Mahoe v. Operating Engineers Local Union No. 3 of the International Union of Operating Engineer, AFL-CIO et al
Filing
76
ORDER GRANTING DEFENDANT OPERATING ENGINEERS LOCAL UNION NO. 3 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO'S MOTION FOR SUMMARY JUDGMENT (ECF No. 62 ). Signed by JUDGE HELEN GILLMOR on 11/25/2014. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM K. MAHOE,
Plaintiff,
vs.
OPERATING ENGINEERS LOCAL
UNION NO. 3 OF THE
INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Defendant.
_____________________________
OPERATING ENGINEERS LOCAL
UNION NO. 3 OF THE
INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO,
Counter Claimant,
vs.
WILLIAM K. MAHOE,
Counter Defendant.
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Civ. No. 13-00186 HG-BMK
ORDER GRANTING DEFENDANT OPERATING ENGINEERS LOCAL UNION NO. 3
OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO’S
MOTION FOR SUMMARY JUDGMENT (ECF No. 62)
Plaintiff William K. Mahoe, a Native Hawaiian, filed a
complaint alleging claims of racial discrimination and
retaliation against his former employer, Defendant Operating
Engineers Local Union No. 3 of the International Union of
1
Operating Engineers, AFL-CIO (“Local 3” or “Union”).
The
Defendant Local 3 has filed a counterclaim against Plaintiff
Mahoe.
The Defendant Local 3 filed a Motion for Summary Judgment
as to Plaintiff Mahoe’s racial discrimination and retaliation
claims.
Plaintiff agrees to summary judgment in favor of the
Defendant Local 3 on his claim for racial discrimination.
The Defendant Local 3’s Motion for Summary Judgment (ECF
No. 62) is GRANTED.
PROCEDURAL HISTORY
On September 21, 2012, Plaintiff William K. Mahoe filed a
Complaint in the Circuit Court of the First Circuit, State of
Hawaii. (Complaint, attached as Ex. A. to Defendant’s Notice
of Removal, ECF No. 1-1).
On April 19, 2013, Defendant Operating Engineers Local
Union No. 3 of the International Union of Operating Engineers,
AFL-CIO removed the state court action to the United States
District Court, District of Hawaii.
(ECF No. 1).
On April 26, 2013, the Defendant Local 3 filed a MOTION
TO DISMISS COUNT II (DEFAMATION) AND/OR FOR MORE DEFINITE
STATEMENT.
(ECF No. 7).
On July 12, 2013, the case was reassigned to the
2
Honorable Judge Helen Gillmor.
(ECF No. 23).
On September 27, 2013, the Court issued an ORDER GRANTING
DEFENDANT OPERATING ENGINEERS LOCAL UNION NO. 3 OF THE
INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO’S MOTION
TO DISMISS (ECF No. 7) WITH LEAVE TO AMEND.
(ECF No. 34).
On November 5, 2013, Plaintiff Mahoe filed the FIRST
AMENDED COMPLAINT.
(ECF No. 36).
On November 22, 2013, the Defendant Local 3 filed a
MOTION TO DISMISS FIRST AMENDED COMPLAINT.
(ECF No. 38).
On February 10, 2014, the Court held a hearing on the
Defendant’s Motion to Dismiss the First Amended Complaint.
(ECF No. 50).
The Court issued a Minute Order GRANTING IN
PART AND DENYING IN PART DEFENDANT OPERATING ENGINEERS LOCAL
UNION NO. 3 OF THE INTERNATIONAL UNION OF OPERATING ENGINEERS,
AFL-CIO’S MOTION TO DISMISS FIRST AMENDED COMPLAINT WITH LEAVE
TO AMEND (ECF No. 38).
(ECF No. 50).
On March 3, 2014, Plaintiff Mahoe filed the SECOND
AMENDED COMPLAINT.
(ECF No. 51).
On March 20, 2014, the Defendant Local 3 filed an ANSWER
to the Second Amended Complaint and COUNTERCLAIMS for breach
of contract, breach of fiduciary duty, fraud, conversion, and
unjust enrichment.
(ECF No. 53).
On August 28, 2014, the Defendant Local 3 filed NOTICE OF
3
DEFENDANT OPERATING ENGINEERS LOCAL UNION NO. 3’S MOTION FOR
SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY
JUDGMENT.
(ECF No. 62).
On the same date, the Defendant Local 3 filed DEFENDANT
LOCAL NO. 3’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL
SUMMARY JUDGMENT.
(ECF No. 63).
The Defendant Local 3 also
filed DEFENDANT’S CONCISE STATEMENT OF FACTS IN SUPPORT OF ITS
MOTION FOR SUMMARY JUDGMENT, PURSUANT TO LOCAL RULE 56.1.
