Silverstein v. Carter

Filing 68

ORDER (a) DISMISSING RETALIATION CLAIM ASSERTED IN PARAGRAPHS 14, 17, 22, 24,25, AND 30 OF THE FIRST AMENDED COMPLAINT, AND (b) GRANTING IN PART ANDDENYING IN PART SUMMARY JUDGMENT WITH RESPECT TO REMAINING CLAIMS re 37 - Signed by JUDGE SUSAN OKI MOLLWAY on 8/11/2016. "The court grants Defendant's motion to dismiss the Title VII retaliation claim to the extent it is based on facts alleged in paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended Compla int (except with respect to the part of the retaliation claim involving the Laos trip). Any retaliation claim based on those allegations was not properly exhausted. Turning to the remaining portion of the retaliation claim, this court denies summary judgment with respect to the part of the retaliation claim based on the failure to promote Silverstein to the Supervisory Historian position, but grants Defendant summary judgment favor with respect to all other remaining bases of the reta liation claim. The court grants summary judgment in Defendant's favor with respect to the hostile work environment claim. Silverstein's retaliation claim based on the failure to hire him as the Supervisory Historian remain s for further adjudication." (emt, )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
JAY SILVERSTEIN,

)
)
Plaintiff,
)
)
vs.
)
)
ASHTON B. CARTER, in his
)
capacity as the Secretary of )
Defense,
)
)
Defendant.
)
_____________________________ )

CIV. NO. 15-00097 SOM/KJM
ORDER (a) DISMISSING
RETALIATION CLAIM ASSERTED IN
PARAGRAPHS 14, 17, 22, 24,
25, AND 30 OF THE FIRST
AMENDED COMPLAINT, AND
(b) GRANTING IN PART AND
DENYING IN PART SUMMARY
JUDGMENT WITH RESPECT TO
REMAINING CLAIMS

ORDER (a) DISMISSING RETALIATION CLAIM ASSERTED IN PARAGRAPHS 14,
17, 22, 24, 25, AND 30 OF THE FIRST AMENDED COMPLAINT,
AND (b) GRANTING IN PART AND DENYING IN PART
SUMMARY JUDGMENT WITH RESPECT TO REMAINING CLAIMS
I.

INTRODUCTION.
Plaintiff Jay Silverstein, a civilian employee with the

Department of Defense, brings retaliation and hostile work
environment claims under Title VII.
Defendant Ashton Carter, in his capacity as Secretary
of Defense, moves for dismissal of Silverstein’s First Amended
Complaint, or alternatively for summary judgment on all claims.
Silverstein concedes that, because he either failed to
administratively exhaust or was untimely in doing so, any
retaliation claim asserted in paragraphs 14, 17, 22, 24, 25, and
30 of the First Amended Complaint should be dismissed, the sole
exception being any retaliation claim relating to a trip to Laos.
See ECF No. 50, PageID # 604.

Relying on the failure to properly

exhaust, the court therefore dismisses any retaliation claim in
any of these paragraphs other than the retaliation claim relating
to the Laos trip.
The court grants in substantial part and denies in part
Defendant’s motion for summary judgment on the remaining claims.
With respect to Silverstein’s retaliation claim, summary judgment
is denied to the extent the claim relates to the selection of a
Supervisory Historian.

Summary judgment is granted in favor of

Defendant on all other bases of his retaliation claim.

With

respect to Silverstein’s hostile work environment claim, summary
judgment is granted to Defendant.
II.

SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment shall be granted when “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.”
P. 56(a).

Fed. R. Civ.

See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134

(9th Cir. 2000).

The movants must support their position

concerning whether a material fact is genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the

2

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).

One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See id. at 323.

A moving party without the

ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).

3

The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.

T.W.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
material fact.”).

“[I]f the factual context makes the non-moving

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).

Accord Addisu, 198 F.3d at 1134 (“There must be enough

doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.

T.W. Elec. Serv., 809 F.2d at 631.

Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.

Id.

4

When “direct evidence”

produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
III.

Id.

BACKGROUND.
Since July 2009, Jay Silverstein has been a Supervising

Investigation Site Survey Manager for the Department of Defense,
POW/MIA Accounting Agency.

That agency, which acquired its

present name in January 2015, was previously known as the Joint
POW/MIA Accounting Command.

The agency locates and returns the

remains of American soldiers killed in the service of this
country.

For five years before becoming a Supervising

Investigation Site Survey Manager, Silverstein was a Forensic
Anthropologist with the agency’s Central Identification
Laboratory.

First Amended Complaint ¶¶ 4, 6, 9, ECF No. 14,

PageID #s 39, 41; Answer to Amended Complaint ¶¶ 4, 6, 9, ECF No.
24, PageID #s 84-85 (admitting same).
In 2012, the agency had about 400 employees.
has more than 600 employees.

It now

See Declaration of Kelly Fletcher

¶ 1, ECF No. 42-4, PageID # 388.
Silverstein claims to have suffered retaliation and a
hostile work environment in violation of Title VII of the Civil
Rights Act of 1964 based on a number of events.

Title VII

forbids employment discrimination based on “race, color,

5

religion, sex, or national origin.”

42 U.S.C. § 2000e–2(a).

Title VII also has an anti-retaliation provision that forbids
discrimination against an employee who has opposed any unlawful
employment practice prohibited by Title VII or who has made a
charge, testified, assisted, or participated in a Title VII
proceeding or investigation.

42 U.S.C. § 2000e–3(a).

Silverstein brings his claims under Title VII, see
First Amended Complaint ¶¶ 1, 2, 3, ECF No. 14, PageID #s 38-39,
but the connection between Title VII and any alleged retaliation
or hostile work environment is often unclear.

In fact,

Silverstein himself concedes that he cannot proceed under Title
VII with respect to some of what he claims.

The court has no

duty to scour the record for facts not identified by a party in
the party’s concise statement.

See Local Rule 56.1(f).

Silverstein’s concise statement includes speculation and
conclusions, but lacks evidentiary support with respect to many
of his claims.

The court does its best in this order to examine

whether there is evidence that there was arguably retaliation or
a hostile work environment related to any matter covered by Title
VII, as well as to determine whether Silverstein raises any
genuine issues of fact that preclude summary judgment.
The court begins its analysis by examining
Silverstein’s Title VII retaliation claim, determining that the
Government is entitled to dismissal of the parts of the claim

6

that were not properly exhausted and to summary judgment with
respect to all but one basis of the remaining parts of the
retaliation claim.

The court then turns its attention to the

Title VII hostile work environment claim, determining that the
Government is entitled to summary judgment with respect to the
hostile work environment claim.
IV.

RETALIATION CLAIM.
A.

Law Applicable to Title VII Retaliation Claims.

Title VII’s anti-retaliation provision generally
forbids retaliation against an employee who has exercised rights
under Title VII.

See 42 U.S.C. § 2000e–3(a).

“Title VII

retaliation claims must be proved according to traditional
principles of but-for causation . . . .

This requires proof that

the unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer.”
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.

Ct. 2517, 2533

(2013).
For purposes of a summary judgment motion, a plaintiff
may demonstrate a retaliation claim under Title VII by applying
the burden-shifting analysis set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).

See Villiarimo v. Aloha Island

Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002).

Under the

McDonnell Douglas framework, a plaintiff must establish a prima
facie case of discrimination.

411 U.S. at 802.

7

The degree of

proof required to establish a prima facie case for summary
judgment is minimal.

See Coghlan v. Am. Seafoods Co., 413 F.3d

1090, 1094 (9th Cir. 2005).
To make out a prima facie retaliation claim under Title
VII, a plaintiff must show that “(1) the employee engaged in a
protected activity, (2) she suffered an adverse employment
action, and (3) there was a causal link between the protected
activity and the adverse employment action.”

Davis v. Team Elec.

Co., 520 F.3d 1080, 1093–94 (9th Cir. 2008).
“Protected activity includes the filing of a charge or
a complaint, or providing testimony regarding an employer’s
alleged unlawful practices, as well as engaging in other activity
intended to oppose an employer’s discriminatory practices.

Raad

v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th
Cir. 2003) (quotation marks and citation omitted); 42 U.S.C. §
2000e–3(a) (forbidding discrimination against employee who
“opposed any unlawful employment practice prohibited by Title VII
or who has made a charge, testified, assisted, or participated in
a Title VII proceeding or investigation.”).
For purposes of the second prong of the McDonnell
Douglas framework, an “adverse employment action” is an action
that is “materially adverse” to a reasonable employee or job
applicant.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.

53, 68 (2006) (internal quotations omitted).

8

An “adverse

employment action” is one that “materially affects the
compensation, terms, conditions, or privileges of employment.”
Davis, 520 F.3d at 1089.

An “adverse employment action exists”

when the employer’s actions are so harmful that they could
dissuade a reasonable worker from making or supporting a charge
of discrimination.

White, 548 U.S. at 68.

Normally, “petty

slights, minor annoyances, and simple lack of good manners” will
not deter a reasonable worker from making a charge of
discrimination, id., while termination, dissemination of a
negative employment reference, issuance of an undeserved
performance review, and refusal to consider a plaintiff for a
promotion may.

See Brooks v. City of San Mateo, 229 F.3d 917,

928-29 (9th Cir. 2000).
The Ninth Circuit has adopted the EEOC’s guidelines for
what constitutes an adverse employment action in the Title VII
context, ruling that an adverse employment action is any adverse
treatment that “is reasonably likely to deter the charging party
or others from engaging in protected activity.”

Ray v.

Henderson, 217 F.3d 1234, 1242-43 (9th Cir. 2000); accord Elvig
v. Calvin Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 2004).
Thus, the Ninth Circuit defines “adverse employment actions”
broadly, not limiting them to actions such as discharges,
transfers, or demotions.
1118 (9th Cir. 2002).

See Lyons v. England, 307 F.3d 1092,

While adverse employment actions may

9

include lateral transfers, unfavorable job references, and
changes in work schedules, not “every offensive utterance by
co-workers” is an adverse employment action because “offensive
statements by co-workers do not reasonably deter employees from
engaging in protected activity.”

Ray, 217 F.3d at 1243.

Although the present order is divided into a
retaliation section and a hostile work environment section, there
is an overlap.

The Ninth Circuit has recognized that actionable

retaliation may occur in the form of a hostile work environment;
that is, a hostile work environment may be considered an adverse
employment action for purposes of a claim alleging retaliation
resulting from an employee’s protected activity.
F.3d at 1245.

See Ray, 217

However, “a hostile work environment can form the

basis for a retaliation claim only when the harassment is
‘sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’”
Morgan v. Napolitano, 988 F. Supp. 2d 1162, 1174 (E.D. Cal. 2013)
(quoting Ray, 217 F.3d at 1245).
With respect to the causation requirement in a prima
facie case of retaliation, a court may infer causation when an
adverse employment action occurs “fairly soon after the
employee’s protected expression.”
1065.

