Thomas v. Mabus
Filing
97
MEMORANDUM OPINION And ORDER Granting In Part and Denying In Part Defendant's Motion For Dismissal And Summary Judgment On Plaintiff's First Amended Complaint re 84 . Signed by MAGISTRATE JUDGE RICHARD L. PUGLISI on 7/30/2018. Associated Cases: 1:15-cv-00121-RLP, 1:16-cv-00485-RLP(cib, )
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
DISMISSAL AND SUMMARY JUDGMENT
ON PLAINTIFF’S FIRST AMENDED
COMPLAINT
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION FOR DISMISSAL AND
SUMMARY JUDGMENT ON PLAINTIFF’S FIRST AMENDED COMPLAINT
On July 12, 2018, Defendant’s Motion for Dismissal and
Summary Judgment on Plaintiff’s First Amended Complaint 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.
During the hearing, the Court
requested additional briefing from both parties regarding the one
claim not addressed in Defendant’s Motion.
After carefully
considering the parties’ submissions, including the supplemental
briefing, the relevant legal authority, and the arguments of
counsel at the hearing, the Court GRANTS IN PART AND DENIES IN
PART Defendant’s Motion.
Specifically, the Court DENIES
Defendant’s request to dismiss two of Plaintiff’s claims based on
a failure to exhaust administrative remedies, GRANTS summary
judgment in favor of Defendant as to all of Plaintiff’s claims of
discrimination and retaliation based on discrete adverse
personnel actions, GRANTS Defendant’s request for summary
judgment on Plaintiff’s hostile work environment claim based on
race, color, and national origin, and GRANTS Defendant’s request
for summary judgment as to Plaintiff’s retaliatory hostile work
environment claim.
PROCEDURAL 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”) and violation of the Age Discrimination
in Employment Act of 1967.
ECF No. 1 in Civil No. 15-00121 RLP.
Plaintiff filed his Second Complaint on September 1, 2016,
alleging additional claims for violation of Title VII.
in Civil No. 16-00485 RLP.
ECF No. 1
These two actions were consolidated
by stipulation on November 17, 2016.
ECF No. 42.
On February 27, 2018, this Court issued its Order
Granting in Part and Denying in Part Defendant’s Motion for
Partial Dismissal and Partial Summary Judgment.
See ECF No. 74.
In that Order, the Court granted summary judgment in favor of
Defendant on all claims except for Plaintiff’s claim based on his
reassignment and Plaintiff’s claim regarding a 2014 performance
award.
Id. at 21-23.
Following the Court’s order, the parties
agreed to allow Plaintiff to file an amended complaint.
See ECF
No. 77.
Plaintiff filed his First Amended Complaint on April
2
16, 2018.
ECF No. 79, First Amended Complaint (“FAC”).
In his
First Amended Complaint, Plaintiff alleges that Defendant
discriminated against him in violation of Title VII on the basis
of his race, color, and national origin, and retaliated against
him for filing Equal Employment Opportunity (“EEO”) complaints,
by reassigning him to a non-supervisory position, refusing to
recommend him for performance awards, denying him promotions, and
taking other actions.
Id.
Plaintiff also alleges that Defendant
created a hostile work environment based on these same actions.
Id. ¶ 11.
Here, Defendant asks the Court to dismiss two claims on
the basis that Plaintiff failed to exhaust his administrative
remedies and to grant summary judgment on all remaining claims.
ECF No. 84; ECF No. 94.
FACTUAL BACKGROUND
Plaintiff has been employed at Pearl Harbor Naval
Shipyard since 1982.
See ECF No. 1 ¶ 15.
In 2014, Plaintiff was
a WS-10 Production Supervisor at Naval Facilities Engineering
Command Hawaii, responsible for overseeing more than a dozen
employees who work around the clock monitoring and repairing
utilities equipment.
See ECF No. 85, Defendant’s Concise
Statement of Facts in Support of His Motion for Dismissal and
Summary Judgment on Plaintiff’s First Amended Complaint (“Def.’s
Stmnt.”) ¶ 1; ECF No. 91, Plaintiff Clifford Thomas’ Supplemental
3
Concise Statement of Facts in Opposition to Defendant Richard V.
Spencer’s Motion for Dismissal and Summary Judgment on
Plaintiff’s First Amended Complaint (“Pl.’s Stmnt.”) ¶ 1; ECF No.
89-1, Declaration of Plaintiff Clifford Thomas (“Pl.’s Decl.”),
¶ 1.
In late June 2014, Defendant received several employee
complaints about Plaintiff and about two other supervisors.
ECF
No. 85, Def.’s Stmnt., ¶¶ 3, 6; ECF No. 91, Pl.’s Stmnt., ¶ 6.
While the complaints about him were being investigated, Plaintiff
was temporarily reassigned to work in the office of the Product
Line Coordinator for the Utilities and Energy Management Branch
to support administrative duties.
ECF No. 85, Def.’s Stmnt., ¶
5; ECF No. 91, Pl.’s Stmnt. ¶ 1; ECF No. 89-1, Pl.’s Decl., ¶ 13.
The two other supervisors were subject to a separate
investigation, but neither of those individuals were removed from
their positions during that investigation.
ECF No. 85, Def.’s
Stmnt., ¶ 6; ECF No. 91, Pl.’s Stmnt., ¶ 6; ECF No. 89-1, Pl.’s
Decl., ¶ 17.
Following his temporary reassignment in 2014,
Plaintiff’s former supervisor did not recommend Plaintiff for a
bonus.
ECF No. 60 ¶ 11.
Despite his former supervisor’s
decision to not recommend Plaintiff for a bonus, Plaintiff did
receive a bonus that year.
ECF No. 60 ¶ 11; ECF No. 66-1 ¶ 63.
Other employees in Plaintiff’s former work center received
4
bonuses of up to $500; Plaintiff received a bonus of $300.
ECF
No. 66-1 ¶ 63.
The employee complaints against Plaintiff were
investigated by Guy Masuda, which included interviews with
Plaintiff’s subordinates and with Plaintiff.
