Banks et al v. McHugh et al
ORDER GRANTING DEFENDANT'S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF MARCEAU DOZE-GUILLORY; AND GRANTING DEFENDANT'S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF KELVIN BANKS re 73 ; 79 . Signed by JUDGE LESLIE E. KOBAYASHI on 08/29/2014. -- The Court directs the Clerk's Office to terminate Doze and Banks as parties (eps )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
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,
JOHN McHUGH, SECRETARY
DEPARTMENT OF THE ARMY;
LEON E. PANETTA, SECRETARY,
DEPARTMENT OF DEFENSE,
CIVIL NO. 11-00798 LEK-KSC
ORDER GRANTING DEFENDANT’S MOTION FOR DISMISSAL AND
SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF MARCEAU DOZEGUILLORY; AND GRANTING DEFENDANT’S MOTION FOR DISMISSAL
AND SUMMARY JUDGMENT ON THE CLAIMS OF PLAINTIFF KELVIN BANKS
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 Marceau DozeGuillory, filed on May 6, 2014 (“Doze Motion”); and Defendant’s
Motion for Dismissal and Summary Judgment on the Claims of
Plaintiff Kelvin Banks, filed on May 9, 2014 (“Banks Motion,”
[Dkt. nos. 73, 79.]
Marceau Doze-Guillory (“Doze”)1 filed her memorandum in
In her Memorandum in Opposition, Marceau Doze-Guillory
opposition on June 26, 2014, and Plaintiff Kelvin Banks (“Banks”)
filed his memorandum in opposition on June 26, 2014 as well.
[Dkt. nos. 105, 107.]
Defendant filed his reply in support of
the Banks Motion on July 3, 2014 and his reply in support of the
Doze Motion on July 7, 2014.
[Dkt. nos. 114-15.]
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
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
The procedural facts of this case were set forth in
this Court’s June 30, 2014 Order Granting Defendant’s Motion for
Dismissal or Summary Judgment on Plaintiff Alison Beavers’ Claims
[Dkt. no. 112.]
The original plaintiffs
filed their complaint on December 30, 2011 (“Complaint”).2
refers to herself as Marceau Doze or Doze.
One case, that of Wanda Thomas, was severed from the
original case. See 9/28/12 Order Granting in Part and Denying in
Part Defendants’ Motion to Dismiss and Sever Plaintiffs’ Claims
(“9/28/12 Order”), available at 2012 WL 4715162. The Court
granted summary judgment and dismissal for Defendant on Thomas’s
case and Beavers’s claims, and on Plaintiffs David Bevett’s and
Charles Dickey’s claims by orders dated June 30, 2014, and July
Doze, who is African American, was a civilian cardiac
nurse in the cardiology department of Tripler Army Medical Center
(“Tripler”) from January 2010 until August 2011, under the
supervision of Captain Thelma Nicholls (“Capt. Nicholls”), also
She claims that: two of her co-workers,
Mary Burt (“Burt”) and Cynthia Chung (“Chung”), called her a
“beast”; Capt. Nicholls treated her rudely, withheld training
opportunities, and issued her a performance evaluation that was
satisfactory except in the area of teamwork, where she was
downgraded one point; and she was constructively discharged.
[Complaint at ¶¶ 56–66.]
Banks, who is also African American, worked as a
civilian emergency medical technician in the Tripler emergency
department under the supervision of Captain Kenneth Kelly (“Capt.
Kelly”), Major William Meek (“Maj. Meek”), Sergeant First Class
Cory Montague (“SFC Montague”), and Sergeant First Class
31, 2014. Those orders are available at 2014 WL 2968689 (Order
Granting Defendant’s Motion for Summary Judgment (“Thomas
Order”)), 2014 WL 2932479 (Beavers Order), and 2014 WL 3778319
(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 (“Dickey/Bevett Order”)), respectively.
The Court dismissed the claims of Plaintiff Edward Manigault in
the 9/28/12 Order, and the parties stipulated to the dismissal of
the claims of Plaintiff Sylvia Vega on April 7, 2014. [Dkt. no.
Kimberly McCaughtry (“SFC McCaughtry”), who are all Caucasian.3
Banks claims that: he was racially harassed on a daily basis; his
supervisors made derogatory remarks about African Americans
during departmental supervisor meetings; he was charged with
absence without leave (“AWOL”) or leave without pay (“LWOP”) when
he requested sick leave; on May 31, 2008, he received an
unjustified notice of proposed suspension; and in September of
2008, emergency room care was unreasonably delayed to him.
at ¶¶ 28–33.]
