Thomas v. Mabus

Filing 74

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT re : (28 in 1:16-cv-00485-RLP, 59 in 1:15-cv-00121-RLP) MOTION for Partial Dismissal and Part ial Summary Judgment filed by Ray Mabus.. Signed by MAGISTRATE JUDGE RICHARD L. PUGLISI on 02/27/2018. Associated Cases: 1:15-cv-00121-RLP, 1:16-cv-00485-RLP(eps, )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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CLIFFORD THOMAS,

)
)
Plaintiff,
)
)
vs.
)
)
RICHARD V. SPENCER, SECRETARY )
OF DEPARTMENT OF THE NAVY,
)
)
Defendant.
)
)

CIVIL NO. 15-00121 RLP
CONSOLIDATED WITH
CIVIL NO. 16-00485 RLP
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN
PART DEFENDANT’S MOTION FOR
PARTIAL DISMISSAL AND PARTIAL
SUMMARY JUDGMENT

MEMORANDUM OPINION AND ORDER GRANTING IN PART
AND DENYING IN PART DEFENDANT’S MOTION FOR
PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT
On February 23, 2018, Defendant’s Motion for Partial
Dismissal and Partial Summary Judgment came on for hearing.
Shawn A. Luiz, Esq. appeared on behalf of Plaintiff; Assistant
United States Attorney Thomas A. Helper appeared on behalf of
Defendant.

After carefully considering the parties’ submissions,

the relevant legal authority, and the arguments of counsel at the
hearing, the Court GRANTS IN PART AND DENIES IN PART Defendant’s
Motion.
BACKGROUND
Plaintiff filed his First Complaint on April 9, 2015,
alleging claims for violations of Title VII of the Civil Rights
Act of 1964 (“Title VII”), violation of the Age Discrimination in
Employment Act of 1967 (“ADEA”), and declaratory judgment
pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 and
2202.

ECF No. 1 in Civil No. 15-00121 RLP (“First Complaint”).

Plaintiff filed his Second Complaint on September 1, 2016,
alleging additional claims for violation of Title VII.
in Civil No. 16-00485 RLP (“Second Complaint”).

ECF No. 1

These two

actions were consolidated by stipulation on November 17, 2016.
ECF No. 42.
Plaintiff has been employed at Pearl Harbor Naval
Shipyard since 1982.

ECF No. 60, Defendant’s Concise Statement

of Facts in Support of His Motion for Partial Dismissal and
Partial Summary Judgment of Defendant Richard V. Spencer,
Secretary of Department of the Navy (“Def.’s Stmnt.”) ¶ 1; ECF
No. 72, Plaintiff Clifford Thomas’ Supplemental Concise Statement
of Facts in Opposition to Defendants’ Motion for Summary Judgment
(“Pl.’s Stmnt.”), ECF No. 66-1; Declaration of Plaintiff Clifford
Thomas (“Pl.’s Decl.”) ¶ 14.

The acts at issue in Plaintiff’s

Complaints took place between 2009 and 2014.

From 2009 through

January 2013, Plaintiff was a supervisor in the Utilities branch
of the Naval Facilities Engineering Command.

Id.

Until May

2010, Plaintiff’s first-level supervisor was John Cazinha.

Id.

From May 2010 to January 2013, Plaintiff’s first-level supervisor
was Tammy Rodrigues.

Id.

In January 2013, Plaintiff was

promoted and Mr. Cazinha became his first-level supervisor again.
Id.

In July 2014, Plaintiff was transferred out of the Utilities

branch.

Id. ¶ 2; ECF No. 66-1, Pl.’s Decl. ¶ 5.

In June 2015,

Plaintiff was reassigned to the Waste Water Treatment Plant.

2

Id.; ECF No. 66-1, Pl.’s Decl. ¶ 3.
In the present Motion, Defendant argues that it is
entitled to dismissal or summary judgment on all of Plaintiff’s
claims except his claim based on his transfer out of the
Utilities branch in 2014, which is set forth in paragraph 32 of
his Second Complaint.

See ECF No. 59-1.
DISCUSSION

I. Defendant’s Request to Dismiss Plaintiff’s Claims
Under the Declaratory Judgment Act is GRANTED.
Under Federal Rule of Civil Procedure 12(b)(6), a
complaint must be dismissed if it fails “to state a claim upon
which relief can be granted.”

Fed. R. Civ. P. 12(b)(6).

Review

under Rule 12(b)(6) is generally limited to the contents of the
complaint.

Daniels–Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998

(9th Cir. 2010).

Plaintiff’s allegations of material fact are

taken as true and construed in the light most favorable to
Plaintiff.

Id.

Dismissal is appropriate under Rule 12(b)(6) if

the facts alleged do not state a claim that is “plausible on its
face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

“Determining whether a complaint states a plausible claim for
relief will . . . be a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense.”

Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citation

omitted).
3

Defendant asks the Court to dismiss Plaintiff’s claims
for declaratory and injunctive relief under the Declaratory
Judgment Act.

See ECF No. 59-1 at 4-5.

As noted by Defendant,

Title VII is the exclusive remedy for claims of discrimination
and retaliation in federal employment.

