Banks et al v. McHugh et al
Filing
124
ORDER ORDER GRANTING DEFENDANT'S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF CHARLES DICKEY; AND GRANTING DEFENDANT'S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT ON THE CLAIMS OF DAVID BEVETT. 67 , 70 . Signed by JU DGE LESLIE E. KOBAYASHI on 7/31/2014. ~ Defendant's Motion for Dismissal or Summary Judgment on the Claims of Plaintiff David Bevett, filed April 23, 2014, and Defendant's Motion for Dismissal and Summary Judgment on the Cl aims of Plaintiff Charles Dickey, filed April 11, 2014, are HEREBY GRANTED in their entirety. The Court directs the Clerk's Office to terminate Dickey and Bevett as parties. (ecs, )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
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Plaintiffs,
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vs.
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JOHN McHUGH, SECRETARY
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DEPARTMENT OF THE ARMY;
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LEON E. PANETTA, SECRETARY,
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DEPARTMENT OF DEFENSE,
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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 AND
SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF CHARLES
DICKEY; AND GRANTING DEFENDANT’S MOTION FOR DISMISSAL
AND SUMMARY JUDGMENT ON THE CLAIMS OF DAVID BEVETT
Before the Court are: Defendant Secretary, Department
of the Army, John M. McHugh’s (“Defendant”) Motion for Dismissal
and Summary Judgment on the Claims of Plaintiff Charles Dickey,
filed on April 11, 2014 (“Dickey Motion”); and Defendant’s Motion
for Dismissal or Summary Judgment on the Claims of David Bevett,
filed on April 23, 2014 (“Bevett Motion,” together “Motions”).
[Dkt. nos. 67, 70.]
Plaintiff Charles W. Dickey (“Dickey”) filed
his memorandum in opposition on June 7, 2014, and Plaintiff David
“Flying with Eagles” Bevett (“Bevett”) filed his memorandum in
opposition on June 7, 2014 as well.1
[Dkt. nos. 97, 98.]
Defendant filed his reply in support of the Bevett Motion on
June 13, 2014 and his reply in support of the Dickey Motion on
June 16, 2014.
[Dkt. nos. 99, 101.]
The Court finds these
matters suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
After careful consideration of the Motions, supporting and
opposing memoranda, and the relevant legal authority, Defendant’s
Motions are HEREBY GRANTED for the reasons set forth below.
BACKGROUND
The procedural facts of this case were set forth in
this Court’s June 30, 2014 Order Granting Defendant’s Motion for
1
Also on June 7, 2014, Bevett filed his Response to
Defendant’s Statement of Material Fact Regarding Claims of David
Bevett (“Bevett CSOF Response”) and Exhibits 1-19 (“Bevett
Exhibits”), attached to the Declaration of Anthony P.X. Bothwell
(“Bothwell Bevett Declaration”). [Dkt. nos. 97–1 to 97-21.] On
July 31, 2014, the Court issued an order (“Strike Order”)
striking these documents, as well as limiting the use of the
section of Bevett’s memorandum in opposition titled “Plaintiff’s
Concise Statement of Material Facts” (“Bevett CSOF Section”).
[Dkt. no. 122.]
On June 7, 2007, Dickey filed his Response to Defendant’s
Statement of Material Fact Regarding Claims of Charles W. Dickey
(“Dickey CSOF Response”), the Declaration of Charles W. Dickey
(“Dickey Declaration”), and Exhibits 1-7 (“Dickey Exhibits”),
attached to another Declaration of Anthony P.X. Bothwell
(“Bothwell Dickey Declaration”). [Dkt. nos. 98-1 to 98-10.] In
the Strike Order, the Court also struck these documents, as well
as limited the use of the section of Dickey’s memorandum in
opposition titled “Plaintiff’s Concise Statement of Material
Facts” (“Dickey CSOF Section”).
2
Dismissal or Summary Judgment on Plaintiff Alison Beavers’ Claims
(“Beavers Order”).2
[Dkt. no. 112.]
The original plaintiffs
filed their complaint on December 30, 2011 (“Complaint”).3
Bevett, a retired Army medical officer, alleges that he
applied in early 2011 for three civilian psychologist positions
at Tripler Army Medical Center in Honolulu (“Tripler”).