ECF No. 85, Def.’s
Stmnt., ¶ 7; ECF No. 91, Pl.’s Stmnt., ¶ 7; ECF No. 89-1, Pl.’s
Decl., ¶¶ 19-21.
investigation.
Mr. Masuda issued a report following his
Id.
Following that report, Plaintiff was reassigned to the
Wastewater Treatment Plant, where he was no longer a supervisor,
but retained his grade and pay.
ECF No. 85, Def.’s Stmnt., ¶ 8;
ECF No. 91, Pl.’s Stmnt., ¶ 8; ECF No. 89-1, Pl.’s Decl., ¶ 32.
During a meeting in June 2016, Plaintiff was told that his
reassignment to the Wastewater Treatment Plant was indefinite.
ECF No. 85, Def.’s Stmnt., ¶ 10; ECF No. 91, Pl.’s Stmnt., ¶ 10;
ECF No. 89-1, Pl.’s Decl., ¶ 37.
During that meeting, Plaintiff
stated that he was likely going to file an EEO complaint about
his indefinite reassignment.
ECF No. 85, Def.’s Stmnt., ¶ 11;
ECF No. 91, Pl.’s Stmnt., ¶ 11; ECF No. 89-1, Pl.’s Decl., ¶ 38.
Following that meeting, Plaintiff’s former supervisor and current
supervisor spoke about EEO complaints and Plaintiff’s former
supervisor said that he had dealt with about 15 EEO complaints
over the years.
ECF No. 85, Def.’s Stmnt., ¶ 11; ECF No. 91,
Pl.’s Stmnt., ¶ 11; ECF No. 89-1, Pl.’s Decl., ¶ 42.
5
At the
Wastewater Treatment Plant, Plaintiff was assigned duties that
include cleaning up human waste after spills or leaks.
ECF No.
85, Def.’s Stmnt., ¶ 14; ECF No. 91, Pl.’s Stmnt., ¶ 14.
In November 2016 and March 2017, Plaintiff was not
selected for a Utilities Manager position and for a Utilities
Supervisor position.
ECF No. 85, Def.’s Stmnt., ¶¶ 15-16; ECF
No. 91, Pl.’s Stmnt., ¶¶ 15-16.
DISCUSSION
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
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
6
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 Based on
Plaintiff’s Failure to Exhaust his Administrative Remedies is
DENIED.
Defendant asks the Court to dismiss two of Plaintiff’s
claims because Defendant contends that Plaintiff did not timely
exhaust his administrative remedies.
ECF No. 84-1 at 3-5.
A
federal employee is required to initiate contact with an EEO
counselor within 45 days of an alleged discriminatory act.
29 C.F.R. § 1614.105(a)(1).
See
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 the First Amended Complaint, Plaintiff alleges that
he was discriminated and retaliated against when Defendant failed
7
to monitor coworker misbehavior and failed to take prompt
remedial action about the misbehavior of coworkers.
FAC, ¶ 17.
ECF No. 79,
Plaintiff also alleges that he was discriminated and
retaliated against when Defendant did not select him to attend
boiler inspector training in 2014 and 2015.
Id. ¶ 25.
Defendant
asks the Court to dismiss Plaintiff’s claims based on these two
acts because Plaintiff never raised a claim regarding monitoring
and taking action about coworker misbehavior and Plaintiff did
not raise the claims regarding boiler inspector training until
August 2016.
ECF No. 84-1 at 3-5.
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.
See Fed. R. Civ. P. 12(d).
First, regarding Plaintiff’s claim that Defendant
failed to monitor and take action regarding coworker misbehavior,
the Court finds that Plaintiff did exhaust his administrative
remedies regarding this claim.
Although Plaintiff does not
address this issue in his Opposition, see ECF No. 88, based on
the Court’s review of the record in this case, it appears that
Plaintiff raised this issue in an EEO complaint in 2015.
Specifically, the Final Agency Decision dated June 2, 2016,
states that in an amended EEO claim accepted for investigation on
January 30, 2015, Plaintiff alleged that he was discriminated
8
against when management did not conduct an investigation into his
coworkers’ behavior or move his alleged harassers when he filed
his prior EEO complaints.
00485 RLP at 4.
See ECF No. 1-3 filed in Civil No. 16-
Plaintiff included an allegation in one of his
prior complaints regarding this activity.
filed in Civil No. 16-00485 RLP.
See ECF No. 1 ¶ 35
Specifically, Plaintiff alleged
that he was discriminated against and subject to a hostile work
environment “when management did not conduct an investigation or
move his harassers from the work center when he had filed his
prior EEO complaints alleging that he was subjected to a hostile
work environment.”
Id. ¶ 35.
Defendant did not seek summary
judgment on this claim in its prior motion for partial summary
judgment.
See ECF No. 59-1.
Because the evidence suggests that
Plaintiff properly exhausted his administrative remedies
regarding Defendant’s failure to take action regarding coworker
misbehavior, the Court DENIES Defendant’s Motion as to this claim
based on a failure to exhaust.
Second, regarding Plaintiff’s claims regarding the
boiler inspector training in 2014 and 2015, Plaintiff states in
his declaration that he raised this issue with the Office of the
EEO the day after he discovered this information.
89-1, Pl.’s Decl., ¶ 47.
See ECF No.
As alleged in the First Amended
Complaint, Plaintiff learned that he was not given the
opportunity to attend the boiler inspector training in 2014 and
2015 on August 26, 2016.
ECF No. 79, FAC, ¶ 25.
9
Defendant
concedes that Plaintiff raised this issue in August 2016.
No. 84-1 at 4.
ECF
Although a federal employee is required to
initiate contact with an EEO counselor within 45 days of an
alleged discriminatory act, the agency “shall extend the 45-day
time limit . . . when the individual shows . . . that he or she
did not know and reasonably should not have been known that the
discriminatory matter . . . occurred.”
§ 1614.105(a)(2).