See Brown v. GSA, 425

U.S. 820, 835 (1976); see also Boyd v. U.S. Postal Serv., 752
F.2d 410, 413 (9th Cir. 1985) (same); Niimi-Montalbo v. White,
243 F. Supp. 2d 1109, 1118 (D. Haw. 2003) (same).
not address this argument in his Opposition.

Plaintiff does

Because Plaintiff’s

claims are ripe and justiciable under Title VII, the Court GRANTS
Defendant’s request to dismiss Plaintiff’s request for injunctive
and declaratory relief under the Declaratory Judgment Act.
II. Defendant’s Request for Summary Judgment as to the
Remaining Claims at Issue is GRANTED IN PART AND DENIED IN PART.
Pursuant to Federal Rule of Civil Procedure 56(a), a
party is entitled to summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

“A party seeking summary judgment bears the initial

burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex Corp. v. Catrett, 477
4

U.S. 317, 323 (1986)).

“A fact is material when, under the

governing substantive law, it could affect the outcome of the
case.

A genuine issue of material fact arises if the evidence is

such that a reasonable jury could return a verdict for the
nonmoving party.”

Thrifty Oil Co. v. Bank of Am. Nat’l Trust &

Sav. Ass’n, 310 F.3d 1188, 1194 (9th Cir. 2002) (internal
citations omitted).

If the evidence “could not lead a rational

trier of fact to find for the nonmoving party, there is no
genuine issue for trial.”

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

If the moving party

carries its burden, then “its opponent must do more than simply
show that there is some metaphysical doubt as to the material
facts [and] . . . come forward with specific facts showing that
there is a genuine issue for trial.”

Id. at 586–87 (citations

omitted).
A.

Defendant’s Request for Summary Judgment as to

Plaintiff’s Claims of Discrimination and Retaliation Based on
Discrete Adverse Personnel Actions is GRANTED IN PART AND DENIED
IN PART.
In his Complaints, Plaintiff alleges that Defendant
discriminated and retaliated against him based on his age, race,
color, national origin, and prior protected activity in violation
of Title VII and the ADEA.

To establish a prima facie case of

unlawful discrimination, a plaintiff must plausibly allege that:
5

(1) he is a member of a protected class; (2) he was qualified for
his position; (3) he experienced an adverse employment action;
and (4) similarly situated individuals outside the protected
class were treated more favorably or other circumstances
surrounding the adverse employment action give rise to an
inference of discrimination.

Hawn v. Exec. Jet Mgmt., 615 F.3d

1151, 1156 (9th Cir. 2010); Nicholson v. Hyannis Air Serv., Inc.,
580 F.3d 1116 (9th Cir. 2009).

The degree of proof required to

establish a prima facie case at the summary judgment stage is
minimal.

See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094

(9th Cir. 2005).
Under Title VII, it is also unlawful for an employer to
retaliate against an employee on the basis of the employee’s
opposition to practices or actions prohibited by Title VII.

See

42 U.S.C. § 2000e–3(a); Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 62 (2006) (citations omitted).

Retaliation

can be shown by evidence that (1) Plaintiff engaged in protected
activity,1 (2) that he was thereafter subjected to an adverse
employment action, and that (3) there is a causal link between

1

“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). Defendant concedes that Plaintiff has been engaged
in protected activity “more or less continuously since 1984.”
ECF No. 71 at 16 n.5.
6

the protected activity and the adverse employment action.

See

Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994);
Davis v. Team Elec. Co., 520 F.3d 1080, 1093–94 (9th Cir. 2008).
Under the burden-shifting analysis set forth in
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973),
after a plaintiff presents a prima facie case, the burden shifts
to the defendant to articulate a “legitimate, nondiscriminatory
reason” for its employment decision.

Noyes v. Kelly Servs., 488

F.3d 1163, 1168 (9th Cir. 2007); Surrell v. Cal. Water Serv. Co.,
518 F.3d 1097, 1103 (9th Cir. 2008) (applying McDonnell Douglas
burden-shifting framework to Title VII case); Shelley v. Geren,
666 F.3d 599, 607–08 (9th Cir. 2012) (noting that the McDonnell
Douglas burden-shifting framework applies to ADEA claims
evaluated in the context of a summary judgment motion).

“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.

As discussed in detail below, Defendant argues that it
is entitled to summary judgment on Plaintiff’s claims of
discrimination and retaliation stemming from discrete adverse
personnel actions because Plaintiff has failed to establish a
genuine issue of material fact regarding his prima facie case.

7

1. 2009 and 2010 Position Rewrites
Plaintiff’s first alleged adverse employment action is
that he was discriminated against when Defendant made changes to
certain position descriptions and series classifications in 2009
and 2010.

Second Compl. ¶¶ 11-12.
In 2009, Defendant made changes to certain positions

resulting in a downgrade in these positions from WG-11 to WG-10.
ECF No. 60, Def.’s Stmnt. ¶ 5.

In 2010, there was a

reorganization in which a position that Mr. Cazinha formerly
occupied was converted from a GS Pay Grade to a WS Pay Grade.
Id.

