Banks et al v. McHugh et al

Filing 112

ORDER GRANTING DEFENDANT'S MOTION FOR DISMISSAL OR SUMMARY JUDGMENT ON PLAINTIFF ALISON BEAVERS' CLAIMS re 58 . Signed by JUDGE LESLIE E. KOBAYASHI on 06/30/2014. -- Defendant's Motion for Dismissal or Summar y Judgment on Plaintiff Alison Beavers'Claims, filed March 13, 2014, is HEREBY GRANTED in its entirety. The Court directs the Clerk's Office to terminate Beavers as a party. (eps )CERTIFICATE OF SE RVICEParticipants 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
)
)
)
)
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
JOHN McHUGH, SECRETARY
)
DEPARTMENT OF THE ARMY;
)
LEON E. PANETTA, SECRETARY,
)
DEPARTMENT OF DEFENSE,
)
)
Defendants.
_____________________________ )
KELVIN BANKS, ALISON BEAVERS,
DAVID “FLYING WITH EAGLES”
BEVETT, CHARLES W. DICKEY,
MARCEAU DOZE-GUILLORY, EDWARD
MANIGAULT, TAMANEE MUNDY,
WANDA THOMAS, SYLVIA VEGA,
and CHINY WANG,

CIVIL NO. 11-00798 LEK-KSC

ORDER GRANTING DEFENDANT’S MOTION FOR DISMISSAL OR
SUMMARY JUDGMENT ON PLAINTIFF ALISON BEAVERS’ CLAIMS
Before the Court is Defendant Secretary of the Army
John M. McHugh’s (“Defendant”) Motion for Dismissal or Summary
Judgment on Plaintiff Alison Beavers’ Claims (“Motion”), filed on
March 13, 2014.

[Dkt. no. 58.]

Plaintiff Alison Beavers

(“Beavers”) filed her memorandum in opposition on May 29, 2014,1
1

On that same day, Beavers also filed her Point-By-Point
Response to Defendant’s Concise Statement in Support of Summary
Judgment Motion (“Point-By-Point Response”), Rebuttal to Concise
Statement of Material Facts (“Rebuttal CSOF”), and Exhibits 1-14
(“Beavers Exhibits”), attached to the Declaration of Anthony P.X.
Bothwell (“Bothwell Decl.”). [Dkt. nos. 95-1, 95-3 to 95-17.]
On June 19, 2014, the Court issued an order (“6/19/14 Order”)
striking these documents, as well as limiting the use of the
section of Beavers’s memorandum in opposition, titled,
(continued...)

and Defendant filed his reply on June 2, 2014.
96.]

[Dkt. nos. 95,

This matter came on for hearing on June 16, 2014.

After

careful consideration of the Motion, supporting and opposing
memoranda, and the arguments of counsel, Defendant’s Motion is
HEREBY GRANTED for the reasons set forth below.
BACKGROUND
Beavers, along with Plaintiffs Kelvin Banks,
David “Flying with Eagles” Bevett, Charles W. Dickey,
Marceau Doze-Guillory, Edward Manigault, Tamanee Mundy,
Wanda Thomas, Sylvia Vega, and Chiny Wang (collectively
“Plaintiffs”), filed their complaint (“Complaint”) on
December 30, 2011 against Defendant, as well as Secretary of the
Department of Defense, Leon E. Panetta, and Robert Gates.2
Plaintiffs, all past or present medical staff at Tripler Army
Medical Center in Honolulu (“Tripler”), [Complaint at ¶¶ 2-3, 2527,] allege the following claims:

discrimination in violation of

Title VII of the Civil Rights Act of 1964 (“Title VII”), as
amended, 42 U.S.C. § 2000e-1, et seq. (“Count I”); retaliation in
violation of Title VII (“Count II”); and discrimination and
retaliation in violation of the Equal Protection Clause of the

1

(...continued)
“Plaintiff’s Concise Statement of Material Facts” (“Beavers CSOF
Section”).
2

Plaintiffs voluntarily dismissed the case against Robert
Gates on June 16, 2012. [Dkt. No. 34.]
2

Fifth Amendment (“Count III”).

Plaintiffs seek the following

relief: compensatory damages; removal of derogatory material from
their personnel files; disciplinary measures against the
officers, managers, and supervisors named in the Complaint;
attorneys’ fees; and all other appropriate relief.

[Id. at pgs.

19-20.]
On September 28, 2012, the Court issued its Order
Granting in Part and Denying in Part Defendants’ Motion to
Dismiss and Sever Plaintiffs’ Claims (“9/28/12 Order”).3
no. 40.4]

[Dkt.