29 C.F.R.
Therefore, the time period for contacting an
EEO counselor is extended until the employee knew or should have
known that “other employees with qualifications similar to her
own were treated more favorably.”
Godwin v. Hunt Wesson, Inc.,
150 F.3d 1217, 1220 (9th Cir. 1998).
Defendant argues in its
Reply that Plaintiff was aware that the training existed and that
he had not received it.
ECF No. 92 at 4.
However, Plaintiff
expressly states in his Declaration that this training “was never
disclosed to me.”
See ECF No. 89-1, Pl.’s Decl., ¶ 47.
Additionally, at his deposition Plaintiff states that he “had no
idea that [this training] was available.”
ECF No. 85-9 at 7.
Aside from its argument in its Reply, Defendant does not provide
evidence that Plaintiff knew or should have known about the
boiler inspector training before 2016.
Accordingly, there is a
genuine issue of material fact regarding when Plaintiff knew or
reasonably should have known about the boiler inspector training.
The Court DENIES Defendant’s Motion as to these claims based on a
failure to exhaust.
10
B.
Defendant’s Request for Summary Judgment as to all
of Plaintiff’s Claims of Discrimination and Retaliation Based on
Discrete Adverse Personnel Actions is GRANTED.
To establish a prima facie case of unlawful
discrimination, a plaintiff must plausibly allege that: (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
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).
11
employment action, and that (3) there is a causal link between
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).
“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.
The plaintiff can show pretext either “(1) indirectly,
by showing that the employer’s proffered explanation is unworthy
of credence because it is internally inconsistent or otherwise
not believable, or (2) directly, by showing that unlawful
discrimination more likely motivated the employer.”
Lyons v.
England, 307 F.3d 1092, 1113 (9th Cir. 2002) (citations omitted).
If Plaintiff offers direct evidence, the Ninth Circuit has held
that “very little evidence is necessary to raise a genuine issue
of fact regarding an employer’s motive; any indication of
12
discriminatory motive may suffice to raise a question that can
only be resolved by a fact-finder.”
McGinest v. GTE Serv. Corp.,
360 F.3d 1103, 1124 (9th Cir. 2004) (citations omitted).
If
Plaintiff offers circumstantial or indirect evidence of pretext,
that evidence “must be specific and substantial in order to
survive summary judgment.”
Lyons, 307 at 1113; see also Stegall
v. Citadel Broad. Co., 350 F.3d 1061, 1066 (9th Cir. 2003).
“When the evidence, direct or circumstantial, consists of more
than the McDonnell Douglas presumption, a factual question will
almost always exist with respect to any claim of a
nondiscriminatory reason.”
McGinest, 360 F.3d at 1124 (citations
omitted); see also Nicholson v. Hyannis Air Serv., Inc., 580 F.3d
1116, 1127 (9th Cir. 2009).
Even assuming that Plaintiff has met his prima facie
burden, Defendant argues that it is entitled to summary judgment
on Plaintiff’s claims of discrimination and retaliation stemming
from discrete adverse personnel actions because Defendant has
presented legitimate non-discriminatory reasons for the personnel
actions at issue and Plaintiff has failed to provide evidence
that these reasons are pretext for discrimination.
The Court
addresses each of the discrete personnel actions at issue below.
1.
Plaintiff’s Temporary Reassignment in July 2014
Plaintiff’s first alleged adverse employment action is
that on July 1, 2014, Plaintiff was temporarily reassigned
13
pending a management inquiry into complaints made against him,
his access badge to his work center was confiscated, his
movements were restricted by having to be escorted whenever he
needed to go back to his office, and his supervisory
responsibilities were reduced to scanning documents for other
supervisors.
ECF No. 79, FAC, ¶ 12.
Defendant argues that it is entitled to summary
judgment on these claims because it has presented evidence of a
legitimate nondiscriminatory reason for these actions and
Plaintiff cannot show pretext.
ECF No. 84-1 at 6.
In support of
its Motion, Defendant presented evidence that its human resources
director learned on June 26, 2014, that nine of Plaintiff’s
subordinates had submitted affidavits in relation to an EEO case
that included statements that Plaintiff yelled and cursed at his
subordinates and that he directed them to follow unsafe
procedures.
ECF No. 85-2, Decl. of Mary Muranaka, ¶ 2.
The
human resources director discussed the issue with EEO counsel and
other human resources supervisors and they all agreed that it
would be appropriate to reassign Plaintiff to another detail to
allow a cooling off period while an investigation into the
employees’ allegations was conducted.
Id. ¶ 3.
The human
resources director called Plaintiff’s supervisors to tell them to
find another detail for Plaintiff while the matter was
investigated.
Id. ¶ 4.
Plaintiff’s supervisors discussed the
14
matter and decided to reassign Plaintiff to work temporarily in
the office of the Product Line Coordinator for the Utilities and
Energy Management Branch to support administrative duties.
ECF
No. 85-3, Decl. of Preston Iha, ¶ 2; ECF No. 85-1, Decl. of
Curtis Noborikawa, Jr., ¶ 3.
By offering this explanation, Defendant has articulated
a legitimate, nondiscriminatory reason for its actions in
temporarily reassigning Plaintiff.
Under the burden-shifting
analysis set forth above, Plaintiff must now “raise a genuine
factual question whether, viewing the evidence in the light most
favorable to [him], [Defendant’s] reasons are pretextual.”
See
Chuang v. Univ. of Cal. Davis, Bd. of Trustees, 225 F.3d 1115,
1126 (9th Cir. 2000).
In Opposition, Plaintiff argues that the Court must
disregard any evidence that Defendant’s action were based on the
nine affidavits of Plaintiff’s subordinates because such
statements are hearsay.
See ECF No. 88 at 2-4.
As noted in
Defendant’s Reply, these statements are not excludable as hearsay
because they are not offered to prove the truth of the matter
asserted, but are instead offered to show Defendant’s lack of
discriminatory intent.
See ECF No. 92 at 6; see also Fed. R.