See Villiarimo, 281 F.3d at

“Causation sufficient to establish the . . . [causal link]

element of the prima facie case may be inferred from

10

circumstantial evidence, such as the employer’s knowledge that
the plaintiff engaged in protected activities and the proximity
in time between the protected action and the allegedly
retaliatory employment decision.”

Yartzoff v. Thomas, 809 F.2d

1371, 1376 (9th Cir. 1987).
As this court has noted, a “temporal distance of
several months makes a causal link more difficult to prove; a
distance of five years severely undermines it.”

Stucky v. State

of Haw., Dept. of Educ., 2007 WL 602105, *5 (D. Haw. Feb. 15,
2007).

Compare Nidds v. Schindler Elevator Corp., 113 F.3d 912,

919 (9th Cir. 1996) (four-month period between protected activity
and layoff was sufficiently close to satisfy “causal link”
prong), and Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.
1987) (three-month period sufficient to infer causation), with
Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (no
causal inference possible when nine months separated protected
activity from adverse employment action).
Some years after the Ninth Circuit decided Nidds and
Yartzoff, the Supreme Court observed in Clark County School
District v. Breeden, 532 U.S. 268, 273 (2001), that the requisite
“temporal proximity must be ‘very close.’”

Breeden cites with

approval cases from the Seventh and Tenth Circuits holding that
three- and four-month periods do not support an inference of
causation.

Id.

More recently, the Ninth Circuit has cautioned

11

courts against engaging in a “mechanical inquiry into the amount
of time between the speech and alleged retaliatory action.”
Anthoine v. N. Central Counties Consortium, 605 F.3d 740, 751
(9th Cir. 2010).

In short, there is no “bright line” rule

providing that any particular period is always too long or always
short enough to support an inference.

See Coszalter v. City of

Salem, 320 F.3d 968, 977-78 (9th Cir. 2003).
Under the McDonnell Douglas framework, once a plaintiff
succeeds in presenting a prima facie case, the burden then shifts
to the defendant to articulate a “legitimate, nondiscriminatory
reason” for its employment decision.
F.3d 1163, 1168 (9th Cir. 2007).

Noyes v. Kelly Servs., 488

“Should the defendant carry its

burden, the burden then shifts back to the plaintiff to raise a
triable issue of fact that the defendant’s proffered reason was a
pretext for unlawful discrimination.”

Id.

Any Title VII retaliation claim must be timely.

In

National Railroad Passenger Corporation v. Morgan, the Supreme
Court explained that a plaintiff may assert claims based on
discrete acts only if the plaintiff timely exhausted his claim:
[D]iscrete discriminatory acts are not
actionable if time barred, even when they are
related to acts alleged in timely filed
charges. Because each discrete act starts a
new clock for filing charges alleging that
act, the charge must be filed within the
[applicable] period after the act occurred.
The existence of past acts and the employee’s
prior knowledge of their occurrence, however,
does not bar employees from filing charges
12

about related discrete acts so long as the
acts are independently discriminatory and
charges addressing those acts are themselves
timely filed. Nor does the statute bar an
employee from using the prior acts as
background evidence to support a timely
claim. In addition, the time period for
filing a charge remains subject to
application of equitable doctrines such as
waiver, estoppel, and tolling.
536 U.S. 101, 102 (2002).
As a federal employee, Silverstein was required to
initiate contact with an employment discrimination counselor
within 45 days of an alleged discriminatory act.
§ 1614.105(a)(1).

See 29 C.F.R.

This counselor, referred to as an Equal

Employment Opportunity (“EEO”) counselor, is part of the
employer’s internal system, not part of the independent Equal
Employment Opportunity Commission.

When the EEO counselor does

not resolve the matter, an aggrieved employee must then file a
complaint with the agency that allegedly discriminated against
him or her, assuming the matter does not go through the Merit
Systems Protection Board process.
(b).

29 C.F.R. § 1614.106(a) and

If the agency dismisses the complaint and issues a final

decision regarding such a complaint pursuant to § 1614.107, the
decision must contain a “notice of the right to appeal the final
action to the Equal Employment Opportunity Commission, the right
to file a civil action in federal district court, the name of the
proper defendant in any such lawsuit and the applicable time
limits for appeals and lawsuits.”
13

See 29 C.F.R. § 1614.110(b).

B.

Based on Silverstein’s Failure to Properly
Exhaust, the Court Dismisses the Retaliation Claim
(Except Insofar as It Relates to the Cancellation
of Silverstein’s Trip to Laos) To the Extent the
Claim is Based on Factual Allegations in
Paragraphs 14, 17, 22, 24, 25, and 30 of the First
Amended Complaint.

The details of what occurred in administrative
proceedings relating to Silverstein’s claims are largely missing
from the record.

Nor does this court have the final agency

decision or any notice of right to sue.

It is not even clear

whether Silverstein pursued his claims with the Equal Employment
Opportunity Commission.

What is clear is that no party

challenges Silverstein’s exhaustion of his administrative
remedies, except as set forth in the next paragraph.
Defendant argues that, except with respect to the
cancellation of a trip to Laos, Silverstein did not exhaust his
retaliation claim to the extent it is based on factual
allegations in paragraphs 14, 17, 22, 24, 25, and 30 of the First
Amended Complaint.

In his Opposition, Silverstein agrees that,

because he failed to administratively exhaust any retaliation
claim based on those allegations, or untimely did so, the court
should dismiss the retaliation claim arising out of the facts
alleged in paragraphs 14 (2010 Tarawa Atoll mission), 17
(reprimand for abuse of Government property), 22 (discussion
arising out of University of Hawaii proposal), 24 (October 2011
counseling regarding preparation of reports), 25 (April 2012

14

grievance), and 30 (2012 Tarawa Atoll mission) of the First
Amended Complaint.

See ECF No. 50, PageID # 604.

Putting aside

the allegations about the Laos trip, this court therefore
dismisses as not properly exhausted Silverstein’s retaliation
claim to the extent based on the facts alleged in the identified
paragraphs.

In dismissing what Silverstein concedes was not

properly exhausted, the court treats Silverstein’s concession as
akin to a voluntary dismissal of the affected matters pursuant to
Rule 41(a)(1) of the Federal Rules of Civil Procedure.

The

dismissal does not rely on factual assertions outside the First
Amended Complaint or on evidence.
C.

The Court Grants Summary Judgment in Favor of
Defendants With Respect to the Remaining Parts of
the Retaliation Claim, Except For the Portion of
the Retaliation Claim Relating to the Failure to
Promote Silverstein to the Supervisory Historian
Position.

The First Amended Complaint asserts retaliation in
violation of Title VII, but it does not clearly link allegedly
retaliatory events to the exercise of rights under Title VII.
The court examines the remaining allegedly retaliatory events
below, determining that the Government is entitled to summary
judgment with respect to all but one event alleged to have been
retaliatory.

15

1.

General Allegations that Silverstein
Supported Women Co-Workers.

Silverstein appears to be broadly asserting that he was
retaliated against for having supported women co-workers who were
allegedly discriminated against based on their gender.

But

Silverstein does not point to any evidence supporting a
relationship between the allegedly retaliatory acts and that
support.

At the hearing on the present motion, Silverstein

indicated that any associational discrimination claim he is
bringing is tied to actual things Defendant knew he had said or
done (i.e., to protected activity), not to having been
discriminated against simply for having felt supportive of women
or for having befriended them.
With respect to his actions supporting women coworkers, Silverstein does not establish that any of the acts he
complains of were close enough in time to the things that he said
or did that causation can be inferred.

For example, as discussed

in more detail below, he says he was discriminated against
because he supported Dr. Joan Baker’s 2009 gender discrimination
complaint and because he protested the alleged harassment of Dr.
Kristina Giannotta in May 2011.

Not only has Silverstein

conceded that his failure to administratively exhaust precludes
any recovery of damages for direct discrimination

based on his

support for Dr. Baker and Dr. Giannotta, any retaliation he says
he suffered occurred so long after that support that that
16

causation cannot be inferred.
some evidence of causation.

Silverstein must instead point to
This court discusses later in this

order Silverstein’s EEO complaints, which alleged “reprisals” for
his support of women co-workers.

With respect to any alleged

retaliation preceding October 2012, when Silverstein’s informal
EEO complaint was filed, Silverstein presents no evidence of a
causal connection between his actions in support of women coworkers and an adverse employment action.
Moreover, his clarification that this particular broad
claim of retaliation is based on things he himself said or did
underscores the irrelevancy of anonymous survey responses that
Silverstein earlier sought to have this court consider.

See ECF

No. 54. (Motion to File Publicly Exhibits 33, 34 and 35 to His
Concise Statement of Facts to His Memorandum in Opposition to
Defendant’s Motion to Dismiss and Summary Judgment).

Silverstein

contended that the anonymous survey responses showed general
concern among agency employees about sex discrimination.

This

court denied that motion, noting that the court could not tell
whether the survey responses related to matters Silverstein was
suing over.

The court also notes here that it has no way of

knowing whether the responses might be from the very people whose
declarations are already before the court (such as Silverstein
himself).

If the responses were from the same people, then they

should not be used as evidence that sex discrimination was so

17

rampant that it was noted even by those uninvolved with the
present lawsuit.
2.

2005 Support of Dr. Elliot Moore.

Silverstein says that, in 2005, he complained about
what he viewed as the Central Identification Laboratory’s
publicly humiliating treatment of one of his colleagues,
Dr. Elliot Moore.

Silverstein says that Dr. Moore, who is deaf,

was assigned a small desk in the middle of a well-traveled
hallway, and that this location prevented Dr. Moore from having
access to a TELEX machine that had been provided to accommodate
his disability.

See Decl. of Jay Silverstein ¶ 11(a), ECF No.

51-1, PageID # 625; see also Report of Investigation (Nov. 7,
2013), ECF No. 42-10, PageID # 413 (indicating that Silverstein
“voiced opposition to the way management treated a disabled
employee (in approximately 2005 or 2006)”).

Silverstein also

says that Moore and another employee, Dr. David Rankin, were
investigated.

Id.

Even if the court assumes that Silverstein’s
retaliation claim relating to the 2005 treatment of Dr. Moore and
Dr. Rankin is timely, Silverstein does not indicate how his
opposition to Moore’s or Rankin’s treatment constituted protected
activity under Title VII.

That is, Silverstein does not submit

any evidence demonstrating that the treatment of Moore or Rankin,
or, for that matter, Silverstein’s opposition to that treatment

18

related to anyone’s race, color, religion, sex, or national
origin, the classes protected by Title VII.
2(a)(1).

42 U.S.C. § 2000e-

Even if the First Amended Complaint included a claim

relating to the Americans with Disabilities Act, Silverstein does
not provide evidence that any investigation was tied to Moore’s
hearing disability.

In fact, the record contains no hint as to

what the subject of the investigation was.

At most, Moore says

he was investigated and simply concludes that Silverstein was
retaliated against for having supported him.

See Decl. of

Chester Elliott Moore, II ¶¶ 3, 6, ECF No. 51-2, PageID # 644-45.
The court therefore grants summary judgment in favor of
the Government with respect to any Title VII retaliation claim
relating to Silverstein’s support of Moore and Rankin in or
around 2005.
3.

Association with Dr. Joan Baker in 2009.

On October 6, 2009, Dr. Joan Baker filed a Title VII
gender discrimination complaint in this court.
Mabus, Civ. No. 09-00470 SOM/LEK, ECF No. 1.

See Baker v.
Dr. Baker alleged

that Dr. Thomas Holland, the Scientific Director of the Joint
POW/MIA Accounting Command, had sexually harassed her.
Baker ultimately settled that suit.

Id.

See Baker, Civ. No. 09-00470

SOM/LEK, ECF No. 33 (minute order indicating settlement); see
also First Amended Complaint ¶ 18, PageID # 44; Answer ¶ 18
(admitting allegation).

According to Baker, Silverstein’s

19

association with her contributed to alleged hostility against
Silverstein.

See Decl. of Joan E. Baker, Ph.D ¶ 32, ECF No. 51-

4, PageID # 669.
Silverstein claims in the present lawsuit that he was
retaliated against for having provided support to Baker in 2009,
but it is unclear what form either his support or the alleged
retaliation took or that the alleged retaliation was reasonably
close in time to that support.

See, e.g., Opposition at 24, ECF

No. 50, PageID # 606 (“He has engaged in protected activity by
way of objecting to discriminatory treatment of other JPAC/DPAA
employees such as Baker, Giannotta and Moore, as well as filing
his own grievance and EEO complaints for the harassment and
retaliation by JPAC/DPAA managers.

As a result of his protected

activities, Plaintiff has been subjected to several adverse
employment actions described in his declaration.”).
Silverstein may be arguing that the alleged retaliation
consisted of (1) pulling his team from a March 2010 deployment to
Tarawa Atoll; (2) an August 2010 reprimand by his supervisor,
Robert Richeson; and (3) a 2011 counseling by Richeson concerning
a proposed University of Hawaii project.

See Decl. of Jay

Silverstein, ECF No. 50-1 (listing events without connecting them
to any particular matter relevant to Title VII); Report of
Investigation (Sept. 1, 2014) (indicating that Richeson is
Silverstein’s “first level supervisor”).

20

However, as discussed

below, Silverstein did not administratively exhaust claims
relating to the March 2010 Tarawa Atoll deployment, the August
2011 reprimand, or the 2011 counseling.

Moreover, Silverstein

provides no admissible evidence that the cancellation of the
deployment, the reprimand, or the counseling occurred because
Silverstein acted to support Baker’s Title VII case.

Silverstein

only speculates that Dr. Holland, who was criticized in Baker’s
complaint, forced Richeson to take those actions.
a.

March 2010 Cancellation of Deployment to
Tarawa Atoll.

Paragraph 14 of the First Amended Complaint alleges
that Dr. Gregory Fox cancelled a March 2010 deployment of
Silverstein’s team to Tarawa Atoll.

See ECF No. 14, PageID # 43;

see also Silverstein Decl. ¶ 16, ECF No. 50-1, PageID # 628.
Silverstein provides no detail about the cancellation.

But

As noted

above, Silverstein concedes that he did not exhaust any claim
relating to the cancellation of his team’s deployment to Tarawa
Atoll in March 2010.

See ECF No. 50, PageID # 604 (admitting

that Silverstein did not properly exhaust any claim arising out
of paragraph 14 of First Amended Complaint, which pertains to the
March 2010 Tarawa trip).

For that reason, the court dismisses

any retaliation claim relating to the cancellation of that trip.

21

b.

August 2010 Reprimand by Richeson.

Silverstein received a letter from Robert Richeson,
Silverstein’s supervisor, in August 2010, reprimanding him for
having abused government property.

See First Amended Complaint

¶ 17, ECF No. 14, PageID # 43-44 (alleging that, in August 2010,
Richeson reprimanded him for abusing Government property).
Silverstein did not properly exhaust his administrative remedies
with respect to any claim relating to that reprimand.

See ECF

No. 50, PageID # 604 (admitting that Silverstein did not properly
exhaust any claim arising out of paragraph 17 of First Amended
Complaint, which pertains to the August 2010 reprimand).

For

that reason, the court dismisses any retaliation claim relating
to the reprimand.
According to Richeson, he reprimanded Silverstein for
having taken equipment to Egypt without obtaining proper
permission.

Richeson says that Silverstein appealed the

reprimand, which was rescinded.

See Declaration of Robert

Richeson ¶ 2, ECF No. 42-9, PageID # 407-08.

It is not clear

what remaining injury Silverstein seeks to redress in this
lawsuit in connection with the reprimand.
Nor is it clear why Silverstein thinks that Richeson’s
reprimand was in retaliation for Silverstein’s support of or
association with Baker.

At best, Silverstein says that he

“found” that Holland, alleged to have been a bad actor in Baker’s

22

federal court complaint, “coerced Mr. Richeson [to issue the
reprimand] by threats of more severe action.”

Silverstein Decl.

¶ 19, ECF No. 51-1, PageID # 629; ECF No. 50, PageID # 587.
Silverstein also says that the reprimand was based on a false
statement by another employee, Dr. William Belcher, and that
Richeson congratulated Silverstein when the reprimand was
revoked.

Silverstein Decl. ¶ 19.

However, because Silverstein

does not show that he has personal knowledge about any alleged
coercion or otherwise describe the source of his “finding,” he
does not show that he has admissible evidence of coercion.

And,

even if there was a false statement by Dr. Belcher, Silverstein
does not point to evidence of any supervisor’s knowledge that the
statement was false.
c.

Counseling by Richeson About 2011
University of Hawaii Project.

Silverstein also appears to be claiming that his
support for Baker led to his being counseled by Richeson about a
potential project with the University of Hawaii.

See First

Amended Complaint ¶ 22, ECF No. 14, PageID # 45.

Richeson says

he did express concern that Silverstein had discussed the project
with university representatives without informing Richeson or
anyone else in the chain of command.

The counseling was not

noted in Silverstein’s personnel file and had no effect on his
pay, benefits, or working conditions.

See Declaration of Robert

Richeson ¶ 3, ECF No. 42-9, PageID # 408.
23

It therefore does not

appear to satisfy the “adverse employment action” required for a
Title VII retaliation claim.
Moreover, Silverstein concedes that, even if the
counseling occurred in retaliation for his having supported
Baker, he did not properly exhaust his administrative remedies
with respect to this counseling event.

See ECF No. 50, PageID

# 604 (admitting that Silverstein did not properly exhaust any
claim relating to paragraph 22 of First Amended Complaint, which
pertains to 2011 counseling).

For that reason, the court

dismisses any retaliation claim relating to the counseling.
4.

May 2011 Protest of Alleged Harassment of
Dr. Kristina Giannotta.

Silverstein says that, in May 2011, he protested the
harassment of one of his co-workers, Dr. Kristina Giannotta.

See

First Amended Complaint ¶ 23, ECF No. 14, PageID # 45.
Silverstein argues that he suffered retaliation for that support,
but he does not indicate the nature of the retaliation.

At the

hearing on the present motion, he said that he is not seeking
damages with respect to having protested the alleged harassment
of Giannotta, but that he is seeking injunctive relief.

Because

the record does not indicate that Giannotta continues to be
harassed or that retaliation continues against Silverstein for
having protested past harassment of Giannotta, this court has
before it nothing in the record that supports an injunction in
this regard.
24

5.

Ethics Complaints.

Silverstein says that, on May 17, 2011, he reported
ethics violations concerning “malfeasance of duty, waste of
funds, and ethical issues” by Dr. John Byrd and Dr. Gregory Fox.
See Silverstein Decl. ¶ 28(e), ECF No. 51-1, PageID # 635.
Nothing in the record ties this ethics complaint to Title VII.
Silverstein says that he was told by Richeson that, if
Silverstein “pushed” the ethics complaint, he and his people
would suffer.
disappear.
# 629.

Richeson allegedly told him to make the complaint

See Silverstein Decl. ¶ 20, ECF No. 51-1, PageID

Silverstein then withdrew his 2011 complaint.

See id.

In April 2012, Silverstein says he filed a second
ethics complaint “for violations of procedure and ethics
regarding recovery documentation.”

Silverstein alleges that an

investigation was conducted, but he does not know what the
findings were.
PageID # 45-46.

See First Amended Complaint ¶ 26, ECF No. 14,
The April 2012 ethics complaint was a

resubmission of the complaint Silverstein had submitted in May
2011 pertaining to waste and abuse by Dr. Byrd and Dr. Fox.

See

Silverstein Decl. ¶ 23, ECF No. 50-1, PageID # 631.
Silverstein identifies five matters that he attributes
to retaliation for his submission of ethics complaints.

The

court examines each of the five matters below, noting at the
onset that Silverstein does not provide evidence that any of them

25

relates to any Title VII issue.

To the extent Silverstein

asserts Title VII retaliation for his having submitted ethics
complaints, summary judgment is granted in Defendant’s favor.
a.

October 2011 Reminder.

It appears that Silverstein is arguing that a reminder
he received from his supervisor in October 2011 was retaliation
for his submission of the May 2011 ethics complaint.

According

to Richeson, he and Silverstein discussed Silverstein’s alleged
failure to properly report the discovery of human remains found
in the Tarawa Atoll.

See Declaration of Robert Richeson ¶ 4, ECF

No. 42-9, PageID # 408.

Silverstein was supposed to prepare a

report to go to the Central Identification Laboratory as well as
to others, and then to follow directions as to how to proceed.
Id.

Richeson says he did nothing more than remind Silverstein of

this protocol.

Id.

Silverstein refers to this discussion in

paragraph 24 of the First Amended Complaint, but, having failed
to administratively exhaust his remedies with respect to having
received this reminder, is not pursuing relief in connection with
it.

See ECF No. 50, PageID # 604 (admitting that Silverstein did

not properly exhaust any claim arising out of paragraph 24 of
First Amended Complaint, which pertains to October 2011
reminder).

For that reason, the court dismisses any retaliation

claim relating to that reminder.

In any event, as noted above,

nothing ties the ethics complaint to an exercise of any Title VII

26

right on which a Title VII retaliation claim might be based, and
the reminder does not appear to qualify as an adverse employment
action.
b.

September 2012 Tarawa Atoll Mission.

Silverstein says he was pulled from a mission to Tarawa
Atoll in September 2012, see First Amended Complaint ¶ 30, ECF
No. 14, PageID # 46, in retaliation for having submitted the
April 2012 ethics complaint.

Silverstein says Ronald Minty was

the person who refused to allow him to deploy to Tarawa Atoll in
2012.