(ECF No. 64).
On September 12, 2014, Plaintiff Mahoe filed PLAINTIFF
WILLIAM K. MAHOE’S RESPONSE TO DEFENDANT’S CONCISE STATEMENT
OF FACTS IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN
ALTERNATIVE, PARTIAL SUMMARY JUDGMENT, PURSUANT TO LOCAL RULE
56.1.
(ECF No. 66).
On September 13, 2014, Plaintiff Mahoe filed PLAINTIFF
WILLIAM K. MAHOE’S MEMORANDUM IN OPPOSITION TO DEFENDANT
OPERATING ENGINEERS LOCAL UNION NO. 3 MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR IN
THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT.
(ECF No. 67).
On September 18, 2014, the Defendant Local 3 filed a
Supplemental Declaration (ECF No. 68) and its REPLY IN SUPPORT
OF MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL
4
SUMMARY JUDGMENT.
(ECF No. 69).
On November 10, 2014, the Court held a hearing on the
Defendant Local 3’s Motion for Summary Judgment (ECF No. 62).
(ECF No. 75).
BACKGROUND
Plaintiff Mahoe is Native Hawaiian.
(Deposition of
William K. Mahoe (“Mahoe Depo.”) at pp. 50, 53, ECF No. 64-1).
In 1993, Plaintiff Mahoe began his employment with the
Defendant Operating Engineers Local Union No. 3 of the
International Union of Operating Engineers, AFL-CIO
(“Defendant Local 3”).
(Mahoe Depo. at pp. 33-34, ECF No. 64-
1).
Defendant Local 3 is a labor organization headquartered
in California that represents operating engineers in
California, Utah, Nevada, and Hawaii.
(Declaration of Russell
E. Burns, Business Manager of the Defendant Local 3, (“Burns
Decl.”) at ¶¶ 3, 6, 9, ECF No. 64-2).
The Defendant Local 3
is governed by an elected Executive Board.
(Id. at ¶ 9).
Executive Board is headed by the Business Manager.
(Id. at ¶
11).
The Defendant Local 3’s geographic territories are
structured into separate Districts.
5
The
Each of the Defendant
Local 3’s Districts has its own facilities and offices.
at ¶ 7).
District 17 serves the State of Hawaii.
(Id.
(Id.)
In February 2010, Plaintiff Mahoe served as Treasurer on
the Defendant Local 3’s Executive Board and worked at the
District 17 offices in Hawaii in the position of Special
Representative to the Business Manager.
(Id. at ¶¶ 38, 41).
The Defendant Local 3 explained during the hearing that
Plaintiff Mahoe was the senior staff person representing the
Business Manager in Hawaii.
The Defendant explained that the
Hawaii District Representative, Gino Soquena, was responsible
for the day-to-day operations of District 17, but Plaintiff
Mahoe was responsible for special projects, general oversight
of the District 17 offices, and the implementation of the
Defendant Local 3’s policies in the District.
Beginning in March 2010, the Defendant Local 3 began
investigating Plaintiff Mahoe because of allegations made by
two former employees that Plaintiff Mahoe had misused Union
funds.
(Burns Decl. at ¶ 47, ECF No. 64-2).
Two months later, on May 26, 2010, the Defendant Local 3
placed Plaintiff Mahoe on unpaid administrative leave pending
the results of the investigation.
(Id. at ¶¶ 52-53).
On June 16, 2010, three weeks after being placed on
unpaid administrative leave, Plaintiff Mahoe complained in
6
writing to the Defendant Local 3’s Human Resources Manager
about discrimination.
(Letter to Mariano Gonzalez from Mahoe
dated June 16, 2010, Def.’s Ex. 9, ECF No. 64-1).
Plaintiff
Mahoe agreed at the hearing that the June 2010 letter he sent
to the Defendant complaining of discrimination is not the
basis for his retaliation claim and is not at issue in this
case.
According to Plaintiff, on July 26, 2010, he received a
call from another employee who told him that an executive from
the mainland, Guy Prescott, was sent to the Defendant Local
3’s District 17 offices to terminate an employee.
Depo. at pp. 154-57, ECF No. 64-1).
(Mahoe
Plaintiff Mahoe went to
the Defendant Local 3’s District 17 offices while he was still
on unpaid administrative leave. (Id. at pp. 154-55).
According to Plaintiff’s testimony at his deposition,
after he arrived at the District offices on July 26, 2010,
Plaintiff Mahoe approached Prescott accompanied by several
employees and yelled, “who the hell is this guy to come over
here and start firing our people?”
(Id. at pp. 157, 165).
Plaintiff shouted at Prescott that he was shutting down the
Local 3 offices in Hawaii.