Evid. 801(c); Haddad v. Lockheed Cal. Corp., 720 F.2d 1454, 1456
(9th Cir. 1983) (holding that testimony offered to show that the
employer had received complaints regarding the plaintiff was
15
properly admitted as non-hearsay and was relevant to the
employer’s non-discriminatory intent).
The Court rejects
Plaintiff’s argument and considers the evidence submitted by
Defendant about the employee complaints to show the lack of
discriminatory intent.
Plaintiff states in his declaration that he was not
informed of any employee complaints against him at the time.
No. 89-1, Pl.’s Decl., ¶ 6.
ECF
Plaintiff challenges and disagrees
with the substance of the complaints against him made by his
subordinates and states that when he was reassigned he was not in
conflict with any of his subordinates.
See id. ¶¶ 2-16.
Plaintiff states that he did not regularly interact with many of
his subordinates, some of whom were angry about other
supervisor’s actions and seeking revenge.
Id. ¶¶ 2-15.
Plaintiff states that the union grievance procedures were not
followed regarding these subordinates’ complaints.
Id. ¶ 3.
Plaintiff also states that complaints were made against two other
supervisors, but that those supervisors were not removed from
their positions.
Id. ¶ 17.
Viewing the evidence in the light most favorable to
Plaintiff, the Court finds that there is insufficient evidence
that unlawful discrimination more likely motivated Defendant or
that Defendant’s explanation is unworthy of credence because it
is internally inconsistent or otherwise not believable.
16
Chuang,
225 F.3d at 1127.
pretext.
Plaintiff has provided no direct evidence of
Although Plaintiff has offered some circumstantial
evidence, it does not meet the necessary standard for creating a
triable issue of fact, as it is neither “specific” nor
“substantial.”
See Godwin, 150 F.3d at 1221.
As noted in
Defendant’s Reply, Plaintiff’s statements regarding the accuracy
and validity of the employees’ complaints is not relevant because
the truth of the complaints is not at issue.
7.
See ECF No. 92 at
As detailed above, Defendant has presented evidence that the
decision to reassign Plaintiff was made to allow time to conduct
an investigation into the complaints.
Plaintiff states that he was treated less favorably
than two other white supervisors who were also the subject of
complaints.
ECF No. 89-1, Pl.’s Decl., ¶ 17.
“A showing that
the [defendant] treated similarly situated employees outside [the
plaintiff’s] protected class more favorably would be probative of
pretext.”
Vasquez v. Cty. of L.A., 349 F.3d 634, 641 (9th Cir.
2003), as amended (Jan. 2, 2004).
In considering whether
employees are similarly situated, the court considers whether
they have similar jobs and displayed similar conduct.
Id.
Plaintiff has not presented any evidence that these two
supervisors were similarly situated to him.
The declaration from
Defendant’s human resources director states that a separate
investigation was conducted into the allegations regarding these
17
two supervisors in accordance with the Manual of the Judge
Advocate General (“JAGMAN”).
Muranaka, ¶ 5.
ECF No. 85-2, Decl. of Mary K.
Further, Defendant states in its Reply that it
has presented evidence that the conduct at issue with the two
other supervisors involved mismanagement and fraud, not a hostile
work environment.
Report, at 3).
ECF No. 92 at 8 (citing ECF No. 85-8, Masuda
Again viewing the evidence in the light most
favorable to Plaintiff, the Court finds that this evidence does
not create a genuine issue of material fact regarding the truth
of Defendant’s explanation or that Defendant was more likely
motivated by discrimination because Plaintiff was not similarly
situated to the other two supervisors.
Accordingly, the Court
GRANTS summary judgment in favor of Defendant as to this claim.
2.
Plaintiff’s 2014 Performance Award
Plaintiff’s second alleged adverse employment action is
that he was discriminated and retaliated against when he was not
given a performance award while his subordinates and cosupervisors received monetary awards in 2014.
¶ 13.
ECF No. 79, FAC,
In its prior Order, the Court denied Defendant’s request
for summary judgment as to this claim because, viewing the
evidence in the light most favorable to Plaintiff, there was a
factual dispute regarding whether Plaintiff suffered an adverse
employment action.
See ECF No. 74 at 21-22.
Specifically,
Defendant provided evidence that Plaintiff was not recommended
18
for an award because he had left work undone before he was
transferred, but Plaintiff stated in his declaration that he had
not left any work uncompleted.
Id.
Further, although Plaintiff
had received a bonus, Plaintiff stated in his declaration that he
received a smaller bonus than other employees.
See id.
Notably,
Defendant did not address Plaintiff’s statements in his
declaration that some employees received $500, but Plaintiff only
received a $300 award.
Id.
During the hearing on the present
Motion, the Court directed the parties to file supplemental
briefing to address this claim.
In its supplemental briefing, Defendant argues that
although Plaintiff states that other employees received larger
bonuses, Plaintiff fails to show that those employees were
similarly situated.
ECF No. 94 at 4.
The Court agrees.
As part
of his prima facie case of unlawful discrimination, Plaintiff
must plausibly allege, in pertinent part, 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 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).
Here, Plaintiff asserts that other employees received
larger bonuses, but did not provide any evidence that these
employees were similarly situated to him.
19
“[I]ndividuals are
similarly situated when they have similar jobs and display
similar conduct.”
Vasquez, 349 F.3d at 641.
Plaintiff has not
provided any evidence that employees with similar jobs and who
exhibited similar conduct received larger bonuses than him.
Accordingly, Defendant is entitled to summary judgment as to
these claims of discrimination.
Further, even assuming that Plaintiff has met his prima
facie burden, the Court finds that Plaintiff has failed to show
pretext.
Plaintiff has not offered any direct evidence that his
former supervisor was motivated by discriminatory intent and has
not shown that his former supervisor’s explanation is not
believable for some other reason.
Plaintiff has not put forward
specific and substantial evidence challenging the credibility of
Defendant’s motives.
See Vasquez, 349 F.3d at 642.
