Wigent v. Science Applications International Corp. et al
Filing
64
ORDER granting in part and denying in part 48 Defendant's Motion for Summary Judgment. Signed by JUDGE ALAN C KAY on 5/8/14. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notificat ions 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
SHANNON WIGENT,
Plaintiff,
vs.
SCIENCE APPLICATIONS
INTERNATIONAL CORP.; JOHN
DOES 1-10; JANE DOES 1-10;
and DOE ENTITIES 1-10,
Defendants.
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Civ. No. 13-00123 ACK-KSC
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
PROCEDURAL BACKGROUND
On February 7, 2013, Plaintiff Shannon Wigent
(“Plaintiff”) filed a Complaint against Science Applications
International Corporation, now known as Leidos Holdings, Inc.
(“Leidos” or “Defendant”), in the Circuit Court of the First
Circuit, State of Hawaii. (Doc. No. 1 (“Notice of Removal”) Ex.
A.) On March 13, 2013, Leidos removed the case to this Court
pursuant to 28 U.S.C. §§ 1332 and 1441. (Notice of Removal at
¶ 4.) On March 20, 2013, Leidos filed an Answer to Plaintiff’s
Complaint. (Doc. No. 5.)
Plaintiff’s Complaint pleads claims arising out of
her termination of employment from Leidos. Plaintiff’s first
-1-
claim alleges that Leidos discriminated against her on the basis
of her marital status in violation of Hawaii Revised Statute
(“H.R.S.”) § 378-2(1). (Compl. at ¶¶ 31-36.) Plaintiff also
brings retaliation claims, pursuant to H.R.S. 378-2(2). (Id. at
¶¶ 37-40, 42-46.)
Leidos filed the instant Motion for Summary Judgment
(“Motion” or “Mot.”) along with a Concise Statement of Facts
(“Def.’s CSF”) on February 18, 2014, seeking summary judgment as
to all the claims asserted by Plaintiff. (Doc. Nos. 48-49.) On
February 20, 2014, Leidos filed an Errata in order to correct
Exhibit 1 of its Concise Statement of Facts. (Doc. No. 51.) In
the original Exhibit 1, Leidos omitted the first half of Exhibit
1 and uploaded the second half twice. (Id.) A complete copy of
Exhibit 1 is attached to the Errata. (Id.) On March 26, 2014,
Plaintiff filed her Opposition to Defendant’s Motion (“Opp.”)
along with a Concise Statement of Facts (“Pl.’s CSF”). (Doc. Nos.
54-55.)1/ Leidos filed a Reply (“Reply”) on April 7, 2014. (Doc.
No. 57.) Also on April 7, 2014, Leidos filed objections and a
1/
Plaintiff violated the Local Rules by attaching her fifteen
exhibits to her Memorandum in Opposition rather than to her CSF.
See D. Haw. Local Rule 56.1(h) (“Affidavits or declarations
setting forth facts and/or authenticating exhibits, as well as
exhibits themselves, shall only be attached to the concise
statement.”). Although her exhibits were not attached to her CSF,
Plaintiff submitted a Declaration of Counsel authenticating
Exhibits “A” to “L” and her own declaration authenticating
Exhibits “M” to “O.” (See Doc. No. 55.) Accordingly, the Court
will consider Plaintiff’s exhibits notwithstanding her failure to
comply with the Local Rules.
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response to Plaintiff’s Concise Statement of Facts (“Def.’s
Obj.’s”). (Doc. No. 58.)
The Court held a hearing regarding Defendant’s Motion
on April 21, 2014. (Doc. No. 62.)
FACTUAL BACKGROUND2/
A.
Background on Leidos, Formerly Known as SAIC
Prior to September 27, 2013, Leidos was known as
Science Applications International Corporation (“SAIC”). (Def.’s
CSF at 2, ¶ 1; Pl.’s CSF at 1, ¶ 1.) The original SAIC was a
scientific, engineering and technology applications company that
served commercial and government customers. (Id.) On September
27, 2013, SAIC changed its name to Leidos and spun off a separate
new corporation, which kept the name SAIC. (Declaration of Jim
Murray (“Murray Decl.”) ¶ 5.) The divisions which Plaintiff and
her husband (collectively “the Wigents”) worked for remained
under Leidos. (Id.)
In 2002, Leidos3/ was awarded a federal government
contract, the Maritime Synthetic Range (“MSR”), to be integrated
on the island of Kauai, State of Hawaii. (Def.’s CSF at 3, ¶ 3;
2/
The facts as recited in this Order are for the purpose of
disposing of the current motion and are not to be construed as
findings of fact that the parties may rely on in future
proceedings.
3/
For purposes of this Order, and in accordance with the
company name change, the Court will refer to the original SAIC as
“Leidos.”
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Pl.’s CSF at 1, ¶ 3.) In 2005, as a follow-up to the MSR program,
the Pacific Region Integrated Test and Evaluation Capability
(“PRITEC”) program was awarded to Leidos. (Def.’s CSF at 3, ¶ 4;
Pl.’s CSF at 1, ¶ 4.) The PRITEC project lasted for several years
and ended in 2011 when federal funding ceased. (Id.)
B.
Plaintiff and Her Husband Begin Working at Leidos
Leidos hired Plaintiff as a Systems Engineer in
October 2001. (Def.’s CSF Ex. 1 (“Pl.’s Dep.”) 20:10-23.)
Plaintiff began working at the company’s Virginia office. (Id.)
In March 2002, Plaintiff was transferred to Kauai to help
implement the MSR program. (Def.’s CSF at 3, ¶ 5; Pl.’s CSF at 1,
¶ 5.)
Leidos hired Plaintiff’s husband, Mark Wigent
(“Mark”), in February 2002, also as a Systems Engineer to help
implement a separate program located on Kauai. (Pl.’s Dep. 27:816.) On March 16, 2002, Leidos relocated Plaintiff and her
husband from Virginia to Kauai. (Def.’s CSF at 3, ¶ 7; Pl.’s CSF
at 1, ¶ 7.)
Plaintiff concedes that her husband was initially hired
to implement a separate program on Kauai. (Pl.’s Dep. 27:8-16.)
Plaintiff asserts, however, that by November 2002, both her and
her husband had started working on the MSR program. (Decl. of Pl.
¶ 8.) Leidos contends that the Wigents only began working on the
MSR program together in late 2004. (Def.’s CSF at 4, ¶ 9.)
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C.
SH-2 Policy Adopted
In 2004, Leidos adopted Staffing Policy SH-2 (“SH-2").
(Id. at 3, ¶ 8; Pl.’s CSF at 1, ¶ 8.) The purpose of SH-2 is to
[e]nsure that a supervisor or manager does
not have closely related individuals (such as
a spouse, domestic partner, person involved
in a dating relationship, children,
stepchildren, parents, in-laws, or siblings)
under his or her direct or indirect
supervision in order to prevent potential
conflicts of interest and/or allegations of
favoritism or sexual harassment.
(Pl.’s Dep. Ex. 2.) Section 3.6.1 of SH-2 defines the terms
“direct supervision” and “indirect supervision” as follows:
Direct supervision Includes any of the
following responsibilities: assigning work,
conducting performance or salary reviews,
approving timecards or expense reports, or
making recommendations affecting the person’s
employment, compensation, or retention.
Indirect supervision Having program
management, profit and loss (P&L), or
budgetary responsibility for the affected
group, business unit, or organization.
(Id.)
D.
2005 Assessment
In late 2004, Plaintiff was working with the MSR
program under division 1548, and Mark, under division 1805,
became the Program Manager (“PM”) for the MSR program. (Def.’s
CSF at 4, ¶ 9; Pl.’s CSF at 1, ¶ 9.) As the PM, Mark’s
responsibilities included managing the people assigned to the
MSR, interfacing with the customer, ensuring customer
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satisfaction, and ensuring the program remained within budget and
on schedule. (Id.)
Mark’s supervisor, Steven Karwoski, in late 2004 raised
the issue of whether the working relationship between Plaintiff
and her husband violated SH-2 because Plaintiff was working on
the MSR program while Mark was the Project Manager. (Id.) As a
result, in January 2005, an assessment of whether the Wigents’
working relationship violated SH-2 was administered. (Def.’s CSF
at 4, ¶ 11; Pl.’s CSF at 1, ¶ 11.) The assessment was conducted
by Karwoski, Leidos’ Human Resources Senior Vice President
Marjorie Bailey, and Plaintiff’s division supervisor Sam Mudrak.
(Decl. of Murray ¶ 13.)
Ultimately, Leidos did not find a violation of SH-2
policy because the Wigents, Karwoski, Bailey, and Mudrak agreed
upon a “MSR Organizational Structure” plan in which Plaintiff was
to become a program consultant to the MSR program. (Pl.’s Dep.
65:5-66:14 & Ex. 5; Def.’s CSF Exs. 3-4.) Under the MSR
Organizational Structure plan, Plaintiff would also not receive
work assignments from her husband, and she would work in future
program development, rather than current project execution.
(Pl.’s Dep. Ex. 5.) Although the Wigents’ supervisors and Leidos’
Human Resources representative approved the plan, they stated
that “[i]f the business circumstances change, we will need to
revisit the issue.” (Def.’s CSF Exs. 3-4.)
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From 2005 to 2008, Plaintiff and her husband continued
to work on the same project but in separate divisions and under
different management chains. (Def.’s CSF at 4, ¶ 14; Pl.’s CSF at
1, ¶ 14.) During this time, Plaintiff also worked on a project
that her husband was not assigned to: the Unmanned Test Bed.
(Pl.’s Dep. 39:24-40:9, 56:22-24.)
E.
2008 and 2009 Assessments
In 2007, Plaintiff began working on the PRITEC project
where her husband was the PM. (Def.’s CSF at 5, ¶ 15; Pl.’s CSF
at 1, ¶ 15.) On October 29, 2008, Leidos conducted an assessment
of Plaintiff and her husband’s working relationship. (Pl.’s Dep.
Ex. 6; Pl.’s CSF Ex. M.) The assessment report was prepared by
Mudrak, Plaintiff’s division supervisor, and sent to Iva Heflin
(Leidos’ Human Resources Manager) and Reed Heddleston (Leidos’
Operations Manager). (Id.)
In the October 2008 assessment report, Mudrak found
that the Wigents’ working relationship did not violate SH-2
because there was no direct or indirect supervisory relationship
between Plaintiff and her husband, as defined by SH-2. (Id.)
Specifically, Mudrak found that there was no direct supervisory
relationship because (1) Plaintiff was a consultant on PRITEC and
did “not receive specific tasking or work under direct
supervision from Mark”;(2) Plaintiff’s role on PRITEC was, “by
its very nature, independent of the program execution work being
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directed by Mark”; (3) Mark did “not direct or provide any
inputs” to Plaintiff’s assignments or reviews; and
(4) on all
non-PRITEC projects, Plaintiff had no “programmatic link” to the
work her husband was doing. (Id.) Mudrak further determined that
there was no indirect supervisory relationship because “[w]hile
Mark is the PM on PRITEC[,] he has no responsibilities that
impact [Plaintiff] within Division[] 1548. . . All indirect
matters regarding [Plaintiff] are dealt with by [Plaintiff’s
immediate supervisor] or me.” (Id.)
Accordingly, Mudrak concluded that there was “no direct
supervision and no indirect supervision issues regarding Policy
SH-2 that are applicable to the particular situation.”
(Id.) (emphasis in original.) Mudrak further stated that he “will
make certain that position and role assignments in the future are
carefully reviewed” in the context of SH-2, prior to any changes
to the Wigents’ work assignments. (Id.)
On November 30, 2009, Mudrak completed an additional
assessment report on whether the Wigents’ working relationship
violated SH-2. (Def.’s CSF Ex. 5.) The results of the assessment
report were sent to Heddleston and Angela Marquez, Leidos’ Human
Resources Manager. (Id.) For virtually the same reasons as those
listed in the 2008 assessment report, Mudrak found that there was
no violation of the SH-2 policy because there was no direct or
indirect supervisory relationship between Plaintiff and her
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husband. (Id.)
Consequently, Plaintiff continued to work on PRITEC and
another project from 2007 through 2010, both with her husband as
PM. (Def.’s CSF at 5, ¶ 18; Pl.’s CSF at 2, ¶ 18.) Plaintiff was
considered a consultant to those projects, not subject to the
direction of the PM. (Id.) Her work on Mark’s projects included:
external customer interface and demonstrations; creating and
keeping program documentation; and assisting the customer with
any documentation they may need for annual reports or briefings.
(Id.)
Plaintiff asserts that the 2008 and 2009 reports only
focus on the structural separation between the two divisions in
which she and her husband worked, and do not place any
significance in the amount of time she spent on a project in
which her husband was the PM. (Decl. of Pl.
¶¶ 20-21.) Plaintiff
states that around the time Leidos performed the 2008 and 2009
assessments, she charged at least ninety percent of her time to
Mark’s PRITEC project. (Id. ¶¶ 21-22.) Leidos admits that “from
2008 to her removal from the PRITEC contract in 2011, Plaintiff
charged 90 - 100 % of her time to projects in which Mark Wigent
was the Project Manager.” (Pl.’s CSF Ex. H at 4-5.)
F.
2011 Assessment
From January to mid-March 2011, Leidos conducted an
assessment of the working relationship between Plaintiff and her
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husband. (Def.’s CSF Ex. 7.) The investigation into the Wigents’
working relationship was triggered by Edwin Foreman, Mark’s
division manager, who questioned Mark’s submission of a budget
proposal for a project called “EQDR.” (Id. Ex. 6.) Leidos
contends that “Mark included Plaintiff on a staffing plan for the
PRITEC program” and, as a result, Foreman reported to HR a
potential violation of SH-2. (Def.’s CSF at 5, ¶ 19.) According
to Plaintiff, her name had been placed on the EQDR proposal to
merely represent the need in the budget for a systems engineer.