He
claims that he was well-qualified but that he was not given fair
consideration for the positions due to his race – Native American
and African American – and color, and in retaliation for past
complaints he had made regarding discrimination.
Bevett further
alleges that he timely complained to the Army Equal Employment
Opportunity (“EEO”) office at the Schofield Barracks, but no
serious investigation resulted and this failure was due to his
race.
[Complaint at ¶¶ 40–45.]
Dickey, who is African American, worked as a nursing
assistant in a surgical ward starting in 1985, then as a medical
instrument technician in the cardiology department from 1995 to
2010.
His supervisors were Lieutenant Colonel Thomas Dove
(“LTC Dove”) and Dr. Michael Illovsky (“Dr. Illovsky”).
Dickey
alleges that he suffered regular harassment and that his work
2
The Beavers Order is also available at 2014 WL 2932479.
3
One case, that of Plaintiff Wanda Thomas, was severed from
the original case. See Order Granting in Part and Denying in
Part Defendants’ Motion to Dismiss and Sever Plaintiffs’ Claims,
2012 WL 4715162 (D. Hawai`i Sept. 28, 2012) (“9/28/12 Order”).
3
environment was so racially hostile that he took early retirement
on December 27, 2010.
He further alleges that, in January 2011,
he complained to the Army EEO office regarding the work
conditions at Tripler, but the EEO representative did not assist
him, and did not process his complaint until March; the EEO later
rejected his claims for investigation.
[Id. at ¶¶ 46–54.]
Bevett and Dickey 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”); and retaliation in violation of Title VII
(“Count II”).4
They 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.]
In the instant Motions, Defendant seeks dismissal or
summary judgment on all claims by Dickey and Bevett in the
Complaint.
4
The Court dismissed their third claim, for discrimination
and retaliation in violation of the Equal Protection Clause of
the Fifth Amendment (“Count III”), in the 9/28/12 Order,
reasoning that it was preempted by Title VII. 2012 WL 4715162,
at *6.
4
DISCUSSION
I.
Bevett Motion
Bevett alleges that he applied for three psychologist
positions in 2011, but he was not fairly considered because of
his race and in retaliation for past complaints he had made about
discrimination.
[Complaint at ¶¶ 41-42.]
Bevett, however, has
made no showing that he can establish a prima facie case of
discrimination or retaliation.
See, e.g., Hawn v. Exec. Jet
Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (describing
plaintiff’s burden in discrimination case); Dawson v. Entek
Int’l, 630 F.3d 928, 936 (9th Cir. 2011) (burden in retaliation
case).
A.
Discrimination
The Beavers Order sets forth the applicable framework
for Title VII claims, as well as the burdens of proof and
standards for proving discrimination.
*5-6.
See 2014 WL 2932479, at
The Court incorporates that discussion into this order by
reference.
Bevett’s sole claim is for non-selection to the three
civilian positions in 2011.5
See Complaint at ¶¶ 40-45.
5
This
Bevett appears to raise, in his memorandum in opposition,
additional positions in other years, which he was not selected
for due to race. See, e.g., Mem. in Opp. at 1 (regarding Tripler
applications “since 2006”), 9 (“Bevett was passed over when he
applied for a position in a program evaluating military children
in Hawaii schools.”). Insofar as these positions and non(continued...)
5
district court has stated that a plaintiff must prove the
following elements to establish a prima facie non-selection
claim:
(1) he belongs to a protected class, (2) he
applied for and was qualified for a job which the
employer was seeking applicants, (3) he was
rejected despite his qualifications, and (4) “the
employer filled the position with an employee not
of plaintiff’s class, or continued to consider
other applicants whose qualifications were
comparable to plaintiff’s after rejecting
plaintiff.”
Johnson v. State of Haw. Dep’t of Educ., Civil No. 11-00704 ACKRLP, 2013 WL 3354559, at *10 (D. Hawai`i July 2, 2013) (footnote
omitted) (some citations omitted) (quoting Dominguez-Curry v.
Nev. Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir. 2005)).