Viewing the
evidence in the light most favorable to Plaintiff, the Court
finds that this evidence does not create a genuine issue of
material fact regarding the truth of Defendant’s explanation or
that Defendant was more likely motivated by discrimination.
Accordingly, the Court GRANTS summary judgment in favor of
Defendant as to this claim.
3.
Plaintiff’s Temporary Reassignment in July 2015
Although not expressly stated in Plaintiff’s First
Amended Complaint, based on the record before the Court, the
third alleged adverse employment action at issue is Plaintiff’s
20
temporary reassignment to the Wastewater Treatment Plant in July
2015.
As detailed above, when Plaintiff was first removed from
his position, he was temporarily reassigned to work in the office
of the Product Line Coordinator for the Utilities and Energy
Management Branch to support administrative duties.
ECF No. 85,
Def.’s Stmnt., ¶ 5; ECF No. 91, Pl.’s Stmnt. ¶ 1; ECF No. 89-1,
Pl.’s Decl., ¶ 13.
In July 2015, Plaintiff was reassigned to the
Wastewater Treatment Plant.
See ECF No. 85-1, Decl. of Curtis
Noborikawa, Jr., ¶ 6; ECF No. 85-3, Decl. of Preston Iha, ¶ 4.
Defendant argues that it is entitled to summary
judgment on this claim because it has presented evidence of a
legitimate nondiscriminatory reason for this action and Plaintiff
cannot show pretext.
ECF No. 84-1 at 6.
In support of its
Motion, Defendant presented evidence that the employee complaints
about Plaintiff were investigated by Guy Masuda, who later issued
a report regarding his investigation (“Masuda Report”).
ECF No.
85-1, Decl. of Curtis Noborikawa, Jr., ¶ 4; ECF No. 85-3, Decl.
of Preston Iha, ¶ 3.
In the Masuda Report, it was determined
that 22 of the 30 allegations against Plaintiff were
substantiated and that two of the substantiated allegations were
instances of severe or serious conduct.
Id.
Defendant attached
to its Motion a portion of the Masuda Report, which included the
findings and conclusion, but did not include any of the employee
statements, interview questions, or other supporting documents.
21
See ECF No. 85-8, Masuda Report, at 3-4.
The Masuda Report
concluded that Plaintiff’s actions were pervasive in creating a
hostile work environment.
Id. at 13.
Based on the findings and
conclusions in the Masuda Report, Plaintiff’s supervisors had
discussions with human resources and counsel and determined that
Plaintiff could not be returned to his supervisor position.
ECF
No. 85-1, Decl. of Curtis Noborikawa, Jr., ¶ 5; ECF No. 85-3,
Decl. of Preston Iha, ¶ 3.
Plaintiff’s supervisors determined
that the best place to reassign Plaintiff was the Wastewater
Treatment Plant based on Plaintiff’s experience maintaining and
repairing boilers and the fact that the Wastewater Treatment
Plant was shorthanded.
ECF No. 85-1, Decl. of Curtis Noborikawa,
Jr., ¶ 6; ECF No. 85-3, Decl. of Preston Iha, ¶ 4.
Plaintiff’s
reassignment to the Wastewater Treatment Plant was effective in
July 2015.
Id.
By offering this explanation, Defendant has articulated
a legitimate, nondiscriminatory reason for its actions in
temporarily reassigning Plaintiff.
Plaintiff does not address Defendant’s explanation
regarding this temporary reassignment in his Opposition.
No. 88.
See ECF
In fact, the only reference to reassignment in
Plaintiff’s Opposition is Plaintiff’s “permanent transfer” to the
Wastewater Treatment Plant.
See id. at 6, 9, 11.
Plaintiff
argues in his Opposition that the Masuda Report should be
22
excluded because it is hearsay.
Id. at 3.
As discussed above,
out-of-court statements offered for the purpose of showing a lack
of discriminatory intent are admissible as non-hearsay.
R. Evid. 801(c); Haddad, 720 F.2d at 1456.
See Fed.
The Court rejects
Plaintiff’s argument and considers the Masuda Report as evidence
regarding Defendant’s lack of discriminatory intent.
In his
Declaration, Plaintiff states that Mr. Masuda was biased,
unqualified, did not review key documents during his
investigation, and refused to allow Plaintiff to have
representation with him while he was being questioned.
89-1, Pl.’s Decl., ¶ 19-21, 24.
ECF No.
Plaintiff states that Mr. Masuda
conducted a second round of questioning, but Plaintiff “was no[t]
given a second round of questioning.”
Id. ¶ 21.
Further,
Plaintiff challenges the substance of the findings made in the
Masuda Report regarding the allegations.
Id. ¶ 26-30, 33-34.2
Plaintiff also states that when he was assigned to the Wastewater
Treatment Plant, one of Defendant’s attorneys told him that
command was actively seeking his removal.
Id. ¶ 35.
Plaintiff has provided no direct evidence of pretext.
2
Plaintiff also includes in his declaration many statements
that are unrelated to the Masuda Report or to the findings
contained therein. Instead, Plaintiff’s additional statements
relate to other actions that are not at issue in this litigation
regarding the promotions and awards given to other employees and
incidents involving other employees. See, e.g., id. ¶ 22, 23,
31. These statements are irrelevant to the claims at issue in
this litigation.
23
Although Plaintiff has offered some circumstantial evidence, it
does not meet the necessary standard for creating a triable issue
of fact, as it is neither “specific” nor “substantial.”
Godwin, 150 F.3d at 1221.
See
As the Ninth Circuit has stated, “a
plaintiff may not defeat a defendant’s motion for summary
judgment merely by denying the credibility of the defendant’s
proffered reason for the challenged employment action.”
Cornwell
v. Electra Cent. Credit Union, 439 F.3d 1018, 1029 n.6 (9th Cir.
2006).
As noted in Defendant’s Reply, Plaintiff’s statement that
he was not questioned twice by Mr. Masuda is contradicted by his
deposition testimony, wherein he testifies that he was questioned
by Mr. Masuda five times between August and September 2014.
No. 92-2 at 3.