In the 9/28/12 Order, the Court: dismissed Count III,

finding it was preempted by Title VII; dismissed Plaintiff
Manigault’s claims since it found that, as active duty military
personnel, his claims were not covered by Title VII; dismissed
all claims against Defendant Panetta for failure to state a
claim; and severed Plaintiff Thomas’s claims.

2012 WL 4715162,

at *6-10.
In the instant Motion, Defendant seeks dismissal or
summary judgment on all claims by Beavers in the Complaint.
Beavers, who is Korean and African American, worked as
a civilian nurse in the emergency department under the
supervision of Colonel Kenneth Batts (“Col. Batts”), Captain

3

Defendants filed the Motion to Dismiss and Sever on May
25, 2012. [Dkt. no. 25.]
4

The 9/28/12 Order is also available at 2012 WL 4715162.
3

Kelly (“Capt. Kelly”), and Major Meek (“Maj. Meek”).

She alleges

that, on October 30, 2007, someone left a “hate letter”
(“Anonymous Letter”) in her locker, describing Beavers as “like a
snake.”

When Beavers reported the incident, she alleges, no

serious investigation took place and the primary suspect, Sargent
Tim Hawkins (“Sgt. Hawkins”), was never interviewed about the
matter.

Further, Beavers alleges that Col. Batts and Capt. Kelly

harassed African American employees, and that there was a racist
atmosphere at Tripler that was tolerated by management.

Beavers

claims that Maj. Meeks issued her an unwarranted notice of
proposed suspension and he transferred her to an undesirable work
shift, and that, on May 15, 2008, she was constructively
discharged.

[Complaint at ¶¶ 34–39.]
DISCUSSION

I.

Exhaustion under Title VII
As a threshold matter, Defendant argues Beavers’s

allegations should be dismissed in their entirety because Beavers
failed to consult with an equal employment opportunity (“EEO”)
counselor within forty-five days of the alleged discriminatory
events, as required by 29 C.F.R. § 1614.105(a)(1).

[Mem. in

Supp. of Motion at 6-11.]
This Court has explained that failure to contact a
counselor within the required time frame can be dispositive:
29 C.F.R. § 1614.105(a)(1) requires a federal
employee who believes that she has been subjected
4

to . . . 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).
Marugame v. Napolitano, Civil No. 11-00710 LEK-BMK, 2013 WL
4608079, at *9 (D. Hawai`i Aug. 28, 2013).
While timely filing of an administrative complaint is
“not a jurisdictional prerequisite to suit in federal court,” it
is a necessary requirement, “subject to waiver, estoppel and
equitable tolling.”

“Equitable estoppel focuses on the

defendant’s wrongful actions preventing the plaintiff from
asserting his claim.”
Cir. 2003).

Leong v. Potter, 347 F.3d 1117, 1123 (9th

“Equitable tolling focuses on a plaintiff’s

excusable ignorance and lack of prejudice to the defendant.”

Id.

Beavers contacted an EEO official on May 14, 2008.
[Def.’s Concise Statement in Support of Def.’s Motion for
Dismissal or Summary Judgment of Pltf. Alison Beavers’ Claim,
filed 3/13/14 (dkt. no. 59) (“Def.’s CSOF”), Decl. of Annette
Perry (“Perry Decl.”), Exh. 8 (Formal Complaint of
Discrimination, dated July 10, 2008 (“EEO Complaint”)) at Box
12c.]

At that time, she raised: 1) the Anonymous Letter from

5

October 2007; 2) her reassignment to an allegedly less-desirable
shift by Maj. Meek on March 25, 2008; and 3) notification by Maj.
Meek of a suspension on April 7, 2008.5

[Id.]

Neither the

Anonymous letter, nor the shift change are within the forty-five
day window as required by regulation, and Beavers does not argue
that they are.

See Reply at 4-5.

Instead, Beavers appears to argue that Defendant should
be equitably estopped from asserting an exhaustion defense.

She

states that she “filed her EEO charge when she learned about
administrative complaint procedures that Defendant had concealed
from her.”

[Mem. in Opp. at 11.]

factual support for her claim.

She provides no legal or

At the hearing on the Motion, her

counsel argued that Maj. Meek prevented Beavers from asserting
her claim.