Although Plaintiff states in his Supplemental Concise

Statement that these facts are “partially disputed,” see ECF No.
72 at 3, his Declaration, which is cited in his Supplemental
Concise Statement, does not provide any facts to dispute these
statements, see ECF No. 66-1, Pl.’s Decl. 22-28.
First, Defendant asks the Court to dismiss Plaintiff’s
claims based on these two acts because Plaintiff did not timely
exhaust his administrative remedies.

ECF No. 59-1 at 10-12.

Because the Court must consider evidence outside of the pleadings
to determine whether Plaintiff timely exhausted his
administrative remedies, the Court considers Defendant’s request
to dismiss as a request for summary judgment.
P. 12(d).

See Fed. R. Civ.

Defendant argues that Plaintiff failed to raise the

2009 and 2010 incidents with an Equal Employment Opportunity

8

(“EEO”) counselor within the applicable 45-day window.
59-1 at 10-12.

ECF No.

A federal employee is required to initiate

contact with an EEO counselor within 45 days of an alleged
discriminatory act.

See 29 C.F.R. § 1614.105(a)(1).

An

employee’s failure to initiate contact within 45 days is grounds
for dismissal.

Id. § 1614.107(a)(2); Cherosky v. Henderson, 330

F.3d 1243, 1245 (9th Cir. 2003) (“Failure to comply with this
regulation is fatal to a federal employee’s discrimination
claim.”) (citation omitted).
In support of its assertion that Plaintiff did not
timely exhaust his administrative remedies, Defendant provided
the EEO counselor’s report from 2014 wherein Plaintiff raises
these two incidents for the first time.

See ECF No. 60-16.

Although Plaintiff does not address this argument in his
Opposition, Plaintiff states in his Declaration that he “did
contact the EEO office in this matter, but I was told that I was
not an injured party, so I could not complain about it.”
66-1, Pl.’s Decl. ¶ 28.

ECF No.

Importantly, Plaintiff does not provide

any evidence regarding the date on which he contacted the EEO
office.

There is no evidence before the Court that Plaintiff

contacted the EEO office within 45 days of the 2009 and 2010
incidents at issue.

Accordingly, Defendant is entitled to

summary judgment on these claims because Plaintiff did not timely
exhaust his administrative remedies.
Second, even assuming that Plaintiff could show that he
9

timely exhausted his administrative remedies as to these acts,
the Court also finds that Defendant is entitled to summary
judgment as to these acts because Plaintiff cannot show that
these positions were ever open or that he applied for them.

To

establish his prima facie case in the failure to promote context,
Plaintiff must show “that he applied and was qualified for a job
for which the employer was seeking applicants.”
Douglas, 411 U.S. at 802.

See McDonnell

Defendant argues that it is entitled

to summary judgment because Plaintiff cannot establish that these
positions were ever open or that he was qualified or applied for
them.

ECF No. 59-1 at 14.

Plaintiff has not presented any facts

to show that Defendant was seeking applicants for these positions
or that he applied or was qualified for these positions.
No. 66-1, Pl.’s Decl. ¶¶ 22-28.

See ECF

Additionally, Plaintiff has not

put forward any evidence to rebut Defendant’s nondiscriminatory
reasons for these actions, namely, that they were part of larger
reorganizations.

See ECF No. 60, Def.’s Stmnt. ¶ 5; ECF No. 66-

1, Pl.’s Decl. ¶¶ 22-28.

Accordingly, Defendant is entitled to

summary judgment on these claims of discrimination.
Although not entirely clear from the briefing, it
appears from Plaintiff’s Supplemental Concise Statement that
Plaintiff is also asserting a claim for retaliation based on
these actions.

See ECF No. 72 at 3.

To the extent Plaintiff is

alleging retaliation, Plaintiff cannot show that he was subjected
to an adverse employment action.
10

See Wallis, 26 F.3d at 891.

As

noted above, Plaintiff has not presented any facts to show that
Defendant was seeking applicants for these positions or that he
applied or was qualified for these positions.

Therefore,

Defendant is also entitled to summary judgment for Plaintiff’s
claim of retaliation based on these allegations.
2. 2010 Production Supervisor Hiring
Plaintiff’s second alleged adverse employment action is
that he was discriminated against because he was not informed of
and did not apply to be considered for selection for the new
Production Supervisor in 2010.

First Compl. ¶ 26(b)(ii).

On January 21, 2010, Mr. Cazinha emailed Plaintiff and
a number of other subordinates to inform them of a
reorganization, in which several positions would be filled.
No. 60, Def.’s Stmnt. ¶ 6.

ECF

The email reminded the employees that

if they were interested in the positions, they needed to have an
updated resume in the Navy’s online system.

Id.

In a meeting in

February 2010, which Plaintiff attended, Mr. Cazinha explained
that the new position would be a Production Supervisor.
Plaintiff did not apply for the position.

Id.

Id.

Plaintiff does

not dispute that this email was sent to him, that the email
contains the information stated about the new positions, that he
attended the meeting where Mr. Cazinha explained the position, or
that he did not apply for the position.

See ECF No. 72, Pl.’s

Stmnt. ¶ 6; ECF No. 66-1, Pl.’s Decl. ¶¶ 29-41.

11

Instead,

Plaintiff states that the email “is not the first email
advertising the positions” and explains that he misunderstood Mr.
Cazinha in the meeting because he thought he was talking about a
different position.