Doze and Banks 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
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 and
summary judgment on all claims by Doze and Banks in the
SFC Montague identifies as Caucasian/Hispanic.
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,
Doze alleges, in essence, that she was subjected to a
hostile work environment, which was enabled by her supervisor,
Capt. Nichols, who gave her an unsatisfactory rating; the racist
environment caused her constructive discharge.
The Beavers Order sets forth the applicable framework
for Title VII claims, as well as the burdens of proof and
standards for proving discrimination and retaliation.
WL 2932479, at *5-6, *8-10.
According to these standards, which
are incorporated here, as well as the law set forth below, Doze
has made no showing that she 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
A plaintiff may prove discrimination through either
discrete discriminatory acts or by showing an overall hostile
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).
To establish a prima facie case of discrimination, a plaintiff
must show that: “(1) she belongs to a protected class; (2) she
was qualified for her position; (3) she was subject to an adverse
employment action; and (4) similarly situated individuals outside
her protected class were treated more favorably.”
Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
Davis v. Team
employment action is an action that “produce[s] a material change
in the terms and conditions of [a worker’s] employment[.]”
v. Cnty. of Marin, 425 F. App’x 634, 636 (9th Cir. 2011) (citing
Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115,
1125–26 (9th Cir. 2000)).
The only discrete act that Doze alleges is “a
performance evaluation that was satisfactory except in the area
[Complaint at ¶ 64.]
In that evaluation, Doze
Doze also alleges that Capt. Nicholls denied her “training
opportunities that were afforded to non-minority coworkers.”
[Complaint at ¶ 62.] However, she does not specify what the
trainings were for, when they occurred, or who was permitted to
attend. Further, she did not raise this issue in either her
formal complaint to the Equal Employment Opportunity (“EEO”)
office or her responses to interrogatories. [Def.’s Concise
Statement of Material Fact Regarding Claims of Marceau DozeGuillory, filed 5/6/14 (dkt. no. 74) (“Def.’s Doze CSOF”), Decl.
of Annette Perry (“Perry Doze Decl.”), Exhs. 1 (Formal Complaint
of Discrimination, dated March 24, 2011 (“Doze EEO Complaint)),
16 (Marceau Doze-Guillory’s Response to Interrogatories (First
Set) (“Doze Interrog. Resps.”)) at Resp. 6, pgs. 6-12).] Thus,
the Court rejects this claim.
received scores of three6 in the three objectives that made up
ninety percent of the evaluation by weight, and a single point
off on the Teamwork objective.
[Perry Doze Decl., Exh. 20 at 2;
Bothwell Doze Decl., Exh. 8 at 1.]
While Doze is understandably
upset about being downgraded, a downgrade of a single point, is
not considered an adverse employment action under the law.
e.g., Kob, 425 F. App’x at 636 (rejecting argument that “a
performance rating that was, on balance, positive or neutral” was
an adverse employment action); Kortan v. Cal. Youth Auth., 217
F.3d 1104, 1113 (9th Cir. 2000) (rejecting Title VII claim and
explaining that plaintiff “has not shown that her evaluation was
discriminatory or retaliatory, or was such an ‘intolerable’ act
that it would force an employee to quit” (citation omitted)).
Further, although Doze argues that the explanation for
the downgrade was pretextual, [Doze Mem. in Opp. at 11,] she
provides no evidence to support this claim or rebut Capt.
It is not entirely clear from the versions of the
evaluation that Doze and Defendant offer what exactly a score of
three represents. [Perry Doze Decl., Exh. 20 (12/20/10 Mem. of
Record, including version of evaluation); Plaintiff’s Concise
Statement of Facts Opposing Defendant’s Motion for Summary
Judgment on Claims of Marceau Doze-Guillory, filed 6/26/14 (dkt.
no. 107-1) (“Doze CSOF”), Decl. of Anthony P.X. Bothwell Opposing
Defendant’s Motion for Summary Judgment on the Claims of Marceau
Doze-Guillory (“Bothwell Doze Decl.”), Exh. 8 (excerpts of
Performance Rating and Compensation Summary).] However, from
their CSOFs, it appears that three is a satisfactory rating.