ECF
The evidence before the Court is that the
decision to reassign Plaintiff to the Wastewater Treatment Plant
was made by Plaintiff’s supervisors following discussions with
human resources and counsel.
There is no evidence that any of
the people involved harbored any discriminatory or retaliatory
intent against Plaintiff.
Because Plaintiff fails to rebut
Defendant’s nondiscriminatory explanation for his reassignment,
he fails to create a triable issue of fact with respect to this
claim.
Accordingly, the Court GRANTS summary judgment in favor
of Defendant as to this claim.
4.
Plaintiff’s Indefinite Reassignment in June 2016
Plaintiff’s fourth alleged adverse employment action is
24
that on June 23, 2016, Plaintiff’s supervisor notified Plaintiff
that Plaintiff’s reassignment to the Wastewater Treatment Plant
was extended indefinitely.
ECF No. 79, FAC, ¶ 19.
Defendant argues that it is entitled to summary
judgment on this claim because it has presented evidence that
Plaintiff’s assignment to the Wastewater Treatment Plant was
renewed because Plaintiff’s supervisors determined that Plaintiff
could not be returned to his previous position based on the
Masuda Report and that his assignment at the Wastewater Treatment
Plant was the best fit for Plaintiff.
ECF No. 85-1, Decl. of
Curtis Noborikawa, Jr., ¶¶ 7-8; ECF No. 85-3, Decl. of Preston
Iha, ¶ 5.
Defendant presented the declaration of Plaintiff’s
supervisor at the Wastewater Treatment Plant who states that he
assigned duties to Plaintiff “consistent with the needs of the
mission and [Plaintiff’s] abilities.”
Joseph Mallare, ¶ 4.
ECF No. 85-4, Decl. of
Defendant also submitted an excerpt from
Plaintiff’s deposition, wherein Plaintiff states that he is
assigned tasks similar to those assigned to other WG-10’s, but he
thinks he should not be assigned those tasks because he was a
supervisor.
See ECF No. 85-9, Pl.’s Depo., ¶ 4.
By offering this explanation, Defendant has articulated
a legitimate, nondiscriminatory reason for its actions in
reassigning Plaintiff indefinitely to the Wastewater Treatment
Plant.
25
In his Declaration, Plaintiff states that all of
Plaintiff’s supervisors and Defendant’s attorneys gave different
reasons for his indefinite reassignment to the Wastewater
Treatment Plant.
ECF No. 89-1, Pl.’s Decl., ¶ 36.
Plaintiff
does not say what those reasons were or provide any evidence of
the reasons given.
See id.
Plaintiff states that his
supervisors did not discuss with him where was the best fit for
him.
Id. ¶ 37.
Plaintiff states that during mediation with
Defendant, Plaintiff’s supervisor told him that he could be moved
to a different position at the Portable Water Plant “in exchange”
for two EEO complaints.
Id. ¶ 39.
Plaintiff also states that
Defendant’s decision to indefinitely reassign him and effectively
demote him, but allow him to keep his title and pay, was made to
prevent him from bringing a case before the Merit System
Protection Board.
Id. ¶ 40.
In response to Defendant’s
statement regarding the duties that he is assigned at the
Wastewater Treatment Plant, Plaintiff states in his declaration
that he was supervisor and has over 35 years of experience.
Id.
¶ 49.
Viewing the evidence in the light most favorable to
Plaintiff, the Court finds that there is no evidence that
Defendant’s decision to indefinitely reassign him to the
Wastewater Treatment Plant was the result of discriminatory
intent.
Plaintiff does not offer any direct evidence of pretext.
26
Further, the circumstantial evidence presented by Plaintiff is
insufficient.
There is no evidence that an alternative position
was a better fit for Plaintiff or that Plaintiff’s indefinite
reassignment was done with discriminatory or retaliatory intent.
Because there is no genuine issue of material fact that
Defendant’s explanation is pretextual, the Court GRANTS summary
judgment in favor of Defendant as to this claim.
5.
Plaintiff’s Medical Clearance
Plaintiff’s fifth alleged adverse employment action is
that on August 15, 2016, Plaintiff went to the Naval Health
Clinic for a physical and learned that Plaintiff was not cleared
to perform his duties at the Wastewater Treatment Plant and as a
result Plaintiff is now on medication to treat the medical
conditions Plaintiff developed at the Wastewater Treatment Plant.
ECF No. 79, FAC, ¶ 23.
Although not expressly stated in his
First Amended Complaint and not addressed in his Opposition, it
appears that Plaintiff is asserting a claim of disparate
treatment and retaliation based on the allegations that he was
assigned to work in the Wastewater Treatment Plant without taking
his medical conditions into account.
See ECF No. 84-1 at 6; ECF
No. 88.3
Defendant argues that it is entitled to summary
3
As noted by Defendant in its Motion, Plaintiff does not
assert any claims based on a disability. ECF No. 84-1 at 6 n.1;
ECF No. 79.
27
judgment on this claim because it has presented evidence of a
legitimate nondiscriminatory reason for these actions and
Plaintiff cannot show pretext.
ECF No. 84-1 at 6.
In support of
its Motion, Defendant submitted a declaration from the supervisor
for the Wastewater Treatment Plant stating that Plaintiff has
never said to him or provided any documentation to him that would
indicate that Plaintiff has any medical condition that would
limit his ability to perform his job.
Joseph Mallare, ¶ 2.
ECF No. 85-4, Decl. of
Further, the declaration states that
according to the documentation available to the supervisor,
Plaintiff has been medically cleared for work.
Id.
Defendant
attached a copy of Plaintiff’s medical clearance documentation,
which indicates that Plaintiff was medically cleared for work
from 2016 through 2018.
See ECF No. 85-10.
Defendant also
submitted an excerpt from Plaintiff’s deposition, wherein
Plaintiff states that there is no documentation that he is not
cleared to work at the Wastewater Treatment Plant.
See ECF No.
85-9 at 6.
