Morris v. McHugh
Filing
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ORDER Granting 10 Defendant's Motion to Dismiss or in the Alternative For Summary Judgment. Signed by JUDGE ALAN C KAY on 2/4/14. (gab, )CERTIFICATE OF SERVICEParticipants registered to receive electronic noti fications 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 2/5/2014. Modified on 2/4/2014 (gab, ).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
DENNIS K. MORRIS,
Plaintiff,
vs.
JOHN MCHUGH, SECRETARY
DEPARTMENT OF U.S. ARMY,
Defendant.
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Civ. No. 13-00182 ACK-KSC
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS OR IN THE
ALTERNATIVE FOR SUMMARY JUDGMENT
PROCEDURAL BACKGROUND
On April 23, 2013, Plaintiff Dennis Morris (“Plaintiff”
or “Morris”) filed a First Amended Complaint and Summons (“FAC”).
ECF No. 4.
In the FAC, Morris alleges Defendant John McHugh
(“Defendant” or “Army”) in his official capacity as United States
Secretary of the Army discriminated against Morris on the basis
of his age. FAC at 1, ¶ 1.
Specifically, Plaintiff brings the
following claims against Defendant: (1) violation of the Age
Discrimination in Employment Act (“ADEA”) and (2) violation of
Plaintiff’s due process rights under the 5th and 14th Amendments
to the United States Constitution and under 5 U.S.C. §
7701(c)(2)(A). FAC at 24, ¶¶ 70-74.
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Defendant filed the instant Motion to Dismiss or in the
Alternative for Summary Judgment and Motion to Strike Jury Demand
(“Motion” or “Def.’s Mot.”) along with a Concise Statement of
Facts (“Def.’s CSF”) on August 9, 2013. ECF Nos. 10-11.
On
August 13th, 2013, Defendant filed an Errata to correct the
caption to the Motion and remove the portion titled “Motion to
Strike Jury Demand.” ECF No. 13.
The caption was erroneous
because Plaintiff’s FAC does not contain a jury demand and
Defendant’s Motion does not contain an argument to strike a jury
demand. Id. at 2.
On August 21, 2013, Defendant’s Motion was set
for hearing on November 4, 2013. ECF No. 16.
After two joint
requests for continuances, the hearing was eventually moved to
January 23, 2014. ECF Nos. 17, 19 & 23.
On December 27, 2013,
Plaintiff filed his Opposition to Defendant’s Motion (“Pl.’s
Opp.”) along with a Concise Statement of Facts (“Pl.’s CSF”). ECF
Nos. 25-26.
Defendant filed a reply (“Def.’s Reply) on January
9, 2014. ECF No. 31.
This Court held a hearing regarding
Defendant’s Motion on January 23, 2014.
FACTUAL BACKGROUND1/
A.
Morris’s Employment at Fort Shafter
Plaintiff was born on March 17, 1942, and is
1/
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.
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seventy-one years old. FAC at 2, ¶ 4.
After retiring from the
U.S. Army as a Lieutenant Colonel (“LTC”) following 24 years of
service, Plaintiff worked as a Supervisory Operations Officer
with the Army at the Fort Shafter Police Station in Hawaii. Id.
at 3, ¶ 6.
Plaintiff served as an Operations Officer for over 16
years, from September 1991 to April 2008. Id.
Plaintiff received
excellent evaluations for his work and received a Commander’s
Award for civilian service. Id. ¶ 27.
As a Supervisory Operations Officer, Plaintiff was
required under the National Security Personnel System (“NSPS”) to
rate subordinates and submit the ratings to a Pay Pool Panel
(“Panel”) for review. Def.’s CSF at 2, ¶ 3; Pl.’s CSF at 2, ¶ 3.
In October and November 2007, Plaintiff completed annual
performance appraisals for three subordinates under the NSPS. FAC
at 4, ¶ 8.
Plaintiff was required to rate the subordinates using
a five-point scale with five being the highest rating and three
considered an average rating. Id. ¶ 9.
Plaintiff gave all three
subordinates an overall rating of four. Id.
On November 9, 2007, the Panel evaluated Plaintiff’s
annual appraisal ratings for the three employees and determined
that the ratings were unsubstantiated. Def.’s CSF Ex. 2 at 1.
On
November 13, 2007, Roy Brown, Acting Deputy Director of Emergency
Services and Plaintiff’s immediate supervisor, told Plaintiff
that the Panel members wanted additional justification for the
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ratings or for Plaintiff to change the ratings to those
recommended by the Panel. Id.
When the Panel reconvened on
November 15, 2007, no changes had been made to the ratings. Id.
Brown spoke again with Plaintiff to discuss why the changes to
the appraisal ratings had not been made. Id.
After Plaintiff
told Brown he was “firm in [his] decision and would not be making
any changes,” Brown explained to Plaintiff that under the United
State Army Installation Management Command’s (“IMCOM”) NSPS
Business Rules the rater was required to make the changes. Id.2/
Plaintiff reiterated that he would not make the changes and told
Brown that he “wanted to see everything in writing so [he] could
seek legal counsel prior to making a final decision.” Id.
On November 16, 2007, LTC Michael Wallace, Director of
Emergency Services and Plaintiff’s second-level supervisor, spoke
with Plaintiff and provided him with a copy of IMCOM’s Pay Pool
Business Rules. Id.
After Brown directed Plaintiff to make the
changes, Plaintiff told Brown and LTC Wallace that he “could not
in good conscience make any changes to their appraisals.” FAC at
7, ¶ 14.
Plaintiff then explained to Brown and LTC Wallace that
the Panel members had the authority to make the changes
2/
The Army claims NSPS Rules mandate that the rater make
changes to the appraisal ratings or be subject to disciplinary
action, including transfer to a non-supervisory position.
However, the Court notes that Defendant has not submitted an
exhibit listing the relevant portion of the IMCOM’s NSPS Business
Rules.
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themselves. Id.
Brown and LTC Wallace again explained to
Plaintiff that he had to comply with the Panel’s orders. Id. ¶
15.
Plaintiff stated that he was “still thinking about it,” but
ultimately did not make any of the requested changes. Def.’s CSF
Ex. 2 at 2.
By November 21, 2007, no changes had been made to
the appraisals. Id.
Brown made the required changes to the
appraisals and returned them to the Panel’s administrator. Id.
Because Plaintiff did not comply with the Panel’s
directives about changing the performance appraisals, LTC Wallace
relieved Plaintiff of his job and reassigned him to a nonsupervisory position at Wheeler Army Airfield. FAC at 8, ¶ 18;
Def.’s CSF at 3, ¶ 9.
On December 13, 2007, LTC Wallace
delivered a memorandum titled “Subject: Notice of Directed
Reassignment–-Dennis Morris.” FAC at 8, ¶ 18.
Lieutenant Colonel
Wallace told Plaintiff he was relieving him of his job as
Supervisory Operations Officer and directed him to report to the
non-supervisory job at Wheeler beginning on January 6, 2008.
at 8, ¶ 18; Def.’s CSF at 3, ¶ 10.
FAC
Lieutenant Colonel Wallace
explained his decision to reassign Plaintiff in the memorandum:
Your demonstrated inability to follow supervisory
standards negatively affected this entire organization.
You deliberately refused to abide by written standards
and repeated requests from your Chain of Command. You
allowed your personal obstinacy to override your
professional responsibilities causing irreparable
damage to my trust in you as a supervisor.
Def.’s CSF Ex. 2 at 2, ¶ 2.
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A week later, Plaintiff met with Colonel (“COL”)
Matthew Margotta, Commander of the U.S. Army Garrison-Hawaii and
Bryson Jhung, Deputy to COL Margotta, to object to his
reassignment. FAC at 9, ¶ 21.
On January 2, 2008, after
reviewing the proposal, COL Margotta gave Plaintiff a written
decision stating that Plaintiff would be reassigned. FAC at 10, ¶
23; Def.’s CSF at 4, ¶ 11.
On January 7, 2008, Plaintiff sent a memorandum to
Debra Zedalis, Director of the U.S. Army Installation Management
Command Pacific Region. FAC at 12, ¶ 26; Def.’s CSF at 4, ¶ 12.
In the memorandum, Plaintiff indicated that he was being treated
unfairly and wrote the following:
As a compromise offer to my being removed
from my job, I will submit a formal written
intent to retire to the civilian personnel
office with a retirement date of April 30,
2008. I respectfully request that you allow
me to remain as the Operations Officer of the
Fort Shafter Military Police Station so I can
retire with dignity from the job I have
performed faithfully for the last 16 years.
FAC at 12, ¶ 27; Def.’s CSF at 4, ¶ 12.
Subsequently, the Army Command drafted a settlement
agreement that Plaintiff signed on February 1, 2008. FAC at 1213, ¶¶ 29-30; Def.’s CSF at 4, ¶ 12-13.
Pursuant to the
settlement agreement, Morris agreed to “resign” on April 26,
2008, in exchange for the “Agency agree[ing] to cancel the
directed reassignment, and allow[ing] Morris to remain in his
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supervisory Operations Officer position until April 26, 2008.”
FAC at 13, ¶ 31; Def.’s CSF at 4-5, ¶¶ 14-15.