(Id. at p. 164, 169).
Plaintiff
Mahoe directed the Local 3 employees in District 17 to walk
off of their jobs.
(Id. at p. 157-58, 169-70).
7
The following
day, on July 27, 2010, Plaintiff Mahoe was terminated by the
Defendant’s Business Manager for gross insubordination.
(Letter to Mahoe dated July 27, 2010, Ex. 11, ECF No. 64-2).
On August 6, 2010, ten days after Plaintiff Mahoe was
terminated, he filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”).
Complaint at ¶¶ 4, 8, ECF No. 51).
(Second Amended
Plaintiff Mahoe claims
that on August 20, 2010, he filed an amended Charge of
Discrimination, alleging claims of race discrimination and
retaliation.
(Mahoe Depo. at pp. 187, 193, ECF No. 64-1).
The Defendant Local 3 continued their investigation into
Plaintiff Mahoe following his termination in July 2010.
(Burns Decl. at ¶¶ 72-74, ECF No. 64-2).
At the close of the
investigation, it was concluded that the majority of the
allegations against Plaintiff Mahoe were unsubstantiated.
(Id. at ¶ 74).
The Defendant Local 3 decided to reinstate
Plaintiff Mahoe due to the results of the investigation.
(Id. at ¶ 75).
On October 24, 2010, the members of the Defendant Local
3’s Executive Board and Plaintiff Mahoe signed a Letter of
Understanding as to the terms of the reinstatement.
(Letter
of Understanding dated Oct. 24, 2010, Def.’s Ex. 17, ECF No.
64-1).
The terms of Plaintiff’s reinstatement required him to
8
dismiss all complaints and administrative charges he had filed
against Defendant Local 3.
(Id.)
Mahoe agreed to do so.
(Id.)
The Letter of Understanding stated:
As additional consideration of the terms set forth
herein, Brother Mahoe will immediately withdraw, with
prejudice, any and all complaints, charges,
administrative proceedings, or other actions which he
may have filed arising out of or in any way relating
to the events which are the subject of this Letter of
Understanding. He further agrees to take all the
measures necessary to support the present
administration of the Local Union and acknowledges his
obligation of loyalty thereto as an employee and
representative of Local 3.
(Id. at ¶ 7).
Plaintiff Mahoe claims in his deposition that he believed
that the Charge of Discrimination he had filed with the EEOC
in August 2010 was “being removed or something” by the EEOC
case agent.
(Mahoe Depo. at p. 204, ECF No. 64-1).
In the
Second Amended Complaint, Plaintiff alleges that on November
23, 2011, he updated the Charge of Discrimination he had
previously filed with the EEOC in August 2010.
(Second
Amended Complaint at ¶ 9, ECF No. 51).
Defendant Local 3 contends that Plaintiff’s August 2010
EEOC Charge of Discrimination was not withdrawn, despite its
reinstatement of the Plaintiff in November 2010 and the terms
of the Letter of Understanding outlining the settlement.
9
(Mahoe Depo. at pp. 203-04, ECF No. 64-1; see Def.’s CSF at ¶
25, ECF No. 64).
On November 1, 2010, Plaintiff Mahoe returned to work for
the Defendant Local 3 in Hawaii in his position as Special
Representative to the Business Manager.
(Mahoe Depo. at p.
201, ECF No. 64-1).
The following day, on November 2, 2010, the Defendant
Local 3’s Office Manager sent an e-mail to Plaintiff which
stated: “Do NOT rent the Union hall facility until you have
received the okay from the Legal department.”
(E-mail from
Sandra McDermott dated November 2, 2010, Def.’s Ex. 18, ECF
No. 64-1).
Attached were a chain of forwarded e-mails between
the Defendant Local 3’s Legal Department and the Secretary for
Gino Soquena, the Hawaii District Representative, that
discussed concerns about the need for insurance coverage for
private events held on their premises.
(Id.)
On December 11, 2010, Mahoe attended a wedding reception
for his cousin at the Defendant Local 3’s facilities on Oahu.
(Mahoe Depo. at pp. 207, ECF No. 64-1; Declaration of William
K. Mahoe (“Mahoe Decl.”) at ¶ 8, ECF No. 66-1).
Six weeks after the wedding, on January 23, 2011, the
Defendant Local 3 Executive Board held a meeting.
Decl. at ¶ 91, ECF No. 64-2).
10
(Burns
At the January 23, 2011 Executive Board meeting, presided
over by Defendant Local 3’s Business Manager, Russell Burns,
Plaintiff Mahoe was shown a video of his attendance at the
wedding in December 2010.
1).
(Mahoe Decl. at ¶ 12, ECF No. 66-
At the meeting, the Board Members discussed Mahoe’s
actions in attending the wedding and “[a]ll of the Officers
agreed that Mahoe had to go.”