(Decl. of Pl. ¶ 30.)4/ In other words, Plaintiff asserts that her
4/
Leidos objects to Plaintiff’s statement in her declaration
that her name had been placed on the EQDR proposal to merely
represent the need in the budget for a systems engineer as being
self-serving and uncorroborated. (Def.’s Obj.’s at 3, ¶ 19.)
Citing Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061
(9th Cir. 2002), Leidos makes similar objections to numerous
other statements in Plaintiff’s declaration and her and her
husband’s depositions. (Reply at 1-2.) In Villiarimo, the Ninth
Circuit held that it “has refused to find a ‘genuine issue’ where
the only evidence presented is ‘uncorroborated and self-serving’
testimony.” Villiarimo, 281 F.3d at 1061. However, in S.E.C. v.
Phan, 500 F.3d 895, 909-10 (9th Cir. 2007), the Ninth Circuit
explained that the declaration in Villiarimo “included facts
beyond the declarant’s personal knowledge and ‘provided no
indication how she knows these facts to be true.’” Id. (citing
Villiarimo, 281 F.3d at 1059 & n. 5, 1061) (alterations omitted).
Citing United States v. Shumway, 199 F.3d 1093, 1104 (9th Cir.
1999), the Phan court further held that
[i]n most cases, consequently, that an
affidavit is selfserving bears on its
credibility, not on its cognizability for
purposes of establishing a genuine issue of
material fact. Only in certain instances such as when a declaration states only
conclusions, and not such facts as would be
admissible in [continued on next page]
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name was a “placeholder” and that the placement of her name on
the proposal did not mean that she would be assigned work on the
project. (Id.) Plaintiff further asserts that the amount of work
her husband allocated on the EQDR proposal for the particular
systems engineer represented by her name was approximately five
percent of the total budget for the project. (Id.)
The 2011 assessment report was prepared by Jim Murray
(Leidos’ Vice President of Human Resources), Foreman, and Sergio
Nirenberg (Plaintiff’s supervisor). (Def.’s CSF Ex. 7.) The
report provides, in relevant part:
Background. During a recent proposal effort
(EQDR), Mark, as the Program Manager,
included [Plaintiff] in the staffing plan
which raised concerns about a potential
conflict with the SH-2 policy. This concern
was raised by Division Manager Ed Foreman.
Given the recent SAIC reorganization and the
concerns raised by Ed Foreman, a reassessment
of the possible nepotism issues regarding the
evidence, - can a court disregard a
selfserving declaration for purposes of
summary judgment.
Phan, 500 F.3d at 909 (citing Shumway, 199 F.3d at 1104)
(internal quotation marks and alterations omitted).
Pursuant to Phan, this Court can consider Plaintiff’s statement
that her name was a “placeholder” on the EQDR proposal because
she provides detailed facts in support, and her statement is
based on personal knowledge. Regarding Leidos’ numerous other
objections, the Court will address a specific objection if the
Court relies on disputed statements in Plaintiff’s declaration
(or her and her husband’s depositions) when making its summary
judgment determinations.
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relationship between [Plaintiff] & Mark is
recommended to ensure compliance with SAIC
policy SH-2 and to ‘prevent potential
conflicts of interest and/or allegations of
favoritism or sexual harassment.’
[Plaintiff] and Mark Wigent are married.
. . .
Direct Supervision Discussion. Although
Mark’s responsibilities do not include
conducting [Plaintiff’s] performance or
salary reviews, approving her timecards or
expense reports, he does manage the overall
work of the program, he may be assigning work
to [Plaintiff] and he may affect
[Plaintiff’s] employment if there was a
funding reduction on the program.
Indirect Supervision Discussion. Mark has
overall Program Management responsibility
over the programs that [Plaintiff] works. All
of [Plaintiff’s] work is in support of two
programs on which Mark is the PM (PRITEC and
DCDS). In previous SH-2 assessments,
[Plaintiff] was working under TENA and not
exclusively under PRITEC. The policy lists
‘program management’ as an indirect
supervision area.
Conclusion: It is management and HR’s
conclusion that there is a violation of SH-2
in the area of indirect supervision and
potentially in the area of direct
supervision. Management, in conjunction with
HR, needs to address the working relationship
to comply with the SH-2 policy.
(Id.) (emphasis in original).
Leidos contends that the 2011 assessment revealed that
Plaintiff’s involvement on her husband’s projects “was more
extensive than was previously realized.” (Def.’s CSF at 5, ¶ 20.)
Plaintiff asserts that Leidos’ HR personnel, the divisions, and
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the division managers were “fully aware of the extent to which
Plaintiff worked on Mark’s projects.” (Pl.’s CSF at 2, ¶ 20.)
Plaintiff further asserts that there had been no changes to the
Wigents’ working relationship, the structure established by
Leidos to comply with SH-2, or the nature of the Wigents’ work
since the previous 2005, 2008 and 2009 assessments. (Decl. of Pl.
¶ 32.)
Following the 2011 assessment report, Leidos’
supervisors and HR discussed various alternatives for
restructuring the Wigents’ jobs in order to rectify the violation
of SH-2. (Def.’s CSF at 6, ¶ 22; Pl.’s CSF at 2, ¶ 22.) On March
28, 2011, via teleconference, the Wigents, Foreman, Roger Medd
(Mark’s immediate supervisor), Nirenberg, Alicia Larosa-Lowe
(Leidos’ Senior Human Resources Generalist), and Murray discussed
the best course of action to avoid a direct or indirect
supervisory relationship. (Def.’s CSF Ex. 9.) Murray suggested
having Plaintiff’s husband step down as PM; but Mark “indicated
that it didn’t make sense for him to not be the PM on the
project.” (Id.) As a result, Leidos decided to remove Plaintiff
from PRITEC effective April 5, 2011. (Id.) Nirenberg and Leidos’
HR personnel stated during the March 28, 2011 teleconference
meeting that they would help “redeploy” Plaintiff. (Id.)
On April 5, 2011, Plaintiff was removed from PRITEC and
notified that if she was unable to find another position she
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would eventually have to be laid-off from the company. (Def.’s
CSF at 6, ¶ 25; Pl.’s CSF at 2, ¶ 25.)5/ A few weeks later, on
April 20, 2011, Plaintiff sent a letter to Leidos through her
legal counsel stating her belief that being removed from PRITEC
was unlawful and in violation of Hawaii’s antidiscrimination law.
(Pl.’s Dep. Ex. 10.)
G.
Asserted Attempts to Restructure Plaintiff’s
Employment
Leidos contends that, around April 2011, Plaintiff was
asked if she would consider transferring to another location,
which she declined. (Def.’s CSF at 7, ¶ 27.) Leidos further
contends that in April and May 2011 Nirenberg (Plaintiff’s
supervisor) contacted the other program managers in his division
and inquired whether there was work for her in those programs.
(Def.’s CSF at 7, ¶ 28.) Nirenberg states in his declaration that
due to both the location and Plaintiff not being a software
developer, he was unable to find any work for her on these other
programs. (Declaration of Sergio Nirenberg (“Nirenberg Decl.”) ¶
8.) Nirenberg further states that between April and August 2011
he worked with Plaintiff to respond to a proposal in which
Plaintiff would have had full-time work as the systems engineer
5/
From April 5, 2011, to December 2, 2011, the official date
of her separation from employment with Leidos, Plaintiff was
placed on “overhead” and received the same salary and benefits as
she had prior to removal from PRITEC. (Def.’s CSF at 8, ¶ 34;
Pl.’s CSF at 2, ¶ 34.)
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on another project; however, Leidos did not win the contract for
that project. (Id. ¶ 9.)
Plaintiff disputes Leidos’ contentions and asserts that
“[o]ther than vaguely asking if I would be interested in working
‘part-time’ [Nirenberg] did not contact me about specific and
available jobs.” (Decl. of Pl. ¶ 58.) Plaintiff further notes
that Leidos did not attempt to place her on the “redeployment
list” until after she was informed of her termination of
employment from Leidos on November 4, 2011. (Decl. of Murray ¶
26.) According to Plaintiff, the “redeployment list is shared
with managers and departments who are [in] need of employees
currently employed but without ‘coverage.’” (Id. ¶ 57.)6/ At the
April 21, 2014 hearing, Leidos conceded that the company should
have placed Plaintiff on the redeployment list following her
removal from PRITEC. (Rough Transcript at 46.)
Plaintiff stated during her deposition that she had
access to internal job postings on the company’s website in 2011,
but she did not apply to any job listings on the website or
discuss her resume or job options with Leidos’ HR personnel.
(Pl.’s Dep. 121:7-16; 135:21-138:1; 197:16-198:20.) Plaintiff
further stated that she submitted an updated resume to the
6/
Neither party fully explains the meaning of the phrase
“without coverage.” However, construing all inferences in favor
of Plaintiff, it appears that a Leidos employee is “without
coverage” when the employee is not assigned to any program or
project but nevertheless remains employed with the company.
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company website and regularly reviewed the website, but found no
positions that could be performed from her home in Kauai. (Id.
139:18-141:4.)
On June 29, 2011, Nirenberg spoke with Plaintiff’s
husband about stepping down as PM in order to eliminate any
potential violations of SH-2. (Def.’s CSF Ex. 13.) The following
day, on June 30, 2011, Mark sent an email to Nirenberg stating
that he declined to step down from his PM position. (Id.)
In August 2011, Nirenberg asked Plaintiff if she would
consider working part-time in a marketing position. (Pl.’s Dep.
171:19-172:17; Decl. of Nirenberg ¶ 12.) On August 3, 2011, via
email, Plaintiff declined the part-time offer and stated the
following:
I believe that the reason stated by SAIC for
not permitting me to continue in my position,
violation of Policy SH-2, is unlawful.
Therefore, I ask that SAIC permit me to
continue working in the position for which I
was hired, with the same terms and
conditions.
(Def.’s CSF Ex. 14.) Plaintiff asserts that, in response to her
August 3, 2011 email, Nirenberg told her that HR was going to
begin the lay-off process. (Pl.’s Dep. 172:12-17.)7/ Plaintiff
7/
Leidos objects to Plaintiff’s statement that Nirenberg told
her that HR was going to begin the lay-off process as being selfserving and uncorroborated. (Def.’s Obj.’s at 6, ¶ 31.) However,
contrary to Leidos’ contention, Plaintiff’s statement is somewhat
corroborated by the record. Specifically, the record indicates
that after Nirenberg received Plaintiff’s August 3, 2011 email,
he sent an email on the same day to [continued on next page]
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further asserts that her husband offered to step down as PM in
August 2011, but Leidos still continued with the lay-off process.
(Decl. of Pl. ¶ 59.)8/
On November 4, 2011, Leidos issued a Notice of Lay-off
to Plaintiff. (Def.’s CSF at 8, ¶ 36; Pl.’s CSF at 2, ¶ 36.)
Plaintiff was given the option to terminate her employment on
December 2, 2011, or take leave without pay for four extra weeks
(until December 30, 2011) in order to remain covered under her
benefit plans and seek any available positions within Leidos.
(Def.’s CSF Ex. 15.) Plaintiff chose the first option. From
November 11, 2011, to November 29, 2011, Plaintiff was placed on
Leidos’ redeployment lists. (Def.’s CSF at 8, ¶ 37; Pl.’s CSF at
2, ¶ 37.) Plaintiff was officially separated from employment with
Leidos on December 2, 2011. (Def.’s CSF at 8, ¶ 38; Pl.’s CSF at
2, ¶ 38.)
Murray “suggest[ing] [that] we present her with a lay off letter
with the 4 week time period starting next Monday.” (Def.’s CSF
Ex. 14.) Even assuming (but not finding) Exhibit 14 of
Defendant’s CSF does not corroborate Plaintiff’s statement, the
Court determines that it may still consider Plaintiff’s statement
because it is not conclusory and is based on her personal
knowledge. See Phan, 500 F.3d at 909-10.
8/
Leidos also objects to Plaintiff’s statement in her
declaration that Mark proposed to step down as PM in August 2011
as being self-serving and uncorroborated. (Def.’s Obj.’s at 3, ¶¶
23-24.) As discussed in Part II(B)(4) of the Discussion section
of this Order infra, the Court finds that this allegation may not
be considered because it was neither plead in the complaint nor
raised administratively. Accordingly, the Court need not address
Leidos’ objection.
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H.
Plaintiff’s Allegations of Discrimination
Plaintiff asserts that her and her husband’s working
relationship that Leidos claimed violated SH-2 had not only been
condoned by, but created by, the company for its benefit; and
that it had been approved by the company’s HR department in 2005,
2008, and 2009. (Decl. of Pl. ¶¶ 25, 31-32, 41.) According to
Plaintiff, Leidos applied SH-2 differently to non-married closely
related employees and permitted them to continue working without
penalty. (Id. ¶¶ 66-70.) Plaintiff also asserts that Plaintiff
retaliated against her and her husband for complaining about the
alleged marital status discrimination. (Compl. at ¶¶ 37-40, 4246.)
On July 7, 2011, Plaintiff filed a “Pre Complaint
Questionnaire” with the Hawaii Civil Rights Commission (“HCRC”).
(Decl. of Pl. ¶ 46.) On September 24, 2011, Plaintiff filed a
formal Charge of Discrimination with the HCRC alleging marital
status discrimination and retaliation in violation of H.R.S. §
378-2. (Pl.’s Dep. Ex. 14.) After her termination, Plaintiff
filed an Amended Charge of Discrimination on January 13, 2012,
adding to her original charge “the fact that she has been laidoff from SAIC.” (Pl.’s CSF Ex. E.)