ECF No. 72, Pl.’s Stmnt. ¶ 6; ECF No. 66-1,

Pl.’s Decl. ¶¶ 29, 34-35.

Plaintiff also states that Ms.

Rodrigues was “secretly promoted” to this position.

ECF No. 66-

1, Pl.’s Decl. ¶ 33.
Defendant argues that it is entitled to summary
judgment on this claim because Plaintiff cannot establish that he
applied for this job.

ECF No. 59-1 at 15.

Plaintiff has failed

to establish a genuine issue of material fact that would preclude
summary judgment as to this claim.
As noted above, in order to state a prima facie claim
for discrimination in a failure to promote context, Plaintiff
generally must show that he applied for the job at issue.
McDonnell Douglas, 411 U.S. at 802.

See

However, Plaintiff does not

need to show that he applied for an available position when
making a failure-to-promote claim “if the trier of fact could
reasonably infer that promotions were not awarded on a
competitive basis.”
Cir. 2002).

Lyons v. England, 307 F.3d 1092, 1114 (9th

Here, Plaintiff concedes that he received the email

from Mr. Cazinha regarding the opening for this position and that
he was at the meeting where the open position was discussed, but
he misunderstood.

See ECF No. 66-1, Pl.’s Decl. ¶¶ 29, 34-35.

12

In these circumstances, the trier of fact could not reasonably
infer that the Production Supervisor position was not awarded on
a competitive basis.

Accordingly, Plaintiff’s failure to produce

any evidence that he applied for the position at issue is fatal
to his claim.

Accordingly, Defendant is entitled to summary

judgment on this claim.
3. May 2010 WS-10 Pipefitter Supervisor Hiring
Plaintiff’s third alleged adverse employment action is
that he was discriminated against because he was not informed of
and did not apply to be considered for selection for a Pipefitter
Supervisor position.

First Compl. ¶ 29(g).

In May 2010, Mr. Cazinha received a list of qualified
applicants from Human Resources to fill a vacancy for a
Pipefitter Supervisor.

ECF No. 60, Def.’s Stmnt. ¶ 7.

Plaintiff

was not on the list either because he did not apply or was not
found to be qualified by Human Resources.

Id.

Although

Plaintiff states in his Supplemental Concise Statement that these
facts are “partially disputed,” see ECF No. 72, Pl.’s Stmnt. at
4, his Declaration, which is cited in his Supplemental Concise
Statement, does not provide any facts to dispute these
statements, see ECF No. 66-1, Pl.’s Decl. ¶¶ 42-44.

Defendant

argues that it is entitled to summary judgment because Plaintiff
cannot establish that he was qualified or applied for this
position.

ECF No. 59-1 at 18.

Plaintiff does not assert that he

13

applied or was qualified for this position.
Pl.’s Decl. ¶¶ 42-44.

See ECF No. 66-1,

Plaintiff has failed to establish a

genuine issue of material fact that would preclude summary
judgment as to this claim because he does not assert that he
applied or was qualified for this position.
Douglas, 411 U.S. at 802.

See McDonnell

Accordingly, Defendant is entitled to

summary judgment on this claim.
4. June 25, 2010 Reprimand
Plaintiff’s fourth alleged adverse employment action is
that he was discriminated against when his supervisor, Tammy
Rodrigues, issued a letter of reprimand to Plaintiff on June 25,
2010, for failure to follow instructions and inappropriate
conduct.

First Compl. ¶ 26.
In June 2010, Plaintiff received a letter of reprimand

stating that he (1) refused to print out equipment center logs
despite Ms. Rodrigues’s direction that he do so; (2) disobeyed
Ms. Rodrigues’s instruction to return to her office to continue
to discuss the matter; and (3) said “Tammy, fuck you” to her in
the course of the disagreement.

ECF No. 60, Def.’s Stmnt. ¶ 8;

ECF No. 66-1, Pl.’s Decl. ¶¶ 48-49, 51-52.

The letter of

reprimand states that it will stay in Plaintiff’s file for two
years.

ECF No. 60-4.

Although Plaintiff provides additional

information regarding the event in question in his Declaration,
he does not dispute that he did not print out the logs that Ms.

14

Rodrigues requested, that he left Ms. Rodrigues’ office after she
said that she was not done talking to him, and that he “said fuck
you.”

ECF No. 66-1, Pl.’s Decl. ¶¶ 48-49, 51-52.

Plaintiff

asserts that Ms. Rodrigues regularly used the work “fuck” at work
and that another employee involved in the incident did not
receive a reprimand.

Id. ¶¶ 46, 49, 53.

As detailed above, to establish a prima facie case of
discrimination, Plaintiff must show that he suffered an adverse
employment action.

See Nicholson, 580 F.3d at 1123.

“An adverse

employment action is one that causes a material employment
disadvantage, such as a tangible change in duties, working
conditions or pay.”

Delacruz v. Tripler Army Med., 507 F. Supp.

2d 1117, 1123 (D. Haw. 2007) (citation omitted).

Under Ninth

Circuit law, a letter of reprimand may constitute an adverse
employment action; however, in order to determine whether a
letter is considered an adverse employment action, the court must
consider whether there was any employment consequence as a result
of the reprimand letter.