Defendant has offered evidence that there is no genuine
issue of material fact as to whether the Army filled the
positions with employees not of plaintiff’s protected class, and
5
(...continued)
selection events are not alleged in the Complaint and Bevett
provides no evidence, other than the claim in his interrogatory
responses that he “timely complained to the EEO Office” without
specifying dates, locations, or the positions he had applied for,
[Def.’s Concise Statement of Material Fact Regarding Claims of
David Bevett, filed 4/23/14 (dkt. no. 71) (“Def.’s Bevett CSOF”),
Decl. of Annette Perry (“Perry Bevett Decl.”), Exh. 4 (David
“Flies with Eagles” Bevett’s Response to Interrogatories (First
Set) (“Bevett Interrog. Resps.”)) at 7,] the Court finds that
these claims were waived. See Navajo Nation v. U.S. Forest
Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (“our precedents make
clear that where, as here, the complaint does not include the
necessary factual allegations to state a claim, raising such
claim in a summary judgment motion is insufficient to present the
claim to the district court” (citations omitted)).
6
Bevett does not rebut that evidence.
Specifically, the evidence
shows that the positions were never filled at all.
On January 10, 2011, MEDCELL (an Army hiring office on
the mainland) announced an opening for two clinical psychologist
positions.
MEDCELL added qualified candidates, including Bevett,
to a secure, online database called Medic.
at ¶¶ 2-3.6]
[Def.’s Bevett CSOF
However, on April 9, 2011, due to appropriations
limitations, Medic and the job openings were closed, and the
applications for the two positions were no longer considered.
Bevett did not apply to new announcements for similar positions,
issued on July 15, 2011, under new appropriations.
[Id. at ¶ 4.]
Similarly, the third position that Bevett applied for, to be a
supervisory counseling psychologist at the Army Substance Abuse
Program (“ASAP”), was announced on February 18, 2011, but it was
cancelled without being filled.
[Id. at ¶ 6.]
Since the positions were never filled, Bevett cannot
show that he was rejected or that the positions were filled with
individuals outside of his protected class as required to make a
6
Since Bevett did not properly oppose Defendant’s Bevett
CSOF, see Strike Order, the facts in Defendant’s Bevett CSOF are
deemed admitted. See Local Rule LR56.1(g) (“For purposes of a
motion for summary judgment, material facts set forth in the
moving party’s concise statement will be deemed admitted unless
controverted by a separate concise statement of the opposing
party.”).
7
prima facie case of non-selection.7
F.3d at 1037.
See Dominguez-Curry, 424
Thus, summary judgment is GRANTED as to Bevett’s
Count I claim for discriminatory non-selection.8
See 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.”).9
B.
Retaliation
The Beavers Order also sets forth the applicable law
for Title VII retaliation claims, see 2014 WL 2932479, at *9-10,
and the Court incorporates that discussion here.
To establish a
prima facie case for retaliation, a plaintiff must show that:
7
In fact, in December 2011, ASAP restarted the process to
fill the a similar supervisory counseling psychologist position,
and it selected Bevett. Bevett accepted the position on March
19, 2012, and was appointed on April 8, 2012. [Def.’s Bevett
CSOF at ¶ 7 (citing Decl. of Pamela Jinnohara at ¶ 6).]
8
Even assuming, arguendo, that the Court had not struck
Bevett’s documents, the Court would still find that nothing in
the record supports Bevett’s claim that the hiring process was
discriminatory.
9
The Court also rejects Bevett’s claim that the EEO Office
“would not accept for investigation” his complaints. [Complaint
at ¶ 44.] In fact, it did investigate the claims. Defendant
offered evidence that the EEO office rejected two of his claims
as untimely, [Perry Bevett Decl., Exhs. 2, 3 (9/7/11 notices of
dismissal of EEO complaints),] and that it did accept the third
[id., Exh. 1 (8/17/11 notice of acceptance of EEO complaint)].
Further, this claim is not covered by Title VII. “Title VII
‘does not create an independent cause of action for the
mishandling of an employee’s discrimination complaints.’” Hill
v. England, No. CVF05869RECTAG, 2005 WL 3031136, at *2 (E.D. Cal.
Nov. 8, 2005) (some citations omitted) (quoting Nelson v.