He appeared to be referring to Beavers’s claim that

Maj. Meek told her to “sweep this under the rug once and for
all,” [Perry Decl., Exh. 1 (Trans. of Fact Finding Conference

5

There is an inconsistency between the date of the notice
of suspension between the EEO Complaint and Beavers’s
interrogatory responses. In the EEO Complaint, Beavers wrote
that she was notified of the suspension on April 7, 2008; [EEO
Complaint at 1;] in her interrogatory responses, she responded
that she was notified on March 7, 2008 [Perry Decl., Exh. 26
(Pltf. Alison Beavers’ Response to Interrogatories (First Set)
(“Interrog. Resps.”)) at 2]. In making his exhaustion argument,
Defendant uses the March date, [Mem. in Supp. of Motion at 9,]
and Beavers does not dispute the point. However, the Court views
the evidence in the light most favorable to the non-moving party.
For that reason, the Court will assume for the purpose of this
order that the notice of suspension occurred on April 7, 2008,
and thus that claim is not dismissed for failure to exhaust.
6

(“FFC”), excerpts of Alison Beavers testimony (“Def.’s Beavers
FFC Trans.”)) at 22-23,]6 and the allegation in her EEO Complaint
that “[b]eginning 18 April 2008, MAJ Meek obstructed my right to
assistance/representation of counsel in attempting to respond to
the suspension proposal”

[EEO Complaint at 1-2.]

Even viewing the evidence in the light most favorable
to Beavers, neither of these claims create a genuine issue of
material fact that Maj. Meek wrongfully prevented Beavers from
asserting her claims.

See Crowley v. Bannister, 734 F.3d 967,

976 (9th Cir. 2013) (at summary judgment, the Court “must
determine, viewing the facts in the light most favorable to the
nonmoving party, whether there are any genuine issues of material
fact and whether the district court correctly applied the
relevant substantive law” (citation and quotation marks
omitted)).
First, Plaintiff argues that Maj. Meek told her to
sweep the Anonymous Letter incident under the rug.
at 5.]

[Mem. in Opp.

Beavers’s complete testimony, regarding her conversation

with Maj. Meek was,

6

Insofar as the Court considers evidence outside of the
Complaint, that was neither attached to or referred to in the
Complaint, it treats the portion of the Motion seeking dismissal
for failure to exhaust as one for summary judgment under Rule 56,
and applies summary judgment standards. See Fed. R. Civ. P.
56(d); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d
1035, 1041 n.6 (9th Cir. 2010) (when materials are considered
outside of the complaint the “motion should be converted into one
for summary judgment”).
7

I said since this hate letter I discussed, I said,
I just feel that people feel like they could treat
and talk to me any way they want, that – like it’s
an overall consensus, you know. I don’t
understand, I said, the ignorance about it. And
then his response was, you know, well, we’ve went
over it. I told you what the provost marshal
could do about it, which wasn’t really anything,
that the extent was the Reader’s Digest version,
and then what can we do to help sweep this under
the rug once and for all.
[Def.’s Beavers FFC Trans. at 22-23.]

As defense counsel argued

at the hearing, this statement, in its entirety, does not support
Beavers’s argument.

In it, Beavers states that she believes that

the investigation of the Anonymous Letter was incomplete; but
Maj. Meek responds that he did all that he could.

He does not

mention the EEO process or in any way discourage Beavers from
pursuing an EEO complaint, and instead asks her what he can do to
put the incident behind them.

If she interpreted his statement

as an attempt to silence her, an EEO complaint would have been a
prudent course of action.

It does not appear from anything in

the record that Maj. Meek “concealed” the EEO process from
Beavers.7

[Mem. in Opp. at 11.]
Also, Beavers does not – in her EEO Complaint, the

court Complaint, or her memorandum in opposition – provide any
evidence for the claim made in the EEO Complaint that Maj. Meek

7

Even assuming, arguendo, that the Court had not struck
Beavers’s documents, the Court would still find that nothing in
the record supports Beavers’s claim that Maj. Meeks concealed the
complaint process.
8

obstructed her right to counsel.

[EEO Complaint at 1-2.]

Further, she has not rebutted the evidence offered by Defendant
that the EEO process was well-publicized.

Defendant provides

evidence that “all requisite annual EEO training was current” and
that “EEO quarterly in-service training was conducted in April
2008.”

[Def.’s CSOF ¶ 10 (citing Perry Decl. Exhs. 2 (Trans. of

FFC, excerpts of Maj. Meek testimony (“Def.’s Meek FFC Trans.”))
at 163-64; and 3 (Trans. of FFC, excerpts of Capt. Kelly
testimony (“Def.’s Kelly FFC Trans.”)) at 135-36).]

Thus,

Beavers has not raised any genuine issue of material fact that
Maj. Meek concealed the EEO process from her, and that Defendant
should be equitably estopped from raising an exhaustion defense.
Beavers also appears to argue that exhaustion would
have been futile.

[Mem. in Opp. at 1.]

The Court questions

whether this is a proper exception to the Title VII exhaustion
requirement.

See You v. Longs Drugs Stores Cal., LLC, 937 F.