On March 14, 2008, Plaintiff submitted a memorandum to
COL Margotta requesting that COL Margotta rescind the settlement
agreement and allow him to remain in his position as Supervisory
Operations Officer without retiring. Def.’s CSF at 5, ¶ 15 & Ex.
6.
On April 5, 2008, COL Margotta emailed Morris and stated that
he would adhere to the settlement agreement accepting Plaintiff’s
retirement effective April 26, 2008. FAC at 15, ¶¶ 40-41; Def.’s
CSF at 5, ¶ 16.
On April 26, 2008, the personnel office sent
Plaintiff a “Notification of Personnel Action” indicating the
nature of the action as “resignation.” FAC at 20, ¶ 54; Def.’s
CSF at 6, ¶ 17 & Ex. 16.
B.
Morris Requests Reassignment
Between the 5th and 8th of April 2008, Plaintiff sent
letters complaining of age discrimination and unfair treatment to
various elected officials and Army personnel. FAC at 42, ¶ 42.
When COL Margotta learned that Plaintiff wrote to several U.S.
Congressmen, he called Plaintiff into his office and indicated
that he was upset about Plaintiff’s letters. Id. at 16-17, ¶ 43.
A few weeks after meeting with COL Margotta, Plaintiff
met with COL Howard Killian, Deputy Director of the U.S. Army
Installation Management Command of the Pacific Region. Id. at 18,
¶ 46.
Colonel Killian stated that Debra Zedalis, COL Killian’s
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immediate supervisor, indicated to him that she did not believe
an employee should lose his job for doing what Plaintiff had
done. Id.
Colonel Killian also told Plaintiff that he may be
willing to allow Plaintiff to work in the Command but not in a
supervisory position. Id.
Based on this conversation, Plaintiff called COL
Margotta and asked him if he had a job for Plaintiff because he
did not want to resign or be removed from employment with the
Army. Id. at 19, ¶ 47.
Colonel Margotta directed Plaintiff to
contact LTC Thomas Denzler, Director of Emergency Services for
the U.S. Army Garrison--Hawaii. Id. at 19, ¶ 48.
On May 1, 2008,
Plaintiff met with LTC Denzler who stated there was a GS-11 job
available. Id. at 19, ¶¶ 49-50.
he wanted the GS-11 job. Id.
Plaintiff told LTC Denzler that
On May 2, 2008, Joseph Rozmiarek,
Director of Civilian Personnel, sent an email to LTC Denzler
advising him to send in a “Request for Personnel” action that
requested Plaintiff be named for the job. Id. at 20, ¶ 52.
Rozmiarek stated that the Civilian Personnel Advisory Center
(“CPAC”) would make the job offer to Plaintiff. Id.
However,
Plaintiff was neither contacted by the CPAC nor offered the job.
Id. at 20, ¶ 53.
C.
Administrative Proceedings
On April 11, 2008, Plaintiff initiated an informal
Equal Employment Opportunity (“EEO”) complaint alleging
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discrimination on the basis of his age. Def.’s CSF at 6, ¶ 18;
Pl.’s CSF at 3, ¶ 18.
On May 16, 2008, Plaintiff filed a formal
EEO complaint asserting age discrimination. Def.’s CSF at 6, ¶ 19
& Ex. 8; Pl.’s CSF at 3, ¶ 19.
On June 15, 2008, Plaintiff filed
a mixed case appeal with the Merit Systems Protection Board
(“MSPB” or “Board”) that was eventually dismissed without
prejudice as premature. Def.’s CSF at 7, ¶ 20 & Ex. 10; Pl.’s CSF
at 3, ¶ 20.
On February 25, 2009, the Equal Employment
Opportunity Commission (“EEOC”) and Plaintiff agreed to dismiss
the formal EEO complaint without prejudice and allow Plaintiff to
re-file a mixed case appeal with the MSPB. Def.’s CSF at 7, ¶ 21
& Ex. 11; Pl.’s CSF at 3, ¶ 21. Plaintiff re-filed his mixed case
appeal with the MSPB, but the MSPB dismissed his appeal because
the agency lacked jurisdiction. Def.’s CSF at 7, ¶ 22 & Ex. 12;
Pl.’s CSF at 3, ¶ 22.
Specifically, the Board ruled that
Plaintiff had “not alleged facts which, if proven, would show
that his resignation was involuntary.” FAC at 22, ¶ 64; Def.’s
CSF at 7, ¶ 22 & Ex. 12.
Next, Plaintiff attempted to re-file his EEO complaint
as a non-mixed case. Def.’s CSF at 7, ¶ 23 & Ex. 13; Pl.’s CSF at
4, ¶ 23.
On September 21, 2012, the EEOC issued an order
requiring the Army to treat the EEO complaint as a “mixed case
complaint” and issue a Final Agency Decision (“FAD”). Id.
On
November 8, 2012, the Army issued a FAD on Plaintiff’s mixed case
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complaint finding that Plaintiff was not discriminated on the
basis of his age and advising him that any administrative appeal
lay with the MSPB.
at 4, ¶ 24.
Def.’s CSF at 7-8, ¶ 24 & Ex. 14; Pl.’s CSF
Plaintiff then appealed the FAD to the MSPB, which
dismissed for lack of jurisdiction. Def.’s CSF at 8, ¶ 25 & Ex.
15; Pl.’s CSF at 4, ¶ 25.
Plaintiff filed the instant suit
within 30 days of the initial MSPB decision becoming final. Id.
STANDARD
A. Subject Matter Jurisdiction
A defendant may move to dismiss an action for lack of
subject matter jurisdiction pursuant to Federal Rule of Civil
Procedure 12(b)(1).
A motion to dismiss for lack of subject
matter jurisdiction will be granted if the complaint on its face
fails to allege facts sufficient to establish subject matter
jurisdiction. See Savage v. Glendale Union High Sch., 343 F.3d
1036, 1039 n. 2 (9th Cir. 2003).
In considering a Rule 12(b)(1)
motion, the Court “is not restricted to the face of the
pleadings, but may review any evidence, such as affidavits and
testimony, to resolve factual disputes concerning the existence
of jurisdiction.” McCarthy v. United States, 850 F.2d 558, 560
(9th Cir. 1988).
B. Failure to State a Claim
Federal Rule of Civil Procedure 12(b)(6) authorizes the
Court to dismiss a complaint that fails “to state a claim upon
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which relief can be granted.”
The Court may dismiss a complaint
either because it lacks a cognizable legal theory or because it
lacks sufficient factual allegations to support a cognizable
legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1242
(9th Cir. 2011).
For a Rule 12(b)(6) motion to dismiss, the
Court accepts all well-pleaded factual allegations as true and
construes them in the light most favorable to the nonmoving
party. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783
(9th Cir. 2012) (citation omitted).
The complaint must contain
sufficient factual matter, accepted as true, to “state a claim to
relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009).
In this case, Defendant has filed a motion to dismiss,
or in the alternative, for summary judgment.
Under Rule 12(d),
“[i]f on a motion under Rule 12(b)(6). . . matters outside the
pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary under Rule 56.”
The
parties must have “a reasonable opportunity to present all
material that is pertinent to the motion.” Fed. R. Civ. P. 12(d).
Here, Defendant filed the instant Motion with a Concise
Statement of Facts, which includes numerous exhibits. See ECF
Nos. 10-11.
Plaintiff filed its Opposition to Defendant’s Motion
with a Concise Statement of Facts, which included numerous
exhibits to rebut Defendant’s Concise Statement of Facts. See ECF
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Nos. 25-26.
Because the parties have presented outside material
in support of or in opposition to Plaintiff’s ADEA claim and the
Court is relying on those materials, the Court treats Defendant’s
Motion as to Plaintiff’s ADEA claim “as one for summary judgment
under Rule 56.” Fed. R. Civ. P. 12(d); Anderson v. Angelone, 86
F.3d 932, 934 (9th Cir. 1996) (“A motion to dismiss made under
the Federal Rule of Civil Procedure 12(b)(6) must be treated as a
motion for summary judgment under Federal Rule of Civil Procedure
56 if either party to the motion to dismiss submits materials
outside the pleadings in support or opposition to the motion, and
if the district court relies on those materials.”)
However, the Court does not treat Defendant’s Motion as
to Plaintiff’s due process claims as one for summary judgment.
“A court may. . . consider certain materials--documents attached
to the complaint, documents incorporated by reference in the
complaint, or matters of judicial notice--without converting the
motion to dismiss into a motion for summary judgment.” U.S. v.
Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
With respect to
Plaintiff’s due process claims, the Court only relies on three
exhibits in Defendant’s Concise Statement of Facts, Exhibits 10,
12 and 15.
All three of the exhibits are written decisions by
the MSPB. See Def.’s CSF Exs. 10, 12 & 15.
Plaintiff refers
extensively to the MSPB decisions in his FAC. See FAC at 21-24,
¶¶ 57, 61-65 & 68-69.
The MSPB decisions are also public records
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and neither party questions their authenticity.
Because the MSPB
decisions are incorporated by reference in the FAC and matters of
judicial notice, the Court is not required to convert Defendant’s
Motion with respect to Plaintiff’s due process claims into a
motion for summary judgment under Rule 56. See FAC at 22-24, ¶¶
61-65, 68-69.