Greenspan, 163 F. Supp. 2d 12, 18 (D.D.C. 2001)).
8
(1) he engaged in a protected activity; (2) he was subjected to
an adverse employment action; and (3) there is a causal link
between the protected activity and the employment action.
Dawson, 630 F.3d at 936.
There is no genuine dispute that Bevett
can prove any of the three necessary elements of his retaliation
claim.
First, Bevett does not provide any evidence that he
engaged in an activity protected by Title VII.
“Protected
activity includes the filing of a charge or a complaint, or
providing testimony regarding an employer’s alleged 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) (quoting 42 U.S.C. § 2000(e)-3(a)).
The Court’s
conclusion would be the same, even if it were to consider
Bevett’s improperly offered circumstantial evidence.
At best,
Bevett presents evidence that:
•the chief of psychology of Walter Reed Army Medical Center,
Francis Joseph Fishburne, Jr., who worked over Bevett when
he was an intern in the late 1970s, may have thought Bevett
was “difficult” and “hard to work with”; [Bothwell Bevett
Decl., Exh. 2 (Trans. of 2/21/14 Depo. of William Weitz) at
100-01;]
•Bevett had interpersonal and professional conflicts with his
supervisor, Major William Weitz (“Maj. Weitz”), in the
1980s, and that, at that time, Maj. Weitz may have made
false statements about Bevett in an attempt to discredit
him, and purportedly threatened to destroy his career; [id.,
Exhs. 6 (Trans. of 2/27/14 Depo. of Frank L. Giordano
(“Giordano Depo.”)) at 9 (admitting that Bevett told him
9
that Maj. Weitz “threatened to destroy his career”), 7
(10/23/86 ltr. from LTC Samuel M. Hinton on behalf of
Bevett) (stating that Maj. Weitz was “untruthful” to the
credentialing hearing committee);]
•Maj. Weitz may have fostered a hostile work environment for
Bevett at Tripler in the early 1980s; [Giordano Depo. at 3334;]
•in 2006 and 2007, the Army may have also passed over Bevett for
some positions he sought; [Bothwell Bevett Decl., Exh. 11
(12/19/06 ltr. to the Army Customer Focus Division Chief);]
and
•Bevett has many qualifications and has received recommendations
and commendations throughout his career [id., Exhs. 1
(Bevett CV), 3 (11/15/90 ltr. of supp. from Col. Ernest J.
Lenz), 12 (5/18/05 ltr. of reference), 13 (5/16/05 ltr. of
recommendation), 17 (1/10/80 recommendation), 18 (10/20/87
character reference), 19 (undated commendation medal
announcement, possibly from 1989 or 1990)].
Even in the light most favorable to Bevett, Bevett does not raise
a genuine issue of material fact that he engaged in protected
activity.
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)).
Second, as described above, there is no evidence that
he was actually rejected for the position, and thus no evidence
of an adverse employment action.
I.A.
10
See supra Discussion Section
Third, even if his non-selection for the three
psychologist positions could be considered adverse employment
actions, and the Court considered the Bevett Exhibits, there is
no link between Maj. Weitz’s alleged vendetta in the 1980’s and
Bevett’s non-selections in 2011.
“‘The causal link may be
established by an inference derived from circumstantial evidence,
such as the employer’s knowledge that the employee engaged in
protected activities and the proximity in time between the
protected action and the allegedly retaliatory employment
decision.’”
Tungjunyatham v. Johanns, 500 F. App’x 686, 688 (9th
Cir. 2012) (quoting Jordan v. Clark, 847 F.2d 1368, 1376 (9th
Cir. 1988)).
Any protected activity and the non-selections are too
attenuated.
Bevett’s sole alleged link is that Bevett had a
disagreement with Dr. Raymond Folen in the early 1980’s, and
Dr. Folen – now the chief of the department of psychology at
Tripler – may have had input into the hiring process in 2011.
[Mem. in Opp. at 2; Bevett Interrog. Resps. at 2-3.]
There is no evidence that the dispute in the 1980’s
focused on protected activity and, even if there was, it is
entirely too remote in time to form a link under Title VII.
Further, Bevett’s own evidence from his interrogatory responses
is equivocal.