By offering this explanation, Defendant has articulated
a legitimate, nondiscriminatory reason for its actions regarding
Plaintiff’s medical clearance.
Plaintiff does not address this claim in his
Opposition.
See ECF No. 88.
In his Declaration, Plaintiff
states that when he learned that he was being reassigned, he
28
informed his supervisors about his medical condition and medical
restrictions.
ECF No. 89-1, Pl.’s Decl., ¶ 44.
Plaintiff states
that he asked his supervisor, Mr. Mallare, to schedule a physical
exam and was told that Plaintiff had to justify why he needed a
physical.
Id. ¶ 45.
Plaintiff states that he was scheduled for
a physical exam only after EEO investigators asked about it.
Id.
Plaintiff states that the doctors were aware that management was
attempting to find him unfit for duty and to use that to remove
him from federal service.
Id.
Plaintiff states that the doctors
“had no other choice but to clear me to work.”
Id.
Plaintiff
does not state the basis for his personal knowledge regarding the
doctors’ knowledge or motivation for clearing him for work.
Id.
Viewing the evidence in the light most favorable to
Plaintiff, there is no genuine issue of material fact regarding
the truth of Defendant’s explanation for assigning him work based
on his medical clearance.
evidence of pretext.
Plaintiff has provided no direct
The circumstantial evidence offered by
Plaintiff does not meet the necessary standard for creating a
triable issue of fact because it is not “specific” or
“substantial.”
See Godwin, 150 F.3d at 1221.
Because there is
no genuine issue of material fact that Defendant’s explanation is
pretextual, the Court GRANTS summary judgment in favor of
Defendant as to this claim.
6.
Plaintiff’s Non-Selection for Two Positions
Plaintiff’s sixth alleged adverse employment action is
29
that he was not selected for the Utilities Manager and Utilities
Supervisor positions in 2016 and 2017.
ECF No. 79, FAC, ¶¶ 27,
29.
Defendant argues that it is entitled to summary
judgment on these claims because it has presented evidence that
Plaintiff was not selected for these positions because two
independent panels determined that other candidates were more
qualified and Plaintiff has not presented any evidence of
pretext.
ECF No. 84-1 at 6-7.
In support of its Motion,
Defendant submitted the declaration of Greg Hayashi, a Manager in
the Public Works Utilities Management Branch.
Decl. of Greg Hayashi, ¶ 1.
ECF No. 85-5,
Mr. Hayashi states that he was the
selecting official for the Utilities Manager and Utilities
Supervisor positions in 2016 and 2017 and relied on the
recommendations of panels in making both selections.
3.
Id. ¶¶ 2,
For the 2016 position, Mr. Hayashi states that the panel
recommended another employee based on resume review only, no
interviews were conducted.
Id. ¶ 2.
For the 2017 position, Mr.
Hayashi states that the panel recommended another employee based
on scored resumes and interviews.
Id. ¶ 3.
Mr. Hayashi states
that the person who was selected in 2017 scored one point less on
his resume, but nine points higher on his interview than
Plaintiff.
Id.
Mr. Hayashi also states that at the time of the
selection he was unaware that Plaintiff had participated in any
EEO activity or had been transferred based on employee
30
complaints.
Id. ¶ 4.
Defendant also submitted an excerpt from
Plaintiff’s deposition, wherein Plaintiff states that he did not
know any of the panel members who made the recommendations to Mr.
Hayashi for the 2016 position and had no reason to believe that
any of the panel members were biased against Plaintiff.
No. 85-9 at 8.
See ECF
In his deposition, Plaintiff states that he knew
two of the panel members for the 2017 position, but that he has
no reasons to believe that these individuals were biased against
him.
Id. at 9.
By offering this explanation, Defendant has
articulated a legitimate, nondiscriminatory reason for its
actions regarding the position selections.
Plaintiff does not address Defendant’s explanation for
its actions in his Opposition.
See ECF No. 88.
However, in his
Declaration, Plaintiff states that the person who was selected
for the 2016 position had received prior preferential treatment
from one of Plaintiff’s former supervisors.
Decl., ¶ 50.
ECF No. 89-1, Pl.’s
Plaintiff also states that the panel was not
independent because it was comprised of individuals who were
supervised by Plaintiff’s former supervisors.
Id. ¶ 51.
Plaintiff also states that no standard operating procedure was
used during the selections and the fact that the panel came to
the same conclusions shows collusion.
Id. ¶ 52.
Plaintiff
states that his supervisor instructed the panel to give a higher
score to the person who was selected for the 2016 position.
¶ 53.
Id.
Regarding Mr. Hayashi’s knowledge regarding Plaintiff’s
31
EEO activity, Plaintiff states that Mr. Hayashi was his second
level supervisor between 2000 and 2004, until Plaintiff was
promoted as a result of a court action discrimination settlement.
Id. ¶ 56.
The Court finds that Plaintiff has failed to establish
a genuine issue of material fact that would preclude summary
judgment as to this claim.
evidence of pretext.
Plaintiff has not provided any direct
In reviewing similar circumstantial
evidence, other courts have held that “a plaintiff's subjective
personal judgments about his own qualifications compared to
another’s are neither specific nor substantial and do not meet
the necessary standard for creating a genuine issue of material
fact.”
De Markoff v. Superior Court of Cal., No. 1:11-CV-02017
AWI, 2014 WL 2895200, at *6 (E.D. Cal. June 25, 2014) (citing
Schuler v. Chronicle Broadcasting Co., 793 F.2d 1010, 1011 (9th
Cir. 1986).
There is no evidence that any of the panel members
or Mr. Hayashi were motivated by any discriminatory or
retaliatory animus.
Accordingly, the Court GRANTS summary
judgment in favor of Defendant as to this claim.
7.
Plaintiff’s Non-Selection for Boiler Inspector
Training
Plaintiff’s seventh alleged adverse employment action
is that he was not afforded the opportunity to attend boiler
inspector training that was available in 2014 and 2015.
32
ECF No.
79, FAC, ¶ 25.
