Banks et al v. McHugh et al
Filing
40
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND TO SEVER PLAINTIFFS' CLAIMS 22 . Signed by JUDGE LESLIE E. KOBAYASHI on 9/28/2012. Excerpt of Conclusion: ~ The Motion is GRA NTED as to dismissal of all Plaintiffs' constitutional claims, all claims filed by Plaintiff Manigault, all claims against Secretary Panetta, and as to severance of Plaintiff Thomas's claims. The Motion is DENIED WITHOUT PREJUDICE in all ot her respects. Based on its finding of improper joinder of Plaintiff Thomas's claims, the Court severs those claims from this action and directs the Clerk of Court to assign Plaintiff Thomas's claims a separate case number. The Clerk is furt her directed to file a copy of the Complaint and a copy of this order in each new action. The scheduling order in this case [dkt. no. 32 ] will govern all actions until otherwise ordered by the Court. All future pleadings shall be filed in the appro priate action. ~ Order follows hearing held 9/4/2012. Minutes: doc no. 39 . (afc) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications will be served by first class mail on October 1, 2012.
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 IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS AND TO SEVER PLAINTIFFS’ CLAIMS
Before the Court is Defendants John McHugh, Secretary,
Department of the Army, and Leon E. Panetta, Secretary,
Department of Defense’s (“Defendants”), Motion to Dismiss and to
Sever Plaintiffs’ Claims (“Motion”), filed May 25, 2012.
Plaintiffs 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 (collectively, “Plaintiffs”) filed their memorandum in
opposition on August 13, 2012, and Defendants filed their reply
on August 21, 2012.
September 4, 2012.
This matter came on for hearing on
Appearing on behalf of Defendants were
Special Assistant United States Attorney Paul Galindo, Assistant
United States Attorney Thomas Helper, and appearing on behalf of
Plaintiffs were Anthony Bothwell, Esq., and Anthony Quan, Esq.
After careful consideration of the Motion, supporting and
opposing memoranda, and the arguments of counsel, Defendants’
Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the
reasons set forth below.
The Motion is GRANTED as to: dismissal
of constitutional claims, Plaintiff Manigault’s claims, claims
against Secretary of Defense Leon Panetta, and severance of
Plaintiff Thomas’s claims.
The Motion is DENIED in all other
respects.
BACKGROUND
Plaintiffs are current and former employees of Tripler
Army Medical Center (“Tripler”).
They filed their Complaint on
December 30, 2011, alleging that they suffered employment
discrimination on account of race and color, and reprisal as a
result of complaining about the discrimination, in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. §§ 2000e et seq.
[Complaint at ¶¶ 3-4.]
Defendants ask
the Court to dismiss certain claims and parties, and to sever the
ten Plaintiffs’ cases into separate actions.
Count I alleges that Defendants discriminated against
Plaintiffs and that this racial discrimination created a hostile
work environment, and Count II alleges that Defendants retaliated
2
against Plaintiffs for complaining about unlawful discrimination,
in violation of Title VII.
Count III alleges a constitutional
violation of Plaintiffs’ right to equal protection, pursuant to
the Fifth Amendment’s Due Process Clause.
[Id. at ¶¶ 104-112.]
The Court briefly summarizes the claims of each plaintiff.
Plaintiff Banks worked as a civilian emergency medical
technician in the Tripler emergency department under the
supervision of Captain Kenneth Kelly, Major William Meek,
Sergeant First Class Cory Montague, and Sergeant First Class
Kimberly McCaughtry.
He claims that he was racially harassed on
a daily basis; that his supervisors made derogatory remarks about
African Americans during departmental supervisor meetings; that
he was charged with absence without leave (“AWOL”) or leave
without pay (“LWOP”) when he requested sick leave; that, on
May 31, 2008, he received an unjustified notice of proposed
suspension; and that, in September of 2008, emergency room care
was unreasonably delayed to him.