Supp. 2d 1237, 1250-51 (D. Hawai`i 2013) (“Plaintiffs have cited
no case authority for their extraordinary proposition, and my own
research has not located any substantial support for the creation
of a ‘futility’ exception to the Title VII exhaustion
requirement, and certainly no support for the assertion that the
administrative process may be disregarded in its entirety.”
(quoting Murphy v. West, 945 F. Supp. 874, 876 (D. Md. 1996),
aff'd on other grounds, 172 F.3d 863 (4th Cir. 1999))).

9

Even if it were, Beavers’s support for the claim is
insufficient to create a genuine issue of material fact.

The

only evidence she provides to support her futility argument is a
statement from her attorney’s declaration that “[t]he EEOC
mediator of Tripler cases repeatedly said the EEOC district
strongly disfavors employees and that it would see no bias in a
‘hate letter’ . . . .”

[Mem. in Opp., Decl. of Anthony P.X.

Bothwell (“Bothwell Decl.”) at ¶ 6.]
However, this statement does not meet the standard for
proving futility applied in other administrative contexts.

For

example, in appeals from the Interior Board of Indian Appeals,
the Ninth Circuit has held: “In considering a motion to dismiss
for failure of jurisdiction, the district court may not deem
[a]dministrative review . . . futile if the plaintiff’s
allegations of bias are purely speculative.”

Anderson v.

Babbitt, 230 F.3d 1158, 1164 (9th Cir. 2000) (citation and
internal quotation marks omitted).
The Ninth Circuit and district courts within this
circuit have applied similar standards in other administrative
contexts.

See, e.g., Leorna v. U.S. Dep’t of State, 105 F.3d

548, 552 (9th Cir. 1997) (“[Plaintiff’s] claim that it became
futile for her to ‘continue’ to comply with the administrative
complaint procedures is meritless because she did not even
attempt to initiate the EEO administrative complaint process

10

until” after the required reporting date.); Taylor v. Def. Fin. &
Accounting Serv., No. CIV. 2:12-2466 WBS DAD, 2014 WL 28820, at
*6 (E.D. Cal. Jan. 2, 2014) (“[t]he futility exception applies
only when there is a certainty of an adverse decision or further
pursuit of administrative remedies would be clearly useless”
(alteration in Taylor) (citations and quotation marks omitted));
Robinson v. Salazar, 885 F. Supp. 2d 1002, 1035 (E.D. Cal. 2012)
(“Whether exhaustion of remedies would be ‘futile’ means whether
‘nothing could be gained from permitting further administrative
proceedings.’” (quoting Anderson, 230 F.3d at 1164)).

Beavers’s

counsel’s statement regarding bias is speculative, and does not
raise a genuine issue of material fact that timely filing would
have been “clearly useless.”
Since Beavers’s equitable estoppel and futility
arguments do not create a genuine issue of material fact, and
Beavers concedes that she did not contact an EEO counselor before
the required deadline, this Court finds that Beavers failed to
exhaust her administrative remedies under Title VII.

Thus, the

Court GRANTS the Motion for failure to exhaust administrative
remedies, with the exception of Beavers’s wrongful notice of
suspension claim, see supra n.5.

Fed. R. Civ. P. 56 (“The court

shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”).

11

II.

Substantive Title VII Claims
The Court considers here Beavers’s claim of a wrongful

notice of suspension.

In addition, even though the Court grants

the Motion as to Beavers’s other claims on the basis of
exhaustion, it considers here the substance of Beavers’s claims
for completeness.
The Ninth Circuit has stated:
In 1972, Congress amended Title VII of the
Civil Rights Act of 1964 to extend its coverage to
federal employees. As amended, § 717 of the Civil
Rights Act, codified at 42 U.S.C. § 2000e–16,
“provides that all personnel actions affecting
federal employees and applicants for federal
employment shall be made free from any
discrimination based on race, color, religion,
sex, or national origin,” and “establishes an
administrative and judicial enforcement system.”
Brown v. Gen. Servs. Admin., 425 U.S. 820, 829–30,
96 S. Ct. 1961, 48 L. Ed. 2d 402 (1976) (internal
quotation marks omitted). . . .
Kraus, 572 F.3d at 1043.8
Courts analyze Title VII discrimination claims and
retaliation claims under the burden-shifting analysis set forth
in McDonnell Douglas v. Green, 411 U.S. 792 (1973).

See, e.g.,

Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.
2010) (discrimination); Dawson v. Entek Int’l, 630 F.3d 928, 936

8

The Court notes that, although Plaintiff requests that the
Court apply international law to decide this case, see, e.g.,
Mem. in Opp. at 8, the Court chooses not to, in particular,
because Title VII and the United States courts have provided
ample guidance to answer the legal issues Beavers has presented
here.
12

(9th Cir. 2011) (retaliation).
In examining 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 Villiariamo) (citation and internal quotation marks
omitted).
A.