See Vasquez v. Cty. of L.A., 349 F.3d

634 (9th Cir. 1998) (assuming of purposes of prima facie case
that the issuance of a warning letter constituted an adverse
employment action); Kortan v. Cal. Youth Authority, 217 F.3d
1104, 1112–13 (9th Cir. 2000) (a negative evaluation that does
not remain in employee’s file is not an adverse employment
action).

Here, the letter of reprimand, attached to Defendant’s

15

Concise Statement as Exhibit 1, advises Plaintiff that for the
next two years the letter may be counted as a prior offense when
determining the remedy for any future acts of misconduct.
No. 60-4 at 1.

ECF

The letter of reprimand also states that it will

remain in Plaintiff’s personnel file for a period of two years.
Id.

Plaintiff does not provide any evidence that there was any

other employment consequence as a result of the reprimand letter.
Because there was no other employment consequence and the letter
only remained in Plaintiff’s personnel file for two years, the
Court finds that the issuance of the letter of reprimand does not
constitute an adverse employment action.

See, e.g., Moore v.

Marriott Int’l, Inc., No. CV-12-00770-PHX-BSB, 2014 WL 5581046,
at *10–11 (D. Ariz. Oct. 31, 2014) (holding that a warning letter
that stated that the plaintiff may be subject to further
discipline if she committed additional violations did not did not
implement any material adverse change in the terms or conditions
of employment and was not an adverse employment action); Hoang v.
Wells Fargo Bank, N.A., 724 F. Supp. 2d 1094, 1104 (D. Or. 2010)
(finding that a warning letter that did not materially change the
terms and conditions of the plaintiff’s employment was not an
adverse employment action).

Because Plaintiff has failed to

establish a genuine issue of material fact regarding his prima
facie case, Defendant is entitled to summary judgment on this
claim of discrimination.

16

To the extent Plaintiff is also alleging retaliation
based on the letter, Plaintiff cannot show that he was subjected
to an adverse employment action.

See Wallis, 26 F.3d at 891.

As

noted above, the undisputed facts show that there was no other
employment consequence based on the letter of reprimand and the
letter only remained in Plaintiff’s personnel file for two years.
Thus, as a matter of law, the letter of reprimand was not an
adverse employment action.

Accordingly, Defendant is also

entitled to summary judgment for Plaintiff’s claim of retaliation
based on these allegations.
5. November 2010 Overtime
Plaintiff’s fifth alleged adverse employment action is
that he was discriminated and retaliated against in November 2010
when Ms. Rodrigues gave one of his two approved overtime days to
a coworker, Ty-Darby Sing Chow.

First Compl. ¶ 26(b)(iii)(A).

On November 18 and 19, 2010, another employee took two
sick days, which meant that the other supervisors had the
opportunity to work additional overtime.
Stmnt, ¶ 9.

ECF No. 60, Def.’s

Ms. Rodrigues gave one of the days to Plaintiff, one

to Mr. Sing Chow, and none to another supervisor.

Id.

Although

Plaintiff states in his Supplemental Concise Statement that these
facts are “partially disputed,” see ECF No. 72 at 3, his
Declaration, which is cited in his Supplemental Concise
Statement, does not provide any facts to dispute these

17

statements, see ECF No. 66-1, Pl.’s Decl. ¶¶ 54-56.

Plaintiff

states that Mr. Sing Chow generally received special treatment
from Ms. Rodrigues and twice as much overtime as Plaintiff.

Id.

¶¶ 54-56.
Defendant argues that it is entitled to summary
judgment on this claim because Plaintiff cannot establish the
prima facie element of an adverse personnel action.
agrees.

The Court

As detailed above, to establish a prima facie case of

discrimination, Plaintiff must show that similarly situated
individuals outside the protected class were treated more
favorably or other circumstances surrounding the adverse
employment action give rise to an inference of discrimination.
Hawn, 615 F.3d at 1156.

The undisputed material facts show that

there were two overtime shifts available and that Ms. Rodrigues
gave one to Plaintiff, gave one to Mr. Sing Chow, and gave none
to another supervisor.

Plaintiff has failed to establish a

genuine issue of material fact that would preclude summary
judgment as to this claim because he has not shown that similarly
situated individuals outside the protected class were treated
more favorably or other circumstances surrounding the adverse
employment action give rise to an inference of discrimination.
Plaintiff was treated the same as Mr. Sing Chow and was treated
more favorably than the other supervisor who did not receive any
overtime.

Accordingly, Defendant is entitled to summary judgment

18

on this claim.
Similarly, Plaintiff’s retaliation claim based on this
act must also fail because he cannot show that he was subjected
to an adverse employment action.

See Wallis, 26 F.3d at 891.

As

noted above, the undisputed facts show that the two overtime
shifts were given one to Plaintiff, one to Mr. Sing Chow, and
none to a third supervisor.

Plaintiff has failed to establish a

genuine issue of material fact regarding whether he suffered an
adverse employment action in these circumstances.

Accordingly,

Defendant is also entitled to summary judgment for Plaintiff’s
claim of retaliation based on these allegations.
6. August 2011 Vacation Substitute
Plaintiff’s sixth alleged adverse employment action is
that in August 2011 he was discriminated against when he was
denied the opportunity to apply and be promoted to a GS-13
position, for which Greg Mesa was selected, because he did not
know the position was opened.

