Marugame v. Napolitano et al
Filing
41
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT 31 . Signed by JUDGE LESLIE E. KOBAYASHI on 8/28/2013. [Order follows hearing held 7/29/2013; minutes of hearing: doc no. 40 ] (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). 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
NILDA C. MARUGAME,
)
)
Plaintiff,
)
)
vs.
)
)
JANET NAPOLITANO, SECRETARY
)
DEPARTMENT OF HOMELAND
)
SECURITY; DEPARTMENT OF
)
HOMELAND SECURITY,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 11-00710 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT
Before the Court is Defendant Janet Napolitano’s1
(“Defendant”) Motion for Dismissal and Summary Judgment
(“Motion”), filed on April 2, 2013.
[Dkt. no. 31.]
Plaintiff
Nilda C. Marugame (“Plaintiff”) filed her memorandum in
opposition on July 5, 2013, and Defendant filed her reply on
July 15, 2013.
[Dkt. nos. 37, 39.]
hearing on July 29, 2013.
This matter came on for
Appearing on behalf of Defendant was
Assistant United States Attorney Thomas Helper, and appearing on
behalf of Plaintiff was Shawn Luiz, Esq.
After careful
consideration of the Motion, supporting and opposing memoranda,
and the arguments of counsel, Defendant’s Motion is HEREBY
GRANTED IN PART AND DENIED IN PART for the reasons set forth
1
Janet Napolitano is named in her capacity as the Secretary
of the Department of Homeland Security.
below.
Specifically, the Motion is DENIED WITHOUT PREJUDICE as
to the request for dismissal, and is DENIED as to the sexual
harassment/hostile work environment claims based on
Christopher Pheasant’s conduct, and as to the retaliation claim
based on the September 4, 2009 statement.
The Motion is GRANTED
as to the gender discrimination claim and the retaliation claim
based on the three-day suspension.
BACKGROUND
Plaintiff filed her Complaint in the instant action on
November 23, 2011.
During all times relevant to the Complaint,
Plaintiff was employed by the Transportation Security
Administration (“TSA”) as a Transportation Security Officer
(“TSO”) at the Lihue International Airport.
According to the
Complaint, a Transportation Security Investigator (“TSI”)
sexually assaulted Plaintiff on August 26, 2009.
Further, on
September 4, 2009, the Federal Security Director and the
Assistant Federal Security Director coerced Plaintiff into
signing a document denying that the TSI sexually harassed her.
On December 14, 2009, the Transportation Security Manager
suspended Plaintiff for three days.
[Complaint at ¶¶ 4, 8.]
Plaintiff alleges claims of “unlawful employment practices on the
basis of hostile work environment, sexual harassment and
discriminat[ion] against her on the basis of sex (female) and
reprisal/retaliation (opposing discrimination by
2
management) . . . .”
[Id. at ¶ 1.]
Plaintiff brings this action
pursuant to Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et seq., and 42 U.S.C. § 1981a.
I.
[Id.]
Motion
In the instant Motion, Defendant argues that
Plaintiff’s Complaint identifies three acts of alleged
discrimination or retaliation: the alleged assault on August 26,
2009; the September 4, 2009 incident in which Plaintiff was
allegedly forced to sign a statement saying that the TSI did not
sexually harass her; and the three-day suspension, which was
effective December 14, 2009.
[Mem. in Supp. of Motion at 1.]
Defendant first argues that this Court should dismiss
Plaintiff’s sexual harassment claim because Plaintiff failed to
contact an Equal Employment Opportunity (“EEO”) counselor within
forty five days of the last incident of alleged harassment, as
required by 29 C.F.R. § 1614.105(a)(1).
[Id. at 3-4.]
did not contact an EEO counselor until January 25, 2010.
Plaintiff
[Def.’s
Concise Statement of Facts in Supp. of Motion, filed 4/2/13 (dkt.
no. 32) (“Def.’s CSOF”), Decl. of Thomas A. Helper (“Helper
Decl.”), Exh. 1 (Pltf.’s Formal Complaint of Discrimination) at
2, Item 19.]
Defendant argues that, because Plaintiff cannot
establish waiver, estoppel, or equitable tolling, her to failure
contact an EEO counselor within forty five days is grounds for
dismissal of any claims prior to December 11, 2009.
3
Defendant
therefore urges this Court to dismiss Plaintiff’s claims based on
the August 26, 2009 incident and the September 4, 2009 incident.
[Mem. in Supp. of Motion at 4 (citing 29 C.F.R.
§ 1614.107(a)(2)).]
A.
Alleged Sexual Assault on August 26, 2009
Defendant next argues that, even if this Court does not
dismiss Plaintiff’s sexual harassment claim, Defendant is
entitled to summary judgment.
Defendant asserts that, because
Christopher Pheasant, the TSI who allegedly assaulted Plaintiff,
had no supervisory authority over Plaintiff,2 this Court must
apply the standard for co-worker harassment.
Under the co-worker
harassment standard, the employer is only liable if it knew or
should have known about the harassment and either failed to stop
it or failed to adequately address it.
Thus, an employer cannot
be liable for conduct of which it was not aware.
[Id. at 5-7.]
Defendant presented evidence that Plaintiff first
informed TSA managers of the August 26, 2009 alleged assault on
September 16, 2009.
[Def.’s CSOF, Decl. of Betty Jane Uegawa
2
Sharlene Mata is the Federal Security Director at the
Lihue Airport. She is the highest ranking TSA official at that
location. [Def.’s CSOF, Decl. of Sharlene Mata (“Mata Decl.”) at
¶¶ 1-2.] She states that, during the relevant time period,
Pheasant did not manage, supervise, evaluate, or discipline
Plaintiff, nor did he control Plaintiff’s duties or schedule.
[Id. at ¶ 5.]
4
(“Uegawa Decl.”) at ¶ 6;3 Mata Decl. at ¶ 7.]
Plaintiff may
argue that she tried to report the alleged assault on either
September 1, 2009 or August 31, 2009, but Defendant argues that
“[t]here is no need for the court to choose from among these
dates, because the only alleged incident of harassment occurred
earlier” and there were no further alleged incidents of
harassment by Pheasant after Plaintiff’s report.
of Motion at 7.]
[Mem. in Supp.
Thus, Defendant seeks summary judgment because
no harassment occurred after TSA was on notice of the alleged
harassment by Pheasant.
[Id. at 7-8.]
Defendant next argues that, even assuming, arguendo,
that Pheasant is considered Plaintiff’s supervisor, Defendant is
still entitled to summary judgment.
Defendant asserts that,
because there was no tangible employment action taken against
Plaintiff, Defendant can rebut Plaintiff’s prima facie case of
supervisor harassment with the affirmative defense set forth in
Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998), and
Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 759 (1998).
Pursuant to Faragher and Ellerth, Defendant cannot be liable if:
1) TSA exercised reasonable care to prevent sexual harassment and
to correct promptly any sexually harassing behavior; and 2)
Plaintiff unreasonably failed to take advantage of TSA’s
3
Betty Jane Uegawa is the Assistant Federal Security
Director at the Lihue Airport. She is the second highest ranking
TSA official at that location. [Uegawa Decl. at ¶¶ 1-2.]
5
prevention programs or corrective opportunities.
[Id. at 8.]
TSA has a harassment prevention program, and Plaintiff
received training in that program.
[Uegawa Decl. at ¶ 3.]
Defendant argues that TSA acted promptly upon Plaintiff’s
allegation that Pheasant assaulted her and, prior to that point,
Plaintiff failed to report any questionable treatment by
Pheasant.
Defendant therefore could not have intervened in their
relationship.
[Mem. in Supp. of Motion at 8-9.]
According to
Mata, Plaintiff reported her affair with Pheasant to Mata and
Uegawa on September 1, 2009.
Both Plaintiff and Pheasant stated
it was consensual and that it had ended the day before.
asked them not to contact each other.
Mata
[Mata Decl. at ¶ 4.]
After Plaintiff made her complaint on September 16, 2009 about
the alleged assault, TSA promptly investigated her claims.
Although TSA did not sustain Plaintiff’s complaint, it informed
Pheasant of his impending discipline for related conduct.
Pheasant resigned instead.
[Id. at ¶¶ 7, 10.]
Defendant
therefore argues that, even if Pheasant was Plaintiff’s
supervisor, Defendant is entitled to summary judgment based on
the Faragher/Ellerth defense.
B.
[Mem. in Supp. of Motion at 9.]
Alleged Coerced Statement on September 4, 2009
Defendant argues that Plaintiff’s claim regarding the
allegedly coerced statement is either a gender discrimination
claim or a retaliation claim.
Both claims require an adverse
6
personnel action, but a different analysis applies to determine
whether there was an adverse personnel action for a gender
discrimination claim as opposed to a retaliation claim.
[Id. at
9-10.]
Defendant interprets Plaintiff’s Complaint as alleging
that: Plaintiff’s September 1, 2009 attempt to report the sexual
assault was an act of opposition to sexual harassment; on
September 4, 2009, Uegawa retaliated against her by coercing her
to sign a statement denying any assault and stating that
Plaintiff’s relationship with Pheasant was consensual (“the
September 4 Statement”); and the September 4 Statement led to
TSA’s failure to properly investigate Plaintiff’s report.
Defendant argues that Plaintiff cannot establish that the
September 4 Statement was an adverse personnel action for
purposes of a gender discrimination claim because it did not have
a material effect on her compensation, terms, conditions, or
privileges of her employment.
[Id. at 11-12.]
Further, even if
a defective investigation could support a Title VII claim,
Defendant argues that Plaintiff “will be unable to show that the
allegedly compelled statement made any difference in later
developments.”
[Id. at 13.]
Plaintiff made a statement on
October 26, 2009 in the course of the internal investigation by
TSA’s Office of Inspections (“OI” and “the OI Statement”).