C. Summary Judgment
A party may move for summary judgment on any claim or
defense–-or part of a claim or defense--under Federal Rule of
Civil Procedure 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; “only disputes over facts that might affect the outcome
of the suit under the governing law properly preclude the entry
of summary judgment.” Nat’l Ass’n of Optometrists & Opticians v.
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Harris, 682 F.3d 1144, 1147 (9th Cir. 2012).
“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)
(emphasis in original).
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 v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986)).
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).3/
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
3/
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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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).
Summary judgment will be granted against a party who fails to
demonstrate facts sufficient to establish “an 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).
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).4/
Accordingly, if “reasonable minds could differ as to the import
4/
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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of the evidence,” summary judgment will be denied. Anderson, 477
U.S. at 250–51.
DISCUSSION
I. Plaintiff’s Due Process Claims Under the 5th and 14th
Amendments to the U.S. Constitution and 5 U.S.C. § 7703
Defendant argues that Plaintiff’s constitutional claims
should be dismissed for lack of subject matter jurisdiction or,
in the alternative, for failure to state a claim upon which
relief can be granted. Def.’s Mot. at 2.
Specifically, Defendant
contends that Plaintiff cannot bring a Bivens claim against a
government official in his official capacity and, moreover, such
a claim is preempted by the ADEA. Id. at 2.
Plaintiff argues
that the Court has jurisdiction pursuant to 5 U.S.C. § 7703
because he is appealing a decision of the MSPB. Pl.’s Opp. at 68.
A.
Jurisdiction Under 5 U.S.C. § 7703
The Civil Service Reform Act of 1978 (“CSRA”), 5 U.S.C.
§ 1101 et seq., creates “a framework for evaluating personnel
actions against federal employees.” Kloeckner v. Solis, 133 S.
Ct. 596, 600 (2012).
The CSRA’s “statutory framework provides
graduated procedural protections depending on an action’s
severity.” Id.
If the action involves removal, a suspension for
more than 14 days, a reduction in grade, a reduction in pay, or a
furlough, the affected employee has a right to appeal the
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employing agency’s decision to the MSPB. Id.; see 5 U.S.C. §§
1204, 7512 & 7701.
When an employee complains of a personnel
action appealable to the MSPB and alleges that the action was
based on discrimination, the employee is said to have brought a
“mixed case.” Kloeckner, 133 S. Ct. at 601; see C.F.R. § 1614.302
(2012).
The CSRA along with MSPB and EEOC regulations set out
special procedures to govern mixed cases. Kloeckner, 133 S. Ct.
at 601.
“A federal employee bringing a mixed case may proceed
in a variety of ways.” Id.
The employee may first file a
discrimination complaint with the agency itself. Id.; see 5
C.F.R. § 1201.154 & 29 C.F.R. § 1614.302(b).
If the agency rules
against the employee, the employee may either take the matter to
the MSPB or bypass further administrative review and file suit in
district court. Kloeckner, 133 S. Ct. at 601; see 5 CFR §
1614.302 (2012).
Alternatively, the employee may first bring his case
directly to the MSPB and forgo the agency’s own system for
evaluating age discrimination charges. Kloeckner, 133 S. Ct. at
601; see 5 C.F.R. § 1201.154(a) & 29 C.F.R. § 1614.302(b).
If
the Board upholds the employer’s personnel action, the employee
can either request additional administrative process with the
EEOC or seek judicial review. Kloeckner, 133 S. Ct. at 601; see 5
U.S.C. §§ 7702(a)(3),(b).
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“Section 7703 of the CSRA governs judicial review of
the MSPB’s decisions.” Kloeckner, 133 S. Ct. at 601.
Section
7703(b)(1) provides the basic rule: “Except as provided in
paragraph (2) of this subsection, a petition to review a. . .
final decision of the Board shall be filed in the United States
Court of Appeals for the Federal Circuit.”
Section 7703(b)(2)
articulates the exception: “Cases of discrimination subject to
the provisions of section 7702 of this title shall be filed under
[the enforcement sections of the Civil Rights Act, Age
Discrimination in Employment Act, and Fair Labor Standards Act],
as applicable.”
The enforcement provisions of every
antidiscrimination statutes listed in § 7703(b)(2) authorizes
suit in federal district court. Kloeckner, 133 S. Ct. at 601.
Section 7702(a)(1) clarifies the meaning of the phrase
“cases of discrimination” referenced in § 7703(b)(2)’s exception:
[I]n the case of any employee or
applicant for employment who(A) has been affected by an action which
the employee or applicant may appeal to
the Merit Systems Protection Board, and
(B) alleges that a basis for the action
was discrimination prohibited by
[specified antidiscrimination statutes
including the ADEA], the Board shall,
within 120 days of filing of the appeal,
decide both the issue of discrimination
and the appealable action in accordance
with the Board’s appellate procedures.
The “case of discrimination” referenced in § 7703(b)(2)’s
exception are mixed cases, or cases that are appealable to the
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MSPB and allege discrimination. Kloeckner, 133 S. Ct. at 602.
Accordingly, in a mixed case, jurisdiction generally lies with
the federal district court. Id.
In Kloeckner, the Supreme Court held that a federal
employee who claims that an agency action appealable to the MSPB
violates a federal antidiscrimination statute listed in the CSRA
should seek judicial review in district court, not in the Federal
Circuit, when the MSPB decided the case on procedural grounds or
on the merits. 133 S. Ct. at 607.
The Kloeckner Court, however,
did not explicitly address whether jurisdictional dismissals by
the MSPB should go to the Federal Circuit or to a district court.
Conforto v. Merit Systems Protection Bd., 713 F.3d 1111, 1117
(Fed. Cir. 2013).
The Ninth Circuit has not yet addressed
whether Kloeckner mandates that mixed cases dismissed by the MSPB
solely on jurisdictional grounds should still go to a federal
district court.
In Conforto, however, the Federal Circuit held that the
“statutory text, the Court’s rationale in Kloeckner, our own
prior decisions, and the decisions of other courts all indicate
that an appeal from the Board’s dismissal for lack of
jurisdiction belongs in this Court.” 713 F.3d at 1117.
The
Federal Circuit reasoned that because an employee may appeal to
the MSPB “only if the employee’s claim is within the Board’s
appellate jurisdiction, the plain import of this statutory
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language is that a purported mixed case appeal is reviewed by the
district court only if the Board has jurisdiction to decide the
appeal from the adverse action in issue.” Id. at 1118.
The
Federal Circuit further concluded that because the employee’s
claim in Kloeckner was barred under a procedural rule, the
Supreme Court “reversed only the line of authority holding that
‘mixed cases’ dismissed by the Board on procedural grounds were
appealable to this court.” Id.
Indeed, the Supreme Court granted
certiorari “to resolve a Circuit split on whether an employee
seeking judicial review should proceed in the Federal Circuit or
in a district court when the MSPB has dismissed her mixed case on
procedural grounds.” Id. (citing Kloeckner, 133 S. Ct. at 603).
Accordingly, the Federal Circuit concluded that it had
“jurisdiction to review a determination by the Board that it
lacks statutory jurisdiction over an employee’s appeal.” Id. at
1116.
The Federal Circuit’s holding comports with the line of
pre-Kloeckner Ninth Circuit cases finding that an appeal from a
MSPB dismissal of a mixed case for lack of jurisdiction belongs
in the Federal Circuit. See, e.g., Sloan v. West, 140 F.3d 1255,
1262 (“Given the plain language of the statute, we join our
sister circuits and hold that appeals of MSPB jurisdictional
decisions involving mixed claims are properly venued in the
Federal Circuit Court of Appeals.”).
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Here, the MSPB dismissed Plaintiff’s final mixed case
appeal on jurisdictional grounds. See Def.’s CSF Ex. 15.5/
In
his final appeal, Plaintiff argued that his “resignation” from
the position of Supervisory Operations Officer was involuntary
and added a claim for whistleblowing. Id. at 4.
The Board
applied the doctrine of collateral estoppel, or issue preclusion,
and found that Plaintiff was precluded from relitigating the
Board’s prior decision. See Def.’s CSF Ex. 15 at 7.
In the
Board’s prior decision, the Administrative Law Judge (“ALJ”)
found that Plaintiff failed to show that his “resignation” was
involuntary and, therefore, was not an appealable action. See
Def.’s CSF Ex. 12 at 14.
Accordingly, the ALJ dismissed
Plaintiff’s mixed case appeal because the Board lacked
jurisdiction. Id.6/
5/
The Court notes that Plaintiff’s first mixed case appeal
with the MSPB was dismissed without prejudice as premature.
Def.’s CSF at 7, ¶ 20 & Ex. 10. Specifically, the MSPB found
that because Plaintiff filed a formal EEO complaint with the Army
prior to filing with the Board, the Board’s jurisdiction was
delayed until either the agency issued a FAD or 120 days elapsed
from the filing of the complaint. Def.’s CSF Ex. 10 at 2.
Although the MSPB’s first dismissal was arguably on procedural
grounds, Plaintiff’s due process claims are predicated on the
“final MSPB decision [which] was dated March 21, 2013.” Pl.’s
Opp. at 7. Moreover, Plaintiff declined to file a petition for
review and did not seek judicial review of the first MSPB
decision. Def.’s CSF Ex. 15 at 1.