[Id. at ¶¶ 28-33.]
Plaintiff Beavers worked as a civilian nurse in the
emergency department under the supervision of Colonel
Kenneth Batts, Captain Kelly, and Major Meek.
She alleges that,
on October 30, 2007, someone left a racially-charged letter in
her locker, but that, when she reported the incident, no serious
investigation took place; that she was verbally harassed; that
she received an unwarranted notice of proposed suspension; that
3
she was transferred to an undesirable work shift; and that, on
May 15, 2008, she was constructively discharged.
[Id. at ¶¶ 34-
39.]
Plaintiff Bevett, a retired Army medical officer,
alleges that he applied in early 2011 for a civilian position at
Tripler for which he claims he was qualified, but that he was
denied a position; and, that he reported this incident to
the Army Equal Employment Opportunity (“EEO”) office, but no
serious investigation resulted.
[Id. at ¶¶ 40-45.]
Plaintiff Dickey worked as a nursing assistant in a
surgical ward in 1985, then as a medical instrument technician in
the cardiology department from 1995.
His supervisors were
Colonel Thomas Dove and Dr. Michael Illovsky.
He claims that he
suffered regular harassment and that his work environment was so
racially hostile that he took early retirement on December 27,
2010; and that, in early 2011, he complained to the Army EEO
office regarding the work conditions at Tripler, but no serious
investigation resulted.
[Id. at ¶¶ 46-54.]
Plaintiff Doze-Guillory was a civilian cardiac nurse in
the cardiology department from January 2010, under the
supervision of Captain Thelma Nichols.
She alleges that two of
her co-workers, Mary Burt and Cynthia Chung, called her a
“beast”; and that Captain Nichols treated her rudely, withheld
training opportunities, and issued her a performance evaluation
4
that was satisfactory except in the area of teamwork.
[Id. at
¶¶ 56-66.]
Plaintiff Manigault was an active duty Army medical
officer assigned to military operations in Iraq, Schofield
Barracks in 2006, and to Tripler in 2008.
Plaintiff Manigault
alleges that Army doctors in Iraq did not invite him to military
planning sessions, and sent him forward on military field
operations.
He claims that, in September 2008, Lieutenant
Colonel Troy Denuzio, Chief of Tripler’s Nefrology Service,
accused him of being incompetent and unprofessional; that between
October 2008 and August 2009, his medical privileges were
suspended; that on February 7, 2010, he was not recommended for
further military duty due to a lack of communication skills; and
that he was discharged from military service after complaining of
discrimination.
[Id. at ¶¶ 67-73.]
Plaintiff Mundy is a disabled veteran who worked as a
supervisory health system specialist in the emergency department
under the supervision of Colonel Batts.
She alleges that she
suffered verbal abuse and retaliation and was unfairly charged
AWOL.
She claims that she was told that she would not have been
hired if she had not “sounded white over the phone”; and was
instructed to resign one day before she was scheduled to receive
surgery, ordered to work a full-time schedule even though she had
agreed to work only half-time on account of her disability, and
5
ordered to come into work even though she was in post-surgery
convalescence.
She claims to have received an unprecedented and
unfavorable performance evaluation, and that she was fired on
April 25, 2009.
[Id. at ¶¶ 74-87.]
Plaintiff Thomas was a manager in charge of
administrative staff, and worked under the supervision of
Lieutenant Colonel David R. Petray.
She alleges that she was
subjected to a racially hostile work environment, denied overtime
requests, issued an unjustified disciplinary counseling
memorandum, had her hiring authority suspended, was denied
legitimate workers compensation requests, demoted from
Supervising Management Analyst to Management Analyst, and then
fired without good cause.
[Id. at ¶¶ 88-91.]
Plaintiff Vega worked under the supervision of
Dr. Jay Gloeb and Maria Ballacuang.