See Bevett Interrog. Resps. at 2-3 (“I believe
that Dr. Folen has something to do with my not being
11
selected . . . .”).
Last, Dr. Folen denied that he had any
direct involvement in the hiring process at Tripler in 2011, and
stated that he was only “aware of one job” that Bevett applied
for.
[Bothwell Bevett Decl., Exh. 2 (Trans. of 3/1/13 Depo. of
Raymond Folen) at 11-17.)]
Dr. Folen offered Bevett that
position, and Bevett turned it down.
[Id.]
Thus, there is no
evidence of a link between incidents in the 1980’s and Bevett’s
non-selections in 2011.
Taken together, there is no dispute as to whether
Bevett can make a prima facie for retaliation, and the Court
GRANTS summary judgment on Bevett’s Count II.
C.
Summary
Since there is no dispute as to whether Bevett can make
a prima facie case of discriminatory non-selection or
retaliation, the Court GRANTS the Bevett Motion in its entirety.
II.
Dickey Motion
Dickey alleges, in essence, that he was subject to a
hostile work environment from 1995 up until he was constructively
discharged in December 2010.
During that time he suffered
discrimination and retaliation, and he attempted to raise these
issues when he contacted the EEO office in January 2011.
A.
Exhaustion
Defendant argues that Dickey failed to make contact
with an EEO counselor within forty-five days of the allegedly
12
discriminatory events.
As discussed in the Beavers Order, and
incorporated here, Title VII requires contact with an EEO
counselor within forty-five days of the alleged discrimination,
and failure to make that contact can be dispositive.
See 2014 WL
2932479, at *2 (citing 29 C.F.R. § 1614.105(a)(1) and quoting
Marugame v. Napolitano, Civil No. 11–00710 LEK–BMK, 2013 WL
4608079, at *9 (D. Hawai‘i Aug. 28, 2013)).
Defendant presents evidence that Dickey did not contact
the EEO Office until March 3, 2011.
December 31, 2010.
Dickey retired, effective
[Def.’s Concise Statement of Material Fact
Regarding Claims of Charles Dickey, filed 4/11/14 (dkt. no. 68)
(“Def.’s Dickey CSOF”), at ¶ 2.10]
Thus, March 3, 2011 is beyond
forty-five days from the latest possible instance of
discrimination.
See e.g., id., Decl. of Annette Perry (“Perry
Dickey Decl.”), Exh. 15 (Notice of Dismissal of Dickey’s EEO
Complaint (“Dickey EEO Decision”)) at 2 (dismissing EEO complaint
as untimely).
Defendant’s evidence supports March 3, 2011 as the date
of first contact.
It shows that: (1) on March 3, 2011, Dickey
hand delivered a “Letter of Discrimination Against Cardiology
Dept. Tripler Army Medical Center”; [Def.’s Dickey CSOF at ¶ 3
(citing Perry Dickey Decl., Exh. 4 (“Dickey Discrimination
10
Since Dickey did not oppose Defendant’s Dickey CSOF, see
Strike Order, the facts in Defendant’s Dickey CSOF are deemed
admitted. See supra n.6.
13
Letter”));] (2) on March 7, 2011, an EEO counselor left a
voicemail for Dickey, and Dickey returned the call the following
day and stated that his attorney told him to write the letter and
that he did not request an EEO counseling appointment; [id. at
¶¶ 4-5 (citing Perry Dickey Decl., Exhs. 6 (3/7/11 file note), 7
(3/8/11 file note);] (3) on March 8, 2011, the EEO Office sent
Dickey a letter outlining the EEO process, and on April 5, 2011,
the EEO office received Dickey’s signed acknowledgment of receipt
and, upon the EEO Office’s inquiry, Dickey again stated he did
not request an appointment; [id. at ¶¶ 5-6 (citing Perry Dickey
Decl., Exhs. 8 (3/8/11 EEO ltr. to Dickey), 9 (Dickey’s signed
acknowledgment, received 4/5/11), 10 (4/5/11 file note), 11
(transmittal slip noting “[n]o EEO appointment requested”);] and
(4) on May 25, 2011, Dickey called the EEO office and requested
an intake appointment [id. at ¶ 7 (citing Perry Dickey Decl.,
Exh. 13 (5/25/11 emails between EEO office and Bothwell)11].