6/
The Board also found that Plaintiff “failed to meet his
burden of nonfrivolously alleging jurisdiction” over his
whistleblower claim. See Def.’s CSF Ex. 15 at 8.
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Under 5 U.S.C. § 7702, a “mixed case” appealable to the
district court under § 7703 is a case involving “an action that
is both appealable to the MSPB and which allegedly involved
discrimination.” Sloan, 140 F.3d at 1261 (emphasis in original).
Like Conforto, the Board determined that it lacked jurisdiction
over Plaintiff’s appeal because his decision to retire “was
voluntary and therefore did not constitute an ‘adverse action’
within the meaning of section 7512.” Conforto, 713 F.3d at
1116.7/
Because the Board did not have jurisdiction over the
non-discrimination claim, Plaintiff’s case is “not a ‘mixed case’
and any appeal of the jurisdictional determination must be filed
in the Federal Circuit Court of Appeals.” Sloan, 140 F.3d at
1261; see Conforto, 713 F.3d at 1118 (“It therefore follows that
sections 7703(b)(1) and 7702(a)(1)(A) gives this court
jurisdiction to review a Board determination that an employee’s
7/
The Court recognizes that the MSPB decision does not
discuss whether Plaintiff’s reassignment constitutes an “adverse
action.” As discussed in Part II(C) of the “Discussion” section
of this Order, the Court concludes that the reassignment was an
adverse action. However, the only issue before the Board was
whether Plaintiff’s signing of the settlement agreement was
voluntary. See Def.’s CSF Ex. 12, at 6 (stating that Plaintiff
“filed a third petition for appeal with the Board, alleging that
his April 26, 2008 separation by resignation was involuntary,
which is the instant appeal before the Board”). The Board
determined that the agreement was voluntary and dismissed
Plaintiff’s appeal for lack of jurisdiction. Def.’s CSF Ex. 12,
at 14. Accordingly, any appeal of the Board’s decision still lay
with the Federal Circuit notwithstanding this Court’s conclusion
that the reassignment constitutes an adverse action.
-22-
case is not appealable to the Board, regardless of whether the
employee has sought to raise claims of agency discrimination.”).
Indeed, the MSPB notified Plaintiff that his right to judicial
review of the Board’s final decision lay with the Federal
Circuit. See Def.’s CSF Ex. 15, at 12.
Accordingly, this Court
lacks jurisdiction to hear Plaintiff’s appeal of the final MSPB
decision pursuant to 5 U.S.C. § 7703 and, therefore, his due
process claims are dismissed.
B.
Bivens Claim
In his FAC, Plaintiff alleges a violation of
Plaintiff’s due process rights under the 5th and 14th amendment
to the U.S. Constitution. FAC at 24, ¶¶ 72-73.
It is unclear on
the face of the FAC whether Plaintiff is making a Bivens-style
claim. See FAC at 24, ¶¶ 72-74.
“Bivens created a remedy for
violations of constitutional rights committed by federal
officials acting in their individual capacities.” Consejo de
Desarrollo Economico de Mexicali, A.C. v. U.S., 482 F.3d 1157,
1173 (9th Cir. 2007).
“In a paradigmatic Bivens action, a
plaintiff seeks to impose personal liability upon a federal
official based on alleged constitutional infringements he or she
committed against the plaintiff.” Id.
Even assuming the Court has jurisdiction to hear
Plaintiff’s due process claims, the Court agrees with Defendant
that a Bivens action can be maintained against a defendant in his
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or her individual capacity only, and not in his or her official
capacity. Id.8/
In his FAC, Plaintiff specifically filed suit
against “Defendant in his official capacity as Secretary of the
United States Department of the Army.” FAC at 2, ¶ 1.
To the
extent Plaintiff relies on a Bivens-style claim the Court finds
that a Bivens suit against a federal official “in his or her
official capacity would merely be another way of pleading an
action against the United States, which would be barred by the
doctrine of sovereign immunity.” Consejo, 482 F.3d at 1173.9/
C.
ADEA Preemption
It is well settled that the ADEA is the exclusive
remedy for complaints alleging discrimination based upon age.
Ahlmeyer v. Nevada Systems of Higher Educ., 555 F.3d 1051, 1056
(9th Cir. 2009).
In Ahlmeyer, the Ninth Circuit held that the
remedial scheme in the ADEA foreclosed § 1983 claims based on
ADEA violations. Id. at 1054.
The Court reasoned that the nature
of the remedial provisions in the ADEA “demonstrate[d]
Congressional intent to preclude the remedy of suits under §
8/
Plaintiff’s Opposition does not address Defendant’s
argument that a Bivens action cannot be maintained in this case.
See Pl.’s Opp. at 6-8.
9/
The Court also holds that the Fourteenth Amendment has no
applicability in the instant matter because the provision does
not apply to federal government actors. Hall v. Mueller, 84 Fed.
Appx. 814 (9th Cir. 2003). Rather, the “Fourteenth Amendment
applies to actions by a State.” San Francisco Arts & Athletics,
Inc. v. U.S. Olympic Comm., 483 U.S. 522, 543 n. 21 (1987).
-24-
1983.” Id. at 1057 (quoting Middlesex Cnty. Sewerage Auth. v.
Nat’l Sea Clammers Ass’n, 453 U.S. 1, 19-20 (1981)).
The Court
further reasoned that if a violation of substantive rights under
the ADEA could be asserted via a § 1983 action, plaintiffs would
be able to make an end run around the ADEA scheme’s specific,
complex procedural provisions. Id. (citing Zombro v. Baltimore
City Police Dep’t, 868 F.2d 1364, 1366 (4th Cir. 1989)).
Accordingly, the Ahlemeyer Court held that the ADEA “precludes
the assertion of age discrimination in employment claims, even
those seeking to vindicate constitutional rights, under § 1983.”
Ahlmeyer, 555 F.3d at 1057.
Once again, it is unclear on the face of the FAC
whether Plaintiff’s due process claims allege age discrimination
in employment. See FAC at 24, ¶¶ 72-74. Plaintiff’s Opposition
does not address Defendant’s argument that the ADEA provides the
exclusive remedy for a federal employee making a claim of age
discrimination. See Pl.’s Opp. at 6-8.
Even assuming the Court
has jurisdiction to hear Plaintiff’s due process claims, the
Court finds that, to the extent Plaintiff asserts any age
discrimination claims predicated on the U.S. Constitution, the
ADEA’s specific, complex procedural provisions provides the
exclusive remedy for claims of age discrimination. Okwu v. McKim,
682 F.3d 841, 845 (9th Cir. 2012).
-25-
For the foregoing reasons, the Court concludes that it
lacks jurisdiction to hear Plaintiff’s due process claims and, in
the alternative, that Plaintiff has failed to establish a viable
age discrimination claim under the U.S. Constitution.
Accordingly, the Court GRANTS Defendant’s Motion to Dismiss for
Lack of Subject Matter Jurisdiction or in the Alternative for
Failure to State a Claim Upon Which Relief Can Be Granted with
respect to Plaintiff’s due process claims under the Fifth and
Fourteenth Amendment of the U.S. Constitution and 5 U.S.C. §
7703.
II. Plaintiff’s ADEA Claim
Defendant argues that Plaintiff’s ADEA claim should be
dismissed because: (1) Defendant’s refusal to rescind the
settlement agreement does not constitute an “adverse employment
action” under the ADEA and (2) Plaintiff cannot, in the
alternative, demonstrate that the proffered reasons for not
allowing Plaintiff to rescind the settlement agreement were
pretextual. Def.’s Mot. at 10.
Plaintiff argues that his ADEA
claim should not be dismissed because: (1) the settlement
agreement violates the ADEA’s waiver provisions and was not made
knowingly and voluntarily; (2) there are disputed material issues
of facts over whether Plaintiff suffered an adverse action; and
(3) Defendant’s proffered reasons for its employment actions are
pretextual. Pl.’s Reply at 12-24.
-26-
A.
Exhaustion of Administrative Remedies
Preliminarily, Defendant argues that Plaintiff failed
to exhaust his administrative remedies as to any age
discrimination claims arising from his initial transfer to a nonsupervisory position and as to his ADEA retaliation claim. Pl.’s
Reply at 17-19.
Unlike Title VII of the Civil Rights Act, the ADEA
“contains no express requirement that a federal employee
complainant seek administrative relief, except that an employee
who wishes to file suit without pursuing administrative remedies
must give the EEOC notice of intent to sue at least 30 days
before filing suit.” Bankston v. White, 345 F.3d 768, 770 (9th
Cir. 2003) (internal citation omitted); see also 29 U.S.C. §
633a(d) (2002) (allowing an individual to file suit without
filing an EEOC complaint but requiring notice to EEOC of intent
to sue).
“Federal law does, however, allow an employee the
option of pursuing administrative remedies, either through the
agency’s EEO procedures, or through the Merit Systems Protection
Board.”
Bankston, 345 F.3d at 770 (internal citation omitted).
“EEOC regulations provide that an aggrieved federal employee who
pursues the EEO avenue must consult an EEO counselor within
forty-five days of the effective date of the contested personnel
action, prior to filing a complaint alleging age discrimination.”
Shelley v. Geren, 666 F.3d 599, 605 (9th Cir. 2012) (citing 29
-27-
C.F.R. § 1614.03, 1614.105(a)(1)).
“[A]lthough the regulatory
pre-filing exhaustion requirement at § 1614.105 does not carry
the full weight of statutory authority and is not a
jurisdictional perquisite for suit in federal court,. . . failure
to comply with this regulation [is]. . . fatal to a federal
employee’s discrimination claim in federal court.” Id.
In this case, Plaintiff did not consult an EEO
counselor within forty-five days of February 3, 2008, the
effective date of the involuntary transfer.10/
However, incidents
of discrimination not included in an EEOC charge may be
considered by a federal court if “the new claims are like or
reasonably related to the allegations contained in the EEOC
charge.” Id. at 606.
“In determining whether a new claim is like
or reasonably related to the allegations contained in the
previous charge, the court inquires into whether the original
10/
The Court notes that Plaintiff’s formal EEO complaint did
not directly allege that his involuntary transfer was based on
impermissible age discrimination. See Pl.’s CSF Ex. 1 (Formal EEO
Complaint). However, the EEO Counselor’s Report contains
statements by Plaintiff, COL Margotta and Director Zedalis that
discuss Plaintiff’s reassignment to a non-supervisory position.
See id. (EEO Counselor’s Report). In addition, Plaintiff’s
handwritten MSPB complaint explicitly discussed the reassignment.
Id. (MSPB Mixed Case Appeal). Specifically, Plaintiff wrote: “I
should not have been removed from my job because I could not as a
matter of conscience change the performance appraisals of three
civilian employees I rated. The punishment of removing me from a
job I had performed successfully for 16 years was unfair, unjust,
too severe and unnecessary.” Id. at 3. Nevertheless, the EEO
Counselor’s Report and MSPB appeal were not filed within 45 days
of the effective date of the involuntary transfer. Def.’s CSF at
4, ¶ 11.
-28-
EEOC investigation would have encompassed the additional
charges.” Id.
“The same is true of a complaint of discrimination
submitted to a federal agency’s EEO office.” Id.
Here, the settlement agreement was drafted in response
to the Army’s decision to reassign Plaintiff to a non-supervisory
position and proposed that Plaintiff could remain in as
Operations Officer if he retired on April 30, 2008.
Thus, an
EEOC investigation into the Army’s decision for refusing to
rescind the settlement agreement would necessarily have lead to
an investigation over the Army’s reasons for transferring
Plaintiff out of his supervisory position. Shelley, 666 F.3d at
606.
Indeed, the EEO Counselor’s Report contains witness
statements and references documents that discuss Plaintiff’s
reassignment, even though the Report does not contain a direct
assertion that Plaintiff’s reassignment was made on the basis of
his age. See Pl.’s CSF Ex. 1 at 4-5 (EEO Counselor’s Report).
Accordingly, Plaintiff timely exhausted his available
administrative remedies as to his ADEA claim over his initial
transfer to a non-supervisory position.
Plaintiff’s ADEA retaliation claim appears to be based
on the filing of his initial complaint with the EEOC in April
2008 and sending of letters to various elected officials and Army
personnel. See Pl.’s CSF Ex. 1; FAC at 16-17, ¶ 42-43.10/
10/
Unlike
Plaintiff argues that he raised his retaliation claim “in
his EEO fact finding hearing” and cites to Plaintiff’s
-29-
the initial transfer claim, an EEOC investigation into the Army’s
refusal to revoke the settlement agreement would not necessarily
have lead to an investigation into Plaintiff’s retaliation claim.
However, the Court finds that Plaintiff’s ADEA retaliation claim
should not be dismissed for failure to exhaust administrative
remedies.
In Bak, a United States Postal Service Employee, Bak,
filed race and age discrimination claims with the EEOC and
pursued his race claim there, but abandoned his age
discrimination claim during the administrative proceedings. Bak
v. Postal Service, 52 F.3d 241, 242-43 (9th Cir. 1995).
After
receiving a final decision from the EEOC, Bak filed an ADEA suit
in federal district court. Id. at 242.
Because Bak abandoned his
age discrimination claim before the EEOC, the district court
dismissed Bak’s case for failure to exhaust administrative
remedies. Id. at 243.
On appeal, the Ninth Circuit reversed the
district court’s ruling and held
that a claimant is no longer required to
exhaust his administrative remedies with
regard to an age discrimination claim prior
to filing a civil suit. The result of [29
C.F.R. §] 1613.513, in effect at the time Bak
filed his complaint, is to terminate any
unexhausted administrative proceedings when a
claimant files a civil suit. Similarly, an
exhaustion requirement would terminate any
Declaration and Exhibit 1 of his Concise Statement of Facts.
Pl.’s Opp. at 25. However, the Court was unable to find an
explicit retaliation claim in the exhibits and documents cited by
Plaintiff. See generally Decl. of Morris, Pl.’s CSF Ex. 1.
-30-
civil suit filed. Thus, the joint effect of
the amended regulations and exhaustion
requirement would be to leave the claimant
without any avenue of relief. . . [A]n
exhaustion requirement in this case would
still prejudice Bak because he has no forum
in which to bring his age discrimination
claim: the time for filing another
administrative complaint has expired, and an
exhaustion requirement would preclude a civil
suit. The primary goal of the exhaustion
requirement is to prevent simultaneous
proceedings regarding the same claim.
Id. at 244.
A “straight forward reading of Bak” leads the Court to
avoid applying an exhaustion rule in this case, where there are
no simultaneous administrative and judicial proceedings and
application of an exhaustion rule would result in a forfeiture of
Plaintiff’s ADEA retaliation claim. Bankston, 345 F.3d at 776.
Because there are no administrative proceedings currently pending
and Plaintiff has no right to further administrative review, the
rationale for the exhaustion rule is not applicable. Id.
Accordingly, the Court concludes that Plaintiff’s ADEA
retaliation claim should not be dismissed for failure to exhaust
administrative remedies.
B.
ADEA Statutory Framework
The ADEA makes it unlawful for an employer to
discriminate “because of [an] individual’s age.” 29 U.S.C. §
623(a)(1). The prohibition is “limited to individuals who are at
least 40 years of age.” 29 U.S.C. § 631(a).
-31-
To prevail on an
ADEA claim, a plaintiff must prove at trial that age was the
“but-for” cause of the employer’s adverse action. Gross v. FBL
Financial Services, Inc., 557 U.S. 167, 180 (2009).
“Unlike
Title VII, the ADEA’s text does not provide that a plaintiff may
establish discrimination by showing that age was simply a
motivating factor.” Id. at 2349.
In order to analyze the evidence in an orderly way,
motions for summary judgment regarding ADEA claims may be
analyzed using the burden-shifting framework in McDonnell Douglas
Corp. v. Green, 451 U.S. 792 (1973). Shelley v. Geren, 666 F.3d
at 608 (9th Cir. 2012) (holding that the McDonnell Douglas
burden-shifting framework applies to summary judgment motions
under the ADEA).
For the first step in the burden-shifting framework,
Plaintiff must present evidence of a prima facie case of
employment discrimination by showing that (1) he belongs to a
protected class, (2) he was qualified for his position, (3) he
was subjected to an adverse employment action, and (4) similarly
situated individuals outside his protected class were treated
more favorably. Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th
Cir. 2008).
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 v. Executive Jet Management,
Inc., 615 F.3d 1151, 1155 (9th Cir. 2010).
If Defendant meets this burden, a 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.” Hawn, 615 F.3d at 1155.
“[A] plaintiff’s burden is much less at the prima facie stage
than at the pretext stage.”
Hawn, 615 F.3d 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).
Direct evidence is usually composed of “clearly
sexist, racist, or similarly discriminatory statements or actions
-33-
by the employer.” Coghlan v. Am. Seafoods Co., 413 F.3d 1090,
1094–95 (9th Cir. 2005); Earl v. Nielsen Media Research, Inc.,
658 F.3d 1108, 1113 (9th Cir. 2011) (holding that “comments from
supervisors betraying bias or animus against older workers”
constitute direct evidence of age discrimination).
“Because
direct evidence is so probative, the plaintiff need offer ‘very
little direct evidence to raise a genuine issue of material
fact.’” Id. at 1095.
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).
C.
Prima Facie Case
Here, the first and second elements of Plaintiff’s
prima facie case are clearly met: Plaintiff is over forty years
old and was qualified for the Supervisory Operations Officer
position. See generally Def.’s Mot., ECF No. 70.
Further,
Defendant conceded during the January 23, 2014, hearing that
element four of Plaintiff’s prima facie case was also met because
a person twenty-five years younger than Plaintiff replaced him as
Supervisory Operations Officer. See Decl. of Morris at 12, ¶
16(e).
The point of contention lies over whether Plaintiff
experienced an “adverse employment action.”
-34-
Defendant argues that the Army’s “refusal to waive
Plaintiff’s obligation under a settlement agreement does not
constitute an ‘adverse employment action’ under the ADEA.” Def.’s
Mot. at 10.
Defendant contends that Plaintiff originally
proposed to retire in lieu of reassignment to a non-supervisory
position and signed the settlement agreement reducing the
essential contents of the memorandum to writing.
See Def.’s CSF
Ex. 4 (Memorandum to Debra Zedalis); Def.’s CSF Ex. 5 (Release
and Settlement Agreement).
Defendant further notes that
Plaintiff waited six weeks after the settlement agreement was
signed to request that it be rescinded. Def.’s CSF Ex. 6
(Memorandum for COL Margotta).
In addition to Defendant’s refusal to rescind the
settlement agreement, Plaintiff argues several other actions
taken by the Army constitute an adverse employment action under
the ADEA. Pl.’s Opp. at 18.
Specifically, Plaintiff contends
that the Army’s “refusal to allow Plaintiff to remain in his job,
threatened transfer, improper settlement agreement rendering in
resignation/retaliation, and refusal to rescind Plaintiff
resignation/retirement” all constitute adverse actions. Id.11/
11/
On pages 18 and 19 of his Opposition, Plaintiff refers to
roughly 30 paragraphs in the FAC which purportedly show “adverse
actions.” Pl.’s Opp. at 18-19. The Court has discussed
virtually all of the content of these paragraphs. Further,
Plaintiff cites “paragraph 21 page 9" of the FAC. Id. at 18. In
Paragraph 21 of the FAC, Plaintiff argues that his removal from
the supervisory position was not mandatory under the NSPS Rules.
FAC at 9-10, ¶ 21. Neither Plaintiff nor [continued...]
-35-
The Ninth Circuit defines “adverse employment action
broadly.” Ray v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000).
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. at 1243.
Accordingly, the Court found “that a wide array of
disadvantageous changes in the workplace constitute adverse
employment actions.” Id. at 1240.
Such activities included a
transfer of job duties, undeserved performance ratings, transfers
to another job of the same pay and status, and dissemination of
unfavorable job references. Id. at 1242 (citing Yartzoff v.
Defendant has submitted an exhibit providing the relevant
portions of the NSPS Business Rules. However, as discussed in
this Order, Plaintiff repeatedly refused to follow directions
from his superiors despite repeated warnings that a failure to
comply could result in disciplinary action. Therefore, there
were numerous reasons to reassign Plaintiff to a non-supervisory
position whether or not such reassignment was mandatory under the
Rules. In addition, Plaintiff cites paragraphs 50 to 53 in the
FAC. Pl.’s Opp. at 19. These paragraphs allege that Director
Rozmiarek told Plaintiff, after Plaintiff sent in a job request,
that CPAC would offer him a GS-11 job. As discussed in this
Order, the Court finds Plaintiff’s request to be reassigned to a
GS-11 position was not an adverse action because the Army was not
required to rescind the settlement agreement and give Plaintiff
the GS-11 position merely because he desired it. As COL Margotta
stated, “one of the things [Plaintiff] was asking for was
essentially to go back into his old position, which would have
meant for me as the commander to basically say that he did
nothing wrong. . . There was no new compelling evidence or
anything that [Plaintiff] could bring to the table that would
want me to go back on the agreement.” Def.’s Reply at 12-13.
-36-
Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); St. John v.
Employment Development Dept., 642 F.2d 273, 274 (9th Cir. 1981);
Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997)).
In the instant suit, Plaintiff identifies three actions
by the Army that he argues constitute an adverse employment
action under the ADEA: (1) refusal to rescind the settlement
agreement; (2) denial of Plaintiff’s request to be reassigned to
the GS-11 position; and (3) reassignment to a non-supervisory
position.12/
Refusing to accept Plaintiff’s rescission of the
settlement agreement that Plaintiff signed on February 1, 2008,
was not an adverse action.
Here, Defendant simply refused to
permit Plaintiff to withdraw his decision because it believed
Plaintiff was irrevocably bound to the terms of the settlement
agreement.
An employee’s commitment to resign under the terms of
12/
During the hearing on January 23, 2014, Plaintiff also
requested that the Court take notice of paragraph two of the
Army’s “Request for Disciplinary/Adverse Action” report.
See Pl.’s CSF Ex. 14. Paragraph two directs the deciding
official to “check one of the disciplinary/adverse actions listed
below.” Id. at 1. Listed below were the following: “Written
Reprimand,” “Suspension,” “Demotion,” and “Removal.” Id. The
deciding official marked the box next to “Removal.” Id. The
Court finds that this section of the report, standing alone, does
not establish that Plaintiff’s reassignment was an adverse
action. Given the available options, “removal” was the
functional equivalent of “reassignment.” Moreover, Plaintiff’s
handwritten mixed case appeal to the MSPB also marked the box
“removal” to “describe[] the agency personnel action or decision
[he] was appealing.” Pl.’s CSF Ex. 1 (MSPB Mixed Case Appeal).
-37-
a settlement agreement is a valid reason for an employer to
refuse to accept his withdrawal of that resignation. Green v.
General Services Administration, 220 F.3d 1313, 1317 (Fed. Cir.
2000).
Moreover, Plaintiff did not attempt to rescind the
settlement agreement until six weeks after it was signed and
originally proposed its material terms. See Def.’s CSF Exs. 4
(Memorandum to Debra Zedalis) & 6 (Memorandum to COL Margotta).
Plaintiff argues, however, that the settlement
agreement was not made knowingly and voluntarily.
12-16.
Pl.’s Reply at
Specifically, Plaintiff claims, inter alia, that he did
not draft the settlement agreement, had only ten minutes to read
the agreement, and was not represented by counsel. Decl. of
Morris at 6, ¶ 9, ECF No. 26.
“In order to overcome the presumption of voluntariness
and demonstrate that a resignation or retirement was involuntary,
the employee must satisfy a demanding legal standard.” Staats v.
U.S. Postal Service, 99 F.3d 1120, 1124 (Fed. Cir. 1996).
“The
two principal grounds on which employees have sought to show that
their resignations or retirements were involuntary are: (1) that
the resignation or retirement was the product of misinformation
or deception by the agency. . . and (2) that the resignation or
retirement was the product of coercion by the agency.” Conforto,
713 F.3d at 1121.
“In order to establish involuntariness on the
basis of coercion, an employee must show that the agency
-38-
effectively imposed the terms of the employee’s resignation, that
the employee had no realistic alternative but to resign or
retire, and that the employee’s resignation was the result of
improper acts by the agency.” Staats, 99 F.3d at 1124.
“An example of an involuntary resignation based on
coercion is a resignation that is induced by a threat to take
disciplinary action that the agency knows could not be
substantiated.” See Schultz v. United States Navy, 810 F.2d 1133,
1136 (Fed. Cir. 1987) (“If an employee can show that the agency
knew that the reason for the threatened removal could not be
substantiated, the threatened action by the agency is purely
coercive.”).
The test for voluntariness is objective and
requires the employee to establish that a reasonable employee
confronted with the same circumstances would feel coerced into
resigning or retiring. Garcia v. Dep’t of Homeland Security, 437
F.3d 1322, 1329 (Fed. Cir. 2006).
The doctrine of coercive involuntariness is thus a
narrow one. Staats, 99 F.3d at 1124. “It does not apply to a case
in which an employee decides to resign or retire because he does
not want to accept a new assignment, transfer, or other measures
that the agency is authorized to adopt, even if those measures
make continuation in the job so unpleasant for the employee that
he feels that he has no realistic option but to leave.” Id.
other words, “the fact that an employee is faced with an
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In
unpleasant situation or that his choice is limited to two
unattractive options does not make the employee’s decision any
less voluntary.” Id.
Here, Plaintiff fails to demonstrate how the Army
coerced Plaintiff into signing the settlement agreement.
Plaintiff originally proposed the material terms of the
settlement agreement in his January 7, 2008, memorandum to
Director Zedalis, in which he offered to retire on April 30th if
the Army allowed him to remain in as Operations Officer. Def.’s
CSF Ex. 4.
Plaintiff thus fails to show that the “agency
effectively imposed the terms of the employee’s resignation or
retirement.” Staats, 99 F.3d at 1124.
Plaintiff also stated in
the same memorandum that his “career plan was to retire from this
job in mid 2008.” Def.’s CSF Ex. 4 (emphasis added).
Since
Plaintiff was planning to retire around the same time as the
retirement date listed in the settlement agreement, the Court
finds it difficult to see how the employee’s decision to retire
was the result of improper acts by the Army.
Next, Plaintiff
argues that he only had ten minutes to read the agreement. Decl.
of Morris at 6, ¶ 9, ECF No. 26.
Plaintiff was notified on
January 29, 2008, via email that the settlement agreement was
ready for review.
Plaintiff signed the agreement on February 1,
2008, three days after he was first notified that the document
was ready for review and two days before he was to be reassigned
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to a non-supervisory position.
Accordingly, Plaintiff had ample
time to review and sign the agreement.
Plaintiff’s decision to sign the agreement effectuating
his retirement was not “induced by a threat to take disciplinary
action that the agency knows could not be substantiated.” See
Schultz, 810 F.2d at 1136.
Rather, the Army’s basis for demoting
Plaintiff and transferring him to a non-supervisory position was
substantiated: Plaintiff refused to follow IMCOM’s Pay Pool
Business Rules and his superiors’ directives.
“While it is possible Plaintiff, [himself], perceived
no viable alternative” but to sign the settlement agreement, the
record indicates that Plaintiff chose to sign the settlement
agreement rather than challenge its validity. Christie v. U.S.,
518 F.2d 584, 587 (Ct. Cl. 1975).
had a choice.” Id.
not to.” Id.
“The fact remains, [P]laintiff
“He could stand pat and fight,” but “chose
“Merely because Plaintiff is faced with an
inherently unpleasant situation in that his choice was arguably
limited to two unpleasant alternatives does not obviate the
voluntariness of his resignation.” Id.
Finally, Plaintiff argues that the settlement agreement
violates the Older Workers Benefit Protection Act (“OWBPA”).
Pl.’s Reply at 13-14.
Plaintiff claims that the settlement
agreement violated the following portion of the OWBPA:
(f) Waiver
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(1) An individual may not waive any right or
claim under this chapter unless the waiver is
knowing and voluntary. Except as provided in
paragraph (2), a waiver may not be considered
knowing and voluntary unless at a minimum–
(A) the waiver is part of an agreement
between the individual and the employer that
is written in a manner calculated to be
understood by such individual, or by the
average individual eligible to participate;
. . .
(E) the individual is advised in writing to
consult with an attorney prior to executing
the agreement;
(F)(I) the individual is given a period of at
least 21 days within which to consider the
agreement; or
. . .
(G) the agreement provides that for a period
of at least 7 days following the execution of
such agreement, the individual may revoke the
agreement, and the agreement shall not become
effective or enforceable until the revocation
period has expired;
5 U.S.C. § 626(f) (emphasis added).
Although the Court agrees with Plaintiff that the
settlement agreement did not comply with the OWBPA, the Army has
not taken the position that Plaintiff waived his ADEA claim by
signing the settlement agreement. Def.’s Mot. at 20, n. 7.
The
agreement’s failure to comply with § 626(f) would only invalidate
any waiver of ADEA claims and, therefore, does not invalidate the
entire settlement agreement. See Oubre v. Entergy Operations,
Inc., 522 U.S. 422, 427-28 (1998) (“Since [Plaintiff’s] release
did not comply with the OWBPA’s stringent safeguards, it is
unenforceable against her insofar as it purports to waive or
release her ADEA claim.”)
Accordingly, the settlement agreement
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remains in effect with respect to all but Plaintiff’s ADEA
claims.
Similarly, denying Plaintiff’s request to be reassigned
to the GS-11 position was not an adverse action.
The Army was
not required to give Plaintiff the position merely because he
desired the position.
The Court, however, finds that Plaintiff’s original
transfer to a non-supervisory position falls under the Ninth
Circuit’s broad definition of adverse action. Ray, 217 F.3d at
1240.
The Ninth Circuit has held that even a lateral transfer
constitutes an adverse employment action. 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’”); see also St. John v.
Employment Development Dept., 642 F.2d 273, 274 (9th Cir. 1981)
(finding that a transfer to another job of the same pay and
status may constitute an adverse employment decision).
Here, the
facts are even stronger than in Yartzoff: Plaintiff was
transferred to a lower-grade, non-supervisory position. See
Def.’s CSF at 3, ¶ 9.
Because Plaintiff’s involuntary transfer
constituted an adverse employment action, Plaintiff satisfies the
final element required to establish a prima facie ADEA claim.
D.
Burden-Shifting Analysis
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Since Plaintiff has established a prima facie case of
age discrimination regarding his initial transfer to the nonsupervisory position, the burden now shifts to Defendant to show
that the adverse employment action was taken for legitimate nondiscriminatory reasons. Hawn, 615 F.3d at 1155.
Defendant presents several legitimate nondiscriminatory justifications for the decision to transfer
Plaintiff to a non-supervisory position.
First, Plaintiff
repeatedly failed to comply with the Pay Pool Panel’s directives
and change or provide additional justification for his annual
appraisal ratings. See Def.’s CSF Ex. 2 (Notice of Directed
Reassignment).13/
Second, the Army found that Plaintiff’s
“demonstrated inability to follow supervisory standards
negatively affected this entire organization. [Plaintiff]
deliberately refused to abide by written standards and repeated
requests from [his] Chain of Command.” Id. at 2, ¶ 2.
Finally,
the Army determined that Plaintiff’s “misconduct adversely
affected their organization by [c]ompletely stopping the pay pool
process and wasting the valuable man hours associated with
13/
Plaintiff argues that he “was never told that he would be
removed from his position if he did not change his evaluations.”
Pl.’s Opp. at 17; see Decl. of Morris at 3, ¶ 4(b), ECF No. 26.
Although the Court notes that Defendant has not submitted an
exhibit containing the relevant sections of the IMCOM’s NSPS or
Pay Pool Business Rules, Plaintiff received several written and
oral warnings stating that he had to comply with his commanding
officers’ directives or face disciplinary action. See Def.’s CSF
Ex. 2 at 1, ¶¶ 1(a)-(c).
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[Plaintiff’s] intentional, deliberate delay” and “affected the
employees which represented the USAG-HI Pay Pool by delaying
their ability to close out the board and return to their
appointed places of duty.” Def.’s CSF Ex. 6 at 3, ¶ 6.
Even assuming it constitutes an adverse action,
Defendant also articulates several legitimate non-discriminatory
reason for not allowing Plaintiff to rescind the settlement
agreement: the settlement agreement was based upon Plaintiff’s
own proposal, Plaintiff entered into the settlement agreement
voluntarily, and it was not in the Army’s best interests to
concede to Plaintiff’s request that it be rescinded. Pl.’s Reply
at 12.
As COL Margotta explained, “one of the things [Plaintiff]
was asking for was essentially to go back into his old position,
which would have meant for me as the commander to basically say
that he did nothing wrong. . . There was no new compelling
evidence or anything that [Plaintiff] could bring to the table
that would want me to go back on the agreement.” Id. at 12-13.
Thus, the burden shifts back to Plaintiff to raise “a
triable issue of material fact” as to whether the Army’s
proffered reasons for their employment actions are “mere pretext
for unlawful discrimination.” Hawn, 615 F.3d at 1155.
Plaintiff attempts to present direct evidence of
pretext in the form of a discriminatory statement in the Army’s
“Request for Disciplinary/Adverse Action” report, dated November
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8, 2012. Pl.’s Opp. at 25.
Paragraph nine of the document asks
the deciding official14/ to “[l]ist any additional factors you
considered in making your determination.” Pl.’s CSF Ex. 14 at 6,
¶ 9.
Under paragraph nine, the deciding official wrote: “Past
occurrences, deliberate intensions, unwillingness to compromise,
age and maturity of the employee, and experience. Id. (emphasis
added).
Defendant responds that these comments do “not relate to
the decision-maker (COL Margotta) or the decision that is at
issue in this case relating to the rescission of the settlement
agreement.” Def.’s Reply at 12, n. 4.
The Court finds that this statement, in conjunction
with Plaintiff’s circumstantial evidence, does not raise a
genuine issue of material fact as to Defendant’s discriminatory
animus. A plaintiff must “establish that age was the ‘but-for’
cause of the employer’s adverse action.” Wyndham Vacations
Resorts, Inc., 2013 WL 5719475 at *6 (D. Haw. Oct. 18, 2013)
(quoting Gross, 557 U.S. at 180).
In other words, a “plaintiff
must show, at the summary judgment stage, that a reasonable trier
of fact could conclude, by a preponderance of evidence, that the
Plaintiff would not have been [subject to the adverse action] but
for impermissible age discrimination.” Parris, 2013 WL 5719475 at
14/
The document states that the deciding official is named in
paragraph 11. See Pl.’s CSF Ex. 14 at 1. Paragraph 11 lists
DCOM Bryson Jhung as the deciding official. However, the Court
notes that LTC Wallace and Deputy Director Brown’s names are also
listed at the end of the document. Id. at 6.
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*6 (D. Haw. Oct. 18, 2013); see Scheitlin v. Freescale
Semiconductor, Inc., 465 Fed. Appx. 698, 699 (9th Cir. 2012)
(applying Gross’s “but for” causation standard at the summary
judgment stage).
Here, the six-word statement in the document
(“age and maturity of the employee”) was apparently a stray
remark and fails to establish that the Army’s decision to
initially transfer Plaintiff would not have been made but for
impermissible age discrimination.
The Army presented a valid,
non-discriminatory reason for reassigning Plaintiff to a nonsupervisory position: he “deliberately refused to abide by
written standards and repeated requests from [his] Chain of
Command.” Def.’s CSF Ex. 2 at 2, ¶ 2.
Subsequently, the Army
felt that it was in the “best interest of this organization” to
reassign Plaintiff from his Supervisory Operations Officer
position. Id.
Although the statement may raise some additional
concern over whether the Army took into account Plaintiff’s age
when it decided to reassign him, Plaintiff fails to produce
sufficient evidence that the Army’s reassignment decision was
based solely on Plaintiff’s age.
See Gross, 557 U.S. at 2350
(holding that the text of the ADEA does not authorize a mixedmotives age discrimination claim).
Finally, Plaintiff argues that there is circumstantial
evidence demonstrating that Defendant’s proffered reasons for its
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employment actions are pretextual.15/
First, Plaintiff argues
that COL Margotta “did not want Plaintiff to continue to work
because there would be disruption.” Pl.’s Opp. at 23.
Plaintiff
contends that this was pretextual “because Plaintiff was already
in his position doing his job and there would be no disruption to
keep him there.” Id.
unconvincing.
The Court finds Plaintiff’s argument
In judging whether COL Margotta’s explanation was
“false,” it is not important whether it was objectively false
(e.g., whether Plaintiff’s removal would actually be disruptive).
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th
Cir. 2002).
Courts “only require that an employer honestly
believe[] its reason for its actions, even if its reason is
foolish or trivial or even baseless.” Id. (quoting Johnson v.
Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001) (internal
quotation marks omitted).
Here, Plaintiff presents no evidence
that COL Margotta did not honestly believe that allowing
Plaintiff to remain in the Operations Officer position would be
15/
Plaintiff argues that the Court should not grant summary
judgment because “Plaintiff is still obtaining discovery from
Defendant” and more “evidence of age discrimination is
forthcoming.” Pl.’s Opp. at 24-25. The Court finds that
Plaintiff has had sufficient time and opportunity to submit any
material that might controvert the statements set out in
Defendant’s Concise Statement of Facts. Plaintiff has had fair
notice of Defendant’s summary judgment motion, which was filed on
August 9, 2013. See Def.’s Mot., ECF No. 10. Furthermore, and
importantly, Plaintiff did not file a motion for continuance with
an attached affidavit or declaration stating specifically what
significant facts could be presented through further discovery.
See Fed. R. Civ. P. 56(d).
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disruptive.
Indeed, as stated earlier, Plaintiff’s supervisors
found that he was disruptive because he refused to follow IMCOM’s
Pay Pool Business Rules and repeated directives from his
superiors.
Next, Plaintiff contends that COL Margotta’s statement
that “there was nothing new [,] no new factors to consider” was
pretextual because Brown and LTC Wallace were no longer his
supervisors. Pl.’s Opp. at 23.
The fact that Brown and LTC
Wallace were no longer Plaintiff’s supervisors fails to raise a
genuine issue of fact because “circumstantial evidence of pretext
must be specific and substantial.” Becerril v. Pima County
Assessor’s Office, 587 F.3d 1162, 1163 (9th Cir. 2009).
The
absence of these two supervisors would not appear to provide any
reason for the Army to change its position and rescind the
settlement agreement.
Finally, Plaintiff argues that COL Margotta’s statement
that “Plaintiff had to go because he did not take care of his
employees” was pretextual because Plaintiff did take care of his
employees. See Pl.’s Opp. at 23; Pl.’s CSF Ex. 13 (“Petition for
Mr. Dennis Morris”).
Again, Plaintiff submits no evidence that
COL Margotta did not honestly believe his statement. See
Villiarimo, 281 F.3d at 1063.
Colonel Margotta could have easily
determined that refusing to make changes to annual performance
appraisals does not constitute taking care of one’s employees.
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Plaintiff’s disbelief of COL Margotta’s explanations for the
reassignment does not create a genuine issue of fact on pretext
“because there is no evidence to substantiate his disbelief.”
Becerril, 587 F.3d at 1163; see Schuler v. Chronicle Board. Co.,
793 F.2d 1010, 1011 (9th Cir. 1986) (“These subjective personal
judgments do not raise a genuine issue of material fact.”).
Rather, the Army’s reassignment decision was substantiated:
Plaintiff failed to follow his commanding officers’ directives.
Consequently, the Court finds that Plaintiff has not
met his burden of raising a triable issue of material fact as to
whether the Army’s proffered legitimate reasons for initially
transferring Plaintiff to a non-supervisory position were
pretextual.
Further, even assuming it constituted an adverse
action, Plaintiff has also failed to meet his burden of raising a
triable issue of material fact as to whether the Army’s refusal
to rescind the settlement agreement was “mere pretext for
unlawful discrimination.” Hawn, 615 F.3d at 1158.
Accordingly,
the Court GRANTS Defendant’s Motion for Summary Judgment
regarding Plaintiff’s ADEA claims.
E.
Plaintiff’s ADEA Retaliation Claim
Plaintiff also brings a claim of retaliation under the
ADEA. Pl.’s Opp. at 24-25.
Section 623(d) of the ADEA makes it
unlawful for an employer to retaliate against an employee for
opposing “any practice made unlawful by [the ADEA], or because
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such [employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
litigation under [the ADEA].” 29 U.S.C. § 623(d).
Plaintiff’s
ADEA retaliation claim appears to be based on the filing of his
initial complaint with the EEOC in April 2008 and sending of
letters to various elected officials and Army personnel. See
Pl.’s CSF Ex. 1; FAC at 16-17,
¶ 42-43.
In order to establish a prima facie case of
retaliation, a plaintiff must provide evidence of the following:
“(1) he engaged in a protected activity; (2) he suffered an
adverse employment action, and (3) there was a causal connection
between the two.” Surrell v. California Water Serv. Co., 518 F.3d
1097, 1108 (9th Cir. 2008).
Although Plaintiff can likely establish elements one
and two necessary for a prima facie retaliation case, the Court
concludes that Plaintiff fails to provide evidence of a causal
link.
In Clark County School District, an employee filed a
retaliation claim based upon her employer’s decision to transfer
her around the time that she filed charges with the EEOC and the
Nevada Equal Rights Commission. Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 271-72 (2001).
The employee in Clark
filed her lawsuit on April 1, 1997. Id. at 272.
On April 10,
1997, her supervisor mentioned to her union that the employee was
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thinking of transferring the employee to another position. Id.
However, the employer did not receive notification of the lawsuit
or the summons and complaint until April 11, 1997. Id.
The
employee’s actual transfer took place in May. Id.
The Supreme Court held that summary judgment for the
employer was appropriate because no causal connection existed
between the employee’s filing of her lawsuit and her subsequent
transfer. Clark, 532 U.S. at 272.
According to the Court,
employers “need not suspend previously planned transfers upon
discovering that a Title VII suit has been filed, and their
proceeding along lines previously contemplated, thought not yet
definitely determined, is no evidence whatever of causality.” Id.
The Supreme Court also noted that the fact that actual transfer
occurred one month after the employee filed her suit was
“immaterial” in light of the evidence that the employer had
contemplated the transfer before the suit. Id.
In this case, the decision to initially transfer
Plaintiff to a non-supervisory position was made on December 13,
2007, when LTC Wallace delivered a memorandum titled “Subject:
Notice of Direct Reassignment–-Dennis Morris.” FAC at 8, ¶ 18.
The settlement agreement accepting Plaintiff’s retirement was
executed on February 1, 2008. Def.’s CSF at 4, ¶ 13.
The letters
were sent between the 5th and 8th of April 2008, and Plaintiff
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first contacted an EEO counselor on April 11, 2008. See FAC at
16-17, ¶ 42-43; Pl.’s CSF Ex. 1 (EEO Counselor Report).
Thus, both of Defendant’s alleged adverse employment
actions occurred before Plaintiff filed his initial EEOC
complaint and sent letters to various elected officials and
military personnel.
In other words, Defendant’s employment
decisions had been finalized and were not influenced by
Plaintiff’s decision to engage in protected activity. See Clark,
532 U.S. at 272.
The Court therefore GRANTS Defendant’s Motion
for Summary Judgment regarding Plaintiff’s ADEA retaliation claim
because he has failed to present evidence of a causal connection
between a protected activity and an adverse employment action.
III. Plaintiff’s Jury Demand
Notwithstanding Defendant’s withdrawal of its Motion to
Strike Plaintiff’s jury demand since in fact the FAC does not
include such a demand, the Court notes that Plaintiff’s
Opposition brief argues that a jury trial should be allowed in
this case. Pl.’s Opp. at 26.
The Court will address this
contention for informational purposes.
The Supreme Court has determined that a plaintiff does
not have a right to a jury trial in ADEA actions against the
United States and federal employers. Lehman v. Nakshian, 453 U.S.
156, 168 (1981).
The Supreme Court reasoned that since the
federal government may not be sued without its consent and may be
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sued only on the terms to which it agrees, a plaintiff has a
right to jury trial only if “Congress has affirmatively and
unambiguously granted that right by statute.” Id.
The Supreme
Court concluded that Congress did not explicitly provide for jury
trials under the ADEA against the federal government. Id. at 16869.
Although Plaintiff “respectfully disagrees” with the Lehman
decision, this Court is bound by Supreme Court precedent and,
therefore, strikes Plaintiff’s jury demand.
CONCLUSION
For the foregoing reasons, the Court:
(1) GRANTS Defendant’s Motion to Dismiss for Lack of
Subject Matter Jurisdiction or in the Alternative for Failure to
State a Claim Upon Which Relief Can Be Granted with respect to
Plaintiff’s due process claims; and
(2) GRANTS Defendant’s Motion for Summary Judgment with
respect to Plaintiff’s Age Discrimination in Employment Act
claim.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, February 4, 2014.
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________________________________
Alan C. Kay
Sr. United States District Judge
Morris v. McHugh, Civ. No. 13-00182 ACK-KSC: ORDER GRANTING DEFENDANT’S MOTION
TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
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