Plaintiff Vega alleges that
she was accused of working overtime without permission, denied
access to military family leave, charged AWOL despite making
legitimate sick leave requests, and was suspended and fired on
account of the AWOL for which she had been charged.
[Id. at ¶¶
92-95.]
Plaintiff Wang was a civilian doctor of pharmacy under
the supervision of Captain Aparna Raizada and Captain Franklin.
She alleges that she was insulted and demeaned, charged with AWOL
despite making legitimate requests for sick leave, denied
6
training opportunities, and notified on December 28, 2010 that
she was terminated.
[Id. at ¶¶ 97-101.]
Plaintiffs seek $20,000,000 in compensatory damages,
the removal of negative material from their personnel files, and
disciplinary charges against their supervisors.
I.
[Id. at pg. 20.]
Defendants’ Motion
Defendants move the Court for an order:
1. Dismissing all plaintiffs’ claims to the
extent they do not arise under Title VII of the
Civil Rights Act of 1964 pursuant to [Fed. R. Civ.
P.] 12(b)(1) for lack of subject-matter
jurisdiction;
2. Dismissing Plaintiff Edward Manigault’s
claims pursuant to Rule 12(b)(1) for lack of
subject-matter jurisdiction;
3. Dismissing, with prejudice, all claims
against Secretary of Defense Leon E. Panetta
. . . , with prejudice, pursuant to [Fed. R. Civ.
P.] 12(b)(6) for failure to state a claim upon
which relief can be granted; and
4. Severing all remaining claims into
separate actions for separate docketing and
assignment pursuant to [Fed. R. Civ. P.] 20, 21,
and 42(b), by directing Plaintiff Banks to file an
amended complaint in this action; dismissing the
remaining claims of Plaintiffs Beavers, Bevett,
Dickey, Doze-Guillory, Mundy, Thomas, Vega, and
Wang; and directing Plaintiffs Beavers, Bevett,
Dickey, Doze-Guillory, Mundy, Thomas, Vega, and
Wang to file separate individual complaints with
the Clerk of the Court.
[Motion at 2.]
Defendants ask the Court to dismiss Plaintiffs’
constitutional claims because Title VII provides the
7
exclusive, preemptive remedy in cases against the United States
alleging discrimination or retaliation.
They argue that
Plaintiffs’ claims are all based on allegations of unlawful
discrimination or retaliation motivated by race or protected EEO
activity.
They argue that, because Plaintiffs’ constitutional
due process and equal protection claims are preempted by Title
VII, the Court lacks subject matter jurisdiction over them,
thereby requiring their dismissal.
[Mem. in Supp. of Motion at
12-13.]
With respect to Plaintiff Manigault’s claims,
Defendants ask the Court to dismiss them for lack of subject
matter jurisdiction because they concern military personnel
decisions relating to his status as an active duty member of the
United States Army.
Such claims are non-justiciable in civilian
courts, and Title VII does not apply to non-civilian military
personnel.
Defendants note that permitting such suits would
impact the unique command and disciplinary structure of the
military.
[Id. at 13-14.]
Defendants ask the Court to dismiss Defense Secretary
Panetta because, under Title VII, John McHugh, in his official
capacity as Secretary of the Army, is the only proper defendant
in this case.
They argue that, in a Title VII case brought
against the United States, “the only proper defendant is the head
of the agency in which the alleged discrimination occurred.”
8
[Id. at 15 (citing 42 U.S.C. § 2000e-16(c)).]
Finally, Defendants ask the Court to order Plaintiff
Banks to file an Amended Complaint in this action, and to direct
all remaining Plaintiffs to file separate, individual complaints.
They argue that Plaintiffs do not satisfy the requirements to
permit joinder of their claims under Rule 20(a)(1).
According to
Defendants, Plaintiffs’ claims do not arise out of the same
transaction, occurrence, or series of transactions or occurrences
because of multiple factual distinctions.
They argue that
Plaintiffs’ claims involve different supervisors, offenders, job
roles and responsibilities, work histories, performance issues,
conduct, employment actions, discipline, and time periods.