64-2).
(Burns Decl. at ¶ 94, ECF No.
After the meeting on January 23, 2011, Burns asked for
Plaintiff Mahoe’s resignation for attending the wedding and
failing to properly manage the use of Local 3’s facilities in
Hawaii.
(Id.)
On February 2, 2011, ten days later, Plaintiff Mahoe
signed a resignation letter and delivered it to Burns.
(Id.
at ¶ 97; Mahoe Decl. at ¶ 14, ECF No. 66-1).
In his deposition, Plaintiff Mahoe acknowledged that he
had a responsibility to ensure that the Defendant Local 3’s
premises were not used for private events without approval
from the Legal Department.
(Mahoe Depo. at pp. 214-15, ECF
No. 64-1). Plaintiff admitted that he took no action to
prevent the wedding from being held.
(Id. at pp. 54-55).
Plaintiff stated, “I admit it, I fucked up. . . . What I
didn’t do was take action, and I should have took . . . . I
should have just probably called off everything, the whole
11
event, you know.”
(Id. at p. 54).
Plaintiff claims that he exhausted his administrative
remedies when on July 21, 2011, he filed a Charge of
Discrimination with the Hawaii Civil Rights Commission, based
on the Defendant’s request for his resignation in January
2011.
(Second Amended Complaint at ¶ 8, ECF No. 51).
Plaintiff Mahoe asserts that on June 25, 2012, the EEOC issued
a Right to Sue letter.
(Id. at ¶ 9).
Plaintiff claims his constructive discharge in January
2011 was in retaliation for the EEOC Charge of Discrimination
he filed against the Defendant in August 2010 and did not
withdraw following his reinstatement in November 2010.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.
Fed. R. Civ. P. 56(c).
To
defeat summary judgment there must be sufficient evidence that
a reasonable jury could return a verdict for the nonmoving
party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916
(9th Cir. 1997).
The moving party has the initial burden of “identifying
for the court the portions of the materials on file that it
12
believes demonstrate the absence of any genuine issue of
material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).
The
moving party, however, has no burden to negate or disprove
matters on which the opponent will have the burden of proof at
trial.
The moving party need not produce any evidence at all
on matters for which it does not have the burden of proof.
Celotex, 477 U.S. at 325.
The moving party must show,
however, that there is no genuine issue of material fact and
that he or she is entitled to judgment as a matter of law.
That burden is met by pointing out to the district court that
there is an absence of evidence to support the non-moving
party’s case.
Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the
absence of probative evidence tending to support its legal
theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d
270, 282 (9th Cir. 1979).
The opposing party must present
admissible evidence showing that there is a genuine issue for
trial. Fed. R. Civ. P. 56(e); Brinson v. Linda Rose Joint
Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).
“If the evidence
is merely colorable, or is not significantly probative,
13
summary judgment may be granted.” Nidds, 113 F.3d at 916
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)).
The court views the facts in the light most favorable to
the non-moving party.
State Farm Fire & Casualty Co. v.
Martin, 872 F.2d 319, 320 (9th Cir. 1989).
Opposition
evidence may consist of declarations, admissions, evidence
obtained through discovery, and matters judicially noticed.
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324.
The opposing
party cannot, however, stand on its pleadings or simply assert
that it will be able to discredit the movant’s evidence at
trial. Fed. R. Civ. P. 56(e); T.W. Elec. Serv., 809 F.2d at
630.
The opposing party cannot rest on mere allegations or
denials.
Fed. R. Civ. P. 56(e); Gasaway v. Northwestern Mut.
Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994).
When the
non-moving party relies only on its own affidavits to oppose
summary judgment, it cannot rely on conclusory allegations
unsupported by factual data to create an issue of material
fact.
Hansen v. United States, 7 F.3d 137, 138 (9th Cir.
1993); see also National Steel Corp. v. Golden Eagle Ins. Co.,
121 F.3d 496, 502 (9th Cir. 1997).
14
ANALYSIS
Count I:
Racial Discrimination
On March 3, 2014, Plaintiff Mahoe filed a Second Amended
Complaint.
(ECF No. 51).
The Second Amended Complaint
contains two counts: Count I for racial discrimination and
Count II for retaliation.
(Id.)
Plaintiff alleges a claim in
Count I for racial discrimination pursuant to Title VII of the
Civil Rights Act of 1964, codified at 42 U.S.C. § 2000e-2.
Title VII of the Civil Rights Act of 1964 provides, in
relevant part:
It shall be unlawful employment practice for an
employer . . . to fail or refuse to hire or to
discharge any individual, or otherwise to
discriminate against any individual with respect
to his compensation, terms, conditions, or
privileges of employment, because of such
individual’s race, color, religion, sex, or
national origin.
42 U.S.C. § 2000e-2(a)(1) (2006).
On August 28, 2014, Defendant Local 3 filed a Motion for
Summary Judgment as to both counts in Plaintiff’s Second
Amended Complaint.
(ECF No. 62).
Plaintiff Mahoe agrees that summary judgment is
appropriate in favor of the Defendant Local 3 as to Count I.
(Pla.’s Opposition to the Def.’s Motion for Summary Judgment,
ECF No. 67 at pp. 3-4).
15
Defendant’s Motion for Summary Judgment as to Count I for
racial discrimination is GRANTED.
Count II:
Retaliation
Federal law prohibits retaliation against an employee for
making a charge or otherwise participating in a proceeding
pursuant to 42 U.S.C. § 2000e-3(a).
42 U.S.C. § 2000e-3(a) provides:
It shall be an unlawful employment practice for an
employer to discriminate against any of his
employees or applicants for employment, for an
employment agency, or joint labor-management
committee controlling apprenticeship or other
training or retraining, including on-the-job
training programs, to discriminate against any
individual, or for a labor organization to
discriminate against any member thereof or applicant
for membership, because he has opposed any practice
made an unlawful employment practice by this
subchapter, or because he has made a charge,
testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under
this subchapter.
To establish a prima facie case of retaliation, a
plaintiff must demonstrate that:
(1)
he engaged in a protected activity;
(2)
the defendant subjected the plaintiff to an adverse
employment action; and
(3)
a causal link existed between the protected activity
and the adverse employment action.
16
Nilsson v. City of Mesa, 503 F.3d 947, 953 (9th Cir.
2007).
The evidence necessary to establish a prima facie case of
retaliation is minimal.
Wallis v. J.R. Simplot Co., 26 F.3d
885, 891 (9th Cir. 1994).
If the plaintiff provides sufficient evidence to show a
prima facie case of retaliation, the burden shifts to the
defendant to articulate a legitimate, non-retaliatory reason
for its employment decision.
1163, 1168 (9th Cir. 2007).
Noyes v. Kelly Servs., 488 F.3d
If the defendant sets forth such
a reason, the plaintiff bears the ultimate burden of
submitting evidence indicating that the defendant’s proffered
reason is merely a pretext for a retaliatory motive.
Surrell
v. California Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir.
2008).
A.
Prima Facie Case of Retaliation
1.
Protected Activity
An employee’s communication to his employer that he
believes it has engaged in employment discrimination
constitutes a protected activity for a 42 U.S.C. § 2000e-3(a)
retaliation claim.
Crawford v. Metropolitan Gov. Of Nashville
& Davidson Cnty. Tenn., 555 U.S. 271, 276 (2009).
17
Plaintiff Mahoe alleges that he engaged in a protected
activity on August 6, 2010, when he filed a Charge of
Discrimination with the EEOC.1
6, ECF No. 51).
(Second Amended Complaint at ¶
Filing a complaint with the EEOC constitutes
a protected activity for a federal employment law retaliation
claim.
Ray v. Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir.
2000).
The Court has not been provided with a copy of the
EEOC Complaint of August 6, 2010, or any subsequent EEOC
filings.
2.
Adverse Employment Action
The employee must show, as part of his prima facie
retaliation claim, that he suffered some adverse action by the
employer after he engaged in a protected activity.
Nilsson,
503 F.3d at 953-54.
An adverse employment action materially affects the
compensation, terms, conditions, or privileges of employment.
Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
An action is cognizable as an adverse employment action in a
1
Plaintiff Mahoe also complained of discrimination on
June 16, 2010, when he sent a letter to the Defendant Local
3’s Director of Human Resources. (Letter to Mariano Gonzalez
from William K. Mahoe dated June 16, 2010, Def.’s Ex. 9, ECF
No. 64-1). Plaintiff conceded at oral argument that his
retaliation claim is not based on the letter of discrimination
he sent in June 2010 to the Defendant Local 3.
18
retaliation case if it is reasonably likely to deter employees
from engaging in a protected activity.
Ray, 217 F.3d at 1243;
Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S.
53, 68 (2006).
In July 2010, Plaintiff was on administrative leave from
his position as Special Representative to the Business Manager
in the Defendant’s Hawaii office.
On July 26, 2010, Plaintiff
Mahoe received a call informing him that a California
executive, Guy Prescott, was in Hawaii to terminate an
employee.
(Mahoe Depo. at p. 154, ECF No. 64-1).
Plaintiff
Mahoe went to the Defendant’s Hawaii office, yelled at
Prescott, and directed the Defendant Local 3 employees to walk
off their jobs and shut down the offices.
(Id. at pp. 169-
70).
The day after the incident, on July 27, 2010, Plaintiff
Mahoe was terminated for trying to shut down the Defendant’s
offices in Hawaii.
(Letter to Plaintiff Mahoe dated July 27,
2010, Ex. 11 attached to Burns Decl., ECF No. 64-2).
In November 2010, Plaintiff Mahoe was reinstated to his
paid position as Special Representative to the Business
Manager in the Defendant Local 3’s District 17 offices in
Hawaii. (Burns Decl. at ¶ 80, ECF No. 64-2).
Two months later, on January 23, 2011, the Defendant
19
Local 3 asked Plaintiff to resign for not properly managing
the use of the Defendant’s Union hall in Hawaii, as evidenced
by his attendance at a wedding on the Union’s premises in
December 2010.
(Id. at ¶¶ 85-96).
On that date, Plaintiff
was handed a prepared resignation letter and was told he
needed to resign or he would be terminated.
¶¶ 12-14, ECF No. 66-1).
(Mahoe Decl. at
On February 2, 2011, Plaintiff Mahoe
signed the resignation letter.
(Burns Decl. at ¶ 97, ECF No.
64-2).
Plaintiff Mahoe could be seen as having suffered an
adverse employment action when he was asked to resign in
January 2011.
Requesting that an employee resign is an action
that is reasonably likely to deter an employee from
complaining about discrimination in the workplace.
Ray, 217
F.3d at 1244.
3.
Causation
The final factor needed for a plaintiff to demonstrate a
prima facie retaliation case is to establish a causal link
between the protected activity and the adverse employment
action.
Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1035 (9th Cir. 2006).
In 2013, the United States Supreme Court clarified the
20
standard of proof with respect to causation in a retaliation
case.
Univ. Of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517,
2533 (2013).
The Supreme Court held that “Title VII
retaliation claims must be proved according to traditional
principles of but-for causation. . . .”
Id.
This requires
proof that the unlawful retaliation would not have occurred in
the absence of the alleged wrongful actions of the employer.
Id.
a.
Proximity in Time
A causal link may be inferred from the proximity in time
between the protected activity and the adverse action.
v. Entek Int’l, 630 F.3d 928, 936 (9th Cir. 2011).
Dawson
In some
cases, temporal proximity can, by itself, constitute
sufficient circumstantial evidence of retaliation for purposes
of a prima facie case.
Id.
Plaintiff Mahoe claims that the time between his August
2010 EEOC Charge of Discrimination and his constructive
termination in January 2011 is close enough to infer
causation.
Plaintiff was asked to resign in January 2011, more than
five months after Plaintiff filed his Charge of Discrimination
with the EEOC in August 2010.
The five month delay between
21
Plaintiff’s EEOC complaint and his constructive discharge is
not close enough in time to infer causation based solely on
timing.
In Clark County School Dist. v. Breeden, 532 U.S.
268, 273 (2001) (per curiam), the United States Supreme Court
explained that the cases that accept mere temporal proximity
to state a prima facie case for retaliation hold that the
temporal proximity must be “very close.”
The Ninth Circuit Court of Appeals has generally required
temporal proximity of less than three months between the
protected activity and the adverse employment action for the
employee to establish causation based on timing alone.
Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
The
appellate court has held that a five month gap between
actions, by itself, is insufficient evidence to infer
causation for a retaliation claim.
Brown v. Dep’t of Public
Safety, 446 Fed. Appx. 70, 73 (9th Cir. 2011); Pickens v.
Astrue, 252 Fed. Appx. 795, 797 n.2 (9th Cir. 2007); see
Fazeli v. Bank of America, NA, 525 Fed. Appx. 570, 571 (9th
Cir. 2013) (finding less than three months was insufficient to
infer causation when there was other evidence that no causal
link existed).
22
b.
Evidence of Retaliatory Motive
The Ninth Circuit Court of Appeals has explained that
factors other than timing can be considered when evaluating
the causation element in a prima facie case for retaliation.
Porter v. Cal. Dept. Of Corrections, 419 F.3d 885, 895 (9th
Cir. 2005).
When looking to the causation element of a
retaliation claim, it is necessary to inquire into the motives
of the employer.
Id. (citing Kachmar v. SunGard Data Sys.,
Inc., 109 F.3d 173, 177 (3rd Cir. 1997)).
highly context specific.
Id.
The inquiry is
Causation can be shown based on
circumstantial evidence that demonstrates retaliatory
motivation on the part of the employer following the
plaintiff’s protected conduct.
Porter, 419 F.3d at 896
(finding evidence of causation when the employer denied the
employee’s requests for vacation and made changes in his shift
following complaints of discrimination).