The
OI Statement concedes that Plaintiff and Pheasant had consensual
7
sexual encounters, including one at Pheasant’s home four days
after the alleged assault.
[Def.’s CSOF, Decl. of Jenis Rideb
(“Rideb Decl.”), Exh. 4 (OI Statement).]
Defendant argues that
Plaintiff has not claimed that the OI Statement was coerced or
inaccurate.
Insofar as Plaintiff cannot establish that the
alleged coercion of the September 4 Statement was an adverse
personnel action, Defendant urges this Court to grant summary
judgment to Defendant as to Plaintiff’s claim based on the
alleged coercion of the September 4 Statement.
[Mem. in Supp. of
Motion at 13-14.]
C.
Three-day Suspension
For purposes of the instant Motion, Defendant assumes
that Plaintiff can establish a prima facie case for her
retaliation claim based upon the three-day suspension in December
2009.
Defendant argues that TSA had a legitimate, non-
discriminatory reason for the suspension - Plaintiff’s misuse of
government property in the course of her affair with Pheasant.
[Id. at 15.]
Transportation Security Manager Jenis Rideb made the
decision to suspend Plaintiff.
Rideb was not involved in, and
had little knowledge about, the disputes regarding Plaintiff and
Pheasant.
Rideb reviewed the OI Statement, but not Plaintiff’s
September 4 Statement.
He noted that the OI Statement indicated
that Plaintiff and Pheasant had a number of sexual encounters in
8
Pheasant’s office.
On December 9, 2009, Rideb informed Plaintiff
that he was considering suspending her for misuse of government
property, and he gave her the opportunity to respond to the
charges.
[Rideb Decl. at ¶¶ 3-4.]
in response.
Plaintiff gave two statements
They essentially stated that she felt compelled to
go to Pheasant’s office and to comply with his wishes because of
his position.
[Id., Exh. 6 (handwritten statement by Plaintiff
dated 12/9/09), Exh. 7 (type written statement by Plaintiff dated
12/9/09).]
Rideb issued a decision letter dated December 11, 2009.
He emphasized that Pheasant was not Plaintiff’s supervisor and,
even if Pheasant asked Plaintiff to engage in sexual acts, she
was not forced to comply.
Rideb concluded that, based on the OI
Statement, Pheasant’s statement, and other evidence, Plaintiff
was a willing participant in the relationship.
He also noted
that Plaintiff was aware of the TSA policy prohibiting the misuse
of government property.
[Id., Exh. 8 (decision letter to
Plaintiff).]
Defendant argues that Plaintiff will not be able to
prove that Rideb’s characterization of the OI Statement was
motivated by retaliatory animus.
In order to prevail on her
retaliation claim, Plaintiff will have to prove that Rideb did
not honestly believe that Plaintiff’s acts were consensual.
Defendant argues that Plaintiff has not identified a genuine
9
issue of fact as to that question.
17-18.]
[Mem. in Supp. of Motion at
Defendant points to evidence that TSA also imposed a
three-day suspension on TSO Darla Cox for misusing government
property in the course of her affair with Pheasant.
engaged in any protected activity.
Cox had not
[Rideb Decl., Exh. 9 (memo
dated 12/13/09 to Cox from Rideb notifying her of three-day
suspension).]
Defendant also emphasizes that three other
investigations (the state court’s findings related to Plaintiff’s
temporary restraining order against Pheasant, the Kauai Police
Department’s (“KPD”) investigation into Plaintiff’s sexual
assault allegations, and the OI investigation) concluded that
Plaintiff had a consensual affair with Pheasant.
[Def.’s CSOF
Nos. 9-11 (citing Mata Decl., Exh. 3 (police incident report);
Exh. 10 (Temporary Restraining Order in Marugame v. Pheasant);
Helper Decl., Exh. 11 (excerpts of 10/12/09 hrg. trans. in
Marugame v. Pheasant); Mata Decl. at ¶¶ 8-9; Uegawa Decl. at
¶ 7).]
Defendant therefore argues that this Court should grant
summary judgment to Defendant on Plaintiff’s retaliation claim
because Plaintiff will not be able to establish that TSA’s
stated, non-retaliatory reason for the suspension was pretext.
[Mem. in Supp. of Motion at 18-19.]
II.
Memorandum in Opposition
According to Plaintiff, in June 2009, Pheasant began
following her during her daily routine.
10
His attention made her
uncomfortable, but she felt that she had to submit to his
authority because he was a staff member.
[Pltf.’s Concise
Statement of Facts, filed 7/5/13 (dkt. no. 38) (“Pltf.’s CSOF”),
Decl. of Nilda C. Marugame (“Pltf. Decl.”) at ¶ 2.]
Plaintiff
argues that managers, like Pheasant,4 had authority over her and
the other screeners.
Plaintiff states that there were
assignments which she had three times a week, both before and
after the assault, in which Pheasant was her supervisor.
In
fact, he sometimes worked directly with the team on those
assignments.
According to Plaintiff, Pheasant was able to follow
her around because he knew where the team was and what it would
be doing at any given time, and he could go where ever he wanted
to go on airport property.
[Id. at ¶ 17.]
Plaintiff admits that
Pheasant’s efforts to follow her, converse with her, and impress
her eventually led to a relationship, which she was “okay” with
at first because it only involved talking and did not involve
sexual activities.
[Id. at ¶ 2.]
Pheasant asked Plaintiff to go to his office on several
occasions, but she refused.
The first time she complied with his
request, he asked her to unbutton her shirt and pants.
did so at first, but stopped.
Plaintiff
Plaintiff felt scared and
4
Desi Sasil testified that Pheasant was the lead inspector,
which was a management position with supervision over one
employee, Kendall Lopez. [Pltf.’s CSOF, Decl. of Shawn A. Luiz
(“Luiz Decl.”), Exh. E (excerpts of 10/19/12 depo. trans. of Desi
W. Sasil) (“Sasil Depo.”) at 24-25.]
11
intimidated, and she still felt that she had to submit to his
authority as a higher ranking TSA employee.
She thought that no
one would believe her if she complained about his behavior.
During another incident in Pheasant’s office he “squeezed [her]
two breast together really hard[,]” which shocked her and was
humiliating and degrading.
[Id.]
Plaintiff states that Pheasant sexually assaulted her
on August 26, 2009, in the perimeter area of the Lihue Airport.
Plaintiff was afraid of possible retaliation if she reported the
assault, but she decided to come forward after Pheasant told her
that he had been called to Mata’s office to answer questions
about his relationship with TSI Kendall Lopez and rumors about
his relationship with Cox.
Plaintiff believed Pheasant was
pursuing those women, and she did not want him to victimize them
like he victimized her.
[Id. at ¶¶ 3-4.]
Plaintiff went to see Uegawa on September 1, 2009.
Plaintiff told Uegawa that she and Pheasant “were seeing each
other[,]” but she wanted to report what he did to her so that it
would not happen to anyone else and so that Pheasant would get
was he deserved under the law.
[Id. at ¶ 5.]
to join them in Uegawa’s office.
Uegawa asked Mata
Mata asked Plaintiff if she
felt as if she had been harassed and if Pheasant’s conduct was
unwelcome.
Plaintiff believed that Mata was only asking those
questions “for the record” and that Mata had already made up her
12
mind about what happened between Plaintiff and Pheasant.
[Id.]
When Plaintiff said Pheasant had been following her, Mata
responded that Pheasant was an inspector and could go wherever he
wanted.
Mata also repeatedly stated that everything between
Plaintiff and Pheasant was consensual.
Plaintiff felt that she
could not continue with her report because of Mata’s reaction.
Mata and Uegawa instructed Plaintiff to write a statement and to
call the Employee Assistance Program (“EAP”) number for
assistance.
Neither of them directed Plaintiff to contact an EEO
counselor or gave her any EEO forms to complete.
[Id.]
From September 1 to September 4, 2009, Mata and Uegawa
continued to insist that Plaintiff write a statement that the
alleged sexual harassment by Pheasant was consensual.
On
September 4, 2009, Uegawa called Plaintiff to her office and
presented her with a pre-written statement denying any sexual
harassment.
Plaintiff refused to sign the document, and she
became hysterical when Mata suggested that Plaintiff was in love
with Pheasant.
Plaintiff eventually signed the statement because
they told her it was insubordination if she refused.
¶ 6.]
[Id. at
Plaintiff argues that TSA treated her this way in spite of
having knowledge that Pheasant was involved with another married
TSO, Darla Cox, and that he had been involved in a similar
situation in Sacramento.
[Mem. in Opp. at 4 (citing Luiz Decl.,
Exh. Q (excerpts of 11/14/12 depo. trans. of Kim M. Ryan-
13
Fernandez) (“Ryan-Fernandez Depo.”)).5]
A few days after signing the September 4 Statement,
Plaintiff “contacted EEO by calling . . . 571-227-1438.”
Decl. at ¶ 7.]
[Pltf.
She called at least three times and left messages
stating that she wanted to file a complaint, but no one returned
her call.
She also called the Office of Civil Rights and
Liberties, but no one returned her call.
On an unspecified date,
Plaintiff spoke to Michael Chen at the Elimination of Sexual
Harassment Office.
She told him about the assault and about
being forced to sign the September 4 Statement.
Chen said that,
because Plaintiff had made a report with the local police, OI
would conduct an independent investigation of the matter after
the police investigation was over.
Chen asked if TSA had
separated Plaintiff from Pheasant or made their work schedules
different.
Plaintiff said that TSA had proposed that, but she
could not agree to the new schedule because she could not work
nights.
The prosecutor’s office later informed Plaintiff that
they were not going to prosecute Pheasant.
[Id. at ¶¶ 7-8.]