They
acknowledge that Plaintiffs Banks, Beavers, and Mundy, each
worked at some point in Tripler’s emergency department, but argue
that the claims fail to meet the transactional relatedness
requirement.
[Id. at 18-21.]
Defendants assert that, even if Plaintiffs satisfy Rule
20(a), joinder of their claims in a single action is too
prejudicial and confusing, and they should be severed into
separate actions for docketing an assignment, pursuant to Rule
42(b).
They argue that the numerous differences among
supervisors, offenders, jobs, conduct, employment actions, and
time periods “would likely be too confusing for a single jury to
organize, and presents a significant danger that the jury would
9
simply apply the distinct facts of one plaintiff to each and
every other plaintiff.”
II.
[Id. at 25.]
Plaintiffs’ Memorandum in Opposition
Plaintiffs oppose dismissal and severance of their
claims, arguing that severance is premature.
They contend that
Tripler has a “culture of racial discrimination” that is common
to all Plaintiffs, and a “culture of coverup – anyone who
complains about the discrimination going on there becomes a
target for career-wrecking reprisal.”
[Mem. in Opp. at 1.]
With respect to their constitutional claims, Plaintiffs
argue that “racial discrimination claims asserted by uniformed
military personnel arise under the equal protection component of
Fifth Amendment due process.”
[Id. at 3.]
They further argue
that, pursuant to Chappell v. Wallace, 42 U.S. 296 (1983), claims
for injunctive relief by discharged military personnel are
permissible.
[Mem. in Opp. at 3-4.]
Plaintiffs claim that a
court may review internal military affairs where intraservice
corrective measures are exhausted, and that Plaintiff Manigault
did exhaust intraservice corrective measures.
[Id. at 5.]
Plaintiffs argue that the Court has subject matter
jurisdiction to hear Plaintiff Manigault’s claims because it is
not essential for each Plaintiff to be interested in obtaining
all the relief demanded; that is, the equitable nature of
Plaintiff Manigault’s request for relief does not constitute
10
sufficient grounds for severing his claim.
Plaintiff Manigault
claims to have experienced racial discrimination “that was
endemic at Tripler” and is “entitled to assert his claim in
accord with the constitutional guarantee of equal protection of
the laws.
at 6.]
He is entitled to request equitable remedies.”
[Id.
The nine other civilian Plaintiffs seeking relief
pursuant to Title VII “experienced the same racial discrimination
at Tripler but in the context of civilian employment practices.”
[Id.]
With respect to Secretary Panetta, Plaintiffs argue
that he is a proper defendant because the Department of Defense
(“DOD”) failed to provide an impartial investigation of the
administrative complaints filed by Plaintiff Manigault and the
civilian Plaintiffs.
They claim that the Department of Defense
Investigations Resolution Division (“DODIRD”) is “the DOD
component which, under the regulations, is legally required to
conduct a ‘complete and impartial’ investigation of racial
discrimination complains made by civilian employees of the U.S.
Army.”
[Id. at 7.]
As to severance, Plaintiffs argue that their claims are
“logically related because the acts of discrimination and
reprisal they were all subjected to all flowed from general
policies and practices of the Army and DOD which affected them
all.”
[Id. at 8.]
They contend that their claims are
11
inextricably intertwined because they “often either witnessed or
had second-hand knowledge of each others’ encounters with racial
discrimination and retaliation at Tripler and were further
traumatized thereby.”
[Id. at 9.]
Plaintiffs argue that many of
the Plaintiffs “knew each other personally, had the same first-or
second-level supervisors, or had personal knowledge about each
others’ painful encounters with workplace race bigotry and
reprisal.”
[Id.]
Further, Plaintiffs state that “the suffering
of each plaintiff was intensified by knowledge of the suffering
of the others.”
[Id.]