See Silverstein Decl. ¶ 4, ECF No, 50-1, PageID # 623.

At

the hearing on the present motion, Silverstein indicated that he
had criticized Minty, but the record contains no evidence that
there was such criticism or that it related to Title VII.
Silverstein concedes that he did not administratively exhaust any
retaliation claim relating to the Tarawa Atoll mission in
September 2012.

See ECF No. 50, PageID # 604 (admitting that

Silverstein did not properly exhaust any retaliation claim
arising out of paragraph 30 of First Amended Complaint, which
pertains to September 2012 Tarawa Atoll mission).

For that

reason, the court dismisses any retaliation claim arising out of
the cancellation of that trip, noting in any event that nothing
in the record ties the April 2012 ethics complaint to any
exercise of Title VII rights on which a retaliation claim might
be based.

27

In addition, Defendant demonstrates that it had a
legitimate, nondiscriminatory reason for pulling Silverstein from
that mission.

Gregory Fox, a Laboratory Manager with the Central

Identification Laboratory, says that he voiced opposition to
Silverstein’s proposed use of ground penetrating radar in Tarawa
Atoll because it was an “inappropriate technique at that time.”
Fox says that many of the battlefield cemeteries were already
partially excavated and that the Joint POW/MIA Accounting Command
needed to complete research into the identities of service
members who were still missing.

Fox also opposed the use of

ground penetrating radar because that equipment would create many
false positives that would lead to extra work in the form of more
investigations of possible remains.

See Declaration of Gregory

Fox ¶ 3, ECF No. 42-5, PageID #s 393-94.

Silverstein was aware

that the Central Identification Laboratory doubted the usefulness
of ground penetrating radar.

See Silverstein Depo. at 47, ECF

No. 42-13, PageID # 47.
Fox also recalls that the mission to Tarawa Atoll was
cancelled by Operations (referred to as J3) for budgetary
reasons, not because of Fox’s opposition.

See Declaration of

Gregory Fox ¶¶ 3-5, ECF No. 42-5, PageID #s 393-94.

William

Belcher, the Recovery Leader for the Tarawa Atoll deployment,
says he told Operations (J3) that an analyst (Silverstein’s
position) was not necessary for the deployment, given the

28

Recovery Team’s planned focus on excavating five known sites.
See Decl. of William Belcher ¶ 11, ECF No. 42-3, PageID # 386.
Perhaps because he concedes that any retaliation claim
based on the 2012 Tarawa Atoll mission should be dismissed as
unexhausted, Silverstein does not address whether these reasons
were pretextual.
c.

Denial of Leave to Accept Award.

Silverstein claims that, in September 2012, he faced
retaliation for having lodged the April 2012 ethics complaint.
Silverstein says this retaliation came in the form of being
denied either administrative or personal leave to travel to
accept the 2012 Military Achievement Award by the United States
Geospatial Intelligence Foundation.

See First Amended Complaint

¶ 31, ECF No. 14, PageID # 46-47; ECF No. 51-19.

The award was

to be presented on October 12, 2013, in Florida.

ECF No. 51-19,

PageID # 843; see also Sept. 4, 2012 E-mail from Silverstein to
Robert Richeson, ECF No. 51-9, PageID # 843 (stating that award
ceremony was scheduled for October 12, 2012, in Florida).
According to a video of the award presentation, the
Intelligence Achievement Award--Military went to the Joint
Prisoners of War/Missing in Action Accounting Command, in which
Silverstein was the “lead,” not to Silverstein personally.

See

http://geointv.com/archive/geoint-2012-usgif-awards-program-prese
ntations/ (last visited August 9, 2016) (beginning approximately

29

9:08 into video); see also Silverstein Decl. ¶ 26 (indicating
award given to Joint POW/MIA Accounting Command).
As this court has already noted, the ethics complaint
was unrelated to Title VII.

Silverstein therefore fails to

demonstrate a prima facie case of retaliation based on an
exercise of Title VII rights.
Additionally, Silverstein concedes on page 88 of his
deposition that, at the time he submitted his leave request,
there was significant uncertainty about funding because Congress
had not approved appropriations for the upcoming fiscal year.
See ECF No. 42-13, PageID # 446.

In fact, although Silverstein

correctly indicated at the hearing on the present motion that
there was no federal government shutdown in 2012, the court takes
judicial notice that the federal government was threatened with a
shutdown as the start of fiscal year 2013 approached.

No

shutdown actually occurred then because Congress passed a funding
bill on September 22, 2012, shortly before fiscal year 2012 ended
on September 30, 2012.

See http://www.reuters.com/article/

us-usa-congress-shutdown-i dUSBRE88L03720120922 (last visited
August 9, 2016).
Kelly Fletcher, the Chief of Staff for the Department
of Defense, POW/MIA Accounting Agency, says that travel to accept
the award at government expense would normally have been
approved.

However, Fletcher was concerned that congressional

30

inaction on appropriations for fiscal year 2013 would leave the
agency without funds for travel in October 2012.

See Decl. of

Kelly Fletcher ¶¶ 3-4, ECF No. 42-4, PageID # 389.

Fletcher

acknowledges that Silverstein offered to travel to receive the
award at Silverstein’s expense.

Fletcher says this offer was

declined in light of concern that payment by Silverstein out of
his personal funds for work-related travel during a government
shutdown would have constituted working for free in violation of
the Anti-Deficiency Act.

Id. ¶ 5, PageID # 390; see also Answer

¶ 31, ECF No. 24, PageID # 88.
Even assuming that Title VII rights were in issue,
Silverstein does not show that Kelly Fletcher (the decisionmaker)
even knew of the ethics complaints such that retaliation might
have occurred.
While claiming that Defendant’s reasons are pretextual,
Silverstein provides no evidence at all of pretext.

On page 26

of his Opposition, he simply states that the reasons must be
pretextual.

See ECF No. 50, PageID # 608.

This court recognizes

that evidence of pretext is usually circumstantial, not direct.
But as difficult as providing evidence of pretext is, a plaintiff
must make some showing of pretext.

As Silverstein makes none,

summary judgment is granted in Defendant’s favor to the extent
Silverstein asserts a retaliation claim based on the denial of
leave to accept the award.

31

d.

Transfer of Two Employees.

Silverstein also claims that he was retaliated against
for his ethics complaints by having his section reorganized and
two of his key employees transferred to another section in
October 2012.1

Silverstein says that the reassignment of the two

employees led to his being told that he too would be transferred
to another section.

See First Amended Complaint ¶¶ 32, 33, ECF

No. 14, PageID # 47.

Even if Silverstein could show that the

transfer related to his exercise of Title VII rights, which he
does not, the Government offers legitimate, nondiscriminatory
reasons supported by the record for its actions.
Kelly Fletcher says that the reorganization and
reassignments were being planned months before October 2012.
Fletcher started working for the Joint POW/MIA Accounting Command
in July 2012 and recalls an early request for help in

1

October 2012 was also the month in which Silverstein
initiated contact with an EEO counselor and then filed an
informal EEO complaint. The content of the informal complaint is
not included in the record. Even assuming that content related
to Title VII such that the initial contact and the informal
complaint constituted protected activity for purposes of a Title
VII retaliation claim, there is no evidence of any causal
connection between any purported protected activity and the
reorganization or the reassignment of Silverstein’s co-workers.
In fact, there is no evidence that Fletcher or anyone else
involved in the reorganization or reassignment decision knew
about any purported protected activity at the time the decision
was made. Of course, if the subject of Silverstein’s initial
contact and informal complaint was, in fact, the reorganization
and reassignment, the initial contact and informal complaint
could not have caused that reorganization and reassignment.
32

implementing a significant reorganization.
Fletcher ¶ 5, ECF No. 42-4, PageID # 390.
was proposed on July 25, 2012.
62.

See Decl. of Kelly
A reorganization plan

See ECF No. 42-14, PageID #s 459-

Fletcher says that, under the plan, at least 50 individuals

were reassigned.

According to Fletcher, both of the employees

from Silverstein’s research section were reassigned because their
work involved Geographic Information System data and mapping,
which had broad application to many sections of the Joint POW/MIA
Accounting Command.
4, PageID # 390.

See Decl. of Kelly Fletcher ¶ 6, ECF No. 42-

Fletcher says that, although the reorganization

was approved in July 2012, implementation was delayed until
October 2012.

Id. ¶ 6, ECF No. 42-4, PageID # 391.

Both of the

employees in issue were later transferred back to Silverstein’s
section.

See Silverstein Decl. ¶ 25, ECF No. 51-1, PageID # 632.
Viewing the facts in the light most favorable to

Silverstein, the court treats July 2012 as the time relevant to
the reassignments.

That time was reasonably close to

Silverstein’s April 2012 ethics complaint.

However, as noted

above, Silverstein does not tie his ethics complaints to Title
VII.

Nor does Silverstein raise a genuine issue of fact as to

whether Fletcher’s reason for transferring the employees was
pretextual.
At most, Silverstein’s opposition calls the transfer of
the personnel a “malicious act.”

33

However, there is no evidence

in the record establishing that Fletcher even knew about the
ethics complaints when reorganizing the department.
50, PageID # 608.

See ECF No.

Dr. Giannotta states that the reorganization

served no purpose other than to remove the individuals from
Silverstein’s supervision, and that the reassigned employees’
desks were not even moved.

See Declaration of Kristina Giannotta

¶ 6, PhD., ECF No. 51-3, PageID # 650.

But no one disputes that

their work applied to sections beyond Silverstein’s, and, even if
the reassignment was “malicious,” nothing ties that malice to any
matter prohibited by Title VII.
e.

Denial of Limited Duty for Medical
Reasons.

Silverstein claims further retaliation for his ethics
complaints when he was told on October 10, 2012, that he was
being denied permission to have limited work duty, as recommended
by his doctor.
PageID # 47.

See First Amended Complaint ¶ 34, ECF No. 14,
Even assuming that Robert Richeson, the Director

for the Research and Analysis Group of Joint POW/MIA Accounting
Command, denied Silverstein’s telework request knowing of the
ethics complaints, Defendant presents a legitimate,
nondiscriminatory reason for the denial.

Richeson says that, in

October 2012, he denied Silverstein’s request to work from home
because the agency had no teleworking policy.

Richeson says that

he confirmed with Chief of Staff Kelly Fletcher that teleworking

34

was not permitted.

See Decl. of Robert Richeson ¶ 5, ECF No. 42-

9, PageID #s 408-09.
Richeson also says that Silverstein failed to provide
details about a medical condition justifying the telework
request, and that, had he done so, Richeson might have lobbied
Fletcher to make an exception.
42-9, PageID # 409.

See Richeson Decl. ¶ 5, ECF No.

Exhibit 8, ECF No. 42-17, is a copy of an e-

mail chain in which Silverstein asked to work no more than eight
hours per week in the office and was told by Richeson that,
although Silverstein might not have wanted to discuss personal
health issues, Richeson needed “more clarity” before he could
entertain the request to work from home.