Discrimination
To establish a prima facie case, a plaintiff “must
offer evidence that ‘give[s] rise to an inference
of unlawful discrimination.’” Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998)
(alteration in original), citing Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101
S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

Hawn, 615 F.3d at 1156.

Plaintiff has the initial burden of

establishing a prima facie case of discrimination.

See

McDonnell, 411 U.S. at 802; Villiarimo, 281 F.3d at 1062.

The

degree of proof required to establish a prima facie case on
summary judgment is minimal.

Villiarimo, 281 F.3d at 1062.

In

carrying his burden, a plaintiff “may rely on circumstantial
evidence, rather than direct evidence of pretext.

But if he

does, ‘such evidence must be both specific and substantial.’”
Galloway v. Mabus, No. 11–cv–0547 BEN (NLS), 2013 WL 435932, at
*5 (S.D. Cal. Feb. 4, 2013) (quoting Villiarimo, 281 F.3d at

13

1062).
A plaintiff may prove discrimination through either
discrete discriminatory acts or by showing an overall hostile
work environment.

Examples of discrete acts are termination,

failure to promote, denial of transfer, or refusal to hire.
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
On the other hand, “[h]ostile environment claims are different in
kind from discrete acts.
conduct.

Their very nature involves repeated

The unlawful employment practice therefore cannot be

said to occur on any particular day.”
internal quotation marks omitted).

Id. (citations and

They develop “‘over a series

of days or perhaps years and, in direct contrast to discrete
acts, a single act of harassment may not be actionable on its
own.’”

Wilkie v. Robbins, 551 U.S. 537, 582 (2007) (quoting

Nat’l R.R., 536 U.S. at 115, 122 S. Ct. 2061, 153 L. Ed. 2d 106).
“The Supreme Court has held that ‘[w]hen the workplace
is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an abusive
working environment, Title VII is violated.’”

Dominguez-Curry v.

Nevada Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir. 2005)
(alteration in Dominguez-Curry) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)).
“[T]he working environment must both subjectively
and objectively be perceived as abusive.” [Fuller
14

v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.
1995)] (citing Harris Forklift Sys., Inc., 510
U.S. 17, 20-21, 114 S. Ct. 367, 126 L. Ed. 2d 295
(1993)). Objective hostility is determined by
examining the totality of the circumstances and
whether a reasonable person with the same
characteristics as the victim would perceive the
workplace as hostile. Id. Finally, to find a
violation of Title VII, “conduct must be extreme
to amount to a change in the terms and conditions
of employment.” Faragher [v. City of Boca Raton],
524 U.S. [775,] 788, 118 S. Ct. 2275 [(1998)]; see
also Fuller, 47 F.3d at 1527.
Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir.
2007).

“Factors a court may consider are the frequency of the

discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.”

Nat’l R.R., 536 U.S. at 116 (citation and internal

quotation marks omitted).
Regarding claims of a hostile work environment, this
Court has explained,
“Title VII is not ‘a general civility code for the
American workplace.’” Jura v. Cnty. of Maui, Civ.
No. 11–00338 SOM/RLP, 2012 WL 5187845, at *7 (D.
Hawaii Oct. 17, 2012) (quoting Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct.
998, 140 L. Ed. 2d 201 (1998)). Moreover,
“‘personal animosity is not the equivalent of sex
[or race] discrimination,’ and a plaintiff ‘cannot
turn a personal feud into a sex [or race]
discrimination case.’” Id. (quoting Succar v.
Dade Cnty. Sch. Bd., 229 F.3d 1343, 1345 (11th
Cir. 2000)).
Phillips v. Mabus, Civil No. 12-00384 LEK-RLP, 2013 WL 4662960,
at *19 (D. Hawai`i Aug. 29, 2013) (alterations in Phillips).
15

Insofar as the Court has stricken Beavers’s Point-ByPoint Response, the Rebuttal CSOF, and the Beavers Exhibits, see
supra n.1, Beavers fails to provide any evidence of discrete acts
of discrimination or a hostile work environment.

Further,

Defendant offers evidence that negates any inference of
discrimination, and provides legitimate, non-discriminatory
reasons for Maj. Meek’s actions.
First, there is no evidence that the Anonymous Letter
was discriminatory, or that it was perpetrated or condoned by
Beavers’s supervisors.