With respect to Defendants’ claim of jury confusion,
Plaintiffs argue that there is no risk of confusion, but that
severance would undermine judicial economy and cause “extreme
undue prejudice to them.
Every plaintiff in the present case
will testify about the work environment hostile to nonwhites,
hostility that permeated Tripler and affected every other
plaintiff.”
[Id. at 16.]
Plaintiffs also argue that severance is premature at
this point because they have alleged a possible basis to meet
Rule 20(a) requirements and because there has been no discovery.
They claim that “keeping parties joined allows for more efficient
use of management and discovery. . . .
Discovery has not even
started that would elicit evidence proving whether or not the
Army and DOD had an unwritten policy or general practice of
12
racial discrimination and reprisal.”
[Id. at 19.]
III. Defendants’ Reply
In their Reply, Defendants first argue that the Court
lacks subject matter jurisdiction over Plaintiffs’ constitutional
claims, including any active-duty military claims by Plaintiff
Manigault.
Defendants argue that the out-of-circuit cases relied
upon by Plaintiffs are not persuasive, but that under Ninth
Circuit law, the Court does not have subject matter jurisdiction
over such claims.
[Reply at 1-2.]
Further, Plaintiffs identify
no “military policy, regulation, or directive as being facially
discriminatory.”
[Id. at 2.]
Rather, Defendants argue that
Plaintiff Manigault is challenging individualized military
personnel actions, and that he has not exhausted his
administrative relief with the Army Board for the Correction of
Military Records, sufficient to seek judicial review of a
military decision.
[Id. at 2-3.]
As to Secretary Panetta, Defendants first note that the
DODIRD is an investigative agency separate from the Army’s chain
of command.
Second, they argue that whether DODIRD investigated
any of Plaintiffs’ administrative complaints is not relevant
because the instant suit is a de novo proceeding.
[Id. at 8.]
Last, Defendants argue that delaying dismissal and
severance of Plaintiffs’ claims would not be appropriate because
Plaintiffs’ allegations are facially unrelated, and Plaintiffs do
13
not offer any feasible solution to mitigate the risk of prejudice
and jury confusion.
[Id. at 17.]
DISCUSSION
I.
Dismissal
A.
Title VII Preemption
Defendants seek dismissal of the constitutional claims
of the nine civilian Plaintiffs on the ground that they are
preempted by Title VII.
Plaintiffs do not appear to contest this
issue with respect to the civilian employees.
Title VII is the exclusive judicial remedy
for federal employees alleging employment
discrimination. See Brown v. General Serv.
Admin., 425 U.S. 820, 825, 834, 96 S. Ct. 1961, 48
L. Ed. 2d 402 (1976) (holding that Title VII is
the exclusive remedy for federal employees
alleging racial discrimination in employment);
White v. General Servs. Admin., 652 F.2d 913,
916-17 (9th Cir. 1981) (finding that Title VII
precluded claims brought by a federal employee
under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and
1988, among others); Nimi-Montalbo v. White, 243
F. Supp. 2d 1109, 1118 (D. Haw. 2003) (finding
that Title VII provided the exclusive judicial
remedy for the plaintiff’s claims of employment
discrimination against the Secretary of the Army).
Fowler v. United States Dep’t of the Navy, Civ. No. 06-00294 DAEBMK, 2007 WL 1106109, at *3 (D. Hawai‘i Apr. 11, 2007).
Here, Plaintiffs’ claims are based on allegations of
unlawful racial discrimination and retaliation, which are covered
by Title VII.
Title VII, therefore, provides the exclusive
judicial remedy for these civilian federal employee’s
14
discrimination and retaliation claims.
White, 652 F.2d at
916-17.
The Motion is GRANTED as to the constitutional claims
of the nine civilian Plaintiffs.
The Court next addresses
Plaintiff Manigault’s claims.
B.
Dismissal of Plaintiff Manigault’s Claims
Defendants ask the Court to dismiss the claims brought
by Plaintiff Manigault because he was active duty military
personnel.