STANDARD
A party may move for summary judgment on any claim or
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defense - or part of a claim or defense - under Federal Rule of
Civil Procedure (“Rule”) 56. Summary judgment “should be granted
‘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.’” Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th
Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). Under Rule 56, a
“party asserting that a fact cannot be or is genuinely disputed
must support the assertion,” either by “citing to particular
parts of materials in the record” or by “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1).
The substantive law determines which facts are
material; “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). “The mere existence of
some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.”
Scott v. Harris, 550 U.S. 372, 380 (2007) (citation omitted)
(emphasis in original).
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A genuine issue of material fact exists if “a
reasonable jury could return a verdict for the nonmoving party.”
United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012)
(quoting Anderson, 477 U.S. at 247). Conversely, “[w]here the
record taken as a whole could not lead a rational trier of fact
to find for the nonmoving party, there is no genuine issue for
trial.” Scott, 550 U.S. at 380.
The moving party has the burden of persuading the court
as to the absence of a genuine issue of material fact. Avalos v.
Baca, 596 F.3d 583, 587 (9th Cir. 2010).9/ If the moving party
satisfies its burden, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th
Cir. 2010). The nonmoving party must present evidence of a
“genuine issue for trial,” Fed. R. Civ. P. 56(e), that is
“significantly probative or more than merely colorable.” LVRC
Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)
(citation omitted). Summary judgment will be granted against a
party who fails to demonstrate facts sufficient to establish “an
9/
When the party moving for summary judgment would bear the
burden of proof at trial, the movant must present evidence which
would entitle it to a directed verdict if the evidence were to go
uncontroverted at trial. Miller v. Glenn Miller Prods., 454 F.3d
975, 987 (9th Cir. 2006) (citation omitted). In contrast, when
the nonmoving party would bear the burden of proof at trial, the
party moving for summary judgment may meet its burden by pointing
out the absence of evidence from the nonmoving party. Id.
(citation omitted).
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element essential to that party’s case and on which that party
will bear the burden of proof at trial.” Parth v. Pomona Valley
Hosp. Med. Ctr., 630 F.3d 794, 798-99 (9th Cir. 2010) (citation
omitted).
When evaluating a motion for summary judgment, the
court must “view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment
motion.” Scott v. Harris, 550 U.S. 372, 378 (2007). The court may
not, however, weigh conflicting evidence or assess credibility.
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008).10/ Accordingly,
if “reasonable minds could differ as to the import of the
evidence,” summary judgment will be denied. Anderson, 477 U.S. at
250–51.
DISCUSSION
I. Plaintiff’s H.R.S. § 378-2(1) Marital Status Discrimination
Claim
In her first claim, Plaintiff alleges that Leidos
10/
Nonetheless, a “conclusory, self-serving affidavit” that
lacks detailed facts and supporting evidence may not create a
genuine issue of material fact. F.T.C. v. Neovi, Inc., 604 F.3d
1150, 1159 (9th Cir. 2010). Moreover, “[w]hen opposing parties
tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.” Scott,
550 U.S. at 380. “The general rule in the Ninth Circuit is that a
party cannot create an issue of fact by an affidavit
contradicting his prior deposition testimony.” Yeager v. Bowlin,
693 F.3d 1076, 1080 (9th Cir. 2012).
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discriminated against her on the basis of her marital status in
violation of H.R.S. § 378-2(1). (Compl. at ¶¶ 31-36.) H.R.S. §
378-2 provides in pertinent part:
(a) It shall be an unlawful discriminatory
practice:
(1) Because of. . . marital status. . .
(A) For any employer to refuse to hire or
employ or to bar or discharge from
employment, or otherwise to discriminate
against any individual in compensation or in
the terms, conditions, or privileges of
employment[.]
H.R.S. § 378-1 defines “marital status” as “the state of being
married or being single.”
The Hawaii Supreme Court has stated that, when
addressing employment discrimination claims brought under H.R.S.
§ 378-2, the courts look to “interpretation of analogous federal
laws by the federal courts for guidance.” Schefke v. Reliable
Collection Agency, Ltd., 96 Haw. 408, 425 (Haw. 2001) (citing
Shoppe v. Gucci America, Inc., 94 Haw. 368, 377 (Haw. 2000)).
Although Title VII of the 1964 Civil Rights Act does not include
“marital status” in its list of protected categories covered by
the federal antidiscrimination statute, see 42 U.S.C. § 2000e-2,
Hawaii courts in construing H.R.S. § 378-2 have analyzed federal
court decisions involving other types of employment
discrimination claims. See Shoppe, 94 Haw. at 378-81 (analyzing
H.R.S. § 378-2 age discrimination claim under federal law); Sam
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Teague, Ltd v. Hawaii Civil Rights Comm’n, 89 Haw. 269, 281 (Haw.
1999) (analyzing H.R.S. § 378-2 sex discrimination claim under
federal law); Furukawa v. Honolulu Zoological Soc’y, 85 Haw. 7,
12-14 (Haw. 1997) (analyzing H.R.S. § 378-2 race discrimination
claim under federal law). Accordingly, this Court will examine
federal cases under Title VII in order to analyze Plaintiff’s
H.R.S. § 378-2(1) marital status discrimination claim.
The Ninth Circuit has held that a plaintiff may
establish her Title VII case by “simply produc[ing] direct or
circumstantial evidence demonstrating that a discriminatory
reason more likely than not motivated [the employer].” McGinest
v. GNE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). Direct
evidence is evidence “which, if believed, proves the fact of
discriminatory animus without inference or presumption.” Coghlan
v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir. 2005). Such
evidence is usually composed of “clearly sexist, racist, or
similarly discriminatory statements or actions by the employer.”
Id. In contrast, circumstantial evidence constitutes “evidence
that requires an additional inferential step to demonstrate
discrimination.” Id. at 1095. A plaintiff’s circumstantial
evidence must be both specific and substantial in order to
survive summary judgment. Becerril v. Pima Cnty. Assessor's
Office, 587 F.3d 1162, 1163 (9th Cir. 2009) (citing Bergene v.
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Salt River Project Agr. Imp. And Power Dist., 272 F.3d 1136, 1142
(9th Cir. 2001)).
Alternatively, in order to evaluate the evidence in an
orderly way, federal courts may use the burden-shifting framework
of McDonnell Douglas Corp v. Green, 411 U.S. 792 (1973), to
analyze Title VII employment discrimination claims. Hawn v.
Executive Jet Management, Inc., 615 F.3d 1151, 1155 (9th Cir.
2010); see Hac v. University of Hawaii, 102 Haw. 92, 101 (Haw.
2003) (“This court has adopted the McDonnell Douglas analysis in
HRS § 378-2 discrimination cases.”) and Schefke, 96 Haw. at 441
(adopting a three-prong test for § 378-2(1) claim and noting that
it “is consistent with the McDonnell Douglas framework this court
has followed in Shoppe, Sam Teague, and Furukawa”); see also
Shoppe, 94 Haw. at 378-81; Sam Teague, 89 Haw. at 279; Furukawa,
85 Haw. at 12-14.
A. Direct Evidence: Whether SH-2 is Per Se
Discriminatory
Although they have differing interpretations of its
impact, both parties acknowledge that the Hawaii Supreme Court’s
decisions in Ross v. Stouffer Hotel Co. (Hawaii) Ltd., Inc., 72
Haw. 350 (Haw. 1991) (“Ross I”) and Ross v. Stouffer Hotel Co.
(Hawaii) Ltd., Inc., 76 Haw. 454 (Haw. 1994) (“Ross II”)
(collectively “the Ross cases” or “the Ross decisions”) are the
leading (and only) Hawaii cases directly addressing H.R.S. § 3782(1)’s prohibition on marital status discrimination.
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In the Ross cases, Stouffer Hotels terminated Harvey
Ross as a massage therapist at Waiohai Resort on Kauai after
determining that his wife, the principal massage therapist and
Harvey’s direct supervisor, could not work in the same department
due to the company’s “no-relatives policy.” Ross, 72 Haw. at 351.
That policy prohibited persons related by blood or marriage from
working in the same department. Id. With respect to married
couples, the policy stated that if the couple married “after
being employed. . . one of the two will be asked to transfer or
resign.” Id. The Hawaii Supreme Court concluded “that as a matter
of law, the policy in question of terminating persons who marry
other persons working in the same department violates H.R.S. §
378-2 unless the termination falls within one of the exceptions
in H.R.S. § 378-3.” Id. at 354.
Pursuant to the Ross decisions, it appears that SH-2
constitutes direct evidence of per se discrimination unless one
of the exceptions under H.R.S. § 378-3 applies.11/ Like Stouffer
11/
Neither party briefed whether one of the exceptions in
H.R.S. § 378-3 applies in this case. However, at the April 21,
2014 hearing, Plaintiff argued that Leidos failed to meet its
burden of establishing that one of the exceptions in H.R.S. §
378-3 apply. (Rough Transcript at 36-37.) Leidos asserted at the
hearing that SH-2 served “legitimate business purposes.” (Id. at
5.) However, Leidos mischaracterizes the exceptions in H.R.S. §
378-3, which provides in relevant part:
Nothing in this part shall be deemed to:
(2) Prohibit or prevent the establishment and
maintenance of bona [continued on next page]
-25-
Hotels’ no-relatives policy, SH-2 applies to both married couples
and direct relatives. (See Pl.’s Dep. Ex. 2.) While Leidos notes
that SH-2 also applies to employees involved in a “dating
relationship” and to those related by marriage, the difference is
immaterial and disregards that “spouses” are specifically
included on the list of “closely related individuals” subject to
scrutiny under the SH-2 policy.
Furthermore, the policy in the Ross cases prohibited a
married couple from working in the same department. Similarly,
SH-2 essentially bars married couples from working in the same
program or project based on the policy’s broad definition of
“indirect supervision.” Under the indirect supervision provision,
one spouse is prohibited from working on a program or project
where the other spouse has “program management, profit and loss
fide occupational qualifications reasonably
necessary to the normal operation of a
particular business. . . and that have a
substantial relationship to the functions and
responsibilities of prospective or continued
employment;
(3) Prohibit or prevent an employer. . . from
refusing to hire, refer, or discharge any
individual for reasons relating to the
ability of the individual to perform the work
in question[.]
Here, Leidos did not address whether SH-2 is designed to maintain
“bona fide occupational qualifications” or relates to the ability
of its employees to perform work. Accordingly, Leidos fails to
meets its burden of showing that one of the exceptions in H.R.S.
§ 378-3 apply in this case.
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(P&L), or budgetary responsibility.” (Id.) Moreover, SH-2 may be
more restrictive in certain respects than the policy in the Ross
cases. Stouffer Hotels’ no-relatives policy applied only if the
two employees married after they started working at the resort.
With respect to SH-2, a married couple is subject to the policy
even if - as is the case with the Wigents - they were married
prior to their employment with Leidos.
Leidos’ principal argument is that SH-2 “does not
single out married people,” but rather “focuses on the nature of
Plaintiff’s relationship as a closely related individual, and not
simply on her marital status.” (Def.’s Mot. at 21-22) (emphasis
in original.) This very argument was made by the dissent in Ross
II and explicitly rejected by the majority. Ross, 76 Haw. at 45859. Specifically, the majority held that
the dissent remains wedded to the notion that
the definition of marital status contained in
H.R.S. § 378-1 (1985) - ‘the state of being
married or being single’ - unambiguously
permits employers to discriminate against
married persons so long as the discrimination
is based on the ‘identity and occupation of a
person’s spouse’ . . . and not solely on the
fact that he or she is married, regardless of
to whom.
That extremely restrictive reading of the
statute ignores the simple fact of life that
when a person marries, it is always to a
particular person with a particular
‘identity.’ One does not ‘marry’ in some
generic sense, but marries a specific person.
Thus, the ‘identity’ of one’s spouse (and all
of his or her attributes, including his or
-27-
her occupation) is implicitly subsumed within
the definition of ‘being married.’ The two
cannot be separated. It makes no sense,
therefore, to conclude, as the dissent does,
that an employer who discriminates based
on the ‘identity and occupation’ of a
person’s spouse is not also discriminating
against that person because he or
she is married. An employer can’t do one
without the other. Stated otherwise, a
no-spouse policy, by definition, applies
only to the class of married persons.
Consequently, when an employer discharges
an employee pursuant to such a policy,
it necessarily discriminates ‘because of. . .
[the employee’s] marital status[.]’
H.R.S. § 378-2.
. . .
Granted, the ‘identity and occupation’ of
Ross’s spouse was also a contributing cause
of his discharge. That, however, does not
diminish the fact that, but for Ross’s
marital status, he would not have been fired.
Id. (emphasis in original).
The Hawaii Supreme Court’s broad interpretation of
“marital status” in H.R.S. § 378-2 makes clear that the provision
protects not only an employee’s status as married, but also the
“identity and occupation” of that employee’s spouse. Id.
(emphasis added). Although the Ross decisions do not define the
term in detail, it appears that SH-2's “direct supervision” and
“indirect supervision” categories are similar to Ross’s
“occupation.” See Ross, 72 Haw. at 354 (“The problem raised by
the conflict between company policies prohibiting married persons
from working for the same company, or in the same department, or
-28-
in a supervisory/supervisee relationship. . . .”) (emphasis
added). This Court’s reading of Ross’s “occupation” is
“consistent with the overall purpose and design of Part I of
H.R.S. Chapter 378, which. . . defines prohibited discriminatory
conduct in very broad terms and places the burden on the employer
to justify its practices.” Ross, 76 Haw. at 459; see also Kraft,
Inc. v. State, 284 N.W.2d 386, 388 (Min. 1979) (relied upon by
the Ross I court and holding that marital status “embrace[s] the
identity or situation of one’s spouse”) (emphasis added).