First Compl. ¶ 29(f).

In August 2011, Mr. Cazinha planned to go on vacation
and had to make a recommendation to his supervisor for a
temporary replacement for the time that he would be gone.
No. 60, Def.’s Stmnt. ¶ 10.

ECF

Mr. Cazinha asked his three

immediate subordinates if any of them wanted to volunteer.

Id.

Plaintiff was not one of Mr. Cazinha’s immediate subordinates at
this time.

Id.; ECF No. 66-1, Pl.’s Decl. ¶ 60.

19

Mr. Mesa

volunteered, had previously served in the position temporarily,
and had recently attended a number of meetings relevant to the
position.

ECF No. 60, Def.’s Stmnt. ¶ 10.

Although Plaintiff

states in his Supplemental Concise Statement that these facts are
“partially disputed,” see ECF No. 66 at 4, and provides
additional information regarding the event in question in his
Declaration, he does not state any facts to dispute that Mr.
Cazinha only considered his three immediate subordinates for the
position and that Plaintiff was not one of Mr. Cazinha’s
immediate subordinates at this time, see ECF No. 66-1, Pl.’s
Decl. ¶¶ 57-60.
Defendant argues that it is entitled to summary
judgment because Plaintiff cannot establish that he was qualified
for this position.

ECF No. 59-1 at 18.

As noted above,

Plaintiff does not dispute that Mr. Cazinha only considered his
immediate subordinates for this position and that Plaintiff was
not his immediate subordinate at this time.

Accordingly,

Plaintiff has failed to establish a genuine issue of material
fact that would preclude summary judgment as to this claim
because there is no evidence that he applied or was qualified for
this position.

See McDonnell Douglas, 411 U.S. at 802.

Accordingly, Defendant is entitled to summary judgment on this
claim of discrimination.
Similarly, Plaintiff’s retaliation claim based on this

20

act must also fail because Plaintiff cannot show that he was
subjected to an adverse employment action.
at 891.

See Wallis, 26 F.3d

As noted above, Plaintiff has not presented any facts to

show that he applied or was qualified for this position because
he was not Mr. Cazinha’s immediate subordinate.

Therefore,

Defendant is also entitled to summary judgment for Plaintiff’s
claim of retaliation based on these allegations.
7. 2014 Bonus
Plaintiff’s seventh alleged adverse employment action
is that he was discriminated and retaliated against when Mr.
Cazinha did not recommend him for a bonus in July 2014.

Second

Compl. ¶ 34.
In 2014, Mr. Cazinha did not recommend Plaintiff for a
bonus.

ECF No. 60, Def.’s Stmnt. ¶ 11.

Plaintiff was

transferred out of Mr. Cazinha’s department that year.
No. 66-1, Pl.’s Decl. ¶ 64.

Id.; ECF

Despite Mr. Cazinha’s decision to

not recommend Plaintiff for a bonus, Plaintiff did receive a
bonus that year.
Pl.’s Decl. ¶ 63.2

ECF No. 60, Def.’s Stmnt. ¶ 11; ECF No. 66-1,
Defendant also states that Mr. Cazinha did

not recommend Plaintiff for a bonus because he left work undone

2

In his Declaration, Plaintiff provides additional facts
regarding a safety award given by Mr. Noborikawa. See ECF No.
66-1, Pl.’s Decl. ¶ 63. However, Plaintiff did not include that
claim in his Complaints. The only claim in these actions
involves the performance award withheld by Mr. Cazinha in July
2014. See Second Compl. ¶ 34.
21

when he was transferred out of the work center.

ECF No. 60 ¶ 11.

Plaintiff states that he did not know about any task that was not
completed and that he was prevented from completing them by
Defendant when he was removed from the work center without prior
notice.

ECF No. 66-1, Pl.’s Decl. ¶ 64.

Plaintiff also states

that Mr. Cazinha “gave some employees $500.00, and others
received $200.00.”
a $300.00 award.

Id. ¶ 63.

Plaintiff states that he received

Id.

Defendant argues that it is entitled to summary
judgment because Plaintiff cannot establish that he suffered an
adverse employment action.

ECF No. 59-1 at 19.

As noted above,

Plaintiff concedes that he received a bonus for the year despite
the fact that Mr. Cazinha did not recommend him.
1, Pl.s’ Decl. ¶ 63.

See ECF No. 66-

However, based on Plaintiff’s Declaration,

other employees received larger bonuses than Plaintiff did.

Id.

Accordingly, viewing the evidence in the light most favorable to
Plaintiff, there is a factual dispute regarding whether Plaintiff
suffered an adverse employment action.

Further, there are

material facts in dispute regarding Defendant’s proffered reason
for not recommending Plaintiff for a bonus.

Specifically,

Plaintiff states in his Declaration that he was not aware of any
work that was left uncompleted, and if any work was left
uncompleted, it was because Defendant prevented him from
returning to the work center when he was transferred.

22

Id. ¶ 64.

Based on these factual disputes, the Court cannot find that
Defendant is entitled summary judgment on these claims.

There

are material issues of fact regarding whether Plaintiff suffered
an adverse employment action and whether Defendant’s proffered
reason for the action is a legitimate, nondiscriminatory reason.
Accordingly, the Court DENIES Defendant’s request for summary
judgment as to these claims.
B. Defendant’s Request for Summary Judgment as to
Plaintiff’s Claims of Hostile Work Environment is GRANTED.
To establish a prima facie case for hostile work
environment, Plaintiff must show that (1) Defendant subjected him
to verbal or physical conduct because of his protected
characteristic; (2) the conduct was unwelcome; and (3) the
conduct was sufficiently severe or pervasive to alter the
conditions of his employment and create an abusive working
environment.

Surrell, 518 F.3d at 1108; Sischo–Nownejad v.

Merced Cmty. Coll. Dist., 934 F.2d 1104, 1109 (9th Cir. 1991)
(hostile work environment claim cognizable under ADEA).

“Not

every insult or harassing comment will constitute a hostile work
environment.”
2000).

Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir.

Both subjective and objective requirements must be

satisfied by demonstrating that the plaintiff perceived the work
environment to be hostile and that a reasonable person in the
plaintiff’s position would have perceived it as hostile.
23

Brooks

v. City of San Mateo, 229 F.3d 917, 923 (9th Cir. 2000).

In

considering the objective hostility of a work environment, the
court considers the totality of the circumstances including the
“frequency of discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance.”

McGinest v. GTE Serv. Corp., 360

F.3d 1103, 1113 (9th Cir. 2004).

“The required level of severity

or seriousness varies inversely with the pervasiveness or
frequency of the conduct.”

Nichols v. Azteca Rest. Enterprises,

Inc., 256 F.3d 864, 872 (9th Cir. 2001).
First, the Court GRANTS summary judgment in favor of
Defendant as to Plaintiff’s hostile work environment based on
age, race, color, and national origin.

Viewing the evidence in

the light most favorable to Plaintiff, the Court finds that there
is insufficient evidence that any conduct based on Plaintiff’s
age, race, color, and national origin was sufficiently severe or
pervasive to alter the conditions of his employment and create an
abusive working environment.

See Surrell, 518 F.3d at 1108.

There are no allegations or evidence that Plaintiff was subjected
to any verbal or physical conduct because of his age.

The only

evidence regarding any conduct based on Plaintiff’s race, color,
or national origin are the statements in Plaintiffs’ Declaration
that another employee referred to that employee’s son-in-law a
24

“black punk” and that “African American are referred to as the
nigger or the popolo.”

ECF No. 66-1 ¶ 108.

Plaintiff does not

present any evidence that his coworkers or supervisors directed
any statements about age, race, color, or national original at
him.

Under Ninth Circuit case law, the conduct at issue “was

neither severe nor pervasive enough to alter the conditions of
[Plaintiff’s] employment.”

Manatt v. Bank of Am., NA, 339 F.3d

792, 799 (9th Cir. 2003) (finding that evidence of co-workers
using the phrase “China man,” ridiculing the plaintiff for
mispronouncing a word, and mocking the appearance of Asians was
insufficient to establish a hostile work environment on summary
judgment).

Accordingly, the Court GRANTS summary judgment in

favor of Defendant as to Plaintiff’s hostile work environment
claim based on age, race, color, and national origin.
Second, the Court GRANTS summary judgment as to
Plaintiff’s retaliatory hostile work environment claim.

See Ray

v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000) (holding that a
hostile work environment can also be the basis for a retaliation
claim under Title VII).

Plaintiff’s Complaints contain a number

of specific examples of conduct that Plaintiff asserts created a
hostile work environment in retaliation for Plaintiff’s EEO
activity.

See First Compl. ¶¶ 23(a), 26(a), 26(b)(iii)(B),

29(a), 29(b), 29(c), 29(d), 29(e); Second Compl. ¶¶ 13-29, 31,
33-35.

In its Motion, Defendant argues that Plaintiff’s claim of
25

hostile work environment based retaliation must fail because his
allegations of harassment are simple work disputes, not acts
based on his protected EEO activities.

ECF No. 59-1 at 19-24.

Defendant argues that an examination of the circumstances behind
each incident shows that Defendant acted reasonably.

Id. at 23.

Defendant submitted the Declarations of Mr. Cazinha and Ms.
Rodrigues to explain the circumstances behind each of the
incidents alleged in the Complaints.

ECF No. 60-2, ECF No. 60-3.

In Opposition, Plaintiff provides statements in his Declaration
regarding the incidents alleged in his Complaints as well as
other incidents that are outside the scope of the allegations in
his Complaints.

ECF No. 66-1, Pl.’s Decl. ¶¶ 66-151.

Importantly, the statements in Plaintiff’s Declaration support
Defendant’s position that all of the incidents at issue involved
workplace disputes.

Specifically, Plaintiff’s Declaration states

that Mr. Cazinha yelled at Plaintiff about Plaintiff’s knowledge
of the power plant equipment, his report writing, missing or
damaged files, and work place accidents, that Mr. Cazinha
repeatedly emailed Plaintiff about work assignments, reassigned
employees to Plaintiff’s crew, gave him additional duties, and
criticized Plaintiff about how he handled calls, overtime
schedules, and reports.

Id.

Plaintiff’s Declaration states that

Ms. Rodrigues also criticized Plaintiff about his supervision of
other employees.

Id.

Plaintiff also details how Mr. Cazinha
26

frequently yelled in his face and how Ms. Rodrigues regularly
used rough language.

See, e.g., id. ¶¶ 70, 102.

Although there

is evidence that Mr. Cazinha and Ms. Rodrigues raised their
voices in speaking with Plaintiff, there is also evidence that
Plaintiff regularly raised his voice as well.

See, e.g., ECF No.

66-5 at 4, Decl. of Richard Binek (stating that Plaintiff’s
interactions with Mr. Cazinha and Ms. Rodrigues were “usually
loud and very confrontational”); ECF No. 66-6 at 3, Decl. of
Valentino Lopez (stating that Plaintiff and Mr. Cazinha “have a
history of yelling and disrespecting each other”).

Although Mr.

Cazinha’s and Ms. Rodrigues’ manner of speaking to Plaintiff
about these workplace disputes may have been uncivil, there is no
evidence that Plaintiff was treated this way because of his
protected activity.

The Court rejects Plaintiff’s argument that

the Declarations of Plaintiff’s coworkers show that Mr. Cazinha
treated Plaintiff differently because of his EEO activity.

As

noted by Defendant, speculation about a supervisor’s motive is
inadmissible to show retaliatory animus.

See Hester v. BIC

Corp., 225 F.3d 178, 185 (2d Cir. 2000) (stating that “Rule
701(b) bars lay opinion testimony that amounts to a naked
speculation concerning the motivation for a defendant’s adverse
employment decision.”).

All of Mr. Cazinha’s and Ms. Rodrigues’

criticism of Plaintiff were related to certain aspects of
Plaintiff’s job and their perceptions that Plaintiff was not
27

performing his job appropriately.

In considering the totality of

the circumstances, the Court finds that the evidence does not
suggest that Plaintiff’s supervisor’s conduct was severe or
interfered with Plaintiff’s work performance.
F.3d at 1113.

See McGinest, 360

Plaintiff fails to establish a prima facie hostile

work environment claim because his supervisor’s performancerelated comments are not sufficiently severe or pervasive to
constitute a hostile work environment.

See Surrell v. Cal. Water

Svc. Co., 518 F.3d 1097, 1109-10 (9th Cir. 2008) (affirming
summary judgment on the plaintiff’s hostile work environment
claim where the plaintiff’s supervisor had repeatedly told the
plaintiff that she was failing to perform certain aspects of her
job and was too slow with her work, holding that these comments
were “performance related” and not sufficiently severe or
pervasive to sustain a hostile work environment claim); Aoyagi v.
Straub Clinic & Hosp., Inc., 140 F. Supp. 3d 1043, 1057–58 (D.
Haw. 2015) (granting summary judgment against the plaintiff on
her hostile work environment claim where the plaintiff’s
supervisor made “undiplomatic or uncivil” comments that were
“altogether unrelated to Plaintiff’s race”); Gathenji v.
Autozoners, LLC, 703 F. Supp. 2d 1017, 1034 (E.D. Cal. 2010)
(granting summary judgment on the plaintiff’s harassment claims
where the supervisor’s “nasty comment[s,] condescending tone, and
the comments about work performance may be offensive,” but do not
28

rise to the level of harassment).

Because a reasonable person

would not find a hostile or abusive environment, Defendant is
entitled to summary judgment on this claim.

Accordingly, the

Court GRANTS Defendant’s request as to Plaintiff’s retaliatory
hostile work environment claim.
III. Remaining Claims
Based on the foregoing, the following claims remain in
this litigation:
1.

Plaintiff’s claims based on his reassignment to

another position as set forth in Plaintiff’s Second Complaint,
paragraph 32.
2.

Plaintiff’s claims for discrimination and

retaliation based on his allegations that he was not recommended
for a bonus in July 2014, as set forth in Plaintiff’s Second
Complaint paragraph 34.
CONCLUSION
Based on the foregoing, the Court GRANTS IN PART AND
DENIES IN PART Defendant’s Motion for Partial Dismissal and
Partial Summary Judgment as follows:
1.

Plaintiff’s claims for injunctive and declaratory

relief under the Declaratory Judgment Act are DISMISSED.
2. Defendant’s request for summary judgment as to
Plaintiff’s claims of discrimination and retaliation based on
discrete adverse personnel actions is DENIED as to Plaintiff’s
29

claim based on allegations that he was not recommended for a
bonus in July 2014, and GRANTED as to all other discrete
personnel actions alleged in Plaintiff’s Complaints.
3.

Defendant’s request for summary judgment as to

Plaintiff’s hostile work environment claim based on age, race,
color, and national origin is GRANTED.
4.

Defendant’s request for summary judgment as to

Plaintiff’s retaliatory hostile work environment claim is
GRANTED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, FEBRUARY 27, 2018.

_____________________________
Richard L. Puglisi
United States Magistrate Judge

THOMAS v. SPENCER; CIVIL NO. 15-00121 RLP; MEMORANDUM OPINION AND
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT

30