Plaintiff Mahoe has provided sufficient evidence of
retaliatory motive to establish the prima facie element of
causation.
Plaintiff Mahoe asserts that on November 2, 2010,
he was informed that the Defendant Local 3 created a new
policy about the use of its facilities for private events.
(E-mail to Plaintiff dated November 2, 2010, Def.’s Ex. 18,
ECF No. 64-1).
Plaintiff claims that the policy was only
23
enforced against him.
Coszalter v. City of Salem, 320 F.3d
968, 978 (9th Cir. 2003) (holding that the application of a
company policy against only the terminated employee suggests
that the employer had a retaliatory motive).
Permission to use the facilities for the wedding was
approved by the District Manager for the Defendant Local 3’s
Hawaii offices, Gino Soquena, not Plaintiff.
(Id. at ¶ 5).
According to Plaintiff, he only found out about the wedding a
few days before it took place.
(Id. at ¶¶ 5-6).
A trier of fact could infer causation based on the
evidence that Plaintiff did not approve the use of Defendant’s
facilities for the wedding and only Plaintiff, who had
complained of discrimination, was asked to resign for
attending the wedding.
Plaintiff Mahoe has presented sufficient evidence to meet
the minimal burden necessary to demonstrate a prima facie case
of retaliation.
B.
Wallis, 26 F.3d at 891.
Nondiscriminatory Reason
If the Plaintiff establishes a prima facie case for
retaliation, the burden shifts to the employer to produce
evidence that it had a non-retaliatory reason for its conduct.
Davis, 520 F.3d at 1094.
The employer need only produce
24
evidence that it had a non-retaliatory reason for its conduct,
such as performance problems or misconduct.
Unt v. Aerospace
Corp., 765 F.2d 1440, 1447 (9th Cir. 1985).
The Defendant Local 3 asserts that Plaintiff Mahoe was
asked to resign in January 2011 for continued violations of
company policies.
Employee misconduct is a legitimate reason for
terminating an employee.
Id.
In Unt, the appellate court
explained that “[a]n employee is not protected by Title VII
when he violates legitimate company rules, knowingly disobeys
company orders, and disrupts the work environment of his
employer, or willfully interferes with the attainment of the
employer’s goals.”
Id. at 1446.
The Ninth Circuit Court of Appeals has found that
evidence of an employee’s pattern of insubordinate conduct
constitutes a legitimate, non-retaliatory reason for
termination.
Harrison v. U.S. Customs Service, 15 F.3d 1085,
1993 WL 508318, *2 (9th Cir. 1993).
The Defendant Local 3 provided evidence that Plaintiff
Mahoe engaged in a pattern of insubordinate behavior.
On July 26, 2010, Plaintiff Mahoe created a disturbance
at the Defendant Local 3’s District offices in Hawaii, yelled
at another employee, and directed the Defendant Local 3
25
employees to walk off their jobs and shut down the offices.
(Mahoe Depo. at pp. 169-70, ECF No. 64-1).
Plaintiff was reinstated in November 2010.
A month
later, on December 11, 2010, Plaintiff attended a wedding at
the Union’s facilities in Hawaii that was seen by his employer
as a violation of his duties.
(Mahoe Depo. at pp. 54-55, ECF
No. 64-1).
Plaintiff Mahoe was the senior staff member in the
Defendant’s Hawaii office and also served as Treasurer on the
Defendant’s Executive Board.
64-2).
(Burns Decl. at ¶ 89, ECF No.
As a senior staff member and Officer, Plaintiff was
expected to ensure the implementation of the Defendant’s
policies in the Hawaii District Office.
(Id. at ¶ 95).
The
Executive Board found Plaintiff’s attendance at the December
2010 wedding and failure to manage the use of its facilities
to be “another serious act of insubordination and disregard of
his duties.”
(Id. at ¶¶ 89, 95).
The Defendant Local 3 has provided a legitimate, nonretaliatory reason for asking Plaintiff Mahoe to resign in
January 2011.
C.
Pretext
If the defendant provides a legitimate, non-retaliatory
26
reason, the plaintiff must show that the employer’s proffered
reason is a pretext for retaliation.
Surrell, 518 F.3d at
1097.
A plaintiff may rely on circumstantial evidence to show
pretext but the evidence must be both specific and
substantial.
Bergene v. Salt River Project Agric. Imp. & Pwr.
Dist., 272 F.3d 1136, 1142 (9th Cir. 2001).
Circumstantial
evidence typically relates to such factors as plaintiff’s job
performance, the timing of events, and how the plaintiff was
treated in comparison with other workers.
See Stegall v.
Citadel Broadcasting Co., 350 F.3d 1061, 1066-67 (9th Cir.
2003).
1.