[Def.’s Doze CSOF at ¶ 8 (“‘satisfactory’ in all areas except the
‘Teamwork’ Contributing Factor”); Doze CSOF at ¶ 8 (not disputing
description of the ratings).]
Nicholls’s credible contemporaneous reasoning for the evaluation.
[Bothwell Doze Decl., Exh. 8 at 2.]
Even viewing the evidence in
the light most favorable to Doze, the Court finds that Doze has
failed to raise a genuine issue of material fact as to discrete
acts of discrimination against her.
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
Thus, the Court GRANTS the Doze Motion on this claim.
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
Hostile Work Environment and Constructive Discharge
The Ninth Circuit 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.’”
Nev. 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)).
“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
Surrell v. Cal. Water Serv. Co., 518 F.3d 1097,
1108 (9th Cir. 2008) (alteration omitted).
circumstantial evidence, it must be “specific and substantial to
defeat the employer’s motion for summary judgment.”
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.
[The plaintiff] asserts that several of these
incidents occurred in “late 1998” or 1999.
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
Nilsson v. City of Mesa, 503 F.3d 947, 952 (9th Cir.
2007) (alteration in Nilsson) (citation and internal quotation
Doze’s evidence is insufficient to raise a genuine
dispute as to whether the actions of her colleagues and
supervisor were race-based or that they were severe and
Doze’s hostile work environment claim largely focuses
on ongoing conflict with colleague Burt, who worked closely with
Doze in the Treadmill Room, and Capt. Nicholls’s attempts to
resolve the conflict.
[Doze Mem. in Opp. at 1-3, 11-12.]
Although it is apparent that Doze and Burt did not get along,
there is no evidence that the conflict had anything to do with
Instead the evidence shows that it was based on
performance and personality.
[Perry Doze Decl., Exhs. 7 (Trans.
of 10/26/11 Fact-Finding Conference (“FFC”), excerpts of Capt.
Nicholls testimony (“Def.’s Nicholls FFC Trans.”)) at 21-22
(conflict over failure of Burt to train Doze), 23-24 (conflict
over job responsibilities), 43-44 (conflict over doing job too
slowly); Doze Interrog. Resps. at Resp. 2, pg. 2 (“I was
repeatedly taunted and subjected to defaming remarks about my
ability to do my job.”).]
Other evidence shows that Burt had a history of
conflict with Doze’s predecessors, and there is no evidence that
these other conflicts were race-based.
[Doze Interrog. Resps. at
Resps. 2, pg. 2 (“management was not only aware of [Burt’s]
behavior but that it was accepted within the department long
ago”), 6, pg. 7 (“Captain Rosario informed me that others had
encountered similar problems . . . .), pg. 8, 10 (“During the
course of the meeting I learned that there had been a total of
five nurses in my position within 2 years. . . . [Burt] has had a
problem with every nurse that has worked in the treadmill room
giving them all a hard time.”).]
Rather than rejecting Doze’s complaints about Burt,
Capt. Nicholls attempted to resolve the conflict multiple times.
[Perry Doze Decl., Exhs. 12 (6/13/10 Mem. for Record by Nicholls
discussing incidents and including “Proposed Solution”), 13
(5/10/10 emails between Nicholls and Doze addressing conflict),
15 (8/20/10 email from Nicholls to Doze and Burt reiterating
discussions between the three and stating expectations about job
roles in Treadmill Room).]
Similarly, the evidence shows that the disputes with
Dr. Jone Geimer-Flanders (“Dr. Geimer-Flanders”) center on how
Doze conducted EKGs, not her race.
[Perry Doze Decl., Exhs. 11
(Trans. of FFC, excerpts of Dr. Giemer-Flanders testimony
(“Def.’s Giemer-Flanders FFC Trans.”)) at 85-86 (“but she was
wrong enough of the time that I was concerned about it”), 18
(9/16/10 email from Geimer-Flanders to Nicholls regarding
“ongoing concerns” with Doze’s EKGs), 19 (11/15/10 Mem. for
Record by Capt. Nicholls (“11/15/10 Mem.”)) (“I received an email
from Dr. Geimer-Flanders which outlined concerns she had about
[Doze’s] performance in the Treadmill Room.”).]
Again, the evidence shows that Capt. Nicholls
investigated the complaint and attempted to resolve it.