There is no evidence that Dickey attempted to make contact
earlier than March 3, 2011, or that he raised that issue in the
numerous communications he had with the EEO office.
Rather,
Defendant’s evidence shows that Dickey did not attempt to meet
with a counselor until May 25, 2011.
11
In one of the May 25, 2011 emails, the EEO Complaints
Manager writes that “on multiple occasions, [Dickey] declined to
pursue any complaint through our office . . . .” [Def.’s Dickey
CSOF, Perry Dickey Decl., Exh. 13 at 2.]
14
Even if the Court were to consider Dickey’s evidence,
the only support in the record is Dickey’s own statements that he
attempted to make contact in late January 2011.
The first time
he raised this contact was on August 1, 2011 in his formal EEO
complaint, more than seven months after it purportedly occurred.
[Perry Dickey Decl., Exh. 14 (“Dickey EEO Complaint”).]
time, the EEO office rejected the argument.
at 2.]
At that
[Dickey EEO Decision
He did not raise the January contact in his interrogatory
responses, [Perry Dickey Decl., Exh. 1 (Charles (“C.W.”) Dickey’s
Response to Interrogatories (First Set)) at 3-4,] but argued it –
citing the Dickey Declaration – in his memorandum in opposition.
[Mem. in Opp. at 1-2, 12.]
In that memorandum, Dickey also cites
to a Complaint Data Form from March 13, 2011, which is later than
the March 5, 2011 date.
[Bothwell Dickey Decl., Exh. 1.]
Since
Dickey presents no evidence that he made contact with an EEO
counselor any earlier than March 2011, the Court finds that there
is no genuine issue of material fact as to whether Dickey
contacted an EEO counselor within forty-five days of his
retirement date of December 31, 2010.12
12
The Court also finds that, even if he did attempt to
contact an EEO counselor in January 2011, Dickey did not exhaust
claims for discrete acts of discrimination. There is no evidence
that he complained of any discrete acts that occurred within the
prior forty-five days in either the Discrimination Letter or the
Dickey EEO Complaint. The only discrete acts were undated and
many of the incidents involved LTC Dove who transferred in 2004,
and could not have occurred in any forty-five day window.
(continued...)
15
The Court therefore GRANTS the Dickey Motion in its
entirety for failure to exhaust administrative remedies.
See
Fed. R. Civ. P. 56.13
B.
Substantive Title VII Claims
Even though the Court grants the Dickey Motion on the
basis of exhaustion, it considers here the substance of Dickey’s
claims for completeness.
1.
Hostile Work Environment and Constructive
Discharge
Since Dickey did not exhaust any claims for discrete
acts of discrimination (even if he had made contact with a
counselor in January 2011), see supra n.12, his discrimination
claim turns on whether he experienced a hostile work environment.
12
(...continued)
Therefore, even if he had exhausted his hostile work environment
and constructive discharge claims, Dickey did not exhaust any
claims for discrete acts of discrimination. See Josephs v. Pac.
Bell, 443 F.3d 1050, 1062 (9th Cir. 2006) (court review extends
“over all allegations of discrimination that either fell within
the scope of the EEOC’s actual investigation or an EEOC
investigation which can reasonably be expected to grow out of the
charge of discrimination”).
13
Though not expressly made in his memorandum of
opposition, the Court rejects any argument that the exhaustion
requirement should be equitably tolled. Although courts
recognize equitable tolling as a defense to the EEOC exhaustion
requirements, see Leong v. Potter, 347 F.3d 1117, 1123 (9th Cir.
2003), that defense does not apply where, as here, the claimant
was represented by counsel during the contact window, see Dickey
Discrimination Letter; Coppinger-Martin v. Solis, 627 F.3d 745,
750 (9th Cir. 2010), or the claimant knew of the “existence of a
possible claim within the limitations period,” Johnson v.
Henderson, 314 F.3d 409, 414 (9th Cir. 2002) (citation and
internal quotation marks omitted).
16
The Beavers Order describes the standard for proving a hostile
work environment, see 2014 WL 2932479 at *6, and the Court
incorporates that discussion.