Though it is strongly-worded, the letter

itself is not discriminatory on its face, and the reference to
Beavers as a “snake” relates to an attribute of her personality
and her relationship with her colleagues, not her race.9

[Perry

Decl., Exh. 10 (Anonymous Letter).]
Further, in response to the Anonymous Letter:
1) Maj. Meek and the Provost Marshal’s Office (“PMO”) initiated
an investigation, which found that there was no criminal
activity; [Def.’s CSOF at ¶ 8;] 2) Capt. Kelly directed
department-wide education and training, and he and Maj. Meek held
departmental meetings and spoke with staff individually; [id. at
¶ 9;] 3) Capt. Kelly and Maj. Meek ensured that EEO trainings

9

The section in the Anonymous Letter reads, “If you are
that unhappy, QUIT MAKING EVERYBODY ELSE UNHAPPY. No one likes
you here, even those who you have had as friends and then turned
on like a snake can’t stand you.” [Perry Decl., Exh. 10
(Anonymous Letter).]
16

were current and continued to hold regular EEO process trainings;
[id. at ¶ 10;] and 4) the Inspector General (“IG”) investigated
the incident upon Beavers’s request [id. at ¶ 11].

Thus, there

is no evidence of discrimination in the letter or Defendant’s
response to it.
Regarding the reassignment and notice of suspension,
both before and after the Anonymous Letter, there were numerous
complaints from Tripler staff and patients about Beavers’s
behavior.

[Id. at ¶¶ 3-6, 12-13 (citing Perry Decl., Exhs. 5-7,

9, 13-18 (various formal and informal complaints)).]

As a result

of these complaints, on March 25, 2008, Maj. Meek temporarily
reassigned Beavers – as permitted as a condition of her
employment – to the day shift to observe her behavior.
¶¶ 14-15.]

[Id. at

Similarly, on March 6, 2008, Maj. Meek provided

Beavers with a notice of proposed suspension for “discourteous
behavior.”

[Id. at ¶ 16.]
In sum, there is no “inference of unlawful

discrimination” in the record, see Godwin, 150 F.3d at 1220, and
thus summary judgment is GRANTED as to Beavers’s wrongful notice
of suspension claim.

The Court also finds that summary judgment

would be proper for all of Beavers’s other claims of
discrimination on this ground, if those claims had been properly
exhausted.

17

The result is the same, even if the Court were to
consider Beavers’s improperly offered circumstantial evidence.
See 6/19/14 Order.

At best, Beavers presents evidence that:

1) she believed that there were shortcomings to the Anonymous
Letter investigation; [Bothwell Decl., Exhs. 3 (Beavers’s
excerpts of FFC Trans. (“Beavers FFC Excerpts”))10 at 269
(testimony of Sgt. Carlitos Grant, Jr.); 7 (Depo. of Capt.
Kelly.) at 67, 8 (11/23/07 email from Beavers), 11 (Depo. of Sgt.
Hawkins) at 24;] 2) Maj. Meek may have reassigned Beavers to
separate her from colleagues Fred Puleo and Sgt. Hawkins, even
though he knew that Beavers preferred to stay on the night shift;
[Beavers FFC Excerpts at 42-43, 70 (Meek testimony), 155 (Kelly
testimony), 322 (Hawkins testimony); Bothwell Decl., Exh. 9
(9/29/08 Mem. of Record by Maj. Meek);] and 3) Capt. Kelly told
Maj. Meek that he wanted to get rid of “slackers” [Beavers FFC

10

Whereas Defendant offered excerpts of each witness’s
testimony at the FFC as individual exhibits, Beavers offered all
of her excerpts as a single exhibit. The Court CAUTIONS both
parties that they must excerpt the material in such a way that
the Court is easily able to determine who is testifying and
understand the context of the offered testimony, and cite to the
correct pages and lines of testimony. Otherwise, the Court will
not consider the evidence. See Local Rules of Practice for the
United States District Court for the District of Hawaii (“Local
Rules”) 56.1(c) (“The concise statement shall particularly
identify the page and portion of the page of the document
referenced. . . . The parties . . . shall ensure that enough of
a document is attached to put the matter in context.”); (f)
(“. . . the court shall have no independent duty to review
exhibits in their entirety, but rather will review only those
portions of the exhibits specifically identified in the concise
statements”).
18

Excerpts at 53 (Meek testimony)].

Even all of this evidence

together does not “‘give[] rise to an inference of unlawful
discrimination’” regarding the discrete acts.

See Godwin, 150

F.3d at 1220 (citation omitted).
Further, Beavers fails to provide substantial evidence
of severe or pervasive discrimination in the workplace.

To the

contrary, Beavers offers evidence that she was not well liked.
Two co-workers testified that Beavers was the object of
harassment: Sharon Mitsuko Pniel stated that Puleo and Sgt.
Hawkins isolated Beavers and intentionally gave her extra work;
[Beavers FFC Trans. at 245-46, 251;] and Dianna Rowe-Huff stated
that the supervisors “treated [Beavers] differently than they
treated other people” and that she was “one of them” [id. at
304].
This is the only evidence of any purported
discrimination directed toward Beavers, and even these two coworkers testified that the treatment was based on personality,
not race.