Plaintiff took three weeks of sick leave because she
was traumatized by the assault and by having to return to the
scene of the assault in the course of her duties.
5
[Id. at ¶ 10.]
This Court notes that the excerpts of Ryan-Fernandez’s
deposition testimony that Plaintiff provided do not support
Plaintiff’s argument that TSA knew or should have known that
Pheasant was likely to sexually assault a co-worker. See infra
Section II.A.2.a.
14
On October 16, 2009, the day after Plaintiff returned to work,
she met with Uegawa, Cox, and a TSA human resources specialist,
and they accused her of spreading rumors that Pheasant had raped
Cox.
Plaintiff states that she was subjected to harassment
“[a]lmost every week” leading up to her suspension on December 9,
2009.
[Id. at ¶ 11.]
Plaintiff believes that TSA was “really
trying to provoke [her] into breaking down so they can get rid of
[her.]”
[Id.]
On October 26, 2009, Plaintiff wrote the OI Statement
in the course of the OI investigation.
According to Plaintiff,
when she wrote the OI Statement, she was at the OI office from
8:00 a.m. to 9:00 p.m., without any food.
Although she asked to
leave, the special agents told her she had to stay until she
completed her statement.
the flashbacks.
She could “hardly function” because of
[Id. at ¶ 13.]
On October 28, 2009, Plaintiff
was called to the OI office to hear the results of the
investigation.
One of the special agents insisted that Plaintiff
was lying, and he warned her that she could go to jail for lying
under oath, but another agent said that he believed the assault
took place.
[Id. at ¶ 14.]
On December 9, 2009, Rideb told Plaintiff that she
would be disciplined because she used a government office to
conduct her affair with Pheasant.
Rideb insisted that Plaintiff
was a willing participant and that she was not compelled to do
15
what she did with Pheasant.
Plaintiff believes that Mata and
Uegawa directed Rideb to suspend her and to threaten her with
termination.
[Id. at ¶ 15.]
Rideb imposed the three-day
suspension from December 14 to December 16, 2009.
[Id. at ¶ 18.]
In addition to the suspension, Plaintiff’s performance ratings
decreased dramatically, she was moved from the day shift to the
evening shift, and her hours were reduced.
Plaintiff believes
that Mata and Uegawa, who were angry with her and never supported
her complaint about Pheasant, directed these actions to induce
her to quit.
[Id. at ¶¶ 19-21.]
Plaintiff argues that she made a good faith effort to
report the August 26, 2009 assault by reporting it to Uegawa and
Mata, who merely referred her to the EAP instead of directing her
to an EEO counselor.
Plaintiff also tried to contact the EEO
office in September 2009, but did not get a response.
Opp. at 4, 7.]
[Mem. in
Plaintiff argues that Defendant should be
estopped from asserting that she did not comply with exhaustion
requirements because TSA initially mislead her into believing
that they were going to process her complaint and then later that
TSA could not do anything until the police investigation was
completed.
Plaintiff continued to pursue her claims after the
police investigation was over.
[Id. at 14.]
According to Plaintiff, it is undisputed that all of
the information used to support her suspension came from the
16
investigation into her report of the August 26, 2009 assault.
[Id. at 15.]
She also argues that Rideb was aware of her
allegation of sexual assault and that Mata had expressed that
whistleblowers receive too much protection.
In addition, Rideb
did not want to discipline Plaintiff, but Mata and/or Uegawa
ordered him to do so.
[Id. (citing Sasil Depo. at 36, 81, 83-
85); id. at 19 (citing Sasil Depo.; Luiz Decl., Exh. D (excerpts
of 9/12/12 depo. trans. of Jenis Rideb) (“Rideb Depo.”)).]
Based
on such testimony, Plaintiff argues that she has established a
prima facie case of retaliation and that there are issues of fact
which warrant denial of the Motion.
[Id. at 16.]
As to her sexual harassment claims, Plaintiff
emphasizes that TSA allowed Pheasant to resign without any
discipline or any findings of misconduct, but Plaintiff and Cox,
Pheasant’s female victims, were disciplined.
[Id. at 16-17
(citing Pltf.’s CSOF, Decl. of Robert C. Marvit, M.D.).]
Thus,
Plaintiff argues that TSA is liable because it failed to take any
prompt, remedial action to stop the harassment.
[Id. at 17.]
Plaintiff therefore urges this Court to deny the
Motion.
III. Reply
First, as to Plaintiff’s argument that reporting the
assault to TSA managers Mata and Uegawa satisfied the EEO
counselor requirement, Defendant argues the Ninth Circuit has
17
held that a report to a manager does not constitute contact with
an EEO counselor.
Further, Plaintiff has not stated that she
told Mata or Uegawa that she wanted to file an EEO complaint.
[Reply at 2.]
Defendant, however, acknowledges that Plaintiff’s
testimony that she tried to contact an EEO counselor in September
2009 raises an issue of fact as to whether the forty-five-day
deadline should be equitably tolled.
Defendant therefore states
that this Court should deny the motion to dismiss without
prejudice.
If Plaintiff’s claims survive summary judgment,
Defendant may seek a Fed. R. Civ. P. 43(c) evidentiary hearing on
the tolling issue.
Defendant also emphasizes that Plaintiff has
not alleged that 1) anyone at the Lihue TSA knew about her calls
to the EEO or 2) that she was retaliated against because of the
calls.
[Id. at 2-3 & n.1.]
As to the issue of whether Pheasant was Plaintiff’s
supervisor or her co-worker, Defendant argues that the United
States Supreme Court’s recent decision in Vance v. Ball State
University, 133 S. Ct. 2434, 2447-48, 2454 (2013), requires a
finding that Pheasant was Plaintiff’s co-worker because Plaintiff
has only produced evidence that Pheasant had the title of manager
and that, in limited circumstances, he might tell a screener what
to do.
This is insufficient under Vance; Plaintiff has not
identified any evidence to dispute Defendant’s evidence that
18
Pheasant did not have any authority to make tangible employment
decisions about Plaintiff.
[Id. at 4-5.]
Defendant argues that Plaintiff has not presented any
evidence that TSA knew, or should have known, that Pheasant might
harass a co-worker prior to the August 26, 2009 alleged assault.
The testimony that Pheasant and Cox engaged in mutual flirtation
does not constitute conduct which would put TSA on notice that
Pheasant might commit sex assault.
Further, Plaintiff has not
presented any evidence that Pheasant’s supervisors knew about his
relationship with Cox or that Kim Ryan-Fernandez had a duty to
report the relationship after she saw Pheasant and Cox flirting
over lunch.
Defendant also argues that the opinion of Robert C.
Marvit, M.D., does not support Plaintiff’s case because he gives
opinions outside of his area of expertise (psychiatry), including
human relations, morality, and business management.
Further, he
does not provide sources for his premises and conclusions, and he
purports to diagnose Pheasant based solely on the litigation
record.
Dr. Marvit’s opinion is not relevant to the critical
issue of whether TSA was on notice that Pheasant might harass a
co-worker.
Even if Dr. Marvit intended to give an opinion on
that issue, it would be inadmissible.
Insofar as Plaintiff has
not identified any evidence to support her claim that TSA was
negligent in failing to prevent the assault, Defendant argues
that Defendant is entitled to summary judgment on Plaintiff’s
19
sexual harassment claims.
[Id. at 5-7.]
As to Plaintiff’s claim that she was coerced into
signing the September 4 Statement, Defendant argues that
Plaintiff’s memorandum in opposition does not respond to
Defendant’s evidence that TSA accepted and investigated her
complaint against Pheasant, nor does Plaintiff’s memorandum
respond to Defendant’s argument that the Ninth Circuit has found
that investigations with far more serious alleged flaws did not
constitute adverse personnel actions.
Defendant seeks summary
judgment as to Plaintiff’s claims based upon the September 4
Statement.
[Id. at 7-8.]
As to Plaintiff’s retaliation claim based upon her
suspension, Defendant emphasizes that the United States Supreme
Court’s recent decision in University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517 (2013), rejected the
“motivating factor” test that was the law in the Ninth Circuit.
The Supreme Court held that, to prevail on a retaliation claim,
an employee must establish “but-for” causation.
[Id. at 8-9.]
Defendant argues that Plaintiff has not identified any evidence
that would establish but-for causation.
Plaintiff points to
Sasil’s testimony that Rideb said that Mata directed Rideb to
suspend Plaintiff, but, even if this is true, it does not prove
that the suspension was retaliatory.
Plaintiff has not
identified any evidence that Mata directed the suspension because
20
of Plaintiff’s complaint that Pheasant assaulted her.
In fact,
Sasil also testified that Mata wanted both Plaintiff and Cox to
be suspended, and Mata was motivated by Plaintiff’s and Cox’s
“meltdowns” on the job.
55, 163).]
[Id. at 9-10 (citing Sasil Depo. at 54-
Defendant points out that Plaintiff did not respond
either to the reasons for the suspension set out in the decision
letter or to the three investigations which concluded the
relationship between Plaintiff and Pheasant was consensual.
Defendant argues that the decision letter relied upon Plaintiff’s
OI Statement, which contained ample evidence that Plaintiff and
Pheasant’s relationship was consensual.
For example, it
described: occasions when they would kiss in a TSA vehicle;
Plaintiff’s offer to purchase a $500 watch for Pheasant while she
was on a trip; Plaintiff’s frequent calls to Pheasant when she
was on break or when she finished her shift; and an August 18,
2009 encounter when Plaintiff told Pheasant she loved him.
at 10-11 & n.4.]
[Id.
Defendant also disagrees with Plaintiff’s
argument that TSA treated her more harshly than Pheasant.
Mata
told Pheasant that he faced serious discipline for his actions,
and he resigned instead of going through the process.
& nn.5-6.]