The Court first notes that Title VII does not cover
military personnel, therefore, Plaintiff Manigault fails to state
a Title VII claim.
“The protection against employment
discrimination provided by Title VII applies to civilian
employees of the military, through 42 U.S.C. § 2000e-16(a).
Title VII does not protect military personnel.”
Mier v. Owens,
57 F.3d 747, 749 (9th Cir. 1995) (citing Gonzalez v. Dept. of
Army, 718 F.2d 926, 928 (9th Cir. 1983)); see also Hodge v.
Dalton, 107 F.3d 705, 709 (9th Cir. 1997) (“[I]n Mier, we
explicitly stated that although Title VII protects civilian
employees of the military from employment discrimination, it does
not protect military personnel.”).
Defendants further argue that all of Plaintiff
Manigault’s other claims are non-justiciable because they involve
decisions regarding his active-duty military status, or because
he has failed to exhaust his claims.
15
The Court agrees, and notes
that courts generally decline to hear cases involving personnel
actions related to the military’s unique structure.
Plaintiff Manigault’s claims here appear to arise from his
military service and are integrally related to the military’s
structure.
They relate to his service while on duty as an Army
medical officer in Iraq, his March 2006 assignment to Schofield
Barracks, and his March 2009 assignment to Tripler.
at ¶¶ 68-73.]
[Complaint
He alleges that his medical privileges were
suspended in October 2008 and April 2009, and that he was
discharged from service following a February 7, 2010 officer
evaluation report.
[Id. at ¶¶ 72-73.]
To the extent Plaintiffs argue that the Court has
jurisdiction to hear facial challenges to the constitutionality
of military policies, the Court notes that their Complaint does
not set forth any identifiable military regulation or policy.
Rather, the Complaint appears to challenge individual military
personnel actions applied to Plaintiff Manigault.
Further, it does not appear the Plaintiff Manigault has
exhausted his administrative remedies with respect to the
portions of his constitutional claims involving Tripler.
Plaintiff Manigault alleges that he “filed an Equal Opportunity
complaint with the Department of Defense prior to his military
discharge.”
[Complaint at ¶ 22.]
At the hearing, counsel
acknowledged Plaintiff Manigault’s failure to go before the Army
16
Board for the Correction of Military Records (“ABCMR”).1
“Under the [Mindes v. Seaman, 453 F.2d 197
(5th Cir. 1971),] test as modified by [the Ninth]
Circuit, a person challenging a military decision
generally must satisfy two threshold elements
before a court can determine whether review of his
claims is appropriate.” Wenger v. Monroe, 282
F.3d 1068, 1072 (9th Cir. 2002). “An internal
military decision is unreviewable unless the
plaintiff alleges (a) a violation of [a recognized
constitutional right], a federal statute, or
military regulations; and (b) exhaustion of
available intraservice remedies.” Id. (quoting
Khalsa v. Weinberger, 779 F.2d 1393, 1398 (9th
Cir. 1985)). If the plaintiff meets these two
conditions, a court then weighs four factors to
determine whether review is appropriate: (1) the
nature and strength of the plaintiff’s claim; (2)
the potential injury to the plaintiff if review is
denied; (3) the extent of interference with
military functions; and (4) the extent to which
military discretion or expertise is involved. Id.
Chen-Li Sung v. Gallagher, Civ. No. 11–00103 JMS/KSC, 2011 WL
4952617, at *5 (D. Hawai‘i Oct. 17, 2011) (alterations in Sung).
The Court GRANTS the Motion as to Plaintiff Manigault’s
1
The ABCMR is an administrative body established
pursuant to 10 U.S.C. § 1552. It consists of
civilians appointed by the Secretary of the Army.
32 C.F.R. § 581.3(c)(1). Among other duties, “it
directs or recommends correction of military
records to remove an error or injustice.” 32
C.F.R. § 581.3(c)(2)(f); see also 10 U.S.C.