Defendant argues that it is entitled to summary
judgment on this claim because it has presented evidence that
Plaintiff was not selected for boiler inspector training because
he never asked his supervisor for training and Plaintiff has not
presented any evidence of pretext.
ECF No. 84-1 at 7.
In
support of its Motion, Defendant submitted the declaration of
Plaintiff’s supervisor at the Wastewater Treatment Plant.
ECF No. 85-4, Decl. of Joseph Mallare, ¶ 1.
See
In that declaration,
Plaintiff’s supervisor states that Plaintiff never asked him for
boiler training or any other training.
Id. ¶ 3.
Further,
Plaintiff’s supervisor states that he offered Plaintiff refresher
boiler training, but Plaintiff declined.
Id.
Defendant also
submitted an excerpt from Plaintiff’s deposition, wherein
Plaintiff states that in 2014 and 2015 he never asked anybody to
go to boiler supervisor school.
See ECF No. 85-9 at 7.
Plaintiff also states at his deposition that although he never
asked for training, he felt that it should have been offered to
him and he did not know that it was available.
Id.
By offering this explanation, Defendant has articulated
a legitimate, nondiscriminatory reason for its actions regarding
training.
Plaintiff does not address Defendant’s explanation for
its actions in his Opposition.
See ECF No. 88.
In his
Declaration, Plaintiff states that he “did make a training
33
request,” that the boiler inspector training was never disclosed
to him, and that the two individuals who attended the training
did not apply, but were instead non-competitively selected.
ECF
No. 89-1, Pl.’s Decl., ¶ 47.
Viewing the evidence in the light most favorable to
Plaintiff, the Court finds that there is insufficient evidence
that unlawful discrimination more likely motivated Defendant or
that Defendant’s explanation is unworthy of credence because it
is internally inconsistent or otherwise not believable.
Plaintiff has not offered any direct evidence of pretext.
Plaintiff’s statements that he asked for training, but was not
selected is insufficient to create a genuine issue of material
fact that would preclude summary judgment as to this claim.
Plaintiff has not offered any evidence, direct or indirect, that
he was more qualified than the individuals who were provided the
training or that the person who selected those individuals was
motivated by retaliatory or discriminatory intent.
Accordingly,
the Court GRANTS summary judgment in favor of Defendant as to
this claim.
C. 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
34
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.
“Not every insult or
harassing comment will constitute a hostile work environment.”
Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
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.
San Mateo, 229 F.3d 917, 923 (9th Cir. 2000).
Brooks v. City of
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
race, color, and national origin.
There are no allegations in
the First Amended Complaint and no evidence presented in relation
35
to the pending Motion that Plaintiff was subjected to any verbal
or physical conduct because of his race, color, or national
origin.
Accordingly, the Court GRANTS summary judgment in favor
of Defendant as to Plaintiff’s hostile work environment claim
based on 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).
As detailed above, Defendant is entitled
to summary judgment on Plaintiff’s claims that Defendant
discriminated or retaliated against Plaintiff based on his
reassignment, 2014 bonus, medical clearance, non-selection, and
training.
Setting these actions aside, the only remaining
allegations in the First Amended Complaint that could form the
basis for Plaintiff’s retaliatory hostile work environment claim
are that Defendant failed to take remedial action regarding the
misbehavior of Plaintiff’s coworkers, see ECF No. 79, FAC, ¶ 17,
that Plaintiff’s supervisor told him that Plaintiff’s prior
supervisor had said that Plaintiff had filed 15 EEO complaints,
id. ¶ 21, and that three employees asked Plaintiff about his
demotion and reassignment, id. ¶ 25.
To establish a prima facie case for a hostile-work
environment claim, Plaintiff must show that (1) Defendant
subjected him to verbal or physical conduct because of his EEO
36
activity; (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 v.
Cal. Water Serv. Co., 518 F.3d 1097, 1108 (9th Cir. 2008).
As
noted by Defendant in its Motion, two of the actions at issue do
not refer to any protected activity.
ECF No. 89-1 at 8.
There
is no evidence that Defendant failed to take remedial action
regarding the misbehavior of Plaintiff’s coworkers because of
Plaintiff’s EEO activity, or that three employees asked Plaintiff
about his demotion and reassignment because of Plaintiff’s EEO
activity.
Although the third action does refer to Plaintiff’s
EEO activity, Plaintiff fails to establish a prima facie hostile
work environment claim because the conduct at issue is 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).
Viewing the evidence in the light most
favorable to Plaintiff, it appears that Plaintiff’s former
supervisor told Plaintiff’s current supervisor that Plaintiff has
filed 15 EEO complaints.
The evidence is undisputed that
37
Plaintiff has filed at least 15 EEO complaints.
Defendant
submitted an excerpt from Plaintiff’s deposition, wherein he
states that he probably filed “a lot more” than 15 EEO complaints
at the time that his supervisor made the remark.
9, Pl.’s Depo., ¶ 6.
See ECF No. 85-
In considering the totality of the
circumstances, the Court finds that there is insufficient
evidence that any conduct was sufficiently severe or pervasive to
alter the conditions of Plaintiff’s employment and create an
abusive working environment.
See Surrell, 518 F.3d at 1108.
Because Plaintiff fails to establish a prima facie hostile work
environment claim, 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.
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. Defendants’ request to dismiss two of Plaintiff’s
claims based on a failure to exhaust administrative remedies is
DENIED.
2. Defendant’s request for summary judgment as to all
of Plaintiff’s claims of discrimination and retaliation based on
discrete adverse personnel actions is GRANTED.
3.
Defendant’s request for summary judgment as to
Plaintiff’s hostile work environment claim based on race, color,
38
and national origin is GRANTED.
4.
Defendant’s request for summary judgment as to
Plaintiff’s retaliatory hostile work environment claim is
GRANTED.
5.
Having granted summary judgment in favor of
Defendant on all remaining claims, the Court DIRECTS the Clerk of
the Court to enter judgment for Defendant.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, JULY 30, 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
DISMISSAL AND SUMMARY JUDGMENT
39
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