[Id. at 12
Thus, Plaintiff cannot meet the “but-for” causation
burden as to the suspension.
Finally, Defendant urges this Court to disregard
Plaintiff’s allegations about changes to her shift and work hours
21
and her low performance ratings because Plaintiff did not include
such allegations in her Complaint.
[Id. at 13.]
Defendant
argues that those claims are not properly before this Court, and
this Court should grant summary judgment to Defendant on all of
Plaintiff’s claims that are properly before this Court.
DISCUSSION
I.
Motion to Dismiss
29 C.F.R. § 1614.105(a)(1) requires a federal employee
who believes that she has been subjected to gender discrimination
in the workplace to initiate contact with an EEO counselor within
forty-five days of the alleged discrimination.
The forty-five
day period, however, is “subject to waiver, estoppel and
equitable tolling.”
See 29 C.F.R. § 1614.604(c).
If waiver,
estoppel or equitable tolling does not apply, failure to comply
with § 1614.105(a)(1) is “fatal to a federal employee’s
discrimination claim in federal court.”
Kraus v. Presidio Trust
Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043
(9th Cir. 2009) (citations and internal quotation marks omitted).
Defendant acknowledges that, in light of Plaintiff’s
declaration stating that she attempted to contact an EEO
counselor in September 2009, there is an issue of fact as to
whether the forty-five-day period should be equitably tolled.
Defendant therefore asks this Court to deny the portion of the
Motion seeking dismissal pursuant to § 1614.105(a)(1) without
22
prejudice.
At the hearing on the Motion, Plaintiff argued that
the denial should be with prejudice because there is already
enough evidence in the record to support a finding that equitable
tolling applies.
First, as to Plaintiff’s argument that
reporting the alleged assault to Mata and Uegawa satisfied the
§ 1614.105(a)(1) requirement, “there is no basis in law to
suggest that an employee’s complaints to her supervisors satisfy
the requirement that the aggrieved employee seek EEO counseling
prior to filing a formal complaint or suing in court.”
v. Henderson, 314 F.3d 409, 415 (9th Cir. 2002).
Johnson
As to
Plaintiff’s declaration stating that she attempted to call the
EEO in September 2009, Defendant is entitled to conduct discovery
on this issue, and therefore this Court cannot find, based on the
current record, that the forty-five-day requirement in
§ 1614.105(a)(1) was equitably tolled.
The portion of the Motion seeking dismissal pursuant to
§ 1614.105(a)(1) is therefore DENIED WITHOUT PREJUDICE.
II.
Summary Judgment
Defendant also argues that she is entitled to summary
judgment on all of Plaintiff’s claims.
A.
Alleged Sexual Assaults
Plaintiff has brought a hostile work environment and
sexual harassment claim based on the August 26, 2009 incident in
which Pheasant allegedly sexually assaulted her.
23
[Complaint at
¶ 4.]
In addition, although not the model of clarity, the
Complaint also alleges that there were other sexual assaults
which she attempted to complain about and which TSA failed to
adequately to.
[Id. at ¶¶ 9, 11, 13.]
First, this Court must determine whether Plaintiff has
raised a genuine issue of material fact as to whether Pheasant
subjected Plaintiff to a hostile work environment and sexual
harassment.
“Sexual harassment is a form of sex discrimination
prohibited by Title VII.”
Heyne v. Caruso, 69 F.3d 1475, 1478
(9th Cir. 1995) (citing Meritor Sav. Bank, FSB v. Vinson, 477
U.S. 57, 65, 106 S. Ct. 2399, 2404, 91 L. Ed. 2d 49 (1986)).
The
Ninth Circuit has stated:
A plaintiff may establish a sex hostile work
environment claim by showing that he was subjected
to verbal or physical harassment that was sexual
in nature, that the harassment was unwelcome and
that the harassment was sufficiently severe or
pervasive to alter the conditions of the
plaintiff’s employment and create an abusive work
environment. See Gregory v. Widnall, 153 F.3d
1071, 1074 (9th Cir. 1998). A plaintiff must
establish that the conduct at issue was both
objectively and subjectively offensive: he must
show that a reasonable person would find the work
environment to be “hostile or abusive,” and that
he in fact did perceive it to be so. Faragher v.
City of Boca Raton, 524 U.S. 775, 787, 118 S. Ct.
2275, 141 L. Ed.2d 662 (1998). . . .
Dawson v. Entek Int’l, 630 F.3d 928, 937-38 (9th Cir. 2011).
The Complaint clearly alleges that Pheasant sexually
assaulted Plaintiff on August 26, 2009.
Plaintiff provided
testimony to that effect, [Pltf. Decl. at ¶ 3,] and Defendant’s
24
declarations establish that Plaintiff reported to Uegawa that
Pheasant sexually assaulted her [Uegawa Decl. at ¶ 6; Mata Decl.
at ¶ 7].
Plaintiff’s declaration also describes another incident
in which Pheasant “squeezed [Plaintiff’s] two breast together
really hard[.]”
[Pltf. Decl. at ¶ 2.]
Plaintiff was “shock[ed]”
and states that the act was “humiliating and degrading[.]”
[Id.]
Defendant emphasizes Plaintiff’s statements about her
relationship with Pheasant and the fact that all of the
investigations into Plaintiff’s allegations reached the same
conclusion - that Plaintiff and Pheasant had a consensual
relationship and that there was insufficient evidence of assault.
Defendant essentially asks this Court to make a credibility
determination, which is inappropriate in a motion for summary
judgment.
See Bravo v. City of Santa Maria, 665 F.3d 1076, 1083
(9th Cir. 2011) (“[C]redibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” (citation and
quotation marks omitted)).
Therefore there are genuine issues of
material fact as to whether Pheasant sexually assaulted
Plaintiff.
The alleged assaults were sufficiently severe or
pervasive to alter the conditions of Plaintiff’s employment and
create an abusive work environment.
Defendant, however, argues that, even assuming arguendo
that Pheasant sexually harassed Plaintiff, Defendant is still
25
entitled to summary judgment on Plaintiff’s sexual harassment
claim because Pheasant was not Plaintiff’s supervisor, and
therefore TSA is not liable because it did not have knowledge of
the harassment prior to Plaintiff’s report, and it responded
appropriately to Plaintiff’s report.
1.
Supervisor or Co-worker
Under Title VII, an employer’s liability for
such harassment may depend on the status of the
harasser. If the harassing employee is the
victim’s co-worker, the employer is liable only if
it was negligent in controlling working
conditions. In cases in which the harasser is a
“supervisor,” however, different rules apply. If
the supervisor’s harassment culminates in a
tangible employment action, the employer is
strictly liable. But if no tangible employment
action is taken, the employer may escape liability
by establishing, as an affirmative defense, that
(1) the employer exercised reasonable care to
prevent and correct any harassing behavior and
(2) that the plaintiff unreasonably failed to take
advantage of the preventive or corrective
opportunities that the employer provided.
[Burlington Indus., Inc. v. Ellerth, 524 U.S.
742], 807 [(1998)]; Ellerth [v. Boca Raton, 524
U.S. 775,] 765 [(1998)]. Under this framework,
therefore, it matters whether a harasser is a
“supervisor” or simply a co-worker.
Vance v. Ball State Univ., 133 S. Ct. 2434, 2439 (2013).
In the
instant case, Defendant argues that Pheasant was merely
Plaintiff’s co-worker, and Plaintiff argues that Pheasant was her
supervisor for purposes of her Title VII claims.
In Vance, the United States Supreme Court held that,
for Title VII purposes, an employee is the plaintiff’s
“supervisor” if the employee “is empowered by the employer to
26
take tangible employment actions against” the plaintiff.
Id.
[A] tangible employment action . . . [includes] “a
significant change in employment status, such as
hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or
a decision causing a significant change in
benefits.” Ellerth, 524 U.S., at 761, 118 S. Ct.
2257. We explained the reason for this rule as
follows: “When a supervisor makes a tangible
employment decision, there is assurance the injury
could not have been inflicted absent the agency
relation. . . . A tangible employment decision
requires an official act of the enterprise, a
company act. The decision in most cases is
documented in official company records, and may be
subject to review by higher level supervisors.”
Id., at 761–762, 118 S. Ct. 2257. In those
circumstances, we said, it is appropriate to hold
the employer strictly liable. See Faragher,
supra, at 807, 118 S. Ct. 2275; Ellerth, supra, at
765, 118 S. Ct. 2257.
Id. at 2442.
Plaintiff argues that Vance is inapposite because it
does not address the situation, like the instant case, where the
victim reasonably believed that the assailant was her supervisor.
The Supreme Court’s analysis in Vance, however, forecloses the
type of subjective proof of supervisor status that Plaintiff
urges this Court to consider.
Under the definition of “supervisor” that we
adopt today, the question of supervisor status,
when contested, can very often be resolved as a
matter of law before trial. The elimination of
this issue from the trial will focus the efforts
of the parties, who will be able to present their
cases in a way that conforms to the framework that
the jury will apply. The plaintiff will know
whether he or she must prove that the employer was
negligent or whether the employer will have the
burden of proving the elements of the Ellerth/
27
Faragher affirmative defense. Perhaps even more
important, the work of the jury, which is
inevitably complicated in employment
discrimination cases, will be simplified. The
jurors can be given preliminary instructions that
allow them to understand, as the evidence comes
in, how each item of proof fits into the framework
that they will ultimately be required to apply.
And even where the issue of supervisor status
cannot be eliminated from the trial (because there
are genuine factual disputes about an alleged
harasser’s authority to take tangible employment
actions), this preliminary question is relatively
straightforward.
The alternative approach advocated by
petitioner and the United States would make
matters far more complicated and difficult.[6]
The complexity of the standard they favor would
impede the resolution of the issue before trial.
With the issue still open when trial commences,
the parties would be compelled to present evidence
and argument on supervisor status, the affirmative
defense, and the question of negligence, and the
6
In Vance, the plaintiff-petitioner and the Amicus Curiae
United States of America argued in favor of the following
analysis of whether an employee is a Title VII plaintiff’s
supervisor:
an employee, in order to be classified as a
supervisor, must wield authority of sufficient
magnitude so as to assist the harasser explicitly
or implicitly in carrying out the harassment. But
any authority over the work of another employee
provides at least some assistance, see Ellerth,
supra, at 763, 118 S. Ct. 2257 . . . . [T]he
authority must exceed both an ill-defined temporal
requirement (it must be more than “occasiona[l]”)
and an ill-defined substantive requirement (“an
employee who directs ‘only a limited number of
tasks or assignments’ for another employee . . .
would not have sufficient authority to qualify as
a supervisor.”).
133 S. Ct. at 2449 (some alterations in Vance) (some citations
and internal quotation marks omitted).
28
jury would have to grapple with all those issues
as well. In addition, it would often be necessary
for the jury to be instructed about two very
different paths of analysis, i.e., what to do if
the alleged harasser was found to be a supervisor
and what to do if the alleged harasser was found
to be merely a co-worker.
Courts and commentators alike have opined on
the need for reasonably clear jury instructions in
employment discrimination cases. And the danger
of juror confusion is particularly high where the
jury is faced with instructions on alternative
theories of liability under which different
parties bear the burden of proof. By simplifying
the process of determining who is a supervisor
(and by extension, which liability rules apply to
a given set of facts), the approach that we take
will help to ensure that juries return verdicts
that reflect the application of the correct legal
rules to the facts.
Id. at 2450-51 (footnotes omitted).
This decision simplifies the
analysis of whether an alleged harasser is a supervisor and
renders the issue primarily a question of law and leaves no room
for the subjective definition that Plaintiff now argues.
This
Court therefore rejects Plaintiff’s argument and applies the
Vance definition of “supervisor” in the instant case.
Defendant presented evidence Pheasant “had no
managerial or supervisory relationship with Marugame or any other
screener.
He had no responsibility for evaluating or
disciplining her.
schedule.”
He did not control her duties or work
[Mata Decl. at ¶ 5; Def.’s CSOF at ¶ 5.]
disputes this.
Plaintiff
[Pltf.’s CSOF at ¶ 5 (citing Pltf. Decl. at ¶¶ 2,
6, 17; Sasil Depo. at 34:16-18).]
29
Plaintiff, however, provides
no evidence that Pheasant had hiring, firing, promotion, or
significant reassignment authority over her or the ability to
significantly change her benefits.
She states only that:
“because I know that he’s a staff member I felt like I have to
submit to his authority[;]” [Pltf. Decl. at ¶ 2;] according to
former TSA manager Desi Sasil, “anyone who has an office at the
Rice Street actually [is] a manager and they have the authority
over any screener like [Plaintiff;7]” [id. at ¶ 17;] and there
was a “play” that Plaintiff was assigned to three times a week,
both before and after the assault, that is a “layer of security
screening Pheasant is actually the main Supervisor and sometimes
there’s a play that even Pheasant himself would do the play
together with the Playbook team” [id.].
None of the evidence Plaintiff presented addresses the
Vance definition of a supervisor for Title VII purposes.
Defendant has presented undisputed evidence that Pheasant does
not meet the Vance definition of a supervisor.
Even viewing the
evidence in the light most favorable to Plaintiff, see Cameron v.
Craig, 713 F.3d 1012, 1018 (9th Cir. 2013), there are no genuine
disputes of material fact as to the issue of whether Pheasant
meets the Vance definition of a supervisor.
7
This Court therefore
Sasil testified that Pheasant was the lead inspector and
that this was a management position. Sasil, however, also
testified that Pheasant only supervised one employee, Kendall
Lopez. [Sasil Depo. at 24-25.]
30
concludes, as a matter of law, that Pheasant is considered
Plaintiff’s co-worker for purposes of Plaintiff’s Title VII
claims.
2.
Negligence Standard
In light of this Court’s ruling that Pheasant was not
Plaintiff’s supervisor, in order to prove that Defendant is
liable for any sexual harassment by Pheasant, Plaintiff will have
to prove that TSA was negligent, i.e. TSA knew, or should have
known, that Pheasant was harassing Plaintiff and failed to take
adequate remedial actions.
See Swinton v. Potomac Corp., 270
F.3d 794, 803 (9th Cir. 2001).
Under the negligence analysis,
If the employer fails to take corrective
action after learning of an employee’s sexually
harassing conduct, or takes inadequate action that
emboldens the harasser to continue his misconduct,
the employer can be deemed to have “adopt[ed] the
offending conduct and its results, quite as if
they had been authorized affirmatively as the
employer’s policy.” Faragher v. City of Boca
Raton, 524 U.S. 775, 789, 118 S. Ct. 2275, 141 L.
Ed. 2d 662 (1998). On the other hand, an employer
cannot be held liable for misconduct of which it
is unaware. See Brooks [v. City of San Mateo],
229 F.3d [917,] 924, [(9th Cir. 2000)]; see also
Hostetler v. Quality Dining, Inc., 218 F.3d 798,
811 (7th Cir. 2000) (“Negligence of this nature
exposes the employer not to liability for what
occurred before the employer was put on notice of
the harassment, but for the harm that the employer
inflicted on the plaintiff as a result of its
inappropriate response.”). The employer’s
liability, if any, runs only from the time it
“knew or should have known about the conduct and
failed to stop it.” Ellerth, 524 U.S. at 759, 118
S. Ct. 2257; see also Brooks, 229 F.3d at 924.
31
Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001).
a.
Knowledge
Plaintiff went to Uegawa’s office on September 1, 2009.
Plaintiff told Uegawa that she and Pheasant “were seeing each
other” and she “just want[ed] to let [Uegawa] know what he did
to” her.
[Pltf. Decl. at ¶ 5.]
According to Defendant, it was
not until September 16, 2009 that Plaintiff claimed Pheasant
sexually assaulted her on August 26, 2009.
On September 16,
2009, Plaintiff went to Uegawa’s office to inform TSA that she
was filing a rape complaint with KPD.
Decl. at ¶ 6.]
[Mata Decl. at ¶ 7; Uegawa
This Court must view the record in the light most
favorable to Plaintiff.
On September 1, 2009, Plaintiff reported
a form of sexual harassment by Pheasant.
Further, there is a
genuine issue of fact as to whether or not Plaintiff reported the
August 26, 2009 incident to TSA on September 1, 2009.
Defendant presented evidence that, on August 31, 2009,
Pheasant asked to meet with Mata to discuss rumors that he was
having an affair with Cox.
Defendant states that “[t]his was the
first information Mata received to suggest that Pheasant may have
been having affairs or sexual relations of any sort with other
TSA employees.”
[Def.’s CSOF at ¶ 3 (citing Mata Decl. at ¶ 3).]
Plaintiff disputes this, citing the deposition testimony of
Kim Ryan-Fernandez.
[Pltf.’s CSOF at ¶ 3.]
Plaintiff also cites
Ryan-Fernandez’s deposition testimony as support for Plaintiff’s
32
claim that TSA had knowledge that Pheasant “had something similar
happen in Sacramento.”
[Mem. in Supp. of Motion at 4.]
The excerpts of Ryan-Fernandez’s deposition testimony
that Plaintiff provided with her CSOF do not support either
Plaintiff’s argument that Mata had notice, prior to August 31,
2009, that Pheasant was having affairs or sexual relations with
female TSA employees or Plaintiff’s argument that TSA had notice
that Pheasant was previously involved in a similar incident at
another airport.
The excerpts of Ryan-Fernandez’s deposition
merely show that: Ryan-Fernandez heard that “there was a
relationship between Mr. Pheasant and Ms. Cox[;]” she had seen
them flirting with each other, but she never saw Pheasant
flirting with any other employees; and the only time she saw
Pheasant and Cox touch each other was one time when Pheasant was
feeding Cox lunch.
[Ryan-Fernandez Depo. at 34-36.]
Although
Ryan-Fernandez thought Pheasant’s behavior with Cox was
unprofessional, Ryan-Fernandez did not believe that Pheasant was
a sexual predator.
[Id. at 41.]
The excerpts of Ryan-
Fernandez’s testimony which Plaintiff provided to this Court show
only that Pheasant and Cox had a relationship which involved
mutual flirtation.
Nothing in those excerpts creates a genuine
issue of material fact as to the issue of whether TSA knew or
should have known, before Plaintiff reported the August 26, 2009
incident between Plaintiff and Pheasant, that Pheasant might
33
sexually harass one of his co-workers.
Plaintiff’s CSOF did not
identify any other evidence on this issue.
Cf. Local Rule
LR56.1(f) (“When resolving motions for summary judgment, the
court shall have no independent duty to search and consider any
part of the court record not otherwise referenced in the separate
concise statements of the parties. . . .”).
This Court therefore
finds that the earliest TSA knew or should have known of
potential harassment by Pheasant was August 31, 2009, and the
earliest TSA knew that Pheasant allegedly harassed Plaintiff was
September 1, 2009.
b.
Remedial Action
There is no evidence in the record that Pheasant’s
alleged harassment of Plaintiff continued after September 1,
2009, but the fact that the alleged harassment stopped after
Plaintiff’s report does not end this Court’s inquiry.
TSA had an
obligation to act upon Plaintiff’s allegation that Pheasant
harassed her.
In this circuit, an employer’s remedial
obligations are defined by Ellison v. Brady[, 924
F.2d 872 (9th Cir. 1991)]. Here, as in other
circuits, “remedies should be ‘reasonably
calculated to end the harassment.’” Id. at 882
(quoting Katz v. Dole, 709 F.2d 251, 256 (4th Cir.
