty-five days of
their occurrence. Doc. No. 50; see also Yonemoto, 3 F. Supp. 3d at 840-41
(describing Plaintiff’s ever-expanding claims). In particular, as to timeliness,
Defendant argued that (1) the discrete acts forming the basis of Plaintiff’s Title
VII retaliation claim must occur on or after April 26, 2010, i.e., forty-five days
before Plaintiff first contacted an EEO counselor alleging retaliation based on
these events; and (2) the discrete acts forming the basis of Plaintiff’s disability
discrimination claim must occur on or after July 3, 2011,3 i.e., forty-five days
before Plaintiff first contacted an EEO counselor regarding his disability claims.
Doc. No. 50-1, Def.’s Mot at 9-10.
In opposition, Plaintiff presented a confusing assortment of
The March 10, 2014 Order provides a full description of the relevant allegations in this
action, and the court does not reiterate them here. See Yonemoto, 3 F. Supp. 3d at 833-39.
Although both Defendant’s Motion and the March 10, 2014 Order recite the relevant
cut-off date as July 2, 2011, Plaintiff asserts that forty-five days prior to his first contact with an
EEO counselor is July 3, 2011. See Doc. No. 135-1, Pl.’s Mot. at 8 n.3. The court therefore uses
July 3, 2011 throughout this Order, except where providing a direct quotation.
arguments -- Plaintiff (1) asserted additional allegations that were not included in
the FAC; (2) argued that he had exhausted his claims because he was asserting
ongoing discrimination; yet (3) acknowledged that “even if viewed as ‘discrete’
any claim for discrete acts occurring within 45-days of the July 21, 2010 and
September 15, 2011 complaints must be considered ‘exhausted’ as they would be
covered by the charges filed as of those dates.” Doc. No. 62, Pl.’s Opp’n at 26.
The February 24, 2014 Hearing
As a result of Plaintiff’s confusing arguments, the court sought
clarification on the scope of Plaintiff’s claims at the February 24, 2014 hearing on
Defendant’s Motion. First, Plaintiff clarified that his claims did not include
discrete acts outside of the 45-day window:
We have a 45-day window, and the claims -- yes,
and the claims that are brought in this complaint before
the Court here were exhausted through exercise of the
ORM process within the 45-day window.
Now, the bright line that the Court is drawing is
what -- applies to events that occurred before that 45
days. The question is why there is so much stuff in the
brief about things that occurred prior to that 45-day
I admit that those are not claims, they do not form
claims. What they are and what the Court can look to
them as is evidence of motive. Evidence of intent and
evidence of hostility. . . .
Doc. No. 78, at 19-20.
But after agreeing to this framework, Plaintiff argued that his claims
were properly exhausted. As to his disability claim, Plaintiff argued:
If you look at the ORM for 8/17/11, that’s Exhibit
3 to Defendant’s Motion for Summary Judgment, Mr.
Yonemoto talks about his symptoms and overall medical
condition deteriorating over the past couple years, seeks
modified schedule and other work tasks and duties, leave
from work, modified work schedule, and modified work
location. If you read the investigatory report that
follows that, there is very detailed description of what it
is Mr. Yonemoto is claiming, and what he’s seeking.
The first thing that’s said in that investigatory report is
that he has met the requirements of timely filing for the
charges contained therein.
Id. at 21-22.
The court then focused Plaintiff on the forty-five day time period
relevant to the disability discrimination claim (i.e., starting July 3, 2011):
THE COURT: . . . What I hear [Defendant] saying is that
the June 24, 2011, response by Mr. Carethers for
accommodation was outside the 45-day window. And
he’s correct on that. It was outside the 45-day window.
MR. VARADY: Unless we’re looking at a continuing
THE COURT: No, it’s before, you don’t continue
MR. VARADY: No.
THE COURT: You continue forward, not backwards in
MR. VARADY: That is correct, but the request is
ongoing. That’s the point.
THE COURT: What request is ongoing?
MR. VARADY: The request for accommodation in the
form of modified work duties, modified -THE COURT: But he has to go to the -- initiate contact
with the EEOC.
MR. VARADY: He has done that.
THE COURT: Right. In July 2nd, 2011.
MR. VARADY: Right, and it has continued since that
time. If you look at the investigatory report -THE COURT: All right. Move on to something else,
because you really aren’t helping yourself here. You are
mixing up after you make that initial contact, the time
frame going forward versus the time frame going
backward. That’s what you’re doing.
In response, Plaintiff explained that his disability claim dates back to
his earlier Title VII retaliation claim because his disability allegations were part of
MR. VARADY: What I would point to the Court is the
investigatory report, the second one, refers back and
incorporates the investigatory report for the 2010 . . .
MR. VARADY: Well, you were asking me to loop
backward in time, and I’m trying to knit it together as
best I can. And what -- if you look at the investigatory
reports, the investigatory report for the September 2011
ORM charge relates -- incorporates and relates back to
the 2010 charge.
THE COURT: Okay.
Mr. VARADY: If you look at the 2010 charge, it refers
to the 2009 e-mails that were sent to Dr. Carethers saying
-- and not just to Dr. Carethers, but 2009 begins a chain
of e-mails that goes into 2010 and 2011 to Drs.
Carethers, Dubbs, and Hastings, all saying the same
thing, which is, I’m getting sick and stressed out because
I have no work. That’s how we get back -- whether or
not the charge or the box is checked or whether he says
magic words like “accommodation” or “Rehabilitation
Act,” . . .
Id. at 23-26.
Plaintiff’s Supplemental Briefing
On February 26, 2014, two days after the hearing, Plaintiff submitted
a supplemental brief without leave of court, arguing that his claims were timely.
Doc. No. 73. After the court struck this supplemental memorandum on the bases
that supplemental briefing was not requested and Plaintiff may not present new
arguments not included in his Opposition, Plaintiff filed a Motion for Leave to
File a Supplemental Post Hearing Brief. Doc. No. 75. The court denied this
Motion for the same reasons it struck the initial supplemental memorandum. The
Plaintiff has already had multiple opportunities to
present his argument to the court through his Opposition
and argument at the February 24, 2014 hearing.
Plaintiff’s attempt to submit additional briefing to correct
deficiencies in his arguments pointed out during the
February 24, 2014 hearing not only prejudices
Defendant, but also confuses the issues presented to the
court and delays efficient adjudication of this action.
Further, the court has not requested supplemental
briefing, which would be limited to particular issues
identified by the court as requiring clarification.
Plaintiff’s fifteen-page supplemental brief is therefore
not only improper, but unhelpful at this time.
Doc. No. 77.
The March 10, 2014 Order
The March 10, 2014 Order granted in part and denied in part
Defendant’s Motion to Dismiss or for Summary Judgment. The March 10, 2014
Order determined that Plaintiff failed to exhaust certain allegations regarding
discrete acts, and that other discrete acts, to the extent they occurred more than
forty-five days prior to the Plaintiff’s first contacts with the EEOC, were untimely.
The March 10, 2014 Order further rejected Plaintiff’s argument made at the
February 24, 2014 hearing that his disability claim relates back to the July 27,
2010 EEOC Complaint and its investigation. Yonemoto, 3 F. Supp. 3d at 846.
After performing the exhaustion/timeliness analysis, the March 10,
2014 Order described that Plaintiff’s remaining claims included:
Plaintiff’s retaliation and hostile work environment
claims based on the denial of meaningful work
assignments (which Defendant conceded was an ongoing violation, Doc. No. 50-1, Def.’s Mot. at 9), the
denial of paid leave on June 16, 2010 (part of the July
27, 2010 EEOC Complaint), and the AWOL charge and
refusal to reimburse Plaintiff $150 for his September 27,
2010 absence (investigated by the EEOC as part of the
July 27, 2010 EEOC Complaint). This determination,
however, does not prevent Plaintiff from presenting
evidence of untimely discrete acts “for purposes of
placing non-discrete acts in the proper context” for the
hostile work environment claim. See Porter, 419 F.3d at
893 n.4 (citing Morgan, 536 U.S. at 113).
As to Plaintiff’s disability claims, to the extent
Plaintiff is asserting a denial of reasonable
accommodation claim based on the February 24, 2011
letter from Dr. Loh, it is untimely because Defendant
responded on June 24, 2011, which is outside forty-five
days of Plaintiff’s first contact with the EEOC (on July 2,
2011) regarding his disability claim. The FAC includes
additional allegations, however, that Plaintiff made other
requests for accommodation after the June 24, 2011
letter, which were all ignored and/or denied. See Doc.
No. 18, FAC ¶¶ 69-75. The parties failed to present any
evidence regarding these requests, much less any
argument as to whether these denials of accommodation
are reasonably related to the September 20, 2011 EEOC
Complaint such that they are properly part of Plaintiff’s
claims before this court. See also Cherosky, 330 F.3d at
1248 (explaining that each denial of an accommodation
restarts the time period for EEOC consultation). The
court therefore leaves open what aspects of Plaintiff’s
Rehabilitation Act claims, Counts III and IV of the FAC,
remain in this action.
Id. at 847.4
In conclusion, the March 10, 2014 Order described that Plaintiff’s
claims remaining in this action included:
(1) Plaintiff’s Title VII retaliation claim based on the
June 16, 2010 denial of AA; (2) Plaintiff’s Title VII
retaliatory hostile work environment claim based on a
refusal to assign Plaintiff meaningful work; and
(3) Plaintiff’s Rehabilitation Act claims, to the extent
based on conduct occurring after the June 24, 2011
The March 10, 2014 Order further granted summary judgment on Plaintiff’s retaliation
claim based on the AWOL charge and denial of reimbursement, finding no genuine issue of
material fact that Carethers rescinded the AWOL charge once Plaintiff established that he called
the office and that Carethers had no authority to reimburse Plaintiff for his phone charges.
Yonemoto, 3 F. Supp. 3d at 850.
denial of requests for accommodation.
Id. at 851.
Plaintiff Again Attempts to Broaden his Claims Despite the March 10,
The March 10, 2014 Order definitively outlined the scope of
Plaintiff’s remaining claims, and the parties prepared for a bench trial to begin on
April 20, 2015. But over one year later, in Plaintiff’s April 10, 2015 trial brief, he
argued that his disability claim encompassed discrete acts beginning from
November 30, 2010 to the present, in direct contravention of the March 10, 2014
Order (which determined that the forty-five day window for the disability claim
based on discrete acts began on July 3, 2011).5
In an April 15, 2015 Order, the court made clear that it would not rule
on any arguments regarding the scope of Plaintiff’s claims which are raised in his
trial brief, and that Plaintiff must file a proper motion. Doc. No. 133. In
particular, the April 15, 2015 Order directed Plaintiff to file a motion to the extent
Plaintiff’s trial brief also asserts that his Title VII retaliation claim includes the
additional discrete act that Dr. Carethers denied his request for modification of his tour of duty.
At the April 15, 2015 status conference, Plaintiff conceded that this event was not properly part
of his claims, although such event could be presented to provide context for his actionable
Also, by agreement of the parties, Plaintiff’s Title VII retaliation claim includes the
discrete act that Carethers moved Plaintiff to a different office. Although the March 10, 2014
Order determined that this event was untimely based on the allegation in the FAC that it occurred
outside of the forty-five day window, the parties now agree that this event happened within the
forty-five day window. See Doc. No. 110.
he disagrees with the March 10, 2014 Order’s determination and recitation of the
scope of the claims remaining in this action, including the time frame for each
claim. To allow resolution of this issue, trial was rescheduled to commence on
May 5, 2015.
Plaintiff filed his Motion on April 17, 2015, Doc. No. 135, and the
government filed its Opposition on April 21, 2015. Doc. No. 138. Pursuant to
Local Rule 7.2(d), the court determines the Motion without a hearing.
Plaintiff’s Title VII Hostile Work Environment Claim
Plaintiff seeks to vacate the March 10, 2014 Order to the extent it
held that Plaintiff’s Title VII hostile work environment claim dates back to August
2008. See Yonemoto, 3 F. Supp. 3d at 851. Plaintiff asserts that he is not seeking
to recover for acts that occurred prior to April 26, 2010 because he currently has
before the EEOC live hostile work environment claims that cover this time period.
Doc. No. 135-1, Pl.’s Mot. at 6. Plaintiff further argues that Defendant should not
be permitted to extend Plaintiff’s hostile work environment claim back in time
merely to bolster the relevance of evidence Defendant seeks to admit regarding
Plaintiff’s work history prior to 2010. Id. at 7-8.
Although Plaintiff may certainly seek to limit the claims he presents
at trial (and Defendant does not object to such limitation, Doc. No. 138, Def.’s
Opp’n at 5), Plaintiff’s Motion seeking to vacate the March 10, 2014 Order is not
the proper vehicle. The March 10, 2014 Order described Plaintiff’s claims based
on what the FAC alleged and what Plaintiff argued before the court -- that since
August 2008, Defendant has refused to assign Plaintiff meaningful work. See
Doc. No. 18, FAC ¶¶ 39-40, Doc. No. 62, Pl.’s Opp’n at 26 (describing that hostile
work environment claims “are alleged to have been occurring from 2008, through
the present”). And at no time prior to the March 10, 2014 Order did Plaintiff seek
to limit his claims. Thus, there is no error in the March 10, 2014 Order -- it
properly reflects Plaintiff’s claims as alleged at the time -- and there is no basis to
The court therefore DENIES Plaintiff’s Motion to vacate the portion
of the March 10, 2014 Order stating that Plaintiff’s hostile work environment
claim is based on conduct starting in 2008. The court will, however, construe
Plaintiff’s Motion as an unopposed motion to withdraw his retaliatory hostile work
environment claim to the extent based on the lack of meaningful work assignments
from August 2008 through April 25, 2010, and GRANT said motion. Trial in this
action will proceed on Plaintiff’s Title VII retaliatory hostile work environment
claim as actionable beginning April 26, 2010. At this time, the court makes no
determination as to whether limiting the retaliatory hostile work environment
claim in this fashion affects, in any manner, the admissibility of evidence at trial,
or Plaintiff’s claims currently pending before the EEOC.
Plaintiff’s Rehabilitation Act Claim Based on Discrete Acts
Plaintiff argues that the March 10, 2014 Order erred in dismissing
Plaintiff’s disability claim to the extent it is based on discrete acts that occurred
more than forty-five days prior to Plaintiff’s first contact with the EEOC for this
claim (i.e., July 3, 2011).6 Plaintiff now asks the court to vacate this
determination, arguing that his Rehabilitation Act claim extends back to
November 29, 2010 -- i.e., over seven months earlier. Plaintiff argues that the
March 10, 2014 Order is “factually erroneous” because the VA made a binding
determination regarding the scope of Plaintiff’s claim where it described the claim
as including discrimination and reprisal occurring since November 29, 2010, and
found that such claim met all procedural requirements. For several reasons, the
court rejects this argument.
This limitation applies to only those claims based on discrete acts -- as the March 10,
2014 Order explained, Plaintiff’s claims for hostile work environment (whether based on Title
VII or the Rehabilitation Act) are not limited to those events occurring within the limitations
filing period so long as one act contributing to the claim occurs within the limitations period.
Yonemoto, 3 F. Supp. 3d at 842 (discussing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 111, 117-18 (2002)).
Plaintiff’s Motion Is Procedurally Improper
As an initial matter, Plaintiff’s Motion is a procedurally improper
attempt to seek reconsideration of the March 10, 2014 Order.
Plaintiff brings his Motion pursuant to Federal Rule of Civil
Procedure 54(b), which provides that an interlocutory order “may be revised at any
time before the entry of a judgment adjudicating all the claims and all the parties’
rights and liabilities.” But Rule 54(b) does not provide any mechanism for a party
to seek revision of an interlocutory order,7 and reconsideration is generally
appropriate only “if the district court (1) is presented with newly discovered
evidence, (2) committed clear error or the initial decision was manifestly unjust, or
(3) if there is an intervening change in controlling law.” Sch. Dist. No. 1J,
Multnomah Cnty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also
Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand,
LLP, 322 F.3d 147, 167 (2d Cir. 2003) (explaining that Rule 54(b) requires a
showing of “good cause” on the part of the movant, which is shown by “an
intervening change of controlling law, the availability of new evidence, or the
need to correct a clear error or prevent a manifest injustice” (quotations omitted)).
In comparison, Federal Rules of Civil Procedure 59 and 60 allow reconsideration of
final orders, specify that a party may file such a motion, and provide time limits for which the
party may seek reconsideration.
Moreover, Local Rule 60.1 outlines when a party may seek
reconsideration of an interlocutory order, providing:
Motions for reconsideration of interlocutory orders may
be brought only upon the following grounds:
(a) Discovery of new material facts not previously
(b) Intervening change in law;
(c) Manifest error of law or fact.
Motions asserted under Subsection (c) of this rule must
be filed and served not more than fourteen (14) days
after the court’s written order is filed.
In this case, to the extent Plaintiff seeks to vacate the March 10, 2014 Order,
Plaintiff must meet the requirements of Local Rule 60.1.8 See Osei v. La Salle
Although in an exceptional case Federal Rule of Civil Procedure 54(b) may permit
reconsideration outside Local Rule 60.1’s time limitation, this is clearly not such a case. See
BlueEarth Biofuels, LLC v. Hawaiian Elec. Co., 2011 WL 1833017, at *5 n.2 (D. Haw. May 13,
2011) (“Although the Court might may well have the power to disregard the [Local Rule 60.1], it
is not convinced it should in the instant case.”). Indeed, Plaintiff offers no reason whatsoever as
to why he failed to raise this argument on summary judgment, and failed to raise this argument in
a timely motion to reconsider. Instead, Plaintiff waited until the very eve of trial to raise this
issue, and initially presented it not as a motion, but as an argument within a seventy-page trial
brief. Under these circumstances, Plaintiff provides the court no good cause to consider
Plaintiff’s untimely arguments for reconsideration. See, e.g., Wine & Canvas Dev. LLC v.
Weisser, 2014 WL 5089122, at *2 (S.D. Ind. Oct. 9, 2014) (“The Court finds that justice does not
require the Court to reconsider its summary judgment order at this late date. The motion has
taxed the parties’ resources and preparation for trial, and the contents of the motion rehash
previously addressed arguments, or raise arguments that should have been raised in the initial
summary judgment motion.”); Sea Trade Co. v. FleetBoston Fin. Corp., 2009 WL 4667102, at
*3 (S.D.N.Y. Dec. 9, 2009) (“Although the Court, in the interest of justice, may entertain a
motion for reconsideration that does not comply with Local Rule 6.3’s time requirements,
Plaintiffs’ excuses for the late filing are not compelling.” (citations omitted)); see also Pyramid
Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989) (“[T]he orderly
administration of lengthy and complex litigation such as this requires the finality of orders be
Univ., 493 F. App’x 292, 294 n.1 (3d Cir. 2012) (“Motions for reconsideration do
not arise under Rule 54(b). The District Court disregarded Osei's erroneous
reference to Rule 54(b) and properly construed the filing as a motion for
reconsideration.”); Reassure Am. Life Ins. Co. v. Rogers, 248 F. Supp. 2d 974, 986
(D. Haw. 2003) (stating that a motion for reconsideration pursuant to Local Rule
60.1 is the proper vehicle to challenge a dispositive motion, not Rule 54(b)); see
also Waikoloa Dev. Co. v. Hilton Resorts Corp., 2014 WL 3735446, at *1 n.1 (D.
Haw. July 25, 2014) (declining to address reconsideration argument based on
manifest error where argument was made over one month after the order at issue).
Plaintiff fails to establish that he is entitled to reconsideration under
Local Rule 60.1. Plaintiff does not argue that he discovered any new material
facts not previously available, or that there has been a change in law since the
March 10, 2014 Order. Rather, Plaintiff argues that the March 10, 2014 Order is
“factually erroneous” to the extent it determined that the discrete acts supporting
Plaintiff’s Rehabilitation Act retaliation claims must occur on or after July 3,
2011, i.e., forty-five days before his first contact with an EEO counselor regarding
his Rehabilitation Act claim. See Doc. No. 135-1, Pl.’s Memo. at 8. In other
words, Plaintiff argues that the March 10, 2014 Order contains a manifest error of
law or fact. But to raise such error, Plaintiff was required to file such motion not
more than fourteen days after the March 10, 2014 Order. See Local Rule 60.1.
Plaintiff’s Motion, filed over a year after the March 10, 2014 Order, is therefore
Plaintiff Waived this Argument on Summary Judgment
Second, even if the court overlooked that Plaintiff’s Motion is
procedurally improper, Plaintiff ignores that he waived this argument by failing to
raise it in opposition to Defendant’s Motion to Dismiss or for Summary Judgment.
It is well-established that a party’s failure to raise an issue in
opposition to a motion for summary judgment operates as a waiver of that issue.
See Image Tech. Serv., Inc. v. Eastman Kodak, 903 F.2d 612, 615 n.1 (9th Cir.
1990) (holding that plaintiff’s failure to raise an issue in opposition to defendant’s
motion for summary judgment waived the issue); Alexopulos ex rel Alexopulos v.
Riles, 784 F.2d 1408, 1410-11 (9th Cir. 1986) (finding tolling argument waived
because the appellants failed to raise it in opposition to summary judgment -- even
though the parties had briefed the general statute-of-limitations issue -- and “did
not provide reasons for their failure”); Reliance Ins. Co. v. Doctors Co., 299 F.
Supp. 2d 1131, 1154 (D. Haw. 2003) (“Failure to raise issues in opposition to
summary judgment functions as a waiver” of the argument.); see also Samica
Enters. LLC v. Mail Boxes Etc., Inc., 460 F. App’x 664, 666 (9th Cir. 2011)
(“Arguments not raised in opposition to summary judgment or in the opening brief
before this court are waived.”).
In its Motion for Summary Judgment, Defendant argued that Plaintiff
cannot base his retaliation claims on discrete acts that occurred more than fortyfive days before Plaintiff initiated contact with an EEO counselor regarding those
acts, and therefore sought dismissal of Plaintiff’s claims to the extent based on
such acts. Doc. No. 50-1, Def.’s Mot. at 5. In opposition, Plaintiff failed to raise
the argument he asserts now -- that his disability claim is timely as of November
29, 2010, pursuant to Girard v. Rubin, 62 F.3d 1244 (9th Cir. 1995), and the VA’s
determination that Plaintiff met all procedural requirements. In fact, at no point in
his Opposition, the February 24, 2014 hearing, or in his Supplemental Brief
(struck by the court) did Plaintiff ever contend that the VA was bound by any
timeliness determination, or even cite Girard or any related cases.
As a result, Plaintiff waived his argument and cannot raise it now
over a year later on a Motion for Reconsideration. See Haw. Stevedores, Inc. v.
HT & T Co., 363 F. Supp. 2d 1253, 1269 (D. Haw. 2005) (explaining that
reconsideration may not be based on evidence and legal arguments that could have
been presented at the time of the challenged decision).
Plaintiff’s Argument Lacks Merit
Finally, even if the court addresses the substance of Plaintiff’s
argument, it lacks merit.
Plaintiff argues that the Department of Veterans Affairs, Office of
Resolution Management (“VA ORM”) made an express finding that Plaintiff’s
disability claim dating back to November 29, 2010 was timely, and Defendant
cannot dispute such finding in this action. Plaintiff’s argument is based on
Girard, which determined that an employer cannot argue that a plaintiff’s claims
are untimely where the EEOC makes an express timeliness determination, which
the employer fails to appeal. In Girard, an IRS employee filed a charge of
employment discrimination based on nonselection for a management position and
removal from the Regional Management Careers Program (“RMCP”), which had
occurred over three years earlier. 62 F.3d at 1245. In response to an IRS Regional
Complaint Center request for information as to why the employee took so long to
file his complaint, the employee explained that it was only in talking to an EEO
counselor that he learned that his manager did not have authority to take him out
of the RMCP program. Id. Although the IRS rejected the claim as untimely, on
appeal the EEOC found the claim was timely because the employee “could not
have reasonably known that his discharge from the RMCP was unauthorized and
improper until he was told this fact by the EEO Counselor.” Id. The IRS did not
move for reconsideration and instead complied with the EEOC’s ruling and
conducted an investigation, resulting in a finding of no discrimination. Id.
Girard held that the EEOC’s determination on timeliness “was a final
binding order on the IRS,” that the IRS has waived this argument by failing to
appeal this determination, and that the IRS could not come into court and re-argue
timeliness. Id. at 1247. In making this determination, Girard distinguished these
facts from Boyd v. United States Postal Service, 752 F.2d 410, 414 (9th Cir. 1985),
which held that “[t]he mere receipt and investigation of a complaint does not
waive objection to a complainant’s failure to comply with the original filing time
limit when the later investigation does not result in an administrative finding of
Thus, reading Boyd and Girard together, a specific, express finding of
timeliness is binding upon later litigation, but the mere fact of investigation of a
complaint containing untimely allegations does not act as a specific determination
on timeliness. Stated differently:
it is one thing for an agency to accept a claim, conduct
an investigation, and discover during the investigation
that the claim is untimely. It is quite another thing for
the agency to expressly find that the claim is timely (or
be told by the EEOC that it is timely and not challenge
that finding), investigate the claim, and then challenge
(or re-challenge) timeliness months or years later in a
civil litigation. There is no binding waiver in the former
situation, but there is in the latter.
Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1253 n.11 (11th Cir.
2012). And courts have applied this distinction in rejecting that the EEOC’s mere
acceptance and investigation of incidents that occur outside the forty-five day
window acts as a specific finding on timeliness. See Higdon v. Mabus, 5 F. Supp.
3d 1199, 1205-06 (S.D. Cal. 2014) (discussing Girard and Boyd and finding that
the EEOC’s acceptance and investigation of incidents that occurred more than
forty-five days prior to the plaintiff’s first contact with an EEOC counselor was
not an “indication that the Navy expressly waived the timeliness requirement”);
Rose v. Mabus, 2010 WL 5139264, at *2 (S.D. Cal. Dec. 13, 2010) (rejecting
waiver argument, and reasoning that “[e]quating the acceptance and investigation
of a complaint with the waiver of any argument that the case is time-barred would
‘vitiate any incentive for [government] agencies to investigate and voluntarily
remedy instances of discrimination, lest the agencies risk forfeiting a valid defense
to a potential suit.’” (quoting Belgrave v. Pena, 254 F.3d 384, 387 (2d Cir. 2001)
(internal quotation marks omitted)); Read v. LaHood, 2010 WL 4236931, at *3
(W.D. Wash. Oct. 20, 2010), aff’d, 468 F. App’x 811 (9th Cir. 2012) (determining
that defendant cannot raise timeliness argument where EEOC specifically
determined this issue); Clarke v. Nicholson, 2006 WL 657376, at *2 (E.D. Cal.
Mar. 15, 2006) (“Since the DVA dismissed Plaintiff’s complaint without making a
finding of discrimination, it did not waive its timeliness objection.”).
Applying these principles to this case, the VA did not make any
express determination of timeliness. On August 17, 2011, Plaintiff contacted the
EEOC, and on September 20, 2011, Plaintiff filed an EEOC Complaint asserting
disability discrimination. Doc. No. 67-2, Pl.’s Ex. 52. Plaintiff’s September 20,
2011 EEOC Complaint asserts that the basis for his claims is “Disability (physical
and mental),” and that the date of occurrence is “today, and continuous since 1129-10.” Id. The VA ORM investigated Plaintiff’s claim, and the subsequent
report states that Plaintiff’s complaint “met all procedural requirements for
acceptance” with respect to Plaintiff’s claim, which is “whether complainant was
discriminated against based on disability or reprisal when on November 29, 2010
through September 15, 2011, the agency has failed to provide him with reasonable
accommodation.” Doc. No. 135-11, Pl.’s Ex. 9. This statement in the VA ORM
does not suggest that it performed any analysis of timeliness, much less made a
specific finding that would bind the VA going forward.9
Plaintiff argues that a specific timeliness finding was made because he completed a
Timeliness Statement as to why his complaint was made more than forty-five days after the first
act of discrimination, and the VA ORM accepted this statement in finding that his claim met all
Confirming that no specific finding of timeliness was made is that
Plaintiff is asserting Rehabilitation Act claims based on both discrete acts (failure
to accommodate) as well as retaliatory hostile work environment. As the March
10, 2014 Order explains, Plaintiff’s retaliatory hostile work environment claims
may be based on acts occurring more than forty-five days before Plaintiff
contacted an EEO counselor so long as one event occurred within the forty-five
day window. Thus, where Plaintiff asserted both hostile work environment and
disability claims, it comes as no surprise that the VA described Plaintiff’s claims
as including conduct starting November 29, 2010. In fact, in this case Plaintiff is
asserting a hostile work environment claim dating back to November 30, 2010,
and the EEOC Complaint reflects this claim by including the time period from
November 29, 2010 through September 15, 2011.
In sum, the court rejects that the VA made any timeliness
procedural requirements. See Doc. No. 135-1, Pl.’s Mot. at 11. But Plaintiff never presented this
“Timeliness Statement” as an exhibit to the court, whether in opposition to summary judgment or
as an exhibit to Plaintiff’s present motion. Needless to say, Plaintiff cannot carry his burden
based on evidence absent from the record.
And although Plaintiff did not carry his burden of presenting this evidence, the court
reviewed the trial exhibits submitted in this case, including the exhibit Plaintiff identified in his
Trial Brief as containing the Timeliness Statement. Contrary to Plaintiff’s argument, this
document does not suggest that Plaintiff provided any explanation supporting that his disability
claim, to the extent based on discrete acts, properly includes acts occurring more than forty-five
days after his first contact with an EEO counselor. Rather, in this trial exhibit Plaintiff states that
the discrimination at issue began on November 29, 2010 and continued on a “daily basis” to the
present, supporting that Plaintiff was asserting, at least in part, a hostile work environment claim.
determination binding on Defendant in this action. Rather, Plaintiff’s claim, to the
extent based on discrete acts, includes only those acts that occurred on July 3,
2011 or later.
Based on the above, the court DENIES Plaintiff’s Motion to Vacate,
in Part, the Court’s Order Granting in Part and Denying in Part Defendant’s
Motion to Dismiss or for Summary Judgment, Doc. No. 135, and GRANTS
Plaintiff’s request to limit his Title VII retaliatory hostile work environment claim.
For trial, Plaintiff’s claims include the following:
(1) Plaintiff’s Title VII retaliation claim based on the June 16, 2010 denial
of authorized absence, and the removal of Plaintiff from his private office.
(2) Plaintiff’s Title VII retaliatory hostile work environment claim based on
a refusal to assign Plaintiff meaningful work, actionable beginning April 26, 2010;
(3) Plaintiff’s denial of reasonable accommodation Rehabilitation Act claim
based on discrete acts occurring on or after July 3, 2011; and
(4) Plaintiff’s hostile work environment Rehabilitation Act claim, occurring
from November 30, 2010 to the present.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 22, 2015.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Yonemoto v. McDonald, Civ. No. 11-00533 JMS/RLP, Order (1) Denying Plaintiff’s Motion to
Vacate, in Part, the Court’s Order Granting in Part and Denying in Part Defendant’s Motion to
Dismiss or for Summary Judgment, Doc. No. 135; and (2) Granting Plaintiff’s Request to Limit
His Title VII Retaliatory Hostile Work Environment Claim
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