Basically, “‘[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,
424 F.3d at 1034 (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)).
“To establish a prima facie case for a hostile-work
environment claim, [a plaintiff] must raise a triable issue of
fact as to whether (1) the defendants subjected her to verbal or
physical conduct based on her race; (2) the conduct was
unwelcome; and (3) the conduct was sufficiently severe or
pervasive to alter the conditions of her employment and create an
abusive working environment.”
Surrell v. Cal. Water Serv. Co.,
518 F.3d 1097, 1108 (9th Cir. 2008).
If using circumstantial
evidence, it must be “specific and substantial to defeat the
employer’s motion for summary judgment.”
E.E.O.C. v. Boeing Co.,
577 F.3d 1044, 1049 (9th Cir. 2009) (citation and internal
quotation marks omitted).
The Ninth Circuit has rejected claims
based on conclusory statements.
For example:
[The plaintiff] asserts that several of these
incidents occurred in “late 1998” or 1999.
17
However, he offers no support for these asserted
dates other than his declaration. Indeed, he
offers no specific dates for any of the actions.
[The plaintiff’s] conclusory allegations,
unsupported by facts, are insufficient to survive
a motion for summary judgment. [The defendant]
therefore is entitled to summary judgment on [the
plaintiff’s] failure to promote claims.
Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1116 (9th Cir.
2003) (citation omitted).
Similarly, “[a] conclusory,
self-serving affidavit, lacking detailed facts and any supporting
evidence, is insufficient to create a genuine issue of material
fact.”
Nilsson v. City of Mesa, 503 F.3d 947, 952 (9th Cir.
2007) (alteration in Nilsson) (citation and internal quotation
marks omitted).
The evidence in the record is insufficient to raise a
genuine dispute as to whether Tripler employees’ actions were
race-based or that they were severe and pervasive.
The
Discrimination Letter, Dickey’s Interrogatory Responses, and the
Dickey EEO Complaint consist almost entirely of conclusory
statements regarding workplace disputes, most of which were not
directed at Dickey, and bare statements that the conflicts arose
from race.
See, e.g., EEO Complaint at 1 (“Continuous, daily,
racially hostile work environment 1996 through 2010. . . .
Dr.
Michael Illovsky . . . along with Capt. Siaki, the head nurse,
demeaned and harassed African American and Filipino American
employees. . . .”); Dickey Interrog. Resps. at 2 (“Dr. Thomas
Wisenbaugh continued the harassment for example by yelling at me
18
one morning for no reason, and generally being rude.”).
These
types of “facts” do not meet the burden to make a prima facie
case.
See Hernandez, 343 F.3d at 1116; Surrell, 518 F.3d at
1108.
Even considering Dickey’s improperly submitted
evidence, and viewing it in the light most favorable to him, the
cumulative evidence, at best, shows:
•LTC Dove belittled Dickey and once slammed a door in Dickey’s
face; [Dickey Decl. at ¶ 7;]
•Dr. Wisenbaugh shunned Dickey, screamed at him, singled him out
for chores even though he knew Dickey was disabled, and
refused Dickey medical attention at Tripler; [id. at ¶¶ 89;]
•Dr. Michael Illovsky evaluated Dickey as successful at his job,
but generally talked down to African Americans at Tripler;
[id. at ¶ 10; Bothwell Dickey Decl., Exhs. 2 (Trans. of
2/20/14 Depo. of Michael Illovsky) at 52-53 (Dickey did a
“good job,” and he “got the work we requested completed”), 3
(2010 evaluation);]
•Dickey witnessed disparate treatment between whites and nonwhites in terms of “customary treatment,” encouragement,
incentive pay, and promotion; [Dickey Decl. at ¶¶ 11-12;]
•Dickey was ignored when he complained against “bigoted”
coworkers, and was not approved for additional courses and
training, and when he was permitted to attend those
trainings he was forced to pay his own way; [id. at ¶¶ 1315;]
•Dickey believed other coworkers shunned and harassed him for
being black, and supervisors did nothing when he made
complaints; [id. at ¶¶ 16-19;]
•Dickey was distressed by racist treatment of himself and others;
[id. at ¶¶ 20-22;] and
•as a result of the discrimination, Dickey’s heart condition
worsened and he suffered shortness of breath, dizziness and
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other symptoms [Bothwell Dickey Decl., Exhs 4-7].