1983)). Ellison lays out a two-part test that
goes beyond short-term results:
In essence, then, we think that the
reasonableness of an employer’s remedy will
depend on its ability to stop harassment by
the person who engaged in harassment. In
evaluating the adequacy of the remedy, the
34
court may also take into account the remedy’s
ability to persuade potential harassers from
unlawful conduct.
Id. (footnote omitted). As the City sees it,
because the harassment stopped, its response was
ipso facto reasonable.
However, this analysis omits a critical step.
The fact that harassment stops is only a test for
measuring the efficacy of a remedy, not a way of
excusing the obligation to remedy. Once an
employer knows or should know of harassment, a
remedial obligation kicks in. Steiner v. Showboat
Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994)
(when employee is sexually harassed, the “only
question is whether [the employer] is relieved of
liability for [the harasser’s] actions because it
took sufficient disciplinary and remedial action
in response to [the employee’s] complaints.”),
cert. denied, 513 U.S. 1082, 115 S. Ct. 733, 130
L. Ed. 2d 636 (1995); [E.E.O.C. v.] Hacienda
Hotel, 881 F.2d [1504,] 1516 [(9th Cir. 1989)]
(holding employer liable for failure to take
“prompt remedial action” once it knew of
allegations). That obligation will not be
discharged until action-prompt, effective
action-has been taken. Effectiveness will be
measured by the twin purposes of ending the
current harassment and deterring future
harassment-by the same offender or others.
Ellison, 924 F.2d at 882. If 1) no remedy is
undertaken, or 2) the remedy attempted is
ineffectual, liability will attach. Our prior
cases stand for the proposition that an employer’s
actions will not necessarily shield it from
liability if harassment continues. E.g.,
Intlekofer v. Turnage, 973 F.2d 773, 780-81 (9th
Cir. 1992). It does not follow that the
employer’s failure to act will be acceptable if
harassment stops.
Putting
through some
“remedy,” it
Ellison test
harasser has
can inaction
it another way, even if inaction
Orwellian twist is described as a
will fail the deterrence prong of the
whether or not the individual
voluntarily ceased harassment. Nor
fairly be said to qualify as a remedy
35
“reasonably calculated to end the harassment.”
Title VII does not permit employers to stand idly
by once they learn that sexual harassment has
occurred. To do so amounts to a ratification of
the prior harassment. We refuse to make liability
for ratification of past harassment turn on the
fortuity of whether the harasser, as he did here,
voluntarily elects to cease his activities, for
the damage done by the employer’s ratification
will be the same regardless.
. . . It is the existence of past harassment,
every bit as much as the risk of future
harassment, that the statute condemns. “Employers
have a duty to ‘express[] strong disapproval’ of
sexual harassment, and to ‘develop [] appropriate
sanctions.’” Ellison, 924 F.2d at 881 (quoting 29
C.F.R. § 1604.11(f)).
Fuller v. City of Oakland, 47 F.3d 1522, 1528-29 (9th Cir. 1995)
(some alterations in Fuller), modified on other grounds by, L.W.
v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996).
Thus, TSA had an obligation to take remedial action
after Plaintiff reported that she had been sexually harassed by
Pheasant.
Defendant emphasizes that, after Plaintiff reported on
September 16, 2009 that Pheasant had sexually assaulted her, Mata
immediately informed OI, and OI conducted an administrative
investigation of Plaintiff’s claim after the conclusion of the
KPD investigation.
After the KPD investigating detective
concluded that Plaintiff and Pheasant’s relationship was
consensual and that Pheasant did not sexually assault Plaintiff,
OI conducted its investigation and reached the same conclusion.
[Mata Decl. at ¶¶ 7-9.]
36
Assuming, for purposes of the instant Motion, that
Plaintiff was sexually harassed, the fact that TSA’s OI office
conducted an investigation and ultimately determined that there
was no harassment would not absolve Defendant from liability for
the harassment.
The Ninth Circuit has stated:
An employer whose sole action is to conclude
that no harassment occurred cannot in any
meaningful sense be said to have “remedied” what
happened. Denial does not constitute a remedy.
Nor does the fact of investigation alone suffice;
an investigation is principally a way to determine
whether any remedy is needed and cannot substitute
for the remedy itself. . . .
Fuller, 47 F.3d at 1529.
There is evidence in the record that,
after Plaintiff reported the sexual assault and obtained a
temporary restraining order against Pheasant, TSA instructed its
managers that Plaintiff and Pheasant were to be kept separated.
[Ryan-Fernandez Depo. at 34-37.]
Plaintiff, however, submitted
testimony that TSA offered to separate them by moving her to the
night shift, which she could not agree to.8
¶ 7.]
[Pltf. Decl. at
If TSA attempted to separate Plaintiff and Pheasant by
moving Plaintiff to the less desirable night shift, that does not
constitute a sufficient remedy to the harassment because an
employer must remedy harassment “through actions targeted at the
8
Plaintiff states that, after she served her three-day
suspension, her scheduled was changed from forty hours per week
on the day shift to twenty-two hours per week on the evening
shift. This meant that Plaintiff “was no longer there in the
evening for [her] husband and children.” [Pltf. Decl. at ¶ 20.]
37
harasser, not the victim.”
Fuller, 47 F.3d at 1529 (citation and
quotation marks omitted).
In addition, as previously noted, Plaintiff has
testified that she reported harassment by Pheasant on
September 1, 2009.
Mata responded by instructing Plaintiff and
Pheasant not to contact each other.
Mata did not take any other
action to separate Plaintiff and Pheasant because she determined
the affair to be consensual.
[Mata Decl. at ¶ 4 (“Because they
both reported that this was a consensual affair and it was now
ending, I asked each of them not to contact the other so they
could move on and get focused on their jobs.
Because both
reported that the affair was consensual, and because Marugame
worked at the airport, and Pheasant worked at the TSA
administrative offices about two miles from the airport, I did
not believe it was necessary to take any other action to separate
the two.”).]
Viewing the current record in the light most favorable
to Plaintiff, this Court FINDS that there are genuine issues of
material fact as to the issue of whether TSA took sufficient
remedial action in response to Plaintiff’s report that Pheasant
sexually harassed her, and these issues preclude summary
judgment.
See Fed. R. Civ. P. 56(a) (stating that 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
38
entitled to judgment as a matter of law”).
This Court therefore
DENIES Defendant’s Motion as to Plaintiff’s sexual harassment and
hostile work environment claim.
B.
September 4 Statement
Although it is not entirely clear from the Complaint,
Plaintiff appears to allege both a gender discrimination claim
and a retaliation claim based upon her allegation that she was
coerced into signing the September 4 Statement.
According to
Plaintiff, after her September 1, 2009 attempt to report the
sexual assault, Mata and Uegawa “kept insisting that [she] write
a statement that the sexual harassment involving Pheasant was
consensual.”
[Pltf. Decl. at ¶ 6.]
Uegawa called Plaintiff to
her office on September 4, 2009, and she and Mata presented
Plaintiff with a pre-written statement for Plaintiff’s signature.
It stated that no sexual harassment occurred between Plaintiff
and Pheasant.
Plaintiff initially refused to sign the statement
because it was inaccurate.
Plaintiff states that she “almost
snapped” when Mata accused her of being in love with Pheasant.
[Id.]
Plaintiff states that she ultimately agreed to sign the
statement because they told her that it would be insubordination
if she did not sign.
[Id.]
Uegawa’s declaration confirms that
Uegawa drafted the September 4 Statement.
[Uegawa Decl. at ¶ 5.]
Viewing the evidence in the light most favorable to Plaintiff,
there are genuine issues of material fact as to whether Mata and
39
Uegawa coerced Plaintiff into signing a statement denying the
sexual harassment that Plaintiff tried to report on September 1,
2009.
1.
Gender Discrimination
The September 4 Statement in and of itself, however,
cannot support a Title VII gender discrimination claim.
A gender
discrimination claim requires an adverse employment action.
Hawn
v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010).
For purposes of Title VII gender discrimination claims, adverse
employment actions are limited to discharge or actions related to
the employee’s “compensation, terms, conditions, or privileges of
employment[.]”
42 U.S.C. § 2000e-2(a)(1).
Even assuming,
arguendo, that Mata and Uegawa coerced Plaintiff into signing the
September 4 Statement, the coerced statement does not fall within
the definition of adverse employment actions that can give rise
to a Title VII discrimination claim.
Plaintiff cannot prove a
prima facie case of gender discrimination based upon the alleged
coercion of the September 4 Statement.
The Court therefore
GRANTS Defendant’s Motion as to Plaintiff’s gender discrimination
claim based on the September 4 Statement.
The Court, however, emphasizes that Plaintiff may still
introduce evidence regarding the September 4 Statement in support
of her sexual harassment/hostile work environment claim because
such evidence is relevant to the issue of whether TSA responded
40
appropriately to her report of sexual harassment by Pheasant.
2.
Retaliation
Title VII prohibits an employer from
discriminating against an employee for opposing an
unlawful employment practice, such as filing a
complaint alleging sexual orientation harassment
and hostile work environment. Retaliatory
discharge claims follow the same burden-shifting
framework described in McDonnell Douglas [v.
Green, 411 U.S. 792 (1973)]. To establish a prima
facie case, the employee must show that he engaged
in a protected activity, he was subsequently
subjected to an adverse employment action, and
that a causal link exists between the two. See
Jordan v. Clark, 847 F.2d 1368, 1376 (9th Cir.