[Id. at 244-45 (Pniel: “It was more or less

personality based. . . .

I don’t know if you can say it’s

racially ‘cause it doesn’t come out racially.
. . .

Personally, yes.

I just don’t think they liked her.”), 246 (Pniel: “So I

can tell you it was personality conflict.”), 304 (Rowe-Huff:
“Alison was targeted because she is outspoken . . . .”).]

19

Although, Beavers may have been the only African
American civilian nurse, there is no dispute that there were
other African American military personnel working with her.11
[Beavers FFC Trans. at 77 (Meek testimony), 246-47 (Pniel
testimony).]
Again, this evidence does not “‘give[] rise to an
inference of unlawful discrimination.’”
1220 (citation omitted).

See Godwin, 150 F.3d at

Nor does not create a genuine issue of

material fact as to whether Tripler was “permeated with
discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment[.]”
See Dominguez-Curry, 424 F.3d at 1034.

While the Court

recognizes that the Anonymous Letter and other events surrounding
the investigation may have been troubling to Beavers, she
presents no evidence that Defendant violated Title VII.

See

Oncale, 523 U.S. at 80 (Title VII is not “a general civility code
for the American workplace.”).
Thus, Beavers’s failure to raise a genuine issue of
material fact as to discrimination is sufficient ground to grant

11

The Court gives little, if any, weight to the testimony
of co-Plaintiff Kelvin Banks, that he felt there was
discrimination at Tripler. [Beavers FFC Trans. at 286, 289,
292.] Banks did not testify to any specific discriminatory
actions toward Beavers or by her supervisors, or even that she
witnessed the incidents he discussed.
20

the Motion as to Count I, to the extent Beavers claims discrete
acts of discrimination and a hostile work environment.
B.

Constructive Discharge
Beavers also alleges in Count I that she was

constructively discharged.
“A hostile-environment constructive discharge claim
entails something more [than simple discrimination]: A plaintiff
who advances such a compound claim must show working conditions
so intolerable that a reasonable person would have felt compelled
to resign.”

Pa. State Police v. Suders, 542 U.S. 129, 147 (2004)

(citations omitted).
The Ninth Circuit has held that,
constructive discharge occurs when the
working conditions deteriorate, as a result
of discrimination, to the point that they
become sufficiently extraordinary and
egregious to overcome the normal motivation
of a competent, diligent, and reasonable
employee to remain on the job to earn a
livelihood and to serve his or her employer.
Brooks v. City of San Mateo, 229 F.3d 917, 930
(9th Cir. 2000) (internal quotation marks
omitted). We set the bar high for a claim of
constructive discharge because federal
antidiscrimination policies are better served when
the employee and employer attack discrimination
within their existing employment relationship,
rather than when the employee walks away and then
later litigates whether his employment situation
was intolerable. Thorne v. City of El Segundo,
802 F.2d 1131, 1134 (9th Cir. 1986); see also
Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490,
494 (8th Cir. 1996) (“An employee who quits
without giving his employer a reasonable chance to
work out a problem has not been constructively
21

discharged.”).
Poland v. Chertoff, 494 F.3d 1174, 1184-85 (9th Cir. 2007)
(footnote omitted).
For the same reasons that Beavers’s claims of discrete
acts of discrimination and a hostile work environment fail, so
too does her claim of constructive discharge.

She has provided

no evidence of discrimination or “sufficiently extraordinary and
egregious” working conditions “to overcome the normal motivation
of a competent, diligent, and reasonable employee to remain on
the job to earn a livelihood and to serve his or her employer.”
See Brooks, 229 F.3d at 930.

Thus, the Court finds sufficient

ground to grant summary judgment regarding Beavers’s claim of
constructive discharge as well.
C.

Retaliation
Defendant argues, inter alia, that the Court should

dismiss Count II because Beavers did not engage in any protected
activity.

[Mem. in Supp. of Motion at 22.]

The Court agrees.

The Ninth Circuit has explained that,
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. 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
22

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.
Regarding protected activity, 42 U.S.C. § 2000e3(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.
“For an employee’s ‘opposition’ to be protected, the
employer’s conduct which the employee opposed ‘must fairly fall
within the protection of Title VII to sustain a claim of unlawful
retaliation.’”

Werner v. Advance Newhouse P’ship, LLC, No.

1:13-CV-01259-LJO-JLT, 2013 WL 4487475, at *3 (E.D. Cal. Aug. 19,
2013) (quoting Learned v. Bellevue, 860 F.2d 928, 932 (9th Cir.
1988)).