[11/15/10 Mem. (“To determine if this was an isolated incident, I
verified with other providers if they were having concerns about
[Doze’s] performance, specifically interpreting test
results. . . .
It was decided between [Doze] and me, that I
would locate specific cardiology review courses for the Treadmill
staff to attend.”).]
While it appears that Doze is unhappy with the outcome
of Capt. Nicholls’s attempts to resolve the various work-related
conflicts, there is no evidence of a racially hostile work
See Surrell, 518 F.3d at 1108 (requiring the
plaintiff to show that “the defendants subjected her to verbal or
physical conduct based on her race”).
Doze argues that Burt and
Chung called her a “beast,” and Burt said she was “lazy,” which
she contends are racially-charged terms.
[Bothwell Doze Decl.,
Exhs. 1 (6/16/10 Doze Mem. for Record) (describing Burt “beast”
incident), 2 (8/20/10 Doze Mem. of Record) (describing Chung
incident); Doze CSOF, Decl. of Doze (“Doze Decl.”) at ¶¶ 3
(“lazy”), 6 (“beast”), 7 (regarding racial epithets).]
do not appear racial on their face and, in the context of ongoing
volatile workplace conflicts centering on whether Doze was
properly doing her share of the work, the Court finds that the
terms were not used in a racial manner.
Even if they were, these
isolated events are not “sufficiently severe or pervasive to
alter the conditions of [Doze’s] employment and create an abusive
See Surrell, 518 F.3d at 1108.
Nor does the Court find that Doze’s purported evidence
is sufficiently “specific and substantial to defeat [Defendant’s]
motion for summary judgment.”
See Boeing, 577 F.3d at 1049
(citation and internal quotation marks omitted).
In addition to
the “beast” incidents, Doze claims:
•Dr. Geimer-Flanders lied to Capt. Nicholls about Doze, insulted
her in front of patients, and failed to train her; [Doze
Decl. at ¶¶ 9-12;]
•Capt. Nicholls lied about Doze to superiors, put false and
secret accusations into Doze’s file, and ridiculed her in
front of others; [id. at ¶¶ 5, 7, 13, 15-16, 18-20;]
•in one incident, in January 2011, Capt. Nicholls grew so hostile
at a meeting with Doze that a superior asked Capt. Nicholls
to leave the room; [id. at ¶ 17;] and
•Doze did everything she “possibly could to foster teamwork” and
was competent at her job [id. at ¶¶ 4, 14].
The support for these statements comes from the Doze
Declaration, and it consists of conclusory allegations.
not the type of evidence required to defeat summary judgment.
See Nilsson, 503 F.3d at 952; Hernandez, 343 F.3d at 1116.
appears that Doze felt mistreated at Tripler and that Capt.
Nicholls did not meet her needs in resolving conflicts with
It is unfortunate that the working conditions were
less than ideal for her at Tripler.
The law, however, requires
objective evidence of severe and pervasive discrimination, and
Doze has not presented such evidence.
See Harris, 510 U.S. at
Doze fails to raise a genuine issue of material fact as to a
hostile work environment, and thus the Court GRANTS the Doze
Motion as to this claim.
Also in Count I, Doze claims that she was
“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).
does not make a prima facie case for a hostile work environment
or discrete acts of discrimination, it follows that she cannot
meet the even more stringent standard for constructive discharge.
The Court therefore GRANTS the Doze Motion as to this claim as
The Court rejects Defendant’s argument that Doze failed to
exhaust her administrative remedies as to the constructive
discharge claim because, viewing the evidence in the light most
favorable to Doze, that claim falls within the scope of the EEO
investigation. See Perry Doze Decl., Exh. 3 (EEO office notice
of acceptance); Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th
Cir. 2006) (holding that 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
To establish a prima facie case for retaliation, a
plaintiff must show that: (1) she engaged in a protected
activity; (2) she 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 as to whether Doze can prove she was subjected to
an adverse employment action or there was a causal link between
her contact with the EEO office – which is the only conceivable
protected activity – and any negative act toward her.
discussed above, Doze has not made a prima facie case for either
a hostile work environment or any adverse employment action.
supra Sections I.A.-B.
This is sufficient ground to reject her
See Dawson, 630 F.3d at 936.
Even if the
acts by Burt, Chung, Capt. Nicholls, or Dr. Geimer-Flanders could
be considered “adverse employment actions,” Doze provides no
evidence of causation or that her colleagues or supervisors knew
that she had complained to the EEO office.