The Hawaii Supreme Court in Ross II noted that
“regardless of whether we believe that our construction of the
statute amounts to good or bad public policy, we are constrained
to reaffirm the holding of Ross I.” Ross, 76 Haw. at 459.
Likewise, this Court is constrained to follow the decision of the
Hawaii Supreme Court in Ross II. Accordingly, it appears that SH2 as applied to Plaintiff “violates the plain language and
purpose of H.R.S. § 378-2, unless the termination [or other
adverse action] falls within one of the exceptions in H.R.S. §
378-3.” Id. at 459. Because there is a genuine issue of material
fact as to whether one of the exceptions in § 378-3 applies, the
Court DENIES Defendant’s Motion for Summary Judgment with respect
to Plaintiff’s marital status discrimination claim.
B. Circumstantial Evidence: Whether SH-2 Was
Applied in a Discriminatory Manner
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The Court further concludes that Leidos’ application of
SH-2 to the Wigents in 2011 and Leidos’ finding a violation of
the policy raises a genuine issue of material fact whether they
constitute circumstantial evidence that SH-2 was applied in a
discriminatory manner. Specifically, the record indicates that
Leidos conducted three prior assessments in 2005, 2008, and 2009,
concerning whether Plaintiff and her husband’s working
relationship violated SH-2 and that the Wigents were never found
to have violated the policy. (See Pl.’s CSF Ex. M; Pl.’s Dep. Ex.
5.) Further, the record shows that in 2005 the Wigents and Leidos
agreed upon an organizational structure in which Plaintiff and
her husband were placed in different divisions with separate
supervisory chains of command. (Id.) Plaintiff submits evidence
that the work structure agreed upon by the parties did not
substantially change from 2005 to 2011, when Leidos found that
the Wigents’ working relationship violated SH-2. (Decl. of Pl. ¶¶
16-37.) Plaintiff’s evidence is corroborated by the 2008 and 2009
assessment reports which provide that on all non-PRITEC projects,
Plaintiff had no “programmatic link” to the work her husband was
doing, and, on the PRITEC project, her role was, “by its very
nature, independent of the program execution work being directed
by Mark.” (Pl.’s CSF Ex. M; Def.’s CSF Ex. 5.)
Importantly, the 2011 assessment report stated that in
previous SH-2 assessments Plaintiff was not working “exclusively”
-30-
on programs managed by her husband; and, moreover, the company
admits that from 2008 to 2011 she was billing a minimum of ninety
percent and up to one-hundred percent of her time on projects in
which Mark was the PM. (Pl.’s EX. H. at No. 7.)
Furthermore, the 2011 assessment report stated that the
investigation into the Wigents’ working relationship was
triggered when Mark placed Plaintiff on a budget proposal for the
EQDR project. However, Leidos does not explain why the company
did not simply restructure the Wigents’ working relationship to
avoid a SH-2 violation, as the company had previously done in
2005. Even assuming (but not finding) Leidos could not have
restructured the Wigents’ working relationship, the Court notes
that the amount of work allocated to the systems engineer on EQDR
represented only five percent of the total budget for the
project. Consequently, the Court concludes that Leidos’
application of SH-2 to the Wigents in 2011 and Leidos’ finding a
violation of the policy raises a genuine issue of material fact
whether they constitute circumstantial evidence that the policy
was applied in a discriminatory manner. In other words, like the
Ross cases, it appears “but for” Plaintiff being married to Mark,
she would not have been removed from PRITEC. See Ross, 76 Haw. at
458-59.
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Accordingly, the Court DENIES Defendant’s Motion for
Summary Judgment with respect to Plaintiff’s marital status
discrimination claim.
C. Whether Plaintiff Establishes Marital Status
Discrimination Through the McDonnell Douglas
Burden-Shifting Framework
1. Statutory Framework
Both Plaintiff and Leidos utilize the McDonnell Douglas
framework in analyzing Plaintiff’s marital status discrimination
claim.
For the first step in the McDonnell Douglas burdenshifting framework, Plaintiff must establish a prima facie case
of employment discrimination that “gives rise to an inference of
unlawful discrimination.” Hawn, 615 F.3d at 1156. Plaintiff may
establish a prima facie case based on circumstantial evidence by
showing that (1) she belongs to a protected class, (2) she was
qualified for her position, (3) she experienced an adverse
employment action, and (4) similarly situated individuals outside
her protected class were treated more favorably, or other
circumstances surrounding the adverse employment action give rise
to an inference of discrimination. Id. (citing Peterson v.
Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 2004)).
The Ninth Circuit has held that “the plaintiff in an
employment discrimination action need produce very little
evidence in order to overcome an employer’s motion for summary
-32-
judgment.” Chuang v. Univ. of California Davis Bd. of Trustees,
225 F.3d 1115, 1124 (9th Cir. 2000). “This is because the
ultimate question is one that can only be resolved through a
searching inquiry – one that is most appropriately conducted by a
factfinder, upon a full record.”
Id. (citing Schnidrig v.
Columbia Mach., Inc., 80 F.3d 1406, 1410 (9th Cir. 1996))
(internal quotation marks omitted).
If Plaintiff establishes a prima facie case, “the
burden of production, but not persuasion, then shifts to the
employer to articulate some legitimate, nondiscriminatory reason
for the challenged action.” Hawn, 615 F.3d at 1155.
If Defendant meets this burden, then Plaintiff must
raise “a triable issue of material fact” as to whether
Defendant’s proffered reasons for the adverse employment actions
are “mere pretext for unlawful discrimination.” Id. “[A]
plaintiff’s burden is much less at the prima facie stage than at
the pretext stage.” Id. at 1158.
“A plaintiff can show pretext directly, by showing
that discrimination more likely motivated the employer, or
indirectly, by showing that the employer's explanation is
unworthy of credence.” Vasquez v. Cnty. of Los Angeles, 349 F.3d
634, 641 (9th Cir. 2003). A plaintiff may show pretext through
presenting direct evidence, or by presenting circumstantial
evidence. See Earl v. Nielsen Research, Inc., 658 F.3d 1108, 1113
-33-
(9th Cir. 2011). “To show pretext using circumstantial evidence,
a plaintiff must put forward specific and substantial evidence
challenging the credibility of the employer’s motives.” Vasquez,
349 F.3d at 642.
2. Application
a. Prima Facie Case
Leidos agrees that the first two elements of
Plaintiff’s prima facie case are present here. (Mot. at 24.)
Specifically, Leidos admits that (1) Plaintiff is a member of a
protected class because she is married, and (2) she was qualified
for her position.
Regarding the third element, Leidos asserts that the
only adverse employment action Plaintiff suffered was her
official termination on December 2, 2011. (Mot. at 34.) As
discussed below, the Ninth Circuit “define[s] adverse employment
broadly” and holds that “an action is cognizable as an adverse
employment action if it is reasonably likely to deter employees
from engaging in protected activity.” Ray v. Henderson, 217 F.3d
1234, 1240 & 1243 (9th Cir. 2000). Accordingly, the Ninth Circuit
has found “that a wide array of disadvantageous changes in the
workplace constitute adverse employment actions.” Id. at 1240.
The Court finds that Plaintiff was subject to several
adverse actions in addition to her official separation from
employment with Leidos on December 2, 2011. First, Plaintiff’s
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removal from PRITEC was an adverse action because a reasonable
employee would be deterred from engaging in protected conduct if
the employee knew that it would result in their removal from a
project in which they had been working on for several years.
Second, Nirenberg’s statement to Plaintiff that HR would begin
the termination process is an adverse action because a reasonable
employee would be dissuaded from engaging in protected conduct if
the employee knew that their company would initiate the process
of terminating their employment. Finally, Leidos’ issuance of
the Notice of Lay-off on November 4, 2011, was an adverse action
because courts have consistently held that termination of
employment constitutes an adverse employment action. See, e.g.,
Brooks v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).
Accordingly, the only remaining issue regarding
Plaintiff’s prima facie case is whether similarly situated
individuals outside her protected class were treated more
favorably, or other circumstances surrounding the adverse
employment action give rise to an inference of discrimination.
Hawn, 615 F.3d at 1156.
The Ninth Circuit has held that individuals “are
similarly situated to the plaintiff when they ‘have similar jobs
and display similar conduct.’” Earl, 658 F.3d at 1114 (quoting
Vasquez, 349 F.3d at 641). Although Plaintiff need not show that
other employees were identical to her, she must show that they
-35-
were “similar in material respects.” Id. Materiality depends on
the facts and circumstances of the case. Hawn, 615 F.3d at 1157.
In other words, “[m]ateriality depends on the context and is a
question of fact that cannot be mechanically resolved.” Earl, 658
F.3d at 1114; see also Beck v. UFCW, Local 99, 506 F.3d 874, 885
n. 5 (9th Cir. 2007) (holding that “whether two employees are
similarly situated is ordinarily a question of fact”). The Ninth
Circuit has noted that “it is important not to lose sight of the
common-sense aspect of the similarly situated inquiry. . . It is
not an unyielding, inflexible requirement that requires near oneto-one mapping between employees.” Earl, 658 F.3d at 1115.
(internal quotations omitted).
Here, Plaintiff points to four sets of related, nonmarried employees who were subject to SH-2 assessments around the
same time as the Wigents’ 2011 assessment. (Opp. at 19-22.)
Plaintiff asserts that these non-married relatives had what could
be considered an “indirect supervisory” or “direct supervisory”
relationship but were not penalized by Leidos under SH-2. (Id. at
19.) As it did with the Wigents, Leidos prepared assessment
reports discussing whether these non-married relatives’ working
relationships violated SH-2. (See Pl.’s CSF Ex. L.)
First, on July 9, 2011, Leidos assessed whether the
working relationship between Scott Smith and his son, James
Smith, violated SH-2. (Id. at 1-2.) Leidos stated in the
-36-
Background section that Scott is a Program Manager in Division
212, and James is an Engineering Intern in Division 346. (Id. at
1.) In the same section, Leidos stated that “James does not
presently perform work on programs managed by Scott.” (Id.)
Proceeding to the Indirect Supervision Discussion section, Leidos
noted that “[a]lthough Scott has program management, profit and
loss, or budgetary responsibilities within his programs, James
does not report to Scott nor does he perform work on the programs
that Scott manages.” (Id. at 2.) Leidos further noted that “if
James’ specific skill set is required on a task under any program
that Scott manages, those tasks will be managed by [another
Program Manager].” (Pl.’s CSF Ex. L at 2.) Accordingly, Leidos
concluded that there were no direct or indirect supervision
issues regarding the SH-2 policy that were applicable to the
Smiths’ working relationship. (Id.)
Next, on July 19, 2011, Leidos conducted an assessment
of whether the working relationship between Amy Smith and her
son, Sean Smith, violated SH-2. (Id. at 3-4.) In the Direct
Supervision Discussion, Leidos stated that “Amy Smith is a branch
(line) manager in the Ocean Sciences Research and Development
Division (335 rate pool),” and “Sean, while working within Amy’s
overall chain, is not” supervised by his mother. (Id. at 3.) The
Indirect Supervision Discussion stated that Amy “has program
management, profit and loss, and budgetary responsibilities for
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her projects,” but has no influence over the profit and loss or
budgetary responsibilities of her son’s prospective project. (Id.
at 3.)12/ As such, Leidos concluded that there were no direct or
indirect supervision issues that were applicable to the Smiths’
working relationship. (Pl.’s CSF Ex. L at 4.)
Third, Leidos’ report of June 28, 2011, assessed
whether the working relationship between Susan Harris and her
son, Zachary Harris, violated SH-2. (Id. at 5-6.) In the Direct
Supervision Discussion, Leidos stated that “Susan Harris is a
line manager (program manager) but will not be the line manager
on Zachary Harris’s project and will not be his supervisor.” (Id.
at 5.) In the Indirect Supervision Discussion, Leidos further
stated that “Susan Harris has program management, profit and
loss, and budgetary responsibility for her projects” but “has no
supervisory responsibility over the profit and loss or budgetary
performance of” Zachary’s prospective project. (Id. at 5-6.)
Importantly, however, the assessment report noted that Zachary
was assigned to the “Cedar” project which fell under the “Timber”
contract. (Id. at 6.) Susan was the PM for the Timber contract.
12/
The Court notes that, in the beginning of the report,
Leidos struck out the names “Susan Harris and Zak Harris” and
replaced them with “Amy Smith and Sean Smith.” (Id.) The Court
further notes that the Indirect Supervision Discussion appears to
incorrectly refer to “Zak Harris” rather than “Sean Smith.”
(See Pl.’s CSF Ex. L at 3.) Because the Court must view the facts
and draw reasonable inferences in the light most favorable to
Plaintiff, the Court regards the report (for purposes of this
Motion) as referring to Sean Smith, and not Zak Harris.
-38-
(Pl.’s CSF Ex. L at 6.) As PM on the Timber contract, Susan was
“to act as the liaison to the government COR for issues
pertaining to the contract and programmatic planning activity”
and did not have “cost, schedule and technical performance”
oversight. (Id.) Because the individual PMs were responsible for
these tasks, the report concluded that there were no direct or
indirect supervision issues regarding SH-2 that were applicable
to the Harris’ working relationship. (Id.)
Finally, on August 26, 2011, Leidos conducted an
assessment of whether the working relationship between Daniel
Kilfoyle and his nephew, Alex Kilfoyle, violated SH-2. (Id. at 78.) The Direct Supervision Discussion of the assessment report
provides in relevant part:
Neither Dan nor Alex is a line manager.