1988). The causal link can be inferred from
circumstantial evidence such as the employer’s
knowledge of the protected activities and the
proximity in time between the protected activity
and the adverse action. Id. If a plaintiff
establishes a prima facie case of unlawful
retaliation, the burden shifts to the defendant
employer to offer evidence that the challenged
action was taken for legitimate,
non-discriminatory reasons. See Nidds v.
Schindler Elevator Corp., 113 F.3d 912, 917 (9th
Cir. 1996). If the employer provides a legitimate
explanation for the challenged decision, the
plaintiff must show that the defendant’s
explanation is merely a pretext for impermissible
discrimination. See Ray v. Henderson, 217 F.3d
1234, 1240 (9th Cir. 2000).
Dawson, 630 F.3d at 936.
In University of Texas Southwestern
Medical Center v. Nassar, the United States Supreme Court held
that “Title VII retaliation claims must be proved according to
traditional principles of but-for causation, not the lessened
causation test stated in [42 U.S.C.] § 2000e–2(m).[9]
9
This
Section 2000e-2(m) states: “Except as otherwise provided
(continued...)
41
requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions
of the employer.”
133 S. Ct. 2517, 2533 (2013).
42 U.S.C. § 2000e-3(a) states, in pertinent part:
It shall be an unlawful employment practice for an
employer to discriminate against any of his
employees . . . because he has opposed any
practice made an unlawful employment practice by
this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under
this subchapter.
The two parts are known as the “opposition clause” and the
“participation clause”.
See, e.g., Learned v. City of Bellevue,
860 F.2d 928, 932 (9th Cir. 1988).
Plaintiff bases her
retaliation claims upon the opposition clause.
[Complaint at ¶ 4
(alleging that TSA subjected Plaintiff to “reprisal/retaliation
(opposing discrimination by management)”).]
[T]he opposition clause, by its terms, protects
only those employees who oppose what they
reasonably perceive as discrimination under the
Act. An employee need not establish that the
opposed conduct in fact violated the Act in order
to establish a valid claim of retaliation. [Sias
v. City Demonstration Agency, 588 F.2d 692, 695
(9th Cir. 1978)] That is, an employee may fail to
prove an “unlawful employment practice” and
nevertheless prevail on his claim of unlawful
retaliation. However, the opposed conduct must
9
(...continued)
in this subchapter, an unlawful employment practice is
established when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also
motivated the practice.”
42
fairly fall within the protection of Title VII to
sustain a claim of unlawful retaliation. Silver
v. KCA, Inc., 586 F.2d 138, 142 (9th Cir. 1978)
(“under the clear language of the “opposition”
clause of [section] 704(a), a case of retaliation
has not been made out unless the “retaliation”
relates to the employee’s opposition to a
[section] 703 violation”); see also Sias, 588 F.2d
at 695-96 (“[a]lthough the [district] court made
no explicit finding that Sias’ opposition was
based on a reasonable belief that the City’s
employment practices violated Title VII, such a
finding is implicit here”) (footnote omitted).
Learned, 860 F.2d at 932 (some alterations in Learned).
Plaintiff’s position is that she engaged in protected
activity when she opposed sexual harassment by attempting to
report to Mata and Uegawa on September 1, 2009 that Pheasant
assaulted her.
Defendant argues that Plaintiff’s retaliation
claim based on the September 4 Statement fails because Plaintiff
cannot establish that the alleged coercion of her signature on
the statement was an adverse personnel action.
Defendant also
contends that Plaintiff cannot show that the September 4
Statement had any impact on the investigation into the alleged
sexual assault and into Plaintiff’s relationship with Pheasant
because, in the OI Statement, Plaintiff conceded that she and
Pheasant had consensual sexual encounters.
Defendant states that
Plaintiff has not claimed that the OI Statement was coerced or is
inaccurate.
[Mem. in Supp. of Motion at 13-14.]
As noted supra, Plaintiff need not prove TSA’s
liability for the alleged sexual assault in order to prevail on
43
the retaliation claim.
See Learned, 860 F.2d at 932.
Clearly,
sexual assault in the workplace is conduct that Title VII
protects against.
Plaintiff need only prove that she reasonably
perceived the alleged assault by Pheasant as discrimination by
TSA.
Viewing the current record in the light most favorable to
Plaintiff, this Court finds that there are genuine issues of
material fact as to whether, when she made the report, Plaintiff
reasonably perceived the alleged assault as an unlawful
employment practice by TSA.
The September 4 Statement is a memorandum purportedly
memorializing Plaintiff’s meeting with Uegawa and Mata on
September 1, 2009.
[Uegawa Decl., Exh. 2.]
Thus, but for
Plaintiff initiating the meeting on September 1, 2009 to report
sexual harassment, Mata and Uegawa would not have asked Plaintiff
to sign a statement memorializing the meeting.
As to the second element of Plaintiff’s prima facie
case, adverse employment action, Defendant contends that the
alleged coercion of Plaintiff’s signature on the September 4
Statement does not constitute an adverse employment action.
Court disagrees.
This
Title VII’s anti-retaliation provision is less
restrictive of the types of actions to which the prohibition
applies than is Title VII’s anti-discrimination provision.
42
U.S.C. § 2000e-3(a) merely states that an employer shall not
“discriminate against” an employee “because he has opposed any
44
practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”
The Ninth Circuit has defined an
adverse employment action, for purposes of a Title VII
retaliation claim, as “any adverse treatment that is based on a
retaliatory motive and is reasonably likely to deter the charging
party or others from engaging in protected activity.”
Poland v.
Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007) (citation and
quotation marks omitted).
Plaintiff has presented testimony that Uegawa coerced
her into signing the September 4 Statement with the threat that
the failure to sign the statement would be insubordination.
Threatening an employee who reports sexual harassment to sign a
statement denying the harassment that she has just reported is
treatment that is reasonably likely to deter Plaintiff and others
from reporting sexual harassment.
Further, there is enough in
the current record to create a genuine issue of fact as to
whether Uegawa had a retaliatory motive in obtaining Plaintiff’s
signature on the September 4 Statement.
Viewing the evidence in
the light most favorable to Plaintiff, this Court finds that
Plaintiff has raised genuine issues of material fact as to
whether the alleged coercion of the September 4 Statement
constitutes an adverse employment action for purposes of
45
Plaintiff’s retaliation claim.
Defendant’s response to the allegation that Uegawa
coerced Plaintiff into signing the September 4 Statement is
essentially that the statement is an accurate account of what
Plaintiff said on September 1, 2009, and only after signing the
statement did Plaintiff change her mind about what transpired
between her and Pheasant.
[Uegawa Decl. at ¶¶ 5-6.]
Thus, the
evaluation of Plaintiff’s retaliation claim based upon the
September 4 Statement requires credibility determinations that
are not appropriate at the summary judgment stage.
See Bravo v.
City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir. 2011).
This Court FINDS that there are genuine issues of
material fact as to Plaintiff’s retaliation claim based on the
September 4 Statement which preclude summary judgment.
This
Court therefore DENIES Defendant’s Motion as to Plaintiff’s
retaliation claim based on the September 4 Statement.
C.
Three-Day Suspension
Rideb suspended Plaintiff for three days without pay
for unauthorized use of government property and unprofessional
conduct.
Pheasant.
Both reasons relate to her extra-marital affair with
[Rideb Decl., Exh. 8 (decision letter).]
Although not entirely clear from the Complaint,
Plaintiff apparently alleges only a retaliation claim based upon
46
her three-day suspension.10
In light of the parties’ arguments
in connection with the instant Motion, this Court does not
construe the Complaint as alleging a gender discrimination claim
based on the three-day suspension.
In the Motion, Defendant
characterized Plaintiff’s claim based on the suspension as a
retaliation claim.
[Mem. in Supp. of Motion at 15-19.]
In the
memorandum in opposition, Plaintiff also addressed the claim
based on the suspension as a retaliation claim.
16-20.]
[Mem. in Opp. at
Although she argues that “Pheasant was allowed to resign
in good standing, move to California and become employed at the
Sacramento Airport again as a sheriff[,]” Plaintiff makes this
statement in the context of her argument that she “has met her
burden of production in producing specific and substantial
evidence that once she reported Pheasant, [TSA] began a campaign
of retaliation directed against her . . . .”
1.
[Id. at 16.]
Prima Facie Case
Defendant initially assumed, for purposes of the
instant Motion, that Plaintiff could establish a prima face case
for her retaliation claim based on her three-day suspension.
[Mem. in Supp. of Motion at 15.]
10
In the reply, however,
Plaintiff also argues that TSA retaliated against her by
reducing her weekly work hours and switching her from the day
shift to the night shift. [Mem. in Opp. at 16.] Plaintiff’s
Complaint, however, does not contain these allegations, and
Plaintiff cannot pursue a retaliation claim based on these
allegations.
47
Defendant argues that Plaintiff cannot establish the newly
adopted “but-for” causation requirement.
[Reply at 8-9 (citing
Univ. of Texas Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517
(2013)).]
It is undisputed that, prior to her suspension,
Plaintiff engaged in protected activity and that her suspension
was an adverse employment action.
In order to survive summary
judgment, Plaintiff must identify sufficient evidence to create a
genuine issue of fact as to whether her protected activity was
the but-for cause of the suspension.
While there is a genuine dispute of fact as to whether
Pheasant assaulted Plaintiff on August 26, 2009 and as to whether
there were some other incidents of unwelcome sexual contact,
there is no dispute that Pheasant and Plaintiff were involved in
a romantic relationship that was, at least in part, consensual.
Pheasant apparently disclosed the relationship to Mata and others
on August 31, 2009 when he discussed his alleged affairs with
Darla Cox and Kendall Lopez.
at ¶ 5.]
[Mata Decl. at ¶¶ 3-4; Pltf. Decl.
Plaintiff herself told Uegawa on September 1, 2009 that
she and Pheasant “were seeing each other[.]”