Page 102 of

Silverstein’s deposition corroborates this e-mail exchange.

See

ECF No. 42-13, PageID # 451.
Although Silverstein did not at the time explain his
medical reason to Richeson, Silverstein now says that the leave
request was related to the stress of being in a work environment
hostile to him, as well as to the retaliation he suffered in
October 2012 in the form of being denied leave to accept the
award and of having two employees transferred.

See Silverstein

Decl. ¶ 25, ECF No. 51-1, PageID # 632.
Claiming that the reason articulated by Richeson is
pretextual, Silverstein points to a policy he says allowed such
leave, “DOC Instruction 1035.01.”

35

See ECF No. 50, PageID # 609;

Decl. of Jay Silverstein, ECF No. 51-1, PageID # 632.

This

alleged policy, attached to Defendant’s reply memorandum as
Exhibit 20, ECF No. 58-1, provides only for the Department of the
Defense to develop a teleworking policy.
include an actual telework policy.
# 1021.

The document does not

See ECF No. 58-1, PageID

No evidence of pretext undercuts Defendant’s explanation

of why leave to telework was denied.
Again, the court notes that, even if the denial of
limited duty constituted retaliation for Silverstein’s submission
of ethics complaints, those ethics complaints were unrelated to
Title VII and so did not constitute “protected activity” under
Title VII.

Any retaliation flowing from the ethics complaints is

thus not actionable under Title VII.
6.

2012-13 EEO Complaints.

Besides filing ethics complaints, Silverstein submitted
employment discrimination complaints to his employer’s “Equal
Employment Opportunity” staff.

He says that Defendant’s response

was to take four retaliatory actions against him.

Defendant

offers legitimate nondiscriminatory reasons for having taken the
actions Silverstein complains of, but, for one of the four
actions, this court identifies genuine issues of material fact
that preclude summary judgment.
The activities involving Defendant’s EEO staff began on
October 3, 2012, when Silverstein contacted a Department of

36

Defense EEO counselor.

On October 18, 2012, Silverstein filed an

informal complaint of discrimination with EEO staff.

On January

15, 2013, Silverstein filed a formal complaint of discrimination
with the Department of Defense.

See First Amended Complaint ¶¶

42-43, ECF No. 14, PageID # 49; Answer ¶¶ 42-43 (admitting same).
As this court has already noted, the content of the
contact on October 3, 2012, and the informal complaint of October
18, 2012, is not clear from the record.

Nor does the record

include the formal complaint filed on January 15, 2013, or any
other formal EEO complaint filed by Silverstein.

The record does

include the Report of Investigation relating to the complaint of
January 15, 2013, see ECF No. 42-10, as well as Reports of
Investigation relating to subsequent complaints Silverstein
submitted to the Department of Defense.

An EEO complaint

submitted on April 14, 2014, ECF No. 42-11, apparently related to
a cancelled deployment to Laos and other events in early 2014,
while an internal EEO complaint submitted on November 6, 2014,
ECF No. 42-12, apparently related to Silverstein’s not having
been selected for the Supervisory Historian position.
The January 2013 complaint is described in a Report of
Investigation as having been “based on religion (Jewish) and
reprisal (witness in co-worker’s EEO complaints).”

ECF No. 42-

11, PageID # 418; see also ECF No. 42-12, PageID # 427 (January
2013 complaint “based on religion and reprisal (opposition)”).

37

“Reprisal” is also mentioned with respect to the later
complaints.
PageID # 426.

See ECF No. 42-11, PageID # 418; ECF No. 42-12,
Silverstein may have ultimately withdrawn any

religion-based claim.

See ECF No. 42-10, PageID # 413 n.1.

The Report of Investigation relating to the April 2014
EEO complaint also notes that Holland had written a letter
seeking the termination of Reimi Patterson-Davidson, an agency
Historian, and that Silverstein’s section had petitioned to have
Ms. Patterson-Davidson transferred to Silverstein’s section.

The

Report of Investigation says that Silverstein’s section believed
that “management’s action was possibly racially motivated.”
ECF No. 42-11, PageID # 419.

See

This could be part of what

Silverstein was referring to in paragraph 38 of the First Amended
Complaint, which describes “a pattern of transferring CIL
employees . . . that are either being disciplined or terminated
for inefficiency or workplace malfeasance.”

See ECF No. 14,

PageID # 48.
As described in the Reports of Investigation spanning
the period from November 7, 2013, to March 24, 2015, ECF Nos. 4210 to 42-12, Silverstein’s complaints to his employer’s EEO staff
appear to have related to religion, sex (if the “reprisals” were
connected to Silverstein’s support of women co-workers), and
race, all matters within the scope of Title VII.

If Silverstein

was retaliated against for lodging EEO complaints, that

38

retaliation is actionable under Title VII without regard to
whether any EEO complaint was sustained.

This court identifies

four events that Silverstein characterizes as retaliation for his
EEO Complaints.
a.

2012 Performance Review.

Silverstein contends that he received a poor
performance review in retaliation for an EEO complaint.
Silverstein says he received a “minimally acceptable” rating on
his 2012 Annual Performance Review.
¶ 35, ECF No. 14, PageID # 47.

See First Amended Complaint

But Lawrence Gonzales,

Silverstein’s supervisor, says that he rated Silverstein
“acceptable” on his 2012 Annual Performance (dated December 13,
2012) in each of four categories, and that “acceptable” was the
highest rating available.

See Decl. of Lawrence Gonzales ¶ 2,

ECF No. 42-7, PageID # 400; Department of the Navy (DON) Interim
Performance Appraisal Form, ECF No. 42-18, PageID # 476
(indicating date of performance rating) and PageID # 494 (rating
Silverstein “acceptable” in all four categories).
According to Gonzales, he criticized Silverstein for
having timely completed only one of five Geospatial Summary
Reports.
goals.

Completion of those reports was one of Silverstein’s
See Gonzales Decl. ¶¶ 3-5, ECF No. 42-7, PageID # 400-01.

In paragraph 29 of his Declaration, Silverstein says that he
drafted all five reports, but that completion was delayed because

39

of the time taken by the peer-review process.
PageID # 637.

See ECF No. 51-1,

Gonzales points to the June 2012 mid-year

evaluation of Silverstein, in which Gonzales warned Silverstein
that he had only four months to complete the reports.

See

Gonzales Decl. ¶ 4, ECF No. 42-7, PageID # 400; ECF No. 42-18,
PageID # 481 (“GSRs need to move from ‘Draft’ to ‘Final’ more
quickly.

You have four months to complete remaining GSR[]s.

products received to date have been superb.”).

The

The criticism

about the failure to timely complete four reports may have
related to the issue of whether Silverstein had appropriately
considered the time taken up by the peer-review process.
Silverstein fails to raise a genuine issue of fact as
to pretext with respect to Gonzales’s explanation.

He does not

dispute that he failed to timely complete all of the reports in
issue, although he attributes the delay to the length of the
peer-review process.
# 637.

See Silverstein Decl., ECF No. 51-1, PageID

Nor does Silverstein deny that Gonzales had warned him in

his mid-year evaluation that the reports had to be completed
within four months.

Silverstein does not even submit admissible

evidence that, in December 2012, when Gonzales signed the
performance review, he knew about Silverstein’s EEO activity.

As

of December 2012, Silverstein had only contacted an EEO counselor
and made an informal complaint, the content of which is unclear.
Under these circumstances, the court grants summary judgment in

40

Defendant’s favor on the portion of the retaliation claim based
on the 2012 Annual Performance Review.
b.

2013 Retention Initiative.

Silverstein says he was also retaliated against for
having made EEO complaints when, on February 7, 2013, he was told
that a retention initiative payment he had been receiving had
been terminated effective August 2, 2009.

See First Amended

Complaint ¶ 36, ECF No. 14, PageID # 47; Answer ¶ 36, ECF No. 24,
PageID # 89 (admitting same).
Defendant’s legitimate nondiscriminatory reason for
that action was Silverstein’s ineligibility for that payment
given a change in his job.

Norma Gamulo, a Supervisory Civilian

Program Management Specialist with the Department of Defense,
POW/MIA Accounting Agency, says that Silverstein had been
receiving a 10% retention incentive for working for the Central
Identification Laboratory.

She says that, in August 2009, she

prepared a form to terminate Silverstein’s retention incentive
because he stopped working as an Anthropologist for the Central
Identification Laboratory and moved to a job outside the Central
Identification Laboratory.
Gamulo says that, in December 2012, her office received
a list from Washington of all employees receiving the retention
initiative.

It was only then that she realized that,

notwithstanding her action in August 2009, Silverstein had

41

continued to receive the retention incentive applicable to
Central Identification Laboratory employees even after moving out
of the Central Identification Laboratory.

Gamulo says that she

then submitted another form to terminate the retention incentive
effective December 2012.

She says that she made the effective

date in December 2012, rather than August 2009, because she did
not want Silverstein to be forced to reimburse any retention
initiative payment he had already received.

The retention

incentive was then terminated effective December 14, 2012.
According to Gamulo, the human resources department in
Silverdale, Washington, later discovered that Gamulo’s original
termination paper from 2009 had been sent to the wrong office.
The human resources department then processed its own termination
of Silverstein’s retention initiative, this time effective August
2, 2009.

That date created an obligation for Silverstein to

return an overpayment totaling $22,339.88.

Gamulo recalls that

Silverstein appealed the revocation of his retention initiative.
On August 12, 2014, the request for repayment of the overpayment
was withdrawn, but the revocation of the retention initiative
remained in effect.

See Decl. of Norma Gamulo ¶¶ 1-11, ECF No.

42-6, PageID #s 395-97.
Silverstein disagrees with Gamulo’s statement as to why
the retention initiative ended.

Silverstein speculates that

Defendant looked into the overpayment while “auditing” him in

42

retribution for his EEO complaints.
subject to such an “audit.”
51-1, PageID #s 633-34.

He says no one else was

See Silverstein Decl. ¶ 27, ECF No.

Not only does Silverstein fail to

describe the “audit” process, he does not suggest that any other
employee was allowed to continue to receive the incentive even
after becoming ineligible to receive it.

Silverstein fails to

raise a genuine issue of fact as to whether any discriminatory
motive led Gamulo to cancel the initiative.

He shows neither

that he continued to be entitled to it nor that Gamulo knew about
any EEO complaint he had made.

The record does not support any

tie between the EEO complaints and the cancellation of the
retention initiative.

Given the absence of any showing that

Defendant’s action was pretextual, the court grants summary
judgment to Defendant to the extent Silverstein’s retaliation
claim is based on the termination of the retention initiative.
c.

February 2014 Removal From Laos
Deployment.

Silverstein claims to have suffered retaliation for his
EEO complaints when his deployment to Laos was cancelled.