Although they report through the same cost
center division, they do so through separate
organizational structures and reporting
lines. . . .
In Dan’s capacity as senior technical staff,
he provides technical leadership on programs
across the EW division. As such, in past
tasks under the Retriever Program in 2010,
Dan provided technical leadership and
direction to engineers assigned to the
program, including Alex.
(Id.) Leidos further noted in the Indirect Supervision Discussion
that neither Daniel nor Alex had “program management[,] profit
and loss, or budgetary responsibility within EW division, Cost
Center 1758, or anywhere else in SAIC.” (Pl.’s CSF Ex. L at 8.)
-39-
Like in previous reports, Leidos concluded that there were no
direct or indirect supervision issues regarding SH-2 that were
applicable to the Kilfoyles’ working relationship. (Id.)
Leidos argues that “none of the employees with whom
Plaintiff seeks to compare herself were ‘similarly situated.’”
(Reply at 5.) (emphasis in original.) Specifically, Leidos
contends that “[u]nlike the Wigents, none of the four employees
with whom Plaintiff compares herself were assigned to the very
project where their employee-relative was the Project Manager.”
(Id. at 6.)
The Court agrees with Leidos that James Smith and his
mother are not “similarly situated” to Plaintiff and her husband.
However, the Court finds that, viewing the evidence in the light
most favorable to her, Plaintiff meets her minimal prima facie
burden by demonstrating that a genuine issue of material fact
exists as to whether three other sets of similarly situated
individuals outside her protected class were treated more
favorably than her and her husband. See Aragon v. Republic Silver
State Disposal Inc., 292 F.3d 654, 659 (9th Cir. 2002) (“The
requisite degree of proof necessary to establish a prima facie
case for Title VII on summary judgment is minimal and does not
even need to rise to the level of a preponderance of the
evidence.”); Sischo-Nownejad v. Merced Cmty. College Dist., 934
F.2d 1104, 1110-11 (9th Cir. 1991) (“[T]he amount [of evidence]
-40-
that must be produced in order to create a prima facie case is
very little.”) (quotation marks omitted).
In particular, Plaintiff points out that Leidos
concluded that there were no direct or indirect supervision
issues regarding Amy and Sean Smith’s working relationship, even
though Sean was “working within Amy’s overall chain.” (Pl.’s CSF
Ex. L at 3.) Leidos in its Reply asserts that Amy was not the PM
on the project to which Sean was assigned. (Reply at 6.) The
assessment report describes Amy as a “branch (line) manager.”
(Id. at 3.) However, in the Direct Supervision Discussion of the
Harris’ assessment report, Leidos appears to describe a “line
manager” as a “program manager.” (See id. at 5.) It is thus
unclear to the Court the extent to which a “branch (line)
manager” differs from a “Project Manager.” Viewing the facts in
the light most favorable to Plaintiff, the Court finds that Sean
was working under Amy’s organizational structure; and Amy had
substantial managerial responsibilities within that structure.
As discussed above, Leidos also found that Susan and
Zachary Harris’ working relationship did not violate SH-2
even though Zachary was working on the Cedar project which “fell
under” the Timber contract, where Susan was PM. (Id. at 6.)
Leidos contends that Susan and Zachary Harris are not similarly
situated to the Wigents because Susan’s role as PM was limited to
that of a government liaison and thus did not have cost,
-41-
schedule, or technical performance oversight of the program her
son was assigned to. (Reply at 7.) However, drawing the facts in
the light most favorable to Plaintiff, the structural separation
between Susan and Zachary does not appear materially different
from the separation between Plaintiff and her husband. Plaintiff
submits evidence that her role on PRITEC was limited to that of a
consultant, and she was in a separate reporting and supervisory
chain from her husband.
The degree of separation between the Wigents and the
Kilfoyles is also similar in this respect. Like the Wigents,
Daniel and Alex Kilfoyle were in “separate organizational
structures and reporting lines.” (Pl.’s CSF Ex. L at 7.)
Furthermore, the Wigents were in completely different divisions
arguably creating an even greater degree of organizational
separation than the Kilfoyles’ working relationship.
Again, taking the evidence as a whole, the Court
finds that Plaintiff meets her minimal prima facie burden by
demonstrating that a triable issue of material fact exists as to
whether Amy and Sean Smith, Susan and Zachary Harris, and Daniel
and Alex Kilfoyle were similarly situated individuals outside
Plaintiff’s protected class and were treated more favorably than
her and her husband. In so finding, the Court rejects Leidos
attempts to impose a strict construction of the “similarly
situated” requirement and force Plaintiff to produce evidence of
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non-relatives employees who were in an identical employment
situation to the Wigents. See Earl, 658 F.3d at 1114 (holding
that the similarly situated inquiry does not require a “one-toone mapping between employees”). The Ninth Circuit only requires
that similarly situated individuals be “similar in all material
respects.” Id. at 1114 (emphasis added). “Material” means
“[h]aving some logical connection with the consequential facts.”
Black’s Law Dictionary, 8th Ed. p. 998 (2004). Plaintiff met her
minimal prima facie burden by submitting evidence of non-married
Leidos employees with some managerial or leadership
responsibilities over a program or project that their relatives
work on.
Even assuming (but not finding) that none of the four
employees with whom Plaintiff compares herself were similarly
situated, the Ninth Circuit holds that the fourth element of
Plaintiff’s prima facie case can be met by showing that
“similarly situated individuals outside her protected class were
treated more favorably, or other circumstances surrounding the
adverse employment action give rise to an inference of
discrimination.” Hawn, 615 F.3d at 1156 (emphasis added). As
indicated hereinbefore, the Court concludes that Leidos’
application of SH-2 to the Wigents in 2011 and Leidos’ finding a
violation of the policy raises a genuine issue of material fact
whether they constitute circumstantial evidence that SH-2 was
-43-
applied in a discriminatory manner.
Accordingly, the Court finds that Plaintiff establishes
the fourth and final element of her prima facie case under either
of Hawn’s alternative requirements.
b. Defendant’s Legitimate, Nondiscriminatory Reasons
Since Plaintiff has established a prima facie case of
marital status discrimination, the burden now shifts to Leidos to
show that its adverse employment actions were taken for
legitimate, nondiscriminatory reasons. Id. at 1155.
Leidos submits that Plaintiff was removed from PRITEC
on April 5, 2011, because the Wigents’ working relationship
violated SH-2; and Mark declined to step down as PM on the
project. Further, Leidos submits that Plaintiff’s employment was
terminated because she turned down a part-time offer and did not
contact HR for help with redeployment; and the company could not
find her any other available position.
Accordingly, the burden now shifts back to Plaintiff to
raise “a triable issue of material fact” as to whether Leidos’
proffered reasons for its employment actions are “mere pretext
for unlawful discrimination.” Hawn, 615 F.3d at 1155.
c. Evidence of Pretext
Plaintiff must establish that Leidos’ reasons for its
employment actions are pretextual by either directly persuading
the Court that a discriminatory reason more likely motivated the
-44-
employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence. Vasquez, 349 F.3d at 641.
Plaintiff attempts to show pretext by arguing that Leidos (1)
deviated from company protocols; (2) gave false explanations for
its employment actions; and (3) “applied policy SH-2 in a
discriminatory manner in 2011 after finding no conflict of
interest in 2004-2005, 2008, and 2009 under the same work
structure it had established for Plaintiff and Mark Wigent.”
(Opp. at 5, 12, and 15.)
First, Plaintiff attempts to show pretext by asserting
that Leidos failed to follow its protocols in (1) placing
employees on the redeployment list upon removal from a program
and (2) continuing to employ engineers despite lacking “coverage”
for them. (Id. at 16.) The Ninth Circuit has found that
deviations from an employer’s protocols may support an inference
of pretext. See Porter v. California Dep’t of Corrections, 419
F.3d 885, 896 (9th Cir. 2004).
Here, Plaintiff submits in her declaration that during
the March 28, 2011 teleconference meeting Nirenberg (Plaintiff’s
supervisor) and Jim Murray (VP of HR) told her that she would be
removed from PRITEC and “immediately” placed on the redeployment
list, but was not actually placed on the list until after she
received her November 4, 2011 termination notice. (Decl. of Pl. ¶
39, 43, 56.) At the April 21, 2014 hearing, Leidos conceded that
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the company should have placed Plaintiff on the redeployment list
following her removal from PRITEC:
THE COURT: You do agree when an employee goes
under no coverage they are meant to be put on
the redeployment list.
MS. ING [Counsel for Leidos]: Yes, but the
other side to that is that the employee needs
to contact HR.
(Rough Transcript at 46.) Although Leidos argues that Plaintiff
needed to contact HR in order to get placed on the redeployment
list, the record indicates that HR was aware that Plaintiff was
“without coverage.” (See Def.’s CSF Ex. 9.) Specifically, the
record shows that Alicia Larosa-Lowe (Senior HR Generalist) was a
participant in the March 28, 2011 teleconference meeting in which
Leidos decided to remove Plaintiff from PRITEC and attempt to
redeploy her. (Id.)
Leidos argues that the only evidence Plaintiff submits
in support of her claim that the company failed to follow its
protocols are “self-serving, conclusory statements.” (Reply at
12.) The Court observes that much of Plaintiff’s evidence is
derived from her declaration and deposition testimony. The Ninth
Circuit has held that “[s]pecific testimony by a single declarant
can create a triable issue of fact,” but that a court “need not
find a genuine issue of fact if, in its determination, the
particular declaration was ‘uncorroborated and self-serving.’”
Neovi, 604 F.3d at 1159 (citing Villiarimo, 281 F.3d at 1061).
-46-
However, as discussed above, the Ninth Circuit in Phan court held
that self-serving declarations can create a genuine issue of
material fact; and that courts can only disregard a self-serving
declaration in certain instances, such as when the declaration is
conclusory or is based on facts beyond the declarant’s personal
knowledge. Phan, 500 F.3d 895, 909-10.
Here, the Court finds Plaintiff’s statement in her
declaration that other engineers continued to be employed despite
losing “coverage” creates a triable issue of material fact as to
whether Leidos failed to follow its protocols. (See Decl. of Pl.
¶¶ 53, 61.) During her deposition, Plaintiff provided the names
of two engineers on Kauai and Maui who remained employed despite
losing coverage. (Pl.’s CSF Ex. B at 206.) Although Plaintiff
could not provide the names of other Leidos employees who
remained employed despite losing coverage, she described which
division these employees worked in and their current employment
status. (Id. at 207.) Accordingly, the Court finds that
Plaintiff’s statement creates a triable issue of material fact
because she provides detailed facts in support of her statement;
and the statement is based on her personal knowledge. See Phan,
500 F.3d at 909-10.
The Court also finds that Plaintiff’s statement that
Leidos failed to place her on the redeployment list following her
removal from PRITEC on April 5, 2011, creates a triable issue of
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material fact as to whether the company failed to follow its
protocols. As indicated above, Leidos admitted at the April 21
hearing that Plaintiff should have been placed on the
redeployment list following her removal from PRITEC, but was only
placed on the list after the company issued her the layoff notice
on November 4, 2011.
Plaintiff also attempts to show pretext by asserting
that Defendant, through Brian Liss (Senior Counsel for Leidos),
made false statements to the Hawaii Civil Rights Commission
regarding the company’s reasons for removing Plaintiff from
PRITEC and misrepresented her employment status to the HCRC.
(Opp. at 13-15.)
On November 3, 2011, Liss sent a position statement
letter to the HCRC in response to Plaintiff’s Charge of
Discrimination. (Pl.’s CSF Ex. C.) Three months later, on
February 16, 2012, Liss sent another position statement letter to
the HCRC in response to Plaintiff’s Amended Charge of
Discrimination. (Pl.’s CSF Ex. E.) In both these letters, Liss
stated that “SAIC concluded that Mr. Wigent exercised direct and
indirect supervision over his wife.” (Pl.’s CSF Exs. C & E.)
However, the Wigents’ 2011 assessment report concluded “that
there is a violation of SH-2 in the area of indirect supervision
and potentially in the area of direct supervision.” (Def.’s CSF
Ex. 7) (emphasis added); (see also Pl.’s CSF Ex. F) (HR document
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indicating that Plaintiff was removed from PRITEC because “there
was a violation of [SH-2] in the area of indirect supervision”.)
Leidos argues that Liss’ statement was not false
because he “quoted directly” from the 2011 SH-2 assessment
report. (Reply at 11.) However, Liss did not quote directly from
the 2011 assessment report; if he had quoted directly from the
report, he would have included the critical word “potentially”
when he stated that Leidos exercised direct supervision over his
wife. (Def.’s CSF Ex. 7.) Moreover, Liss had an additional
opportunity, three months after he filed his original position
statement, to modify the letter and notify the HCRC that Leidos
only found a potential violation of SH-2 in the area of direct
supervision. (See Pl.’s CSF Ex. E.) However, Leidos’ position
statement letter (dated February 16, 2012) again provided that
Mark “exercised direct and indirect supervision over his wife.”
(Id.)13/
The Court observes that in Liss’ November 3, 2011 and
February 16, 2012 letters to the HCRC
- immediately following
his assertion that Mark “exercised direct and indirect
supervision over his wife” - he quoted the full direct
13/
Leidos argued at the April 21 hearing that Liss did not
make a false statement regarding the content of the 2011
assessment report because the agency “had that information before
it.” (Rough Transcript at 24.) The record indicates that Liss
attached the report to a separate letter also sent to the HCRC on
November 3, 2011. (See Pl.’s CSF Ex. D.)