“Protected activity includes the filing of a charge or a

complaint, or providing testimony regarding an employer’s alleged
23

unlawful practices, as well as engaging in other activity
intended to ‘oppose[]’ an employer’s discriminatory practices.”
Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197
(9th Cir. 2003) (alteration in Raad) (quoting 42 U.S.C. § 2000e3(a)).

“If a person has been subjected to only an isolated

incident, a complaint about that incident does not constitute
protected activity unless a reasonable person would believe that
the isolated incident violated Title VII.”

E.E.O.C. v. Go Daddy

Software, Inc., 581 F.3d 951, 963 (9th Cir. 2009).

Failure to

raise a genuine dispute of material fact as to engagement in a
protected activity is sufficient ground for granting summary
judgment.

See, e.g., Klat v. Mitchell Repair Info. Co., 528 F.

App’x. 733 (9th Cir.), cert. dismissed, 134 S. Ct. 625 (U.S.
2013).
The participation clause only prohibits retaliation
against persons who participate in the EEO process.

See, e.g.,

Greisen v. City of N. Las Vegas, 251 F. App’x 462, 463 (9th Cir.
2007) (citing Vasconcelos v. Meese, 907 F.2d 111, 113 (9th Cir.
1990)).

“An employee’s ‘participation’ in the EEOC process is

protected from retaliation whether or not the charge filed with
the EEOC is meritorious.”

Abramson v. Univ. of Haw., 594 F.2d

202, 211 (9th Cir. 1979).
Beavers argues that she suffered adverse actions,
specifically, “refusing to seriously investigate the hate letter

24

even when suspects were known, suddenly taking [Beavers] off her
long-accustomed night shift, and threatening suspension when
[Beavers] had done no wrong” after she “complained in vain to MAJ
Meek, CAPT Kelly, the Provost Marshall and others.”
Opp. at 12.]

[Mem. in

All of these complaints relate to the Anonymous

Letter and its investigation.

However, Beavers has offered no

evidence that she ever raised any issue of discrimination, let
alone anything actionable under Title VII.

The only evidence

Beavers cites (again, assuming it had been properly submitted),
does not show any claim of discrimination.

Also, Beavers’s

formal request to the Inspector General for further investigation
of the Anonymous Letter does not mention discrimination, and
instead requests conflict resolution training for her unit and
that Beavers and Maj. Meek be supported in “hav[ing] a better
colleague rapport[.]”
Action Request).]

[Perry Decl., Exh. 11 (Inspector General

There is no genuine issue of material fact

suggesting that a reasonable person would believe that these
complaints were protected activity under Title VII.
Daddy, 581 F.3d at 963.

See Go

Thus, summary judgment could be granted

on Count II for this reason alone.12

12

See, e.g., Klat, 528 F.

Alternatively, the Court finds that Beavers fails to
rebut Defendant’s evidence of a legitimate, non-discriminatory
reason for her reassignment – related to co-worker and patient
complaints and interpersonal conflict with colleagues – some of
which Beavers herself cites in her memorandum in opposition. See
Mem. in Opp. at 4-5.
25

App’x at 733.
III. Summary
The Court FINDS that there is no genuine issue of
material fact that Beavers has not exhausted her administrative
remedies under Title VII and therefore GRANTS the Motion, with
the exception of Beavers’s claim for wrongful notice of
suspension.

The Court GRANTS Defendant’s Motion insofar as

Beavers’s fails to raise a genuine issue of material fact that
her notice of suspension was discriminatory.

Even if she had

exhausted her administrative remedies as to all other claims,
Beavers was not discriminated against or retaliated against by
Defendant within the meaning of Title VII.

The Court reaches

this conclusion because Beavers has failed to rebut Defendant’s
CSOF or assert her own undisputed facts.

Even if the Court

considered all of the evidence Beavers improperly included,
Beavers has failed to raise any genuine issue of material fact,
and thus summary judgment is warranted.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion for
Dismissal or Summary Judgment on Plaintiff Alison Beavers’
Claims, filed March 13, 2014, is HEREBY GRANTED in its entirety.
The Court directs the Clerk’s Office to terminate Beavers as a
party.
IT IS SO ORDERED.
26

DATED AT HONOLULU, HAWAII, June 30, 2014.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

KELVIN BANKS, ET AL. VS. JOHN M. MCHUGH, ET AL.; CIVIL 11-00798
LEK-KSC; ORDER GRANTING DEFENDANT’S MOTION FOR DISMISSAL OR
SUMMARY JUDGMENT ON PLAINTIFF ALISON BEAVERS’ CLAIMS

27