¶ 5.]
[Pltf. Decl. at
Thus, even apart from Plaintiff’s report of the alleged
sexual harassment by Pheasant, TSA had knowledge of the romantic
relationship between Pheasant and Plaintiff.
TSA arguably could
have conducted an investigation into whether Plaintiff and
48
Pheasant misused government property during the course of their
relationship based on information apart from Plaintiff’s sexual
harassment complaint.
Rideb, however, relied heavily on Plaintiff’s OI
Statement in his investigation into whether Plaintiff misused
government property.
Plaintiff gave the OI Statement in the
course of OI’s administrative investigation into Plaintiff’s
report that Pheasant sexually assaulted her.
[Mata Decl. at ¶ 7
(stating that Mata informed OI of Plaintiff’s report and asked
them to open an investigation); id. at ¶ 9 (stating that OI
conducted an investigation immediately after TSA received word
that Kauai County would not be bringing criminal charges against
Pheasant); Rideb Decl. at ¶ 3 (stating that Rideb reviewed
statements that Cox and Plaintiff made to OI in the course of
OI’s investigation into Plaintiff’s allegation).]
Rideb cited
Plaintiff’s OI Statement in his decision letter, [Rideb Decl.,
Exh. 8,] and he based his preliminary conclusion that Plaintiff
misused government property on her OI Statement [Rideb Decl. at
¶ 3].
After reaching his preliminary conclusion, Rideb held a
pre-decision meeting with Plaintiff to inform her of his
preliminary findings and recommendations.
[Id.]
Plaintiff
challenged the preliminary findings and conclusions by writing
two statements.
[Id., Exhs. 6, 7.]
The primary basis for the
suspension came from the OI Statement.
49
However, OI would not
have conducted an investigation, and Plaintiff would not have
given the OI Statement, but for Plaintiff’s report that Pheasant
assaulted her.
Thus, viewing the current record in the light most
favorable to Plaintiff, this Court findings that there is a
genuine issue of fact as to whether Plaintiff’s protected report
that Pheasant sexually assaulted her was the but-for cause of her
suspension.
2.
Non-retaliatory Basis and Pretext
Defendant, however, also argues that: TSA had a
legitimate, non-retaliatory reason for the suspension Plaintiff’s misuse of government property during her affair with
Pheasant; and Plaintiff cannot show that the reason is merely
pretext.
Rideb considered all of the available evidence and
ultimately concluded that Plaintiff voluntarily became involved
in an extra-marital affair with Pheasant, and the affair involved
romantic encounters on TSA property.
Rideb’s decision letter
does not mention the incident on August 26, 2009.
Exh. 8.]
In addition, during his investigation, Rideb was not
aware of Plaintiff’s September 4 Statement.
¶ 3.]
[Rideb Decl.,
[Rideb Decl. at
Rideb was not aware of Plaintiff’s sexual harassment
complaint until after he read the OI Statement and he asked where
the statement came from.
[Rideb Depo. at 34.]
50
When he learned
about Plaintiff’s complaint, he asked why TSA was considering
disciplinary action against her.
Rideb was told there was no
basis for Plaintiff’s complaint and that the complaint was
dropped.
Rideb testified that Plaintiff’s sexual harassment
complaint was not his motive for imposing the suspension.
He
based his decision on what Plaintiff said she did, and he
confirmed that Plaintiff had been through sexual harassment
training and understood that what she was doing violated TSA
rules.
[Id. at 53-54, 56-57.]
Defendant therefore has
established a legitimate, non-retaliatory reason for Plaintiff’s
suspension.
3.
Pretext
Plaintiff argues that the stated reason for her
suspension was merely pretext.
Under the McDonnell Douglas
analysis, when the court examines the employer’s proffered
reasons for the adverse employment action, “it is not important
whether they were objectively false . . . .
Rather, courts only
require that an employer honestly believed its reason for its
actions, even if its reason is foolish or trivial or even
baseless.”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1063 (9th Cir. 2002) (emphasis in original) (citation and
internal quotation marks omitted).
Thus, in order to survive
summary judgment, Plaintiff must identify sufficient evidence to
create a genuine issue of material fact as to whether Rideb
51
honestly believed the stated reasons for the suspension.
Plaintiff points to the deposition testimony of
Desi Sasil as evidence that is contrary to Rideb’s deposition
testimony and declarations.
Plaintiff contends that the
inconsistencies show that Rideb did not honestly believe the
stated reasons for Plaintiff’s suspension.
According to
Plaintiff, Rideb was aware of Plaintiff’s sexual harassment
complaint, and Rideb suspended Plaintiff at Mata’s direction
although Rideb did not want to suspend Plaintiff.
at 15 (citing Sasil Depo. at 38, 83-85).]
[Mem. in Opp.
Desi Sasil testified
that Rideb mentioned Plaintiff’s sexual harassment allegation to
him and told him that “they was probably going to have an
inspector, some kind of inspection come now.”
38.]
[Sasil Depo. at
Sasil, however, did not state when Rideb mentioned the
sexual harassment allegation to him.
Thus, Sasil’s testimony
does not create a genuine issue of fact as to whether Rideb was
aware of the allegation when he conducted the investigation which
led to Plaintiff’s suspension or as to whether Rideb considered
Plaintiff’s sexual harassment allegation in conducting the
investigation.
Sasil states that Rideb told him Mata and Uegawa
directed Rideb to suspend Plaintiff.
Sasil’s basis for this
claim was a conversation that he had with Rideb in which Rideb
told him that Rideb was working on the investigation into
52
Plaintiff and Cox and that Plaintiff and Cox were “going to get
written up” for their involvement with Pheasant.
[Id. at 84.]
Sasil told Rideb, “[w]ell, they’re victims, ain’t they?”
According to Sasil, Rideb responded, “[t]hat’s what Shar [Mata]
wants.”
[Id.]
Sasil admitted that he did not remember Rideb
saying anything else about being directed to do anything
regarding Plaintiff, but Sasil claimed, “I know Dennis [Rideb],
because we talk a lot.
following orders.”
He didn’t want to do it, but he’s
[Id. at 85.]
Even viewing the record in the
light most favorable to Plaintiff, Sasil’s testimony that Rideb
did not want to discipline Plaintiff is mere speculation.
Sasil’s conversation with Rideb about the investigation, at best,
shows that Rideb was personally reluctant to discipline Plaintiff
and that Mata expressed her belief that Plaintiff should be
disciplined.
Sasil’s testimony does not call into question
Rideb’s honest belief that Plaintiff violated TSA rules and
directives.
Plaintiff also emphasizes Sasil’s testimony that Mata
and Uegawa “did not believe Plaintiff regarding Chris
Pheasant[,]” as well as Sasil’s testimony that “Mata expressed
that whistleblowers get too much protection.”
15 (citing Sasil Depo. at 80-81).]
[Mem. in Opp. at
Sasil’s testimony that Mata
and Uegawa did not believe Plaintiff does not create any genuine
issues of material fact.
Mata’s and Uegawa’s disagreement with
53
Plaintiff’s recitation of events is evident from their respective
declarations in this case.
As to Mata’s whistleblowers’ comment,
Sasil testified that it occurred in the following context:
there was a thing with whistleblowers at another I think a news where - that news report about
whistleblowers getting protected and winning, you
know, these cases. And it so happened we had
aligned one that won.
[Mata] says, you know, These whistleblowers,
they get too much protection. And there was,
like, really frustration in her - in her tone.
She said they shouldn’t have this act. They get
too much protection.
[Sasil Depo. at 81.]
Even assuming that Mata influenced Rideb’s
decision to suspend Plaintiff, the fact that Mata expressed
disagreement with the Whistleblowers’ Protection Act in response
to a news report does not raise a genuine issue of fact as to
pretext in this case.
Perhaps the most telling evidence which prevents
Plaintiff from showing a genuine issue of fact as to pretext is
the fact that Cox, who did not engage in a protected activity,
received the same discipline for the same reasons as Plaintiff a three-day suspension for unauthorized use of government
property and unprofessional conduct in the course of Cox’s affair
with Pheasant.
[Rideb Decl., Exh. 9 (decision letter to Cox).]
Further, although Plaintiff alleges that Sasil’s testimony that
Mata wanted Plaintiff to be suspended shows that Mata had
discriminatory animus, Sasil also testified that Mata wanted both
54
Plaintiff and Cox to be suspended.
[Sasil Depo. at 163.]
Thus, even viewing the evidence in the light most
favorable to Plaintiff, this Court FINDS that Plaintiff has not
identified a genuine issue of fact as to whether TSA’s stated
reason for Plaintiff’s three-day suspension was merely pretext
for retaliation.
This Court therefore CONCLUDES that Defendant
is entitled to judgment as a matter of law as to Plaintiff’s
retaliation claim based on her three-day suspension, and this
Court GRANTS summary judgment to Defendant as to that claim.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion for
Dismissal and Summary Judgment, filed April 2, 2013, is HEREBY
GRANTED IN PART AND DENIED IN PART.
The Motion is DENIED WITHOUT
PREJUDICE to the extent that Defendant argues this Court should
dismiss Plaintiff’s claims because Plaintiff failed to contact an
EEO counselor in a timely manner.
The Motion is DENIED as to: Plaintiff’s sexual
harassment/hostile work environment claims based upon conduct by
Pheasant; and Plaintiff’s retaliation claim based on the
September 4 Statement.
The Motion is GRANTED insofar as this
Court GRANTS summary judgment in favor of Defendant as to:
Plaintiff’s gender discrimination claim based on the September 4
Statement; and Plaintiff’s retaliation claim based on the threeday suspension.
55
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 28, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
NILDA C. MARUGAME V. JANET NAPOLITANO, ETC., ET AL; CIVIL NO. 1100710 LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT
56
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