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supervision discussion of the 2011 assessment report.14/
Specifically, Liss stated that
[r]egarding direct supervision, SAIC
concluded that ‘although Mark’s
responsibilities do not include conducting
[Plaintiff’s] performance or salary reviews,
approving her timecards or expense reports,
he does manage the overall work of the
program, he may be assigning work to Shannon
and he may affect [Plaintiff’s] employment if
there was a funding reduction on the
program.’
(Id.) (emphasis added.)
Notwithstanding his quoting of the full direct
supervision discussion, a genuine issue of material fact exists
as to whether Liss’ failure to notify the HCRC that Leidos only
found a potential SH-2 violation in the area of direct
supervision indicates that the company was “dissembling to cover
up a discriminatory purpose.” Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 147 (2000). Indeed, Liss should be
expected to have included such critical information because he
was writing directly to a government agency responsible for
investigating employment discrimination complaints in the state
of Hawaii. See H.R.S. § 368-3 (listing powers and functions of
14/
In the November 3, 2011 and February 16, 2012 position
statements letters, Liss quoted the full direct supervision
discussion of the 2011 assessment report, but omitted the
following language from the Indirect Supervision Discussion: “In
previous SH-2 assessments, Shannon was working under TENA and not
exclusively under PRITEC. The policy lists ‘program management’
as an indirect supervision area.” (See Pl.’s CSF Exs. C & E.)
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HCRC); H.R.S. § 368-11(a) (granting jurisdiction to HCRC to
investigate complaints of unlawful discrimination).
On the other hand, Leidos may argue that the word “may”
used twice in the direct supervision discussion would alert the
reader that it involved a “potential” conclusion; and, further,
that the entire report also was forwarded by a separate letter on
November 3, 2011, so the full language of the report was
available to the HCRC.
Plaintiff also asserts that Liss made misleading
statements regarding her employment status in the company’s
supplemental response letter to Plaintiff’s Charge of
Discrimination, dated November 3, 2011. (Pl.’s CSF Ex. D.) In the
supplemental response letter, Liss stated that
Ms. Wigent’s current employment status is
under review. This review is not yet
concluded, nor has Ms. Wigent received a
formal layoff notice at this point. If no
other work is identified for Ms. Wigent, then
SAIC will issue Ms. Wigent a layoff notice.
SAIC has not yet laid off Ms. Wigent. . . .
(Id.) The Court finds that a reasonable juror could determine
that Liss misrepresented to the HCRC that Leidos, as of November
3, 2011, was still “reviewing” Plaintiff’s status and had “not
yet laid [her] off,” even though the decision had already been
made to terminate her employment with Leidos. Plaintiff provides
several emails, all dated November 1, 2011, indicating that the
decision to layoff Plaintiff was made prior to November 3rd, and
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that Liss on November 1st specifically authorized the decision.
(See Pl.’s CSF Ex. G.) Although he suggests that Leidos was still
attempting to find “other work” for Plaintiff, the November 1
email indicates that Liss knew the company was going to issue her
a layoff notice.
Leidos argues that Liss did not misrepresent
Plaintiff’s employment status because the layoff notice had not
been issued. (Reply at 11.) Although the Court agrees with Leidos
that the effective date of the layoff notice was November 4,
2014, a trier of fact could reasonably interpret Liss’ statement
as suggesting that Leidos was still deliberating whether or not
to layoff Plaintiff. As stated above, Plaintiff submits evidence
that Liss previously authorized the Notice of Lay-off on November
1 and thus was fully aware when he wrote the November 3, 2011
letter to the HCRC that Leidos would issue her a layoff notice.
Because Liss sent the letter on November 3, a mere one day before
the effective day of the layoff notice, being November 4, Liss’
suggestion that Leidos was still reviewing Plaintiff’s status is
highly questionable.
Leidos further argues that Plaintiff’s future
employment status was still undetermined because the layoff
notice provided her with two options prior to her final
termination. (Reply at 11.) Plaintiff was given the option to
terminate her employment on December 2, 2011, or take leave
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without pay until December 30, 2011. (Pl.’s Dep. Ex. 15.) The
latter option allowed Plaintiff to “identify alternative
coverage” within Leidos. (Id.) Nevertheless, viewing all
inferences in favor of Plaintiff, a trier of fact could conclude
that it was questionable as to whether Plaintiff could have
actually acquired another position after Leidos issued her the
Notice of Lay-Off. Consequently, a genuine issue of material fact
exists as to whether Liss’ statements in his supplemental
response, dated November 3, 2011, were misleading and demonstrate
that Leidos was “dissembling to cover up a discriminatory
purpose.” Reeves, 350 U.S. at 147.
Finally, Plaintiff argues that Leidos’ reasons for
finding in 2011 that the Wigents’ working relationship violated
SH-2 are “unworthy of credence” because the company found no SH-2
violation in three previous assessments (2005, 2008, and 2009),
even though Plaintiff and her husband were under the same work
structure. (Opp. at 5-12.) As discussed in Part I(B) of the
Discussion section of this Order supra, the 2011 assessment
report stated that, in previous SH-2 assessments, Plaintiff was
not working “exclusively” on projects where her husband was PM.
Moreover, Leidos admits that “from 2008 to her removal from the
PRITEC contract in 2011, Plaintiff charged 90 - 100% of her time
to projects in which Mark Wigent was the Project Manager.” (Pl.’s
CSF Ex. H No. 7.) Accordingly, a reasonable juror could find that
-53-
Leidos’ explanation is pretextual because Plaintiff was spending
at a minimum ninety percent, and potentially up to one hundred
percent, of her time on her husband’s PRITEC project when Leidos
conducted the 2008 and 2009 assessments, and yet the company
found no SH-2 violation at that time. In other words, Leidos’
failure to apply SH-2 consistently with past assessments could
lead a trier of fact to conclude that its explanation for finding
a SH-2 violation in 2011 is pretextual. See Chuang, 225 F.3d at
1127 (finding that a plaintiff may prove pretext “by showing that
the employer’s proffered explanation is ‘unworthy of credence’
because it is internally inconsistent”).
In addition to the explanation presented in the 2011
assessment report, Leidos offers another reason for its finding
that the Wigents’ working relationship violated SH-2, though
prior assessments found no such violations. According to Leidos,
the 2011 SH-2 assessment was “completed by HR, and HR alone”
whereas the 2005 assessment was done with the assistance of the
Wigents, and the 2008 and 2009 assessments were prepared by
Mudrak (Plaintiff’s supervisor). (Reply at 9-10.) Although Leidos
contends that the 2011 assessment was completed by HR alone, the
assessment report indicates that it was authored by Ed Foreman
(Mark’s supervisor) and Sergio Nirenberg (Plaintiff’s
supervisor), as well as Jim Murray (VP of HR). Moreover, as
Leidos admitted at the April 21 hearing, each prior assessment
-54-
report was approved by HR. (Rough Transcript at 8.)15/ Viewing all
inferences in favor of Plaintiff, a fact-finder could thus
conclude that HR was actively involved in reviewing, and had some
input, into all prior SH-2 assessments.
Leidos further argues that HR made an “unbiased
determination” of Plaintiff and her husband’s working
relationship and notes that the Wigents admitted during their
depositions that “HR had no bias against them.” (Reply at 10 n.
4.) However, Leidos does not argue that Mudrak’s 2008 and 2009
assessments were biased or otherwise not conducted objectively.
As such, a reasonable juror could determine that Leidos’
explanation that the results of the 2011 assessment report
deviated from three prior assessments because “HR alone”
conducted it is unworthy of credence.16/
15/
Leidos further admits that the 2005 assessment was
conducted, in part, by Marjorie Bailey (Leidos’ VP of HR). (Decl.
of Murray ¶ 13.)
16/
Leidos argues that its determination that the
Wigents’ working relationship violated SH-2 was based on Mark
including Plaintiff on a staffing plan for PRITEC. (Mot. at 31.)
However, Plaintiff asserts that her name had been placed on the
staffing plan, or “EQDR” proposal, to merely represent the need
in a budget for a systems engineer, and that the placement of her
name did not mean she would be assigned any work on the project.
Consequently, a genuine issue of material fact exists over
whether the EQDR proposal would actually modify the Wigents’ work
structure sufficient to warrant a finding that Plaintiff and her
husband’s working relationship violated SH-2. Even assuming (but
not finding) the EQDR proposal would modify the Wigents’ work
structure, Leidos does not explain why it could not re-structure
the Wigents’ working relationship to avoid a SH-2 violation, as
it had previously done in 2005. The [continued on next page]
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Taking the evidence as a whole, the Court finds that a
genuine issue of material fact exists as to whether Leidos’
proffered reasons for finding a violation of the Wigents’ working
relationship and removing Plaintiff from PRITEC are pretextual.
See Reeves, 530 U.S. at 148.
Accordingly, the Court finds that Plaintiff has created
a triable issue of material fact concerning discrimination under
the McDonnell Douglas burden-shifting framework and, therefore,
DENIES Defendant’s Motion for Summary Judgment with respect to
Plaintiff’s H.R.S. § 378-2(1) marital status discrimination
claim.
II. Plaintiff’s H.R.S. § 378-2(2) Retaliation Claims
A. Statutory Framework
Plaintiff also brings several retaliation claims under
H.R.S. § 378-2(2). (Compl. ¶¶ 37-40, 42-46.) H.R.S. § 378-2
provides in relevant part:
(a) It shall be an unlawful discriminatory
practice:
. . .
(2) For any employer. . . to discharge,
expel, or otherwise discriminate against any
Court also notes that Mark’s submission of the EQDR proposal
appeared to merely trigger the investigation into the Wigents’
working relationship, and did not form the actual basis for
Leidos finding a SH-2 violation. Finally, Plaintiff submits in
her declaration that the amount of work allocated to the systems
engineer on the EQDR proposal represented only five percent of
the total budget.
-56-
individual because the individual has opposed
any practice forbidden by this part or has
filed a complaint, testified, or assisted in
any proceeding respecting the discriminatory
practices prohibited under this part[.]
Adopting the McDonnell Douglas burden-shifting
analysis, the Hawaii Supreme Court has held that a “retaliation
claim under H.R.S. § 378-2(2) is subject to the following threepart test.” Schefke, 96 Haw. at 426. First, Plaintiff must
establish a prima facie case of retaliation by showing that (1)
she engaged in a protected activity; (2) her employer subjected
her to an adverse employment action; and (3) a causal link exists
between the protected activity and the adverse action. Id.; see
also Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000)
(applying the same three elements for establishing a prima facie
case of retaliation under Title VII, which is analogous to H.R.S.
§ 378-2(2)). If Plaintiff “establishes a prima facie case of
retaliation, the burden shifts to [Defendant] to provide a
legitimate, nondiscriminatory reason for the adverse employment
action.” Schefke, 96 Haw. at 426 (citing Ray, 217 F.3d at 1240;
Shoppe, 94 Haw. at 377). If Defendant “articulates such a reason,
the burden shifts back to [Plaintiff] to show evidence
demonstrating that the reason given by [Defendant] is
pretextual.” Id.
B. Application
1. January and February 2011 Complaints
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Plaintiff’s first retaliation claim arises from alleged
instances of protected activity occurring in January and February
2011. Specifically, Plaintiff asserts that she and her husband
complained to HR in January 2011 after Foreman suggested that
Leidos investigate her work relationship with Mark. (Opp. at 32.)
Plaintiff further asserts that, in response to her and her
husband’s January 2011 complaints, Foreman told Mark that he
likes to “hit hard” and that Plaintiff would “never work again in
Hawaii.” (Opp. at 32.) The record appears to indicate that
Foreman’s comments led Mark to file an ethics complaint against
him. (See Pl.’s CSF Ex. K.) Plaintiff further asserts that she
complained to HR about unfair treatment in February 2011. (Opp.
at 32.) According to Plaintiff, she and her husband’s January and
February 2011 complaints resulted in Mark receiving an
“unsatisfactory/not meeting expectations” performance review and
no pay raise in connection with that review. (Opp. at 32.)17/
17/
Plaintiff argues that the alleged retaliation against Mark
is actionable by her, pursuant to the U.S. Supreme Court’s
decision in Thompson v. North American Stainless, LP, 131 S. Ct.
863 (2011). In Thompson, the Court rejected a categorical rule
that third-party reprisals do not violate Title VII and held that
an employer’s alleged act of firing an employee in retaliation
against the employee’s fiancee who engaged in protected activity,
if proven, constituted unlawful retaliation. Thompson, 131 S. Ct.
at 867-68. Under Thompson, Plaintiff has standing to sue for any
retaliatory acts committed against her because of her husband’s
protected activity. See id. at 868. However, it is unclear if
Plaintiff has standing to sue for retaliatory acts taken against
her husband since he is not a party to this case. The only
adverse action taken against Mark appears to be the negative
performance review and his lack of pay [continued on next page]
-58-
Plaintiff also appears to argue that the January and February
2011 complaints led Leidos to remove her from PRITEC. (Pl.’s Dep.
Ex. 12 at No. 3.)
Leidos asserts that Plaintiff’s Complaint does not
contain any of the above allegations. (Reply at 13.) Leidos
argues that these newly asserted allegations should be barred
because they would prejudice Defendant, contradict Plaintiff’s
deposition testimony, and were not raised administratively. (Id.
at 13-18.)
Federal Rule of Civil Procedure 8(a)(2) requires that
the allegations in a complaint “give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it
rests.” Swierkiewicz v. Sorema N.A., 543 U.S. 506, 512 (2002).
Here, Plaintiff’s Complaint does not allege that she or her
husband engaged in protected conduct in January or February 2011.