§ 1552(a)(1) (allowing Secretary of a military
department to “correct any military record . . .
when the Secretary considers it necessary to
correct an error or remove an injustice.”).
Chen-Li Sung v. Gallagher, Civ. No. 11–00103 JMS/KSC, 2011 WL
4952617, at *6 (D. Hawai‘i Oct. 17, 2011).
17
claims, which are hereby DISMISSED WITHOUT PREJUDICE.
C.
Dismissal of Claims Against Secretary Panetta
Defendants seek the dismissal of all claims against
Secretary Panetta pursuant to Fed. R. Civ. P 12(b)(6).
Plaintiff
argues that Secretary Panetta, as head of DOD, is a proper party
based on DODIRD’s alleged failure to investigate Plaintiffs’
claims.
The First Amended Complaint does not include any
allegations regarding any DODIRD failure to investigate
Plaintiffs’ claims.
Further, Plaintiffs provide no authority for
their argument that DODIRD’s alleged investigative failures
constitute are actionable under Title VII, or how DODIRD
qualifies as an employer within the scope of Title VII.
Thus,
there are no claims against the Department of Defense.
Instead of suing the Department of the Army,
[plaintiff] should have filed his complaint
against the head of the Department of the Army,
the Secretary of the Army. See 42 U.S.C.
§ 2000e–16(c) (“[a federal] employee . . . may
file a civil action . . . in which civil action
the head of the department, agency, or unit, as
appropriate, shall be the defendant”) (emphasis
added). This circuit has held that failure to
name the head of the department or agency in a
Title VII action brought by a federal employee
supports dismissal of the action. See Cooper v.
U.S. Postal Service, 740 F.2d 714 (9th Cir. 1984),
cert. denied, 471 U.S. 1022, 105 S. Ct. 2034, 85
L. Ed. 2d 316 (1985).
Miles v. Dep’t of Army, 881 F.2d 777, 780 (9th Cir. 1989).
Here,
Plaintiffs’ claims against the Army are properly alleged against
Defendant McHugh, as Secretary, Department of the Army.
18
The Court GRANTS the Motion as to all claims against
Secretary Panetta, which are hereby DISMISSED WITHOUT PREJUDICE.
II.
Severance
Defendants ask the Court, pursuant to Rules 20, 21 and
42(b), to direct Plaintiff Banks to file an amended complaint in
the pending action, and to direct all remaining Plaintiffs to
file separate, individual complaints.
Rule 20(a)(1) provides that:
(1) Plaintiffs.
plaintiffs if:
Persons may join in one action as
(A) they assert any right to relief jointly,
severally, or in the alternative with respect
to or arising out of the same transaction,
occurrence, or series of transactions or
occurrences; and
(B) any question of law or fact common to all
plaintiffs will arise in the action.
Fed. R. Civ. P. 20(a)(1). The Court first notes that the Ninth
Circuit liberally construes Rule 20 as follows:
The Ninth Circuit construes Rule 20 liberally
“in order to promote trial convenience and to
expedite the final determination of disputes,
thereby preventing multiple lawsuits.” See League
to Save Lake Tahoe v. Tahoe Reg’l Planning Agency,
558 F.2d 914, 917 (1977) (citing United Mine
Workers of Am. v. Gibbs, 383 U.S. 715, 724, 86 S.
Ct. 1130, 16 L. Ed. 2d 218 (1966)); see also Am.
Motorists Ins. Co. v. The Club at Hokuli‘a, Inc.,
No. 10–199, 2010 WL 5389221, at *10 (D. Haw. Dec.
21, 2010). “‘Under the rules, the impulse is
toward entertaining the broadest possible scope of
action consistent with fairness to the parties;
joinder of claims, parties and remedies is
strongly encouraged.’” League, 558 F.2d at 917
(quoting United Mine Workers of Am. v. Gibbs, 383
U.S. 715, 724, 86 S. Ct. 1130, 16 L. Ed. 2d 218
19
(1966)).