For all of these
reasons, the Court GRANTS the Doze Motion as to Doze’s claim for
Since there is no dispute of material fact as to
whether Doze can make a prima facie case of discrimination or
retaliation, the Court GRANTS the Doze Motion in its entirety.
II. Banks Motion
Banks claims he was subjected to a hostile work
environment created by co-workers and supervisors, and that he
received wrongful LWOP and AWOL charges, and a proposed notice of
[Complaint at ¶¶ 28-33.]
Defendant argues that Banks failed to make contact with
an EEO counselor within forty-five days of many of the allegedly
discriminatory events, including those comprising his hostile
work environment claim.
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 undisputed evidence that Banks first
contacted the EEO office on May 28, 2008.
Statement of Material Fact Regarding Claims of Kelvin Banks,
filed 5/9/14 (dkt. no. 80) (“Def.’s Banks CSOF”), Decl. of
Annette Perry (“Perry Banks Decl.”), Exh. 1 (Formal Complaint of
Discrimination, filed July 24, 2008 (“Banks EEO Complaint”)) at
Banks also alleges that he was “made to wait hours” as an
emergency room patient. [Complaint at ¶ 33.] This is not a
cognizable claim under Title VII and, thus, the Court rejects it.
Thus, any act committed prior to April 13, 2008 is
outside the forty-five day window, and not properly exhausted.
It is not entirely clear what specific employment actions Banks
is raising because the allegations and arguments in the
Complaint, the Banks EEO Complaint, Banks’s response to
interrogatories, and his memorandum in opposition to the Banks
Motion are largely vague, conclusory, and inconsistent.
extent that he is attempting to allege any discrete acts prior to
April 13, 2008, the Court DISMISSES those allegations for failure
The only allegations that clearly fall within the
forty-five day window are the notice of proposed suspension that
occurred in May 2008 and Banks’s hostile work environment claim.9
These claims have been exhausted, and the Court considers them as
Notice of Proposed Suspension
As discussed above, to make a prima facie case for a
discrete act of discrimination, a plaintiff must provide evidence
that he was “subject to an adverse employment action[.]”
520 F.3d at 1089.
However, a proposed adverse employment action
The Court rejects Defendant’s argument that Banks’s
hostile work environment claim is far too “vague and conclusory”
to show that any discriminatory behavior fell within the fortyfive day window and, thus, the Court should dismiss that claim in
its entirety. [Mem. in Supp. of Banks Motion at 6-7.] While the
Court agrees that the allegations are somewhat vague, the Court
cannot say that all of the acts fell outside of the window and so
rejects this argument.
does not itself constitute an adverse employment action.
Hellman v. Weisberg, 360 F. App’x 776, 779 (9th Cir. 2009) (“the
mere threat of termination does not constitute an adverse
employment action” (citing Hardage v. CBS Broad. Inc., 427 F.3d
1177, 1189 (9th Cir. 2005), amended by 433 F.3d 672 (9th Cir.
2006), and 436 F.3d 1050 (9th Cir. 2006))).
Defendant has offered evidence that on May 31, 2008
SFC McCaughtry proposed a three-day suspension of Banks for
violating the scope of his practice, failure to follow leave
procedures, and disrespectful behavior towards a supervisor.
[Def.’s Banks CSOF at ¶ 22 (citing Perry Banks Decl., Exh. 29
(“Notice of Proposed Suspension”)).]
Further, he states that the
Notice of Proposed Suspension was withdrawn “because of
Although he argues that he was
falsely accused, Banks does not dispute that the Notice of
Proposed Suspension was withdrawn.10
Statement of Facts Opposing Defendant’s Motion for Summary
Judgment on the Claims of Kelvin Banks, filed 6/26/14 (dkt. no.
105-1) (“Banks CSOF”), at ¶ 21 (citing id., Decl. of Kelvin Banks
(“Banks Decl.”) at ¶ 35).11]
Since the Court finds that there is
Nor does he dispute the date of the Notice of Proposed
Suspension although no date is clear from the face of the
Banks cryptically states in his declaration: “I do not
know what was in Kelly’s mind if he considered whether to
no genuine issue of material fact as to whether the Notice of
Proposed Suspension was withdrawn, the Court GRANTS the Banks
Motion as to Banks’s claim for a discrete act of discrimination
for the proposed suspension.