Plaintiff Has Not Demonstrated That His
Participation in Proceedings Before the EEOC Likely
Motivated the Defendant Local 3 to Ask Him to Resign
in January 2011
A plaintiff may show that the employer’s articulated
reason is pretextual by persuading the court that retaliation
more likely motivated the employer.
Chuang v. Univ. of
California Davis, 225 F.3d 1115, 1124 (9th Cir. 2000).
Plaintiff Mahoe asserts that the Defendant retaliated
against him for filing an EEOC complaint in August 2010 and
for failing to dismiss the Charge after he was reinstated in
November 2010.
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There is insufficient evidence to support Plaintiff’s
position that the Defendant was more likely motivated by
retaliation.
There is no evidence that the Defendant Local 3 knew
Plaintiff failed to take the proper steps to withdraw his
Charges of Discrimination after he was reinstated in November
2010.
Plaintiff has not provided any evidence to demonstrate
when the Defendant Local 3 or its employees became aware that
he had not withdrawn his charges of discrimination.
Raad v.
Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1197
(9th Cir. 2003) (finding insufficient evidence of a
retaliatory motive where the plaintiff failed to demonstrate
that the hiring/firing official was aware that the plaintiff
had filed a discrimination complaint).
There is insufficient evidence to demonstrate that
Plaintiff Mahoe’s participation in proceedings before the EEOC
was a but-for causation and more likely motivated the
Defendant to ask for his resignation in January 2011.
Univ.
Of Tex. Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2534 (2013)
(explaining that the plaintiff must demonstrate that the
protected conduct was a but-for cause of his adverse
employment action).
2.
Plaintiff Has Not Demonstrated That the Defendant
28
Local 3’s Proffered Reason for Asking Him to Resign
is Unworthy of Credence
A plaintiff may alternatively show that the defendant’s
articulated reason is pretextual by showing that the
employer’s proffered explanation is unworthy of credence.
Chuang, 225 F.3d at 1124.
Plaintiff has not presented evidence that the Defendant
Local 3’s proffered reason for asking him to resign in January
2011 is unworthy of credence.
Wallis v. J.R. Simplot Co., 26
F.3d 885, 892 (9th Cir. 1994) (finding that although the
plaintiff established a prima facie case of retaliation he
failed to provide any evidence to controvert the defendant’s
proffered reason for his termination).
The Defendant Local 3’s Business Manager, Russell Burns,
explained that at the January 23, 2011 Executive Board
meeting, “[a]ll of the Officers agreed that Mahoe had to go.”
(Burns Decl. at ¶ 94, ECF No. 64-2).
Burns states that
Plaintiff Mahoe’s attendance at the wedding in December 2010
“was another serious act of insubordination and disregard of
[Plaintiff’s] duties as a senior member of [Burns’] staff, and
a breach of his duties as an Officer.”
(Id. at ¶¶ 89, 95).
Plaintiff admitted in his deposition that before he was
reinstated in November 2010, he disrupted the Defendant Local
29
3’s Hawaii offices in July 2010 and directed the Defendant’s
employees to walk off of their jobs.
(Mahoe Depo. at pp. 152-
60, 164-70, ECF No. 64-1).
Plaintiff Mahoe acknowledges that when he returned to his
position in November 2010 he knew there had been an issue
concerning insurance and potential liability to the Defendant
Local 3 for having social functions on their premises.
at p. 214).
(Id.
Plaintiff admitted that as a senior staff member
and Officer for the Defendant Local 3 he should not have
allowed the wedding reception to take place on the Defendant
Union’s premises in December 2010.
(Id. at pp. 53-55, 214-
15).
Plaintiff Mahoe has not met his burden of providing
specific and substantial evidence that the Defendant Local 3’s
proffered reason for asking him to resign in January 2011 was
a pretext for retaliation.
Bergene, 272 F.3d at 1142.
Defendant’s Motion for Summary Judgment as to Count II
for retaliation is GRANTED.
//
//
//
//
//
//
30
CONCLUSION
Defendant’s Motion for Summary Judgment (ECF No. 62) is
GRANTED.
IT IS SO ORDERED.
DATED: November 25, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
William K. Mahoe v. Operating Engineers Local Union No. 3 of
the International Union of Operating Engineers, AFL-CIO;
Operating Engineers Local Union No. 3 of the International
Union of Operating Engineers, AFL-CIO v. William K. Mahoe;
Civ. No. 13-00186 HG-BMK; ORDER GRANTING DEFENDANT OPERATING
ENGINEERS LOCAL UNION NO. 3 OF THE INTERNATIONAL UNION OF
OPERATING ENGINEERS, AFL-CIO’S MOTION FOR SUMMARY JUDGMENT
(ECF No. 62)
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