The vast majority of his support comes from the Dickey
Declaration, and it consists of conclusory allegations.
This is
not the type of evidence required to defeat summary judgment.
See Hernandez, 343 F.3d at 1116; Nilsson, 503 F.3d at 952.
It
appears that Dickey felt mistreated at Tripler and that he felt
his supervisors and co-workers were rude, cold and unwelcoming.
This is unfortunate.
Dickey was understandably distressed by
such an unpleasant and unhealthy work environment.
The law,
however, requires objective evidence of severe and pervasive
discrimination and such evidence has not been presented.
Harris, 510 U.S. at 21.
See
Thus, Dickey’s failure to raise a
genuine issue of material fact as to a hostile work environment
is sufficient ground to grant the Dickey Motion as to his
Count I discrimination claim.
Also in Count I, Dickey claims that he 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).
Since
Dickey cannot make a prima facie case for a hostile work
environment, it follows that he cannot meet the even more
20
stringent standard for constructive discharge.
For this reason,
even if Dickey had timely made contact with an EEO counselor,
summary judgment for Defendant would be warranted.
2.
Retaliation
Like Bevett, Dickey does not provide evidence to raise
a genuine issue as to any of the three necessary elements of
retaliation.
First, he does not provide any evidence that he
engaged in any activity protected by Title VII.
He writes that
he “spoke up” for colleagues Richard Pacheco and Marceau DozeGuillory, [Dickey EEO Complaint at 1,] and that he “complained by
[sic] the EEO Office and Sen. Daniel Inouye’s office about [LTC]
Dove” and complained to his supervisors [Dickey Interrog. Resps.
at 3-4].
However, Dickey does not provide any facts related to
his alleged complaints that show that any of these acts were
protected activity under Title VII.
See Raad, 323 F.3d at 1197.
Second, Dickey does not point to any adverse employment
actions in the Complaint, the Dickey EEO Complaint, the Dickey
Declaration, or his memorandum in opposition to the Dickey
Motion.
The only mentions of allegedly retaliatory actions are
conclusory statements that the hostile work environment
“intensified” after he “spoke up.”
Complaint at ¶ 48.]
[Dickey EEO Complaint at 1;
As with his statements about the hostile
work environment, Dickey’s discussion of the allegedly protected
activities are equally conclusory.
21
Finally, for the same
reasons, Dickey fails to provide evidence to support the third
element of retaliation: a causal link.
Even if Dickey had exhausted his retaliation claim,
there is no dispute as to whether Dickey could make a prima facie
case for retaliation, and summary judgment on Count II would be
warranted.
C.
Summary
The Court FINDS that there is no genuine issue of
material fact that Dickey has not exhausted his administrative
remedies under Title VII and therefore GRANTS the Motion.
Even
if he had exhausted his administrative remedies, Dickey was not
discriminated against or retaliated against by Defendant within
the meaning of Title VII.
The Court reaches this conclusion
because Dickey has failed to rebut Defendant’s Dickey CSOF or
assert his own undisputed facts.
Even if the Court considered
all of the evidence that Dickey improperly included, Dickey has
failed to raise any genuine issue of material fact as to a
hostile work environment, constructive discharge, or retaliation,
and thus summary judgment is warranted.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion for
Dismissal or Summary Judgment on the Claims of Plaintiff David
Bevett, filed April 23, 2014, and Defendant’s Motion for
Dismissal and Summary Judgment on the Claims of Plaintiff
22
Charles Dickey, filed April 11, 2014, are HEREBY GRANTED in their
entirety.
The Court directs the Clerk’s Office to terminate
Dickey and Bevett as parties.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 31, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
KELVIN BANKS, ET AL. VS. JOHN MCHUGH, ETC., ET AL; CIVIL 11-00798
LEK-KSC; ORDER GRANTING DEFENDANT’S MOTION FOR DISMISSAL AND
SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF CHARLES DICKEY; AND
GRANTING DEFENDANT’S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT ON
THE CLAIMS OF DAVID BEVETT
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