See, e.g., Hellman, 360 F. App’x at
Hostile Work Environment
Banks’s hostile work environment claim fails for
similar reasons as Doze’s.
Other than his declaration, Banks
offers no evidence of a hostile work environment, specifically,
that there were any acts of discrimination toward him.
other hand, Defendant offers ample evidence that Banks’s
colleagues and supervisors complained about his work performance
and that he was regularly reprimanded for rule-breaking and
Banks offers six exhibits attached to his CSOF:
(1) three memoranda of record by his supervisors, which appear to
be submitted for Banks’s own handwriting on them lodging his
disagreements with their content; [Banks CSOF, Decl. of
Anthony P.X. Bothwell Opposing Defendant’s Motion for Summary
Judgment on the Claims of Kelvin Banks (“Bothwell Banks Decl.”),
withdraw a proposed suspension. I do know that I was falsely
accused of violating leave procedures, disrespect, and violating
scope of practice.” [Banks Decl. at ¶ 35.] While this is not a
clear admission that the Notice of Proposed Suspension was in
fact withdrawn, the Court does not interpret it as a denial.
Exhs. 1, 2, 4;] (2) a Physician’s Discharge Summary, which
purports to show Banks was in the hospital for his own treatment
on the same day that he supposedly received a verbal counseling;
[id., Exh. 3;] and (3) short excerpts from the depositions of
Maj. Meeks and Capt. Kelly, which relate to an allegation that
Capt. Kelly ordered his reports to “get rid of the slackers.”
[id., Exhs. 5-6].
In addition to these exhibits, which do not provide any
evidence of discrimination, Banks offers his own declaration.
it, he claims:
•Banks’s intermediate supervisor, SFC Montague, racially harassed
Banks, made false allegations regarding Banks’s behavior,
and stated that he wanted to drive Banks out of Tripler;
[Banks Decl. at ¶¶ 13, 16, 18;]
•SFC Montague had a practice of creating false counseling
statements, which Capt. Kelly secretly kept from Banks; [id.
at ¶¶ 17, 23;]
•on February 20, 2008, SFC Montague falsely accused Banks of
violating leave procedure and shouted at Banks, causing him
to become faint, check into the emergency room, and take
sick leave; [id. at ¶¶ 27, 32;]
•upon return from sick leave, Banks received a memorandum forged
with his signature, stating that he had been orally
counseled for failure to get authorization for leave; [id.
at ¶ 28;]
•management used the false memorandum in creating the May 2008
notice of proposed suspension; [id. at ¶ 33;]
•Tripler staff created another false memorandum, dated
February 27, 2008, stating that Banks was counseled for
various infractions, and including his signature, although
he was in the intensive care unit (“ICU”) for treatment at
that time; [id. at ¶¶ 29-31;]
•although Maj. Meek purported to investigate an allegation that
Banks improperly administered an injection to a patient, the
outcome was entirely preordained, Banks’s statement was
disregarded, and Maj. Meeks relied entirely on statements by
white employees; [id. at ¶¶ 25-26;]
•Capt. Kelly contacted Banks’s physician in an attempt to have
him make a determination that Banks was unfit to do his job,
which violated the Health Insurance Portability and
Accountability Act of 1996 (“HIPPA”), and other of Banks’s
rights; [id. at ¶ 36;] and
•Capt. Kelly called Banks a drug addict, and claimed that he had
gone AWOL, when in fact Banks completed his duties
satisfactorily, and followed all leave protocol [id. at
¶¶ 7, 10, 11, 14, 15, 19, 21, 22, 34].
As with Doze, the Court finds that these statements by
Banks, unsupported by any other evidence, fail to raise a genuine
dispute of material fact.
They consist of conclusory, self-
serving allegations – not the specific and substantial evidence
necessary to defeat summary judgment.
See Boeing, 577 F.3d at
1049; Nilsson, 503 F.3d at 952; Hernandez, 343 F.3d at 1116.
Further, there is no evidence that any of the purported acts of
discrimination, if true, were based on race.
See Surrell, 518
F.3d at 1108.