(See generally Compl.) Rather, her Complaint alleges that
Plaintiff first engaged in protected activity “[o]n or around
April 2011” and again in August 2011 when she informed Nirenberg
“that she believed the Company’s refusal to assign her to a
project, including PRITEC, violated the law prohibiting marital
raise. As indicated below, the Court finds that Plaintiff’s
retaliation claim arising from alleged instances of protected
activity occurring in January and February 2011 should be barred.
Accordingly, the Court need not address the issue of whether
Plaintiff has standing to sue for any retaliatory acts committed
against Mark in response to the Wigents’ January and February
2011 complaints.
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status discrimination.” (Id. ¶¶ 24, 26.) Both federal and Hawaii
courts have barred plaintiffs from asserting new claims or
theories at the summary judgment stage. See Trishan Air, Inc. v.
Federal Ins. Co., 635 F.3d 422, 435 (9th Cir. 2011) (finding that
district court did not err in dismissing claim premised on
specific provision of aviation insurance policy because it was
not raised in plaintiff’s complaint); Pickern v. Pier 1 Imports
(U.S.), Inc., 457 F.3d 963, 965-66 (9th Cir. 2006) (holding that
the complaint “gave. . . no notice of the specific factual
allegations presented for the first time in [plaintiff’s]
opposition to summary judgment”); Tokuhisa v. Cutter Mgmt. Co.,
122 Haw. 181, 193 (Haw. Ct. App. 2009) (“Even construing. . .
Plaintiffs’ respective complaints liberally, we cannot say that
the complaints included a UDAP claim besides the one alleging
that Cutter marketed and sold insurance in the form of the VTR.”)
Allowing Plaintiff to assert retaliation claims arising from
alleged instances of protected activity occurring in January or
February 2011 would prejudice Leidos because her Complaint did
not provide the company notice of such claims.
Next, as Leidos points out, Plaintiff’s deposition
testimony contradicts her allegations that she engaged in
protected conduct in January and February 2011. Plaintiff
admitted during her deposition that the first time she believed
that Leidos was acting unlawfully was in April 2011, when she
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spoke with Nirenberg to notify him that she was sending a letter
through her attorney stating her removal from PRITEC was in
violation of Hawaii antidiscrimination law. (Pl.’s Dep. 155:9156:10.) Although she had discussions with Leidos’ HR department
in January and February 2011, Plaintiff did not state during her
deposition that she told the company at these meetings that
enforcement of SH-2 violated any federal or state
antidiscrimination law or was otherwise unlawful. (See id. at
155:9-157:18.)
Finally, the Court concludes that Plaintiff was
required to, but failed to, exhaust her administrative remedies.
See French v. Hawaii Pizza Hut, Inc., 105 Haw. 462, 475-77 (Haw.
2004). In French, the Hawaii Supreme Court adopted the standard
articulated by the Ninth Circuit in B.K.B. v. Maui Police
Department, 276 F.3d 1091, 1100 (9th Cir. 2002) for analyzing
whether a plaintiff has exhausted her administrative remedies.
French, 105 Haw. at 476. The B.K.B. court held in relevant part:
We construe the language of EEOC charges with
utmost liberality since they are made by
those unschooled in the technicalities of
formal pleading. The crucial element of a
charge of discrimination is the factual
statement contained therein. Allegations of
discrimination not included in the
plaintiff’s administrative charge may not be
considered by a federal court unless the new
claims are like or reasonably related to the
allegations contained in the EEOC charge. In
determining whether a plaintiff has exhausted
allegations that she did not specify in her
administrative charge, it is appropriate to
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consider such factors as the alleged basis of
the discrimination, dates of discriminatory
acts specified within the charge,
perpetrators of discrimination named in the
charge, and any locations at which
discrimination is alleged to have occurred.
Id. (internal quotations and citations omitted). Here,
Plaintiff’s Charge of Discrimination does not include any
allegations that she complained to Leidos in January or February
2011, or that those complaints led Foreman to threaten that
Plaintiff would never work again in Hawaii and give Mark a
negative performance review. (See Pl.’s CSF Ex. O.) Rather, the
factual statements in her Charge provide that the first time she
informed Leidos of her belief that the company was engaging in
discriminatory conduct was in April 2011. (Id.) Furthermore, the
Charge does not mention Foreman as a “perpetrator of
discrimination.” (Id.)
For the foregoing reasons, the Court GRANTS Defendant’s
Motion for Summary Judgment with respect to Plaintiff’s
retaliation claim arising from alleged instances of protected
activity occurring in January and February 2011.
2. April 2011 Complaint and Letter
During the first week of April 2011, Plaintiff told her
division manager, Sergio Nirenberg, that Leidos was
discriminating against her based on her marital status. (Opp. at
25.) On April 20, 2011, Plaintiff sent a letter through her
attorney expressing her belief that Leidos was engaging in
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unlawful marital status discrimination in violation of H.R.S.
Chapter 378. (Pl.’s Dep. Ex. 10.) Plaintiff asserts that, in
response to her April 2011 complaint to Nirenberg and April 20
letter, Leidos took steps to ensure Plaintiff would not be
redeployed, including not placing her on the redeployment list.18/
Leidos argues that Plaintiff cannot establish the
second element of her prima facie case because the company’s
alleged “failure to find new work for her within Leidos meant
that she remained on [] Leidos’ payroll under ‘overhead.’” (Mot.
at 39.) According to Leidos, “being placed on ‘overhead’ is not
an adverse employment action cognizable under the law.” (Id.)
As discussed above, the Ninth Circuit “define[s]
adverse employment action broadly.” Ray, 217 F.3d at 1240. In
Ray, the court held that “an action is cognizable as an adverse
employment action if it is reasonably likely to deter employees
from engaging in protected activity.” Id. Accordingly, the Ninth
Circuit has found “that a wide array of disadvantageous changes
in the workplace constitute adverse employment actions.” Id. at
1240. “Among those employment decisions that can constitute an
adverse employment action are termination, dissemination of a
18/
Plaintiff does not assert in her Complaint (or deposition
or declaration) that during the March 28, 2011 teleconference
meeting the Wigents raised any concerns that removing her from
PRITEC would violate H.R.S. § 378-2's prohibition on marital
status discrimination (or words to that effect). Thus, it appears
that the Wigents did not engage in any protected activity during
the March 28, 2011 meeting.
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negative employment reference, issuance of an undeserved
performance review and refusal to consider for promotion.” Brooks
v. City of San Mateo, 229 F.3d 917, 928 (9th Cir. 2000).
The parties agree that from April 5, 2011, to December
2, 2011, Plaintiff was placed on “overhead” and received the same
salary and benefits as she had prior to removal from PRITEC.
(Def.’s CSF at 8, ¶ 34; Pl.’s CSF at 2, ¶ 34.) However, the Ninth
Circuit has found that even “a transfer to another job of the
same pay and status may constitute an adverse employment action.”
Ray, 217 F.3d at 1241 (citing St. John v. Employment Development
Dept., 642 F.2d 273, 274 (9th Cir. 1981); see also Yartzoff v.
Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (holding that
“[t]ransfers of job duties and undeserved performance ratings, if
proven, would constitute ‘adverse employment decisions’”). Even
if an employee were to receive the same salary and benefits for
an extended period of time, a reasonable employee would still be
deterred from engaging in protected activity if the employee knew
that it would cause their employer to take steps to ensure that
the employee would not be redeployed.
Leidos also cites several decisions from the Ninth
Circuit and other circuit courts of appeal in support of its
argument that, as a matter of law, placing Plaintiff on
“overhead” was not an adverse action. In Fonseca v. Sysco Foods,
the Ninth Circuit “recognized that an adverse employment action
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exists where an employer’s action negatively affects its
employee’s compensation.” 374 F.3d 840, 847 (9th Cir. 2004)
(emphasis added). However, Fonseca did not address whether an
adverse action exists where - as is the case here - an employer’s
action does not affect an employee’s compensation (e.g.,
employee’s salary remains the same).
Leidos also cites the Ninth Circuit’s unpublished
decision in Jermy v. Jones, 243 F.3d 548, at *1 (9th Cir. 2000);
which referred to a quote in Brooks v. City of San Mateo, 214
F.3d 1082, 1093 (9th Cir. 2000), which stated “transferring an
employee where salary is unaffected do[es] not constitute [an]
adverse employment action[].” Id. (citing Nidds v. Schindler
Elevator Corp., 113 F.3d 912, 919 (9th Cir. 1996)). Neither
Jermy nor Brooks involved a transfer where the employee’s salary
remained unaffected. Rather, the quoted language is based on the
Ninth Circuit’s Nidds decision. In Nidds, an elevator mechanic
asserted that his removal from a service route and transfer to
the restoration department was an adverse action, even though his
compensation remained the same. Nidds, 113 F.3d at 915. While the
Nidds court found that the mechanic’s transfer was not an adverse
employment action; the Ninth Circuit noted in a later case that
Nidds
conducted no analysis to reach this point,
merely asserting that “Although we decline to
view Nidds’ transfer to the restoration
department as an adverse employment action,
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his ultimate termination on July 28, 1992
certainly was.’
. . . Nidds [does not] establish that a
lateral transfer can never be an adverse
employment action. Had [it] done so, [it]
would have had to abrogate this court’s
earlier decisions in Yartzoff and St. John. .
. neither of which were cited in the. . .
Nidds decision[].
Ray, 217 F.3d at 1241 n. 4 (internal citation omitted). Further,
the Court notes that the first Brooks decision was withdrawn and
superseded by Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir.
2000). The second Brooks decision no longer referred to Nidds and
its ruling that the employee’s transfer was not an adverse action
because his compensation remained the same. As such, Leidos’
reliance on Jeremy is misplaced.
Finally, the Second and Eighth Circuit decisions cited
by Leidos are distinguishable from the instant case because these
cases only addressed whether an employer’s decision to place an
employee on administrative leave pending an investigation is an
adverse action. Joseph v. Leavitt, 465 F.3d 87, 91 (2nd Cir.
2006); Singletary v. Missouri Dep’t of Corrections, 423 F.3d 886,
892 (8th Cir. 2005). In this case, Plaintiff was never placed on
“administrative leave,” but rather removed from her position on
PRITEC. Moreover, there was no pending investigation into whether
Plaintiff and her husband’s working relationship violated SH-2;
at the time Leidos removed her from PRITEC, the assessment of the
Wigents’ working relationship was complete. Accordingly, the
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Court finds that failing to redeploy Plaintiff was an adverse
action.19/
The Court also finds that a causal link exists between
the April 2011 complaint and April 20, 2011 letter and Leidos’
alleged decision to take steps to ensure Plaintiff would not be
redeployed, including its failure to place her on the
redeployment list. The Ninth Circuit has held that “causation may
be established based on the timing of the relevant actions.”
Passantino v. Johnson & Johnson Prods., Inc., 212 F.3d 493, 507
(9th Cir. 2000). “Specifically, when adverse employment decisions
are taken within a reasonable period of time after complaints of
discrimination have been made, retaliatory intent may be
inferred.” Id. (citing Yartzoff, 809 F.2d at 1375-76 (finding
causation based on timing of retaliation)); Miller v. Fairchild
Industries, Inc., 885 F.2d 498, 505 (9th Cir. 1989) (holding that
discharges forty-two and fifty-two days after plaintiffs engaged
19/
Leidos also argues that Plaintiff’s allegation that Leidos
refused to reassign her after she complained about discrimination
in April 2011 is based on conclusory allegations; according to
Leidos, Plaintiff offers no evidence in support of her
allegations. (Mot. at 37.) The Court finds that there is a
genuine issue of material fact as to whether Leidos was “actively
looking for ways to keep Plaintiff employed with the company.”
(Id.) In particular, Plaintiff submits in her declaration that
during the March 28, 2011 teleconference meeting Leidos told her
that she would be placed on the redeployment list immediately.
However, as discussed hereinbefore, Leidos conceded at the April
21 hearing that the company should have placed her on the
redeployment list in April 2011 following her removal from
PRITEC, but only placed her on the list after she received the
Notice of Lay-off on November 4, 2011.
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in protected activity were sufficient to establish prima facie
case of causation). However, where the timing between the
protected activity and the adverse employment action occurs after
a sufficiently long period of time, courts have found there to be
no causal link. See Clark County School Dist. V. Breeden, 532
U.S. 268, 273 (2001) (holding that a court may not infer
causation from temporal proximity unless the time between an
employer’s knowledge of protected activity and an adverse
employment action is “very close” in time and citing cases for
the proposition that a three-month and four-month lapse is
insufficient to infer causation).
Here, the temporal proximity between Plaintiff’s April
2011 complaint to Nirenberg and April 20, 2011 letter and Leidos’
failure to redeploy her is sufficient to infer causation.
Specifically, Plaintiff asserts that shortly after she sent the
April 2011 complaint, Nirenberg “asked [her] to look for a
position outside of Hawaii.” (Decl. of Pl. ¶ 44.) Further, and
importantly, Leidos admits that Plaintiff should have been placed
on the redeployment list following her April 2011 complaints of
discrimination, but was only placed on the list from November 11,
2011, to November 29, 2011, and thus after the company issued her
the Notice of Layoff. Moreover, the fact that Nirenberg and HR
were aware of Plaintiff’s allegations of discrimination bolsters
a finding of causation. See Thomas v. City of Beaverton, 379 F.3d
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802, 812 n. 4 (9th Cir. 2004) (“The employer’s awareness of
protected activity is also important in establishing a causal
link.”)
Leidos nevertheless argues that Plaintiff fails to
establish her protected conduct was a “but-for” cause of the
alleged adverse action, pursuant to the U.S. Supreme Court’s
recent opinion in University of Texas Southwestern Medical Center
v. Nassar, 133 S. Ct. 2517, 2534 (2013). In Nassar, a physician
of Middle Eastern descent alleged that a state university with
which his hospital was affiliated revoked a job offer because he
complained that he was racially and religiously harassed by a
superior. Id. at 2524. The Supreme Court held his Title VII
retaliation claim must be established under the traditional
principles of “but-for” causation by showing that the unlawful
retaliation would not have occurred in the absence of the alleged
wrongful actions of his employer. Id. at 2533. The Court found
that there was no but-for causation because the affiliation
agreement between the hospital and the state university precluded
defendant from even making the physician a job offer. Id. at
2532.
In this case, however, Plaintiff submits in her
declaration that Leidos would have attempted to find her a new
program or project if she did not make the April 2011 complaints
of discrimination. In particular, Plaintiff states in her
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declaration that other engineering jobs were available on
Kauai,20/ and that she would have been reassigned to them had she
not complained of marital status discrimination. Furthermore,
Leidos admits that Plaintiff should have been placed on the
redeployment list in April 2011 following her removal from
PRITEC, but was not placed on the list until after she received
the Notice of Lay-Off on November 4, 2011. Accordingly, the Court
finds that there is a genuine issue of material fact as to
whether the “but-for” element has been satisfied.
Since Plaintiff has established a prima facie
retaliation case, the burden shifts to Leidos “to provide a
legitimate, nondiscriminatory reason for the adverse employment
action.” Schefke, 96 Haw. at 426. Here, Leidos submits that the
company attempted to identify work for Plaintiff by, inter alia,
contacting other program managers, but ultimately could not find
her any work. Further, Leidos notes that Plaintiff admitted
during her deposition that she did not approach HR to help her
20/
Leidos objects to Plaintiff’s statement that other
engineering jobs were available on Kauai as being self-serving
and uncorroborated. The Court finds that it can consider
Plaintiff’s statement because she provides detailed facts in
support of her assertion, and her statement was based on personal
knowledge. See Phan, 500 F.3d at 909-10. Specifically, Plaintiff
submits in her declaration that several projects on Kauai including “ANSS” and “NGRC” - had an opening for a systems
engineer, and that she was qualified to perform the work. (Decl.
of Pl. ¶¶ 64-65.)
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with redeployment and did not apply to any positions through the
company’s website.
Consequently, “the burden shifts back to [Plaintiff] to
show evidence demonstrating that the reason given by [Defendant]
is pretextual.” Schefke, 96 Haw. at 426. When considering the
evidence in the light most favorable to Plaintiff, there are
genuine issues of material fact as to whether Leidos’ reasons for
not actively finding Plaintiff work are “unworthy of credence.”
See Vasquez, 349 F.3d at 641.
As discussed hereinbefore, Plaintiff offers sufficient
evidence to raise a genuine issue of material fact about whether
Leidos’ reasons for not actively redeploying her were pretextual.
Specifically, Plaintiff submits in her declaration that shortly
after she sent the April 2011 complaint, Nirenberg told her “to
look for a position outside of Hawaii.” Next, Plaintiff puts
forth evidence of the close temporal proximity between the April
2011 complaints and Leidos’ adverse employment actions. See Bell
v. Clackamas Cnty., 341 F.3d 858, 865 (9th Cir. 2003) (“Temporal
proximity between protected activity and an adverse employment
action can by itself constitute sufficient circumstantial
evidence of retaliation in some cases.”). Finally, and
importantly, Leidos admits that Plaintiff should have been placed
on the redeployment list following her April 2011 removal from
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PRITEC, but was only placed on the list after the company issued
the Notice of Lay-Off on November 4, 2011.
Accordingly, the Court DENIES Defendant’s Motion for
Summary Judgment with respect to Plaintiff’s retaliation claim
that, in response to her April 2011 complaints of discrimination,
Leidos took steps to ensure Plaintiff would not be redeployed.
3. August 3, 2011 Email
On August 3, 2011, Plaintiff sent an email to Nirenberg
expressing her belief that the reason stated by Leidos for not
allowing her to remain in her position was unlawful. (Def.’s CSF
Ex. 14.) Plaintiff asserts that, in response, Nirenberg informed
Plaintiff on August 4, 2011, that HR would begin the termination
process. (Decl. of Pl. ¶ 48.) Plaintiff further asserts that
Leidos ignored Mark’s August 2011 offer to step down as PM.
Preliminarily, as previously discussed, the Court finds
that Plaintiff’s allegation that Leidos ignored Mark’s August
2011 offer to step down as PM should not be considered because it
was neither plead in the complaint nor raised administratively.
Plaintiff’s Complaint alleges that, as a result of her HCRC
Charge, “the Company threatened both Plaintiff and her husband’s
job.” (Compl. ¶ 25-26.) Plaintiff’s Complaint further alleges
that her “termination occurred shortly after she engaged in
protected activity by filing a Charge of Discrimination with the
Hawaii Civil Rights Commission” on September 24, 2011. (Id. ¶
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40.) Consequently, the Complaint did not provide Leidos any
notice that Plaintiff was alleging that the company ignored or
rejected Mark’s offer to step down as PM in retaliation for her
HCRC Charge. See Trishan Air, 635 F.3d at 435; Pickern, 457 F.3d
at 965-66.
Even construing Plaintiff’s HCRC Charge with the
“utmost liberality,” the Court also finds that Plaintiff failed
to exhaust her administrative remedies. See B.K.B., 276 F.3d at
1100. While she marked the box for “retaliation,” Plaintiff’s
HCRC Charge did not contain any factual allegations that Leidos
ignored or rejected Mark’s offer to step down in August 2011.
Further, and importantly, the record indicates that Mark declined
two offers, in March 2011 and June 2011, by Leidos to step down
as PM in order to avoid a SH-2 violation. (Def.’s CSF Ex. 9 &
13.) However, when questioned about these events during her
deposition, Plaintiff did not once mention that Mark offered to
step down as PM in August 2011. Accordingly, the Court finds that
Plaintiff may not raise an allegation that Leidos disregarded her
husband’s August 2011 offer to step down as PM.
Regarding the second element of her prima facie case,
Leidos argues that the only adverse employment action suffered by
Plaintiff was her official separation from Leidos on December 2,
2011. (Mot. at 34.) As discussed above, the Ninth Circuit
“define[s] adverse employment action broadly” and holds that “an
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action is cognizable as an adverse employment action if it is
reasonably likely to deter employees from engaging in protected
activity.” Ray, 217 F.3d at 1243. Here, the Court finds that the
decision to begin the layoff process on August 4, 2011, was an
adverse action because a reasonable employee would likely be
dissuaded from engaging in protected activity if they knew that
their company would begin the process of terminating their
employment. See Burlington Northern & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006).
In addition to meeting the second element of her prima
facie retaliation case, the Court finds that there is a causal
link between Plaintiff’s August 3, 2011 email to Nirenberg and
Leidos’ decision to begin the termination process on August 4,
2011. As noted above, a causal link can be inferred if the
adverse employment decision is taken within a reasonable period
of time after the complaint of discrimination has been made.
Passantino, 212 F.3d at 507. Here, there is very close temporal
proximity between the protected activity and retaliatory conduct:
Leidos’ decision to begin the termination process occurred a mere
one day after Plaintiff complained of unlawful discrimination. In
other words, Leidos’ decision to initiate the layoff process
“follow[ed] on the heels of protected activity.” Suzuki v. State,
119 Haw. 288, 303 (Haw. Ct. App. 2008).
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Moreover, pursuant to Nassar, the Court finds that
there is a genuine issue of material fact as to whether there is
but-for causation between the August 3 complaint and Leidos’
decision to begin the termination process. As discussed above,
Plaintiff submits in her declaration and deposition that other
engineering position were available on Kauai, and that she would
have been reassigned to one of those positions had she not
complained of marital status discrimination. See Nassar, 133 S.
Ct. at 2533. Further, Plaintiff states in her declaration that
she would have been placed on the redeployment list before
November 2011 had she not complained of marital status
discrimination. Id.
Because Plaintiff has established a prima facie of
retaliation, the burden shifts to Leidos “to provide a
legitimate, nondiscriminatory reason for the adverse employment
action.” Schefke, 96 Haw. at 426. In this case, Leidos submits
that Plaintiff rejected Nirenberg’s offer to work part-time; and
the company could not find her any other work. Further, Leidos
notes that Plaintiff admitted during her deposition that she
never contacted HR to help her with redeployment and did not
apply to any positions through the company’s website.
Consequently, “the burden shifts back to [Plaintiff] to
show evidence demonstrating that the reason given by [Defendant]
is pretextual.” Schefke, 96 Haw. at 426. Here, Plaintiff submits
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in her declaration and deposition that several engineering jobs
were available on Kauai. (Decl. of Pl. ¶¶ 63-65.) Further,
Plaintiffs states in her declaration that Nirenberg - other than
asking if she would be interested in working part-time - never
contacted her regarding specific and available work. (Id. ¶ 58.)
Also, Leidos admits that it should have placed Plaintiff on the
redeployment list following her April 2011 removal from PRITEC,
but that she was not placed on the redeployment list until after
the company issued her a layoff notice on November 4, 2011.
(Rough Transcript at 46; Decl. of Murray ¶ 26.)
As such, the Court finds that there is a genuine issue
of material fact as to whether there were any available
engineering positions available for Plaintiff on Kauai. Further,
and importantly, there is a triable issue of material fact as to
whether Leidos’ reason for beginning the termination process was
pretextual because the company admits that it should have placed
Plaintiff on the redeployment list following her removal from
PRITEC, but only placed her on the list after she received her
layoff notice on November 4, 2011.
Accordingly, the Court DENIES Defendant’s Motion for
Summary Judgment with respect to Plaintiff’s retaliation claim
that, in response to her August 3, 2011 email to Nirenberg,
Leidos initiated the termination process.
4. September 24, 2011 HCRC Charge
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Finally, Plaintiff asserts that, in response to her
September 24, 2011 Charge of Discrimination with the HCRC, Leidos
issued her a layoff notice on November 4, 2011. (Opp. at 31.)
The Court finds that Plaintiff establishes all three
elements of her prima facie case. Again, Leidos argues that the
only adverse employment action was her official separation from
Leidos on December 2, 2011. (Mot. at 34.) However, as discussed
above, “an action is cognizable as an adverse employment action
if it is reasonably likely to deter employees from engaging in
protected activity.” Ray, 217 F.3d at 1243. Here, the Court finds
that issuing Plaintiff the Notice of Layoff is an adverse action
because a reasonable employee would be dissuaded from engaging in
protected activity if the employee knew that their company would
give them a layoff notice. See Burlington Northern, 548 U.S. at
68. The Court further finds that a causal link exists between
Plaintiff’s September 24, 2011 HCRC Charge and the November 4,
2011 Notice of Layoff. Here, the adverse action occurred roughly
six weeks after Plaintiff filed the HCRC Charge and, therefore,
the timing alone is sufficient to infer causation. Miller, 885
F.2d at 505 (holding that discharges forty-two and fifty-two days
after plaintiffs engaged in protected activity were sufficient to
infer causation).
Moreover, pursuant to Nassar, the Court finds that
there is a genuine issue of material fact as to whether there is
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but-for causation between the September 24 Charge and Leidos’
issuance of the layoff notice. As discussed above, Plaintiff
submits in her declaration and deposition that other engineering
positions were available on Kauai, and that she would have been
reassigned to one of those positions had she not complained of
marital status discrimination. See Nassar, 133 S. Ct. at 2533.
Further, Plaintiff states in her declaration that she would have
been placed on the redeployment list before November 2011 had she
not complained of marital status discrimination. Id. While Leidos
initiated the lay-off process on August 4, 2011, the Court notes
that Liss represented to the HCRC in his November 3, 2011 letter
to the agency that Plaintiff’s employment status was still under
review.
Since Plaintiff has established a prima facie of
retaliation, the burden shifts to Leidos “to provide a
legitimate, nondiscriminatory reason for the adverse employment
action.” Schefke, 96 Haw. at 426. Here, Leidos submits that the
company could not find any work for Plaintiff. Leidos further
notes that Plaintiff admitted during her deposition that she
never contacted HR to help her with redeployment and did not
apply to any positions through the company’s website.
Consequently, “the burden shifts back to [Plaintiff] to
show evidence demonstrating that the reason given by [Defendant]
is pretextual.” Schefke, 96 Haw. at 426. As indicated above,
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the Court finds that there is a genuine issue of material fact as
to whether there were any available engineering positions
available for Plaintiff on Kauai. Further, and importantly, there
is a triable issue of material fact as to whether Leidos’ reason
for issuing Plaintiff the layoff notice was pretextual because
the company admitted that it should have placed her on the
redeployment list in April 2011 following her removal from
PRITEC, but that she was only placed on the list after she
received the Notice of Lay-Off on November 4, 2011.
Accordingly, the Court DENIES Defendant’s Motion for
Summary Judgment with respect to Plaintiff’s retaliation claim
that, in response to her September 24, 2011 HCRC Charge, Leidos
issued her a Notice of Layoff.
CONCLUSION
For the foregoing reasons, the Court:
(1) GRANTS IN PART AND DENIES IN PART Defendant’s
Motion for Summary Judgment with respect to Plaintiff’s H.R.S. §
378-2(1) claim; and
(2) GRANTS IN PART AND DENIES IN PART Defendant’s
Motion for Summary Judgment with respect to Plaintiff’s H.R.S. §
378-2(2) claims.
IT IS SO ORDERED
DATED:
Honolulu, Hawai#i, May 8, 2014.
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________________________________
Alan C. Kay
Senior United States District Judge
Wigent v. Science Applications International Corp. et al., Civ.
No. 13-00123 ACK-KSC: ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.
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