E.E.O.C. v. Global Horizons, Inc., Civ. No. 11-00257 DAE-RLP,
2012 WL 928160, at *20 (D. Hawai‘i Mar. 16, 2012).
With respect
to employment discrimination cases, courts look to several
factors.
A summary of these cases indicates that in causes
of action involving discrimination, Title VII or
otherwise, courts look to whether the
discrimination took place at roughly the same
time, if it involved the same people, whether
there is a relationship between the discriminatory
action, whether the discriminatory action involved
the same supervisor or occurred within the same
department, and whether there is a geographic
proximity between the discriminatory
actions. . . . On the other hand, . . .
allegations of a common discriminatory policy or
practice, or a company-wide policy of
discrimination, could tilt the balance in favor of
joinder despite those other factors which might
favor severance.
Wynn v. Nat’l Broad. Co., 234 F. Supp. 2d 1067, 1087 (C.D. Cal.
2002) (quoting Byers v. Illinois State Police, No. 99–C8105, 2000
WL 1808558, at *4 (N.D. Ill. Dec. 6, 2000)).
With this liberal construction in mind, the Court finds
that the majority of Plaintiffs’ claims present common questions
of law or fact, and that, at the present time, trial convenience
favors joining Plaintiffs’ common claims regarding a racially
hostile work environment at Tripler from 2008 through 2011.
All
claims relate to Plaintiffs’ employment as medical officers,
nurses, or technicians at Tripler during the same general time
period.
Plaintiffs contend that each of them “will testify about
20
the work environment hostile to nonwhites, hostility that
permeated Tripler and affected every other plaintiff.”
Opp. at 17.]
[Mem. in
Given the commonality of their overlapping claims,
it is likely that the same witnesses and evidence will be relied
upon at trial.
This case is in its early stages, and the Court,
in its discretion, declines to sever the claims of the individual
Plaintiffs at the present time.
The Court finds, however, that Plaintiff Thomas’s
claims are outliers: she was a manager in charge of
administrative staff, rather than a nurse or medical officer; and
she alleges a hostile work environment in July 2004 and adverse
employment actions from June through November of 2005, outside of
the 2008 to 2011 time period common to the other Plaintiffs.
[First Amended Compliant at ¶¶ 88-90.]
Plaintiff Thomas’s
misjoinded claims shall be severed and allowed to proceed
separately, rather than dismissed.
The Motion is hereby GRANTED IN PART as to Plaintiff
Thomas.
The Motion is hereby DENIED WITHOUT PREJUDICE as to
Defendants’ request for severance of the remaining Plaintiffs’
claims.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion to
Dismiss to and to Sever Plaintiffs’ Claims, filed May 25, 2012,
is HEREBY GRANTED IN PART AND DENIED IN PART.
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The Motion is
GRANTED as to dismissal of all Plaintiffs’ constitutional claims,
all claims filed by Plaintiff Manigault, all claims against
Secretary Panetta, and as to severance of Plaintiff Thomas’s
claims.
The Motion is DENIED WITHOUT PREJUDICE in all other
respects.
Based on its finding of improper joinder of Plaintiff
Thomas’s claims, the Court severs those claims from this action
and directs the Clerk of Court to assign Plaintiff Thomas’s
claims a separate case number.
The Clerk is further directed to
file a copy of the Complaint and a copy of this order in each new
action.
The scheduling order in this case [dkt. no. 32] will
govern all actions until otherwise ordered by the Court.
All
future pleadings shall be filed in the appropriate action.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 28, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
KELVIN BANKS, ET AL. V. JOHN MCHUGH, ETC., ET AL; CIVIL NO.
11-00798 LEK-KSC; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION TO DISMISS AND TO SEVER PLAINTIFFS’ CLAIMS
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