On the other hand, Defendant offers undisputed
contemporaneous evidence, showing a consistent and long-running
history of poor performance by Banks:
•in late 2007, SFC Montague advised staff to write down
observations about Banks after he received numerous
complaints about Banks; [Perry Banks Decl., Exhs. 8 (Decl.
of Cory Montague) at ¶ 9 (Montague’s request); 17 (four
•on October 3, 2007, SFC Montague counseled Banks for poor
performance, and for creating “an unhealthy work
atmosphere . . . [;]” [id., Exh. 16 (10/4/07 Mem. for
•on October 27, 2007, Staff Sergeant Carlitos C. Grant, Jr.
(“Sgt. Grant”) – who also supervised Banks prior to February
2008 – counseled Banks for requesting leave when he had no
annual leave available, and notified Banks that future
violations would result in disciplinary action; [id., Exh.
18 (11/5/07 Mem. for Record);]
•in November and December 2007, Sgt. Grant twice counseled Banks
for failure to perform his job duties and insubordination,
as well as use of the drug Demerol at work; [id., Exh. 19
(12/10/07 Mem. for Kelvin Banks);]
•on December 26, 2007, Sgt. Grant proposed Banks be issued a
letter of reprimand for numerous infractions, including not
following leave procedure and discourteous behavior, and on
January 30, 2008 Capt. Kelly signed the proposal; [id.,
Exhs. 20 (12/26/07 Notice of Proposed Reprimand), 21
(1/30/08 Notice of Proposed Reprimand);]
•in February 2008, colleagues reported that Banks had requested
medication for injection, and observed suspicious behavior
leading them to believe Banks was using drugs while on duty,
and as a result Maj. Meek conducted an investigation and
requested disciplinary action; [id., Exhs. 22 (email
documentation of events); 23 (2/19/08 Mem. for Record);]
•later in February 2008, Banks engaged in insubordination and
failed to comply with leave protocol, culminating in
counselings; [id., Exhs. 24 (2/27/08 Mem. for Record), 25
(2/28/08 Mem. for Record);]
•on April 8, 2008, SFC McCaughtry found Banks AWOL for failure to
follow leave protocol; [id., Exh. 28 (9/26/08 Mem. for
•on May 31, 2008, SFC McCaughtry proposed a suspension for
failure to follow leave procedure and disrespectful
behavior; [id., Exh. 29 (Notice of Proposed Suspension);]
•between July 2006 and July 2008, Banks was on annual leave, sick
leave, advanced leave, and/or leave without pay for more
than 1,500 hours [id., Exh. 13 (3/25/09 Report of
Investigation) at 3].
This evidence shows that any tension between Banks and his
supervisors related to Banks’s performance and not his race.
Like Doze, it appears that Banks felt negatively targeted at
Tripler and that his supervisors were unfair to him.
however, does not make the showing of objective evidence of
severe and pervasive discrimination required by Title VII.
Harris, 510 U.S. at 21.
Thus, the Court GRANTS the Banks Motion
as to Banks’s claim of a hostile work environment.
Banks does not provide specific allegations in the
Complaint or provide any evidence of retaliation.
Thus, for the
same reasons as with Doze, see supra Section I.C., and
additionally, because he fails to state a claim, see Fed. R. Civ.
P. 12(b)(6), the Court grants the Banks Motion as to Count II.
Since (1) Banks has not exhausted any of his claims
other than those for the May 2008 Notice of Proposed Suspension
and hostile work environment; (2) there is no dispute of material
fact as to whether Banks can make a prima facie case of
discrimination as to those claims; and (3) he fails to state a
claim for retaliation, the Court GRANTS the Banks Motion in its
On the basis of the foregoing, Defendant’s Motion for
Dismissal and Summary Judgment on the Claims of Plaintiff
Marceau Doze-Guillory, filed on May 6, 2014, and Defendant’s
Motion for Dismissal and Summary Judgment on the Claims of
Plaintiff Kelvin Banks, filed on May 9, 2014, are HEREBY GRANTED.
The Court directs the Clerk’s Office to terminate Doze and Banks
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 29, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
KELVIN BANKS, ET AL. VS. JOHN MCHUGH, ET AL; CIVIL 11-00798 LEKKSC; ORDER GRANTING DEFENDANT’S MOTION FOR DISMISSAL AND SUMMARY
JUDGMENT ON THE CLAIMS OF PLAINTIFF MARCEAU DOZE-GUILLORY; AND
GRANTING DEFENDANT’S MOTION FOR DISMISSAL AND SUMMARY JUDGMENT ON
THE CLAIMS OF PLAINTIFF KELVIN BANKS
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?