There

is no contention by the Government that this matter was not
properly exhausted.
In February 2014, Dr. William Belcher, an
Anthropologist/Archaeologist and Laboratory Manager for the
Central Identification Laboratory, learned that Operations (J3)
was planning to send an investigative team to Laos.
43

Silverstein

was initially “slotted” to act as the team’s Recovery Leader, but
the Central Identification Laboratory management team, which
appears to have included Belcher, ultimately sent Dr. Jesse
Stephen, a recently hired Archaeologist, instead.

This allegedly

allowed the Recovery Team to conduct excavations that could not
have been done had Silverstein remained as the Recovery Leader.
Belcher says that the replacement in no way prevented the
Research and Analysis Directorate from sending Silverstein to
Laos as an Analyst, instead of as the Recovery Leader.

See

Declaration of William Belcher ¶ 12, ECF No. 42-3, PageID # 386.
At the hearing on the present motion, Silverstein’s
counsel said that Laos would not have allowed excavations, but
counsel conceded that the record contained nothing showing that
limitation.
This court recognizes that Silverstein’s January 2013
EEO complaint was making its way through the administrative
process at the time Silverstein was taken off the Laos team in
February 2014.

The employer’s internal investigation relating to

that January 2013 EEO complaint appears to have spanned the
period from August 26 to October 16, 2013.
PageID # 412.

See ECF No. 42-10,

As of September 1, 2014, that matter was still

“pending an EEOC hearing.”

See ECF No. 42-11, PageID # 418-19.

That suggests that the administrative process was ongoing in some
fashion in February 2014.

Given the lack of clarity in the

44

record of what, if any, finding may have resulted from the
internal EEO investigation of the January 2013 complaint, or of
what was happening in February 2014 with that complaint, the
court is uncertain whether the overlap in terms of timing between
the administrative process and Silverstein's removal from the
Laos team could fairly support an inference that they were
related.

The court cannot tell, for example, whether the

administrative process, while not yet completed, had been dormant
for such a substantial time as of February 2014 that it was
unlikely to have been a factor in the February 2014 decision.
Adding to the lack of clarity is the court’s inability
to tell what was done by whom with respect to the February 2014
decision.

For example, Dr. William Belcher says in his

declaration that “we offered up Dr. Jesse Stephen . . . to lead
the team.”

The use of the word “we” suggests that Belcher

participated in offering up Dr. Stephen.

Viewing the facts in

the light most favorable to Silverstein, this court assumes for
purposes of this discussion that Belcher played a role in
replacing Silverstein.
Although this court does not have Silverstein’s actual
January 2013 EEO complaint, a Report of Investigation suggests
that Belcher was not named as an alleged wrongdoer in
Silverstein’s January 2013 complaint.

Indeed, he may not have

been the subject of a Silverstein EEO complaint until two months

45

after Silverstein was removed from the Laos trip, when
Silverstein submitted his April 2014 internal EEO complaint
pointing to Belcher’s role in removing Silverstein from the Laos
trip.

See ECF No. 42-11, PageID # 418.

While it would certainly

be a fair inference that an investigation would involve
discussing a complaint with alleged wrongdoers, no such inference
attaches here with respect to Belcher.
Of course, even if not accused in the January 2013
complaint, Belcher might have known about it.

Silverstein

appears to have told personnel investigating that complaint that
Belcher knew about Silverstein’s “previous EEO activity.”
Silverstein apparently said the same about Dr. John Byrd and
Dr. Thomas Holland, who were also involved with the decision to
pull Silverstein off the Laos team.
# 419.

See ECF No. 42-11, PageID

The problem for this court with that assertion is that it

appears to be referring to knowledge about Silverstein’s support
of women co-workers in 2009 and 2011, or of a disabled co-worker
in 2005.

While not concluding that the managers lacked knowledge

of that support, this court, noting Silverstein’s claim that he
was pulled from the Laos team as a “reprisal” or in retaliation
for earlier actions, cannot fairly draw the inference that the
February 2014 action involving Laos was related to things
Silverstein did so many years earlier.

Any “protected activity”

by Silverstein must be closer in time to February 2014 to be

46

plausibly related to the Laos trip.

A link with the ongoing

investigation of Silverstein’s January 2013 EEO complaint would
fit the bill.
The record does include evidence that Silverstein had
strained relations with Belcher long before being pulled from the
Laos team in February 2014.

As noted earlier in this order,

Silverstein says that Belcher made a false statement about
Silverstein that led to Silverstein’s being reprimanded in August
2010.

That reprimand was ultimately rescinded.

Possibly,

Belcher might have harbored ill-will toward Silverstein over that
rescission.

But if that caused Belcher to retailiate in February

2014, that kind of retaliation would not, at least on the present
matter, fall within the scope of Title VII.

Not every

retaliatory action supports a Title VII claim.
Similarly, Silverstein and Byrd had had prior negative
encounters.

As discussed earlier, Silverstein had complained in

May 2011 that Byrd had committed ethics violations.

If Byrd

retaliated by participating in Silverstein's removal from the
Laos team in February 2014, that would not, absent a showing not
present in the record, be retaliation prohibited by Title VII.
Lacking even a specific allegation, much less some sort
of admissible evidence, that those participating in the February
2014 decision to pull Silverstein from the Laos team knew about
his pending January 2013 complaint, this court concludes that

47

Silverstein does not make out a prima facie case that the
February 2014 decision related to his pending January 2013
complaint.
d.

July 2014 Failure to Promote.

In May 2014, the creation of the new position of
Supervisory Historian of the World War II section of Research and
Analysis was announced.

See First Amended Complaint ¶ 39, ECF

No. 14, PageID # 48; Answer ¶ 39, ECF No. 24, PageID # 89
(admitting same).

Silverstein applied for but was not selected

for this promotion.

See Answer ¶ 40, ECF No. 24, PageID # 89.

Lawrence Gonzales, Silverstein’s supervisor, was the
chair of the panel that interviewed and ranked candidates for the
position.

The other members of the panel were Ronald Minty,

Director of Operations, and Christopher Bazin.

The panel

reviewed the resumes of eight eligible candidates and asked them
the same questions in interviews.

Each panel member then

individually scored the candidates without discussing them with
the other panelists.

Decl. of Lawrence Gonzales ¶ 8, ECF No. 42-

7, PageID # 402; Decl. of Ronald Minty ¶ 4, ECF No. 42-8, PageID
# 404; Decl. of Christopher Bazin ¶ 2, ECF No. 42-2, PageID
# 379-80.
Kupsky.

The panel members unanimously chose Dr. Gregory
Gonzales gave Kupsky a score of 44, Minty gave him a

score of 40, and Bazin gave him a 50, which was a perfect score.
Decl. of Lawrence Gonzales ¶¶ 6-7, ECF No. 42-7, PageID # 399;

48

Decl. of Ronald Minty ¶¶ 2-3, ECF No. 42-8, PageID # 404; Decl.
of Christopher Bazin ¶ 3, ECF No. 42-2, PageID # 380.
Silverstein learned in July 2014 that he had not been
selected.

He apparently thinks he should have been selected

because of his experience and years of service, which exceeded
Kupsky’s.
# 428.

See Report of Investigation, ECF No. 42-12, PageID

The scores Silverstein received were far below Kupsky’s.

Gonzales gave Silverstein a score or 32, while Minty gave him a
score of 31, and Bazin gave him a score of 34, putting
Silverstein in the middle of the ranking of the eight eligible
applicants.

See Gonzales Decl. ¶¶ 6-8, ECF No. 42-7, PageID #s

401-02; Decl. of Ronald Minty ¶¶ 2-4, ECF No. 42-8, PageID #s
404-05; Decl. of Christopher Bazin ¶¶ 2-3, ECF No. 42-2, PageID
#s 379-80.

Each panel member provides legitimate

nondiscriminatory reasons for his ranking.
Gonzales says that Kupsky was already working in the
World War II section, while Silverstein was not.

Gonzales

described Kupsky as organized and articulate and as having a
clear vision based on experience.

Gonzales says that

Silverstein, on the other hand, lacked a clear understanding of
the job, as shown by his comments about the travel that
Silverstein mistakenly assumed the position would involve.
¶ 7, PageID # 401-02.

49

Id.

Minty was impressed by Kupsky’s enthusiasm and his
focus on building relationships with other departments and on
ensuring that subordinates had the tools to do their jobs.

Minty

liked the initiative Kupsky had shown in creating a newsletter.
Noting that Silverstein kept repeating things, Minty
characterized Silverstein as unorganized.

Minty Decl. ¶¶ 4-5,

ECF No. 42-8, PageID # 405-06.
Bazin noted Kupsky’s poise and his familiarity with the
World War II division.

Silverstein, in Bazin’s opinion, had

organizational challenges and appeared to want field work rather
than the work involved in the position in issue.

Bazin thought

it would be better for the supervisor to remain in Honolulu.
Bazin Decl. ¶¶ 3-4, PageID #s 380-81.
Silverstein claims that there was “innate prejudice”
involved in the selection.

Notwithstanding the thinness of the

record in this regard, the court finds a genuine issue of fact as
to whether Defendant’s reasons for selecting someone other than
Silverstein were pretextual.

Notably, the decision was made

while Silverstein’s EEO complaints were being investigated, and
Gonzales, who was part of the hiring panel, was named in the
January 2013 complaint as someone who had discriminated against
Silverstein.

See ECF No. 41-10, PageID # 10.

The Report of

Investigation of November 7, 2013, indicates that a “CDR
Gonzalez” was interviewed with respect to the January 2013 EEO

50

complaint.

Gonzales appears to be “CDR Gonzalez.”

See

Silverstein Decl. ¶ 29, ECF No. 51-1, PageID # 637 (calling
Gonzales “CDR Gonzales”).

Gonzales was thus apparently aware of

Silverstein’s EEO activity against him at the time the decision
not to promote Silverstein was made.
Silverstein appears to have complained in the January
2013 complaint that it was Gonzales who informed him that two
employees were being removed from his supervision and his section
was being reorganized.

Silverstein also appears to have

complained about his 2012 evaluation, which may have affected his
compensation.

See ECF No. 42-10, PageID #412.

Defendant is not

contending that the January 2013 complaint failed to qualify as
“protected activity” under Title VII.

This court concludes that

there is a question of fact as to whether Gonzales had a
retaliatory motive.

This is so even if the allegations in the

January 2013 complaint relating to Gonzales could be said to be
unrelated to Title VII.

The EEO complaint appears to have

included other matters within the scope of Title VII, albeit
implicating employees other than Gonzales.

This court thinks it

reasonable to assume that the investigator’s interviews of all
the alleged bad actors would have included questions going to
matters such as sex discrimination.

Gonzales thus likely knew

there was a complaint about him included in a complaint about
Title VII matters.

While this court is certainly in no position

51

to say that Gonzales was indeed being retaliatory, there is
enough in the record to create a genuine issue of material fact
as to that issue to defeat summary judgment on this particular
part of the retaliation claim.

That is all Silverstein needs.

In determining that a question of fact exists as to
whether Gonzales had a retaliatory motive in preferring someone
other than Silverstein for the Supervisory Historian position,
the court is aware that Silverstein has submitted no admissible
evidence that either Minty or Bazin was prejudiced against him
because of the EEO complaints.

At the hearing, Silverstein

suggested that Gonzales and Minty did not rate him highly because
Silverstein had been critical of them.

Silverstein said he was

critical of Minty after Minty prevented Silverstein from
traveling to Tarawa Atoll in September 2012, but there is no
evidence tying any such criticism (whatever its content was,
which is unclear) to the Supervisory Historian decision nearly
two years later.

Nor does Silverstein provide any reason that

Bazin similarly rated him lower than Kupsky.

Silverstein only

notes that Bazin was the junior member of the panel.

If Minty

and Bazin could have outvoted Gonzales, Silverstein might not
have been selected even if Gonzales’s allegedly retaliatory vote
had been disregarded.
Nevertheless, because the court cannot discern from the
record how the hiring process proceeded after the ranking of the

52

applicants, the court cannot say on the present record that there
is no triable issue as to whether the failure to promote
Silverstein was influenced by a retaliatory motive on the part of
Gonzales.

For example, it is not clear that each of the rankings

was given identical weight, or that, even if the rankings were
independent, they necessarily required appointment of Kupsky.

If

Gonzales had ranked Silverstein higher, there might have been a
discussion that might have affected the outcome, possibly causing
another panel member to rethink his rankings.

Again, this court

is not assuming that Gonzales actually acted out of anything
retaliatory.

The court is instead saying that there is enough to

create a triable issue as to that matter.

The court therefore

denies summary judgment with respect to the part of the
retaliation claim based on the failure to promote Silverstein to
the Supervisory Historian position.
V.

HOSTILE WORK ENVIRONMENT CLAIM.
A.

Law Applicable to Hostile Work Environment Claim.

To prevail on a hostile work environment claim under
Title VII, a plaintiff must show that his or her “workplace was
permeated with discriminatory intimidation . . . that was
sufficiently severe or pervasive to alter the conditions of [his]
employment and create an abusive working environment.”

Brooks v.

City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (internal
quotation marks and citations omitted).

53

A court examines the

totality of the circumstances in determining whether a claimant
presents evidence that the work environment was both subjectively
and objectively abusive.

Id.

“When assessing the objective portion of a plaintiff’s
claim, we assume the perspective of the reasonable victim.”
at 924.

Id.

When determining whether an environment was sufficiently

hostile or abusive, a court must examine all of the
circumstances, including the frequency of the discriminatory
conduct, its severity, whether it was physically threatening or
humiliating, and whether it unreasonably interfered with an
employee’s work performance.
U.S. 775, 787-88 (1998).
code.”

Id. at 788.

Faragher v. City of Boca Raton, 524

Title VII is not a “general civility

“[S]imple teasing, offhand comments, and

isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the ‘terms and conditions of
employment.’”

Id. (internal citation omitted); Davis v. Team

Elec. Co., 520 F.3d 1080, 1095 (9th Cir. 2008).
A hostile work environment frequently involves
“repeated conduct.”
U.S. 101, 115 (2002).

Nat'l R.R. Passenger Corp. v. Morgan, 536
The unlawful employment practice therefore

need not necessarily occur on one particular day, but instead may
span a period of days or even years.

Id.

In other words, a

hostile work environment often involves separate but related acts
that collectively amount to an unlawful employment practice.

54

For

example, the Ninth Circuit has recognized a hostile work
environment when an employee “endured an unrelenting barrage of
verbal abuse,” including having other employees habitually call
him sexually derogatory names, refer to him as female, and taunt
him for behaving like a woman.

See Nichols v. Azteca Restaurant

Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001).

As the Ninth

Circuit explains, “claims that raise a genuine issue of material
fact as to the existence of a hostile environment involve
allegations of continuing violations.”
In Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1108
(9th Cir. 1998), the Ninth Circuit stated:
Here, Draper has testified that she was
subject to the same sort of harassment by
Anelli on a regular basis, and that she
constantly felt uncomfortable and upset at
work. As in most claims of hostile work
environment harassment, the discriminatory
acts were not always of a nature that could
be identified individually as significant
events; instead, the day-to-day harassment
was primarily significant, both as a legal
and as a practical matter, in its cumulative
effect. Because Draper’s hostile work
environment claim is not based upon a series
of discrete and unrelated discriminatory
actions, but is instead premised upon a
series of closely related similar occurrences
that took place within the same general time
period and stemmed from the same source, her
allegations set forth a claim of a continuing
violation.
Id.
The necessary showing of severity or seriousness of the
harassing conduct varies inversely with the pervasiveness or
55

frequency of the conduct.
(9th Cir. 1991).

Ellison v. Brady, 924 F.2d 872, 878

Accordingly, even though a hostile work

environment claim usually involves related conduct over a period
of time, a single serious act may be sufficient to establish a
hostile work environment.

Id. (citing Vance v. S. Bell Tel. &

Tel. Co., 863 F.2d 1503, 1510 (11th Cir. 1989)), for proposition
that noose hung over work station was sufficiently severe to
create genuine issue of fact regarding hostile environment based
on race).

It is enough that the hostile conduct pollutes the

victim’s workplace, making it more difficult for the victim to do
his or her job, to take pride in the work, and to want to stay in
the position.

See Vanhorn v. Hana Grp., Inc., 979 F. Supp. 2d

1083, 1097 (D. Haw. 2013).
Because a hostile work environment, unlike a discrete
act, may not be tied to a particular day and instead may develop
over time, the events making up a hostile work environment claim
are not limited to those within the limitations filing period.
hostile work environment claim “is composed of a series of
separate acts that collectively constitute one unlawful
employment practice.’”

Morgan, 536 U.S. at 103.

Therefore,

it does not matter that some of the component
acts fall outside the statutory time period.
Provided that an act contributing to the
claim occurs within the filing period, the
entire time period of the hostile environment
may be considered for the purposes of
determining liability. That act need not be
the last act. Subsequent events may still be
56

A

part of the one claim, and a charge may be
filed at a later date and still encompass the
whole. Therefore, a court’s task is to
determine whether the acts about which an
employee complains are part of the same
actionable hostile work environment practice,
and if so, whether any act falls within the
statutory time period.
Id.
B.

The Court Grants Summary Judgment in Favor of
Defendant With Respect to Silverstein’s Hostile
Work Environment Claim.

Silverstein does not clearly articulate the bases for
his hostile work environment claim.

He states generally on pages

23 to 24 of his Opposition that he suffered a hostile work
environment because he engaged in a protected activity and
suffered several adverse employment actions, but he does not
clearly describe the hostile work environment, leaving it to the
court to discern his argument.

See ECF No. 50, PageID #s 605-06.

This court is unable to discern conduct that was sufficiently
severe or pervasive to alter the conditions of his employment and
create an abusive working environment.

Brooks, 229 F.3d at 923.

Additionally, because Silverstein does not show that the various
events he complains of are related, as opposed to being separate,
unrelated acts by different people in a department of 400 to 600
individuals, he does not show that the limitations period should
relate back to encompass all of those many acts.

Finally,

especially with respect to the conduct preceding his EEO

57

complaints, Silverstein fails to tie the allegedly hostile work
environment to anything within the scope of Title VII.
As the Supreme Court noted in Meritor Savings Bank, FSB
v. Vinson, 477 U.S. 57, 67 (1986), “not all workplace conduct
that may be described as ‘harassment’ affects a ‘term, condition,
or privilege’ of employment within the meaning of Title VII.”
Instead, to have an actionable hostile work environment claim
under Title VII, a plaintiff must demonstrate that the work
environment was hostile with respect to a class protected by
Title VII.

See, e.g., Dominguez-Curry v. Nevada Transp. Dep’t,

424 F.3d 1027, 1034 (9th Cir. 2005) (noting that plaintiff
asserting Title VII hostile work environment sexual harassment
claim must demonstrate that harassment was based on sex); Manatt
v. Bank of Am., NA, 339 F.3d 792, 798 (9th Cir. 2003) (stating
that plaintiff asserting Title VII hostile work environment
racial harassment claim must demonstrate that harassment was
based on race); Mendoza v. Sysco Food Servs. of Arizona, Inc.,
337 F. Supp. 2d 1172, 1184 (D. Ariz. 2004) (stating that
plaintiff asserting Title VII hostile work environment national
origin harassment claim must demonstrate that harassment was
based on national origin).
Title VII makes it unlawful for an employer to
discriminate with respect to compensation, terms, conditions, or
privileges of employment based on race, color, religion, sex, or

58

national origin.

See Faragher v. City of Boca Raton, 524 U.S.

775, 786 (1998) (citing 42 U.S.C. § 2000e-2(a)(1)).

In other

words, Title VII does not protect individuals from a hostile work
environment based on something outside the scope of Title VII,
such as work performance or personality.
Silverstein cannot base his Title VII hostile work
environment claim on matters unrelated to Title VII.

Thus, given

the lack of evidence that Dr. Moore was publicly humiliated
because of race, color, religion, sex, or national origin,
anything Silverstein suffered for having supported Dr. Moore in
2005 is not actionable under Title VII.
Similarly, the court can find no tie to Title VII in
Silverstein’s claims that he was subjected to a hostile work
environment because he submitted ethics complaints in 2011 and
2012.

The ethics complaints concerned procedural violations,

ethics, waste, or abuse.

Silverstein provides no evidence that

any ethics complaint related to race, color, religion, sex, or
national origin.

Nor do the occurrences he says he suffered

because he submitted ethics complaints relate to Title VII.

He

complains that his ethics complaints led to an October 2011
discussion about how to make reports, his being pulled from a
Tarawa Atoll mission in September 2012, a denial of leave to
accept an award in the fall of 2012, a July 2012 decision
implemented in October 2012 to transfer two employees, and the

59

October 2012 denial of leave for medical reasons.

Silverstein

makes no showing that any of those actions related to race,
color, religion, sex, or national origin.

Because Title VII is

not a “general civility code,” see Faragher, 524 U.S. at 788, the
court rules that Silverstein raises no genuine issue of fact as
to whether he was subjected to a hostile work environment in
violation of Title VII based on these acts.
This court is left with examining whether Silverstein’s
hostile work environment claim may be grounded in his four
remaining retaliation allegations.

Those allegations address his

EEO complaints in 2012 and 2013, including (1) his 2012
performance review, (2) the cancellation of his retention
initiative in 2013, (3) his lack of inclusion in the team that
went to Laos in February 2014, and (4) his failure to be promoted
in May 2014 to the Supervisory Historian position.

Viewed from a

reasonable plaintiff’s perspective, the totality of the
circumstances could not be said to raise an issue of fact as to
whether Silverstein’s work environment was both subjectively and
objectively abusive for Title VII purposes.
at 923.

See Brooks, 229 F.3d

Nor does the record show a relationship among the

matters complained of; they appear to have involved discrete
acts, not any course of conduct by particular individuals acting
with the same motive or bias for which Silverstein’s employer can
be held accountable.

Even when the court considers the March

60

2010 cancellation of the trip to Tarawa Atoll, the August 2010
reprimand, or the 2011 counseling, no course of conduct (as
opposed to discrete acts) can be inferred.
This court turns first to Silverstein’s 2012
performance review by his supervisor, Lawrence Gonzales.
Silverstein raises no genuine issue of fact as to whether
Gonzales’s performance review was part of an environment that was
objectively abusive from a reasonable victim’s perspective.
Gonzales gave Silverstein the highest rating in each of the four
categories and criticized him only for not having completed
reports on a timely basis.

Silverstein does not dispute that the

reports were not completed on time.

While he attributes any

delay to the peer-review process, that does not indicate that the
review contributed to a hostile environment actionable under
Title VII.

Nothing about the review is tied by Silverstein to

evidence of race, color, religion, sex, or national origin
discrimination.

Notably, the review occurred one or more years

after Silverstein says he supported other co-workers who
complained about sex discrimination.

See ECF No. 42-18, PageID

# 476 (showing Dec. 13, 2012, as date Gonzales signed 2012
performance review).

Silverstein does not complain about his

performance reviews in other years, which suggests that this
review was not part of a pattern.

Nor does Silverstein discuss

whether other employees with comparable criticisms about

61

timeliness were treated differently such that his particular
situation was, by contrast, hostile.
Second, with respect to losing his retention
initiative, Silverstein again fails to demonstrate that, from a
reasonable victim’s perspective, there is a question of fact as
to whether the conduct was part of an objectively abusive
environment.

Having left the Central Identification Laboratory,

Silverstein was not entitled to continue to receive the retention
initiative applicable to employees of the Central Identification
Laboratory.

Although Silverstein concludes that he was “audited”

in December 2012 while no other employee was similarly “audited,”
Silverstein does not detail what the “audit” consisted of and
gives no indication of having personal knowledge that other
employees were allowed to continue to receive the retention
initiative after ceasing to be eligible for that.
As discussed earlier in this order, Gamulo says she
noticed that Silverstein was improperly receiving the retention
initiative when she got a letter from Washington with the names
of employees receiving the initiative.

Nothing in the record

indicates that Gamulo was motivated by anything other than
Silverstein’s ineligible status.

Silverstein does not point to

any hostility by any particular individual at all relating to the
retention initiative.

In fact, nothing in the record suggests

that Gamulo even knew about the EEO complaints.

62

While

Silverstein was told on February 2, 2013, that he had to
reimburse the overpayments he had received, that reimbursement
requirement was ultimately rescinded.

There is no evidence that

the initial reimbursement requirement was imposed by anyone with
a discriminatory or retaliatory movive, or that, before the
requirement was rescinded, it so pervaded the work environment
that it created a hostile or abusive atmosphere.
Third, with respect to not having been deployed to Laos
in February 2014, Silverstein again fails to show objective
abusiveness that permeated his work environment.

The Central

Identification Laboratory decided to send Dr. Stephen as the
Recovery Leader instead of Silverstein, allegedly because Dr.
Stephen was an Archaeologist who could do excavations that
Silverstein could not.

The court finds nothing in the record

suggesting that the choice of Dr. Stephen was in any way related
to race, color, religion, sex, or national origin.

At most, the

court notes that Silverstein was pulled from the Laos position
around the time that Silverstein’s section was apparently seeking
to counter an attempt to terminate a co-worker on what the
section thought was a “possibly racially motivated” ground.
ECF No. 42-11, PageID # 419.

See

But that does not mean that being

pulled from a Laos trip created or contributed to a hostile work
environment.

63

The record refers to only three specific trips–-one to
Tarawa Atoll organized in March 2010, one to Tarawa Atoll
organized in September 2012, and one to Laos organized in
February 2014.

These are far enough apart as not to constitute a

pattern, especially when the cancellations were by different
people (March 2010 Tarawa Atoll by Dr. Gregory Fox; September
2012 Tarawa Atoll by Ronald Minty; and 2014 Laos by Dr. William
Belcher).
In concluding that Silverstein cannot sustain his
hostile work environment claim, the court is mindful of the
distinction between a hostile work environment actionable under
42 U.S.C. § 2000e-2 and a hostile work environment constituting
an adverse employment action in a retaliation claim under 42
U.S.C. 2000e-3(a).

The former requires proof that the work

environment is hostile based on a person’s race, color, religion,
sex, or national origin.

Thus, for example, the workplace may be

rife with racist or sexist comments.

By contrast, the Ninth

Circuit’s reasoning in Ray v. Henderson, while relating to a
hostile work environment that can serve as an adverse employment
action in a retaliation claim, says nothing about the need to
show an environment pervaded by discrimination based on race,
color, religion, sex, or national origin.

Instead, under Ray, it

might arguably suffice if the pervasive hostility involves
something that on its face appears unrelated to Title VII (e.g.,

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frequent comments about a disability), provided the hostility
flows from a retaliatory attitude toward someone who engaged in
activity protected by Title VII, such as having filed a race
discrimination complaint.
In the present case, that is a distinction without a
difference because, whether under 42 U.S.C. § 2000e-2 or under 42
U.S.C. 2000e-3(a), the hostile work environment must involve a
pervasive atmosphere.

Silverstein does not provide evidence that

the incident involving the Laos trip was part of any atmosphere,
much less an atmosphere that was objectively permeated with
hostility so severe and pervasive from a reasonable victim’s
perspective that it could be said to have changed the terms and
conditions of Silverstein’s working environment.2
2

One of the Reports of Investigation refers to “several
years [of] history of CIL managers (Dr. Byrd, Dr. Holland and Dr.
Belcher) actively denying [Silverstein] opportunities to deploy.”
ECF No. 42-11, PageID #419. The Report says that Silverstein’s
supervisors knew that management would reallocate personnel to
prevent Silverstein from having travel opportunities. Id.
However, the Report notes that Silverstein “has no comparator for
this incident.” Id. If the reference to the lack of a
comparator means that Silverstein failed to show that other
similarly situated employees had more travel opportunities than
he did, this court shares that concern. The only specific travel
opportunities before this court are the 2010 and 2012 Tarawa
Atoll trips and the 2014 Laos trip, which are so separated in
time that this court cannot infer that they were part of the same
continuing hostility or the same work environment. Even if the
reference to the lack of a comparator instead refers to the
absence of anyone else denied travel opportunities with
comparable frequency, that circumstance does not transform the
Laos trip from a discrete incident into part of a work
environment that was pervasively abusive. Actions regarding
three trips over four years do not translate into a pervasive
atmosphere.
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Finally, with respect to the May 2014 failure to
promote Silverstein, the court again identifies no genuine issue
of fact as to the objective abusiveness of the work environment.
While this court thinks there is a triable issue of fact as to
whether the May 2014 incident involved retaliation, Silverstein
does not show that that incident created or contributed to an
abusive atmosphere.

The denial of a promotion was presumably

very disappointing (and may have been retaliatory), but it was a
discrete incident.

Silverstein does not show its effect on the

pervasive work environment.
The court notes that, “in late 2015,” Silverstein
“applied for a position as an archaeologist at DPAA and was
passed over.”

See Silverstein Decl. ¶ 28(m), ECF No. 51-1,

PageID # 637.

Silverstein says that, after an investigation, he

was offered some sort of a position that he declined out of
concern that management would use his probationary period in the
new position to terminate him.

Id.

At the hearing on the

present motion, Silverstein explained that it was a position as a
Historian that he declined to accept in 2016.

He conceded that

nothing relating to the 2016 position goes to any claim in this
case, which is consistent with his statement in his declaration
that he applied for a position “in late 2015,” several months
after the First Amended Complaint was filed.

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The court therefore

does not here take into account the 2016 Historian position,
which, in any event, no party has asked the court to consider.
Although Silverstein does not appear to link the
October 2012 denial of his request for limited duty to his
informal contact with the EEO counselor on October 3, 2012, the
court examines whether that denial might be relevant to his
hostile work environment claim, given the timing of those events.
Silverstein raises no genuine issue of fact as to whether that
denial was so objectively abusive that it supports a hostile work
environment claim.

There is no evidence that the Joint POW/MIA

Accounting Command had a teleworking policy.

It is not clear

from the record that the denial did anything more than continue
the status quo, which Silverstein does not show was pervasively
hostile in a manner actionable under Title VII.
The bottom line for this court is that Silverstein does
not raise a question of fact as to whether his “workplace was
permeated with discriminatory intimidation . . . that was
sufficiently severe or pervasive to alter the conditions of [his]
employment and create an abusive working environment.”
229 F.3d at 923.

Brooks,

Silverstein instead complains of discrete acts

by different individuals at different times, many of them not
actionable under Title VII.

Even when incidents are tied to

Title VII, only one is sufficient to survive this summary
judgment motion, and then only with respect to Silverstein’s

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Title VII retaliation claim, not his hostile work environment
claim.

That instance and the other occurrences Silverstein

points to are insufficient even in combination to establish the
severe and pervasive environment required for a hostile work
environment claim.

Silverstein does not show that those acts,

either alone or together, created an abusive working environment
that pervaded the workplace.

Summary judgment is therefore

granted in favor of Defendant with respect to the hostile work
environment claim.
VI.

CONCLUSION.
The court grants Defendant’s motion to dismiss the

Title VII retaliation claim to the extent it is based on facts
alleged in paragraphs 14, 17, 22, 24, 25, and 30 of the First
Amended Complaint (except with respect to the part of the
retaliation claim involving the Laos trip).

Any retaliation

claim based on those allegations was not properly exhausted.
Turning to the remaining portion of the retaliation
claim, this court denies summary judgment with respect to the
part of the retaliation claim based on the failure to promote
Silverstein to the Supervisory Historian position, but grants
Defendant summary judgment favor with respect to all other
remaining bases of the retaliation claim.
The court grants summary judgment in Defendant’s favor
with respect to the hostile work environment claim.

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Silverstein’s retaliation claim based on the failure to
hire him as the Supervisory Historian remains for further
adjudication.

IT IS SO ORDERED.
Dated:

Honolulu, Hawaii, August 11, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Silverstein v. Carter, Civ. No. 15-00097 SOM/KJM; ORDER (a) DISMISSING RETALIATION
CLAIM ASSERTED IN PARAGRAPHS 14, 17, 22, 24, 25, AND 30 OF THE FIRST AMENDED COMPLAINT,
AND (b) GRANTING IN PART AND DENYING IN PART SUMMARY JUDGMENT WITH RESPECT TO REMAINING
CLAIMS

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