Arakaki v. Brennan

Filing 46

ORDER GRANTING DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT (ECF NO. 29 ) re 44 - Signed by JUDGE HELEN GILLMOR on 3/31/2017. "Plaintiff Keith Y. Arakaki withdrew his claims of employment discrimination on the bas is of race and sex pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §2000e et seq. Plaintiff failed to present evidence sufficient to defeat summary judgment as to his claims of unlawful ret aliation pursuant to Title VII. Defendants United States Postal Service and Postmaster General Megan J. Brennan's Amended Motion for Summary Judgment (ECF No. 29 ) is GRANTED." (emt, )CERTIFICA TE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

KEITH Y. ARAKAKI,
Plaintiff,
vs.
MEGAN J. BRENNAN, Postmaster
General; UNITED STATES
POSTAL SERVICE,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civil No. 15-00229 HG-RLP

ORDER GRANTING DEFENDANTS' AMENDED MOTION FOR SUMMARY JUDGMENT
(ECF NO. 29)
Plaintiff Keith Y. Arakaki filed a Complaint alleging
claims of discrimination and retaliation in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq.,
against his employer, the United States Postal Service and
Postmaster General Megan J. Brennan.
Defendants moved for summary judgment as to each of
Plaintiff’s claims.
Plaintiff withdrew his discrimination claims.
Plaintiff opposes summary judgment on his claim alleging
unlawful retaliation.
Defendants’ Amended Motion for Summary Judgment (ECF No.

1

29) is GRANTED.

PROCEDURAL HISTORY

On June 15, 2015, Plaintiff Keith Y. Arakaki
(“Plaintiff”) filed a Complaint against Defendants United
States Postal Service and Postmaster General Megan J. Brennan
(collectively, “Defendants”).

(ECF No. 1).

On October 12, 2016, Defendants filed an amended MOTION
FOR SUMMARY JUDGMENT (ECF No. 29), MEMORANDUM IN SUPPORT OF
MOTION FOR SUMMARY JUDGMENT (ECF No. 29-1), and DEFENDANTS'
CONCISE STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (ECF No. 30).
On October 24, 2016, Plaintiff filed PLAINTIFF KEITH Y.
ARAKAKI'S EX-PARTE MOTION TO EXTEND DEADLINE TO FILE
OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, FILED
OCTOBER 12, 2016.

(ECF No. 32).

On October 25, 2016, the Court filed a Minute Order
granting Plaintiff's motion for extension of time to file his
Opposition.

(ECF No. 33).

On November 23, 2016, Plaintiff filed PLAINTIFF KEITH Y.
ARAKAKI'S OPPOSITION TO DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (ECF No. 35) and PLAINTIFF KEITH Y. ARAKAKI'S CONCISE

2

STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT, FILED OCTOBER 12, 2016 (ECF No. 36).
On December 13, 2016, Defendants filed their REPLY
MEMORANDUM IN FURTHER SUPPORT OF MOTION FOR SUMMARY JUDGMENT.
(ECF No. 37).
On January 17, 2017, the Court held a hearing on
Defendants’ Amended Motion for Summary Judgment.

(ECF No.

44).

BACKGROUND

Plaintiff's Employment with the United States Postal Service
In August 2002, Plaintiff Keith Y. Arakaki (“Plaintiff”),
an Okinawan male, began his employment with Defendant United
States Postal Service (“Postal Service”).

(Declaration of

Keith Arakaki (“Arakaki Decl.”) at ¶ 1, attached to Pla.’s
Concise Statement of Facts (“CSF”), ECF No. 36-1).
Beginning in 2010, Plaintiff worked as a Supervisor of
Maintenance Operations at the Postal Service’s Processing
Distribution Center in Honolulu, Hawaii.

(Id. at ¶¶ 1; 3).

Plaintiff was assigned to the second of three shifts, which
started at 6:00 a.m. and ended at 2:30 p.m. (Id. at ¶ 1).
In April 2014, Bonnie Tomooka (“Tomooka”), a Manager of
Maintenance Operations, was assigned to the second shift.

3

(Declaration of Bonnie Tomooka (“Tomooka Decl.”) at ¶ 3,
attached to Defs. CSF, ECF No. 30-1).

With the transfer,

Tomooka became Plaintiff's immediate supervisor.
Arakaki Decl. at ¶ 4).

(Id. at ¶ 3;

From May 2014 through September 2014,

Tomooka also held supervisory responsibilities for the first
and third shifts, as she was the Manager of Maintenance
Operations of the three shifts during that period.
(Declaration of Gaylen Yonamine (“Yonamine Decl.”) at ¶ 2,
Defs. CSF, ECF No. 30-3).
According to Tomooka, she neither worked nor had any
significant interaction with Plaintiff prior to becoming his
immediate supervisor.

(Tomooka Decl. at ¶ 3, ECF No. 30-1).

Plaintiff disputes Tomooka's assertion, stating that he had
worked and interacted with Tomooka prior to her transfer to
the second shift.

(Arakaki Decl. at ¶ 2, ECF No. 36-1).

Plaintiff claims that Tomooka disliked him prior to
becoming his supervisor.

Plaintiff also claims that in April

2012, Tomooka’s supervisor,

Gaylen Yonamine (“Yonamine”) told

him that Tomooka may be “going after” or “gunning after” him
when she becomes his supervisor, and that Plaintiff should
inform Yonamine if such behavior arose.

(Arakaki Decl. at ¶

5, ECF No. 36-1; EEO Investigative Affidavit of Gaylen
Yonamine (“Yonamine EEO Affidavit”) at p. 23, attached as Ex.

4

2 to Pla.’s CSF, ECF No. 36-4).

Yonamine indicates that he

communicated his concern because Tomooka disapproved of
Plaintiff’s friendship with another employee.

(Id. at p. 23).

Tomooka's Planned Rotation of Maintenance Supervisors

In early May 2014, Tomooka proposed a plan to temporarily
rotate all supervisors who had worked on only one shift to
another shift for a period two to three months.

Tomooka

indicates that the plan arose from her observation that there
was a lack of teamwork and cohesion between the three shifts,
as employees failed to grasp the different responsibilities
associated with each shift.
30-1).

(Tomooka Decl. at ¶ 15, ECF No.

Tomooka informed Yonamine and Chuck Lum (“Lum”), the

local union president who also served as the Postal Service's
acting Human Resources Manager, of her plan.
and Lum approved the plan.

Both Yonamine

(Yonamine Decl. at ¶ 4, ECF No.

30-3; Lum Decl. at ¶ 9, ECF No. 30-2; Tomooka Decl. at ¶ 16,
ECF No. 30-1).
Tomooka’s rotation plan involved four Supervisors of
Maintenance Operations, including Plaintiff.
at ¶ 20, ECF No. 30-1).

(Tomooka Decl.

Tomooka sought to reassign Plaintiff

from the second shift to the third shift, which began at 2:00
p.m. and ended at 10:30 p.m.

Gordon Yoshimura, a Supervisor

5

of Maintenance Operations who was regularly assigned to the
third shift, was scheduled to switch positions with Plaintiff
on May 10, 2014.

(Id. at ¶ 17).

Shortly after learning of Tomooka’s plan and before May
10, 2014, Plaintiff informed her that he would be unable to
move to the third shift because of family care concerns.
at ¶ 18).

(Id.

Tomooka responded by delaying the effective date of

Plaintiff’s shift change to August 2, 2014, and advancing the
effective dates of two other Supervisors of Maintenance
Operations’ shift changes from August 2, 2014 to May 10, 2014.
(Id. at ¶ 18).
Plaintiff’s Complaint About Tomooka
Plaintiff alleges that on May 20, 2014, he overheard coworkers stating that Tomooka was trying to get him terminated
from the Postal Service.
1).

(Arakaki Decl. at ¶ 24, ECF No. 36-

Plaintiff shortly thereafter complained of the

conversation, and Yonamine set up an informal mediation
involving himself, Plaintiff, and Tomooka.

The mediation

occurred on May 23, 2014, during which Tomooka denied making
any of the statements Plaintiff attributed to her.

(Tomooka

EEO Investigative Affidavit at pp. 2-3, Ex. 1 of Pla. CSF, ECF
No. 36-3).

At the mediation, Plaintiff also complained of

Tomooka’s plan to temporarily reassign him to the third shift.

6

(Id. at p. 3).

Plaintiff asked Yonamine to pursue the Initial

Management Inquiry Process (“IMIP”), which is an internal
procedure designed to resolve workplace conflicts.
Decl. at ¶ 10, ECF No. 36-1).

(Arakaki

Plaintiff subsequently sent an

IMIP request via e-mail to Lum.

(Lum Decl. at ¶ 3, ECF No.

30-2).

The Initial Management Inquiry Process

On June 4, 2014, Lum met with Plaintiff and Tomooka
pursuant to Plaintiff’s IMIP request.
ECF No. 36-1).

(Arakaki Decl. at ¶ 12,

Tomooka again denied stating that she was

trying to get Plaintiff fired from the Postal Service.

(Id.

at ¶ 13; Lum Decl. at ¶ 5, ECF No. 30-2; Ex. G of Pla. CSF,
ECF No. 30-14).

Lum attests that both Plaintiff and Tomooka

indicated that they had met prior to speaking with him to
resolve the issue.

(Lum Decl. at ¶ 6, ECF No. 30-2).

Tomooka

attests that Plaintiff told her “that he could work with me,
and I understood the matter to be resolved.”
at ¶ 7, ECF No. 30-1).
was necessary.

(Tomooka Decl.

Lum concluded that no further action

(Lum Decl. at ¶ 6, ECF No. 30-2).

Plaintiff’s Assignment to Work on July 4, 2014

During the week of June 21-27, 2014, Tomooka held a

7

staffing meeting with the three Supervisors of Maintenance
Operations who were regularly assigned to the second shift,
including Plaintiff.

The purpose of the meeting was to

determine which of the three Supervisors of Maintenance
Operations would work on July 4, 2014, a federal holiday.
(Tomooka Decl. at ¶ 9, ECF No. 30-1).

The second shift

operates with reduced staffing on federal holidays, but one
Supervisor of Maintenance Operations is required to work on
those days.

(Id. at ¶ 8).

Tomooka states that at least one Supervisor of
Maintenance Operations typically volunteers to work on a
federal holiday, as he or she would earn either additional pay
or annual leave.

(Id. at ¶ 9).

At the meeting, however, none

of the three Supervisors of Maintenance Operations volunteered
to work on July 4, 2014.

(Id.)

Tomooka then selected

Plaintiff to work on July 4, 2014.

According to Tomooka,

Plaintiff was chosen because he worked on the fewest number of
holidays over the past ten holidays and had the lowest
seniority of the three second-shift Supervisors of Maintenance
Operations.

(Id. at ¶ 10).

Tomooka states that the

methodology she used to pick Plaintiff was her usual practice.
(Id.)
Plaintiff does not dispute that he was the least senior

8

and had worked the fewest number of holidays among the three
Supervisors of Maintenance Operations, but indicates that when
Tomooka previously worked as the Manager of Maintenance
Operations for the first and third shifts, she worked as a
stand-in during the holidays when no Supervisor of Maintenance
Operations was available.

(Arakaki Decl. at ¶ 15, ECF No. 36-

1). After Tomooka announced her decision to schedule Plaintiff
to work on July 4, 2014, Plaintiff submitted a request to use
his annual leave on July 3, 2014, and a separate request to
earn annual leave in lieu of holiday pay for July 4, 2014.
Tomooka approved both requests.

(Leave Request Form, Ex. A of

Defs. CSF, ECF No. 30-8; Tomooka Decl. at ¶ 11,

ECF No. 30-

1).

Tomooka’s Implementation of the Temporary Shift Rotation

On July 8, 2014, Tomooka emailed the four SMOs who were
subject to the temporary tour change (Teranishi, Yoshimura,
Kanana, and Plaintiff) reminding them that the initial two
SMOs would return to the original tours on August 1, 2014 and
the next two supervisors would swap tours from August 2, 2014
to October 31, 2014.

(Ex. C of Defs. CSF at p. 1, ECF No. 30-

10).
Between July 8, 2014 and July 17, 2014, Plaintiff asked
9

that his regular day-off schedule be carried over to his third
shift assignment.

(Tomooka Decl. at ¶ 20, ECF No. 30-1).

Plaintiff’s regular days off during the second shift were
Saturday and Sunday.

(Id.)

On July 17, 2014, Tomooka

responded that Plaintiff would not be able to keep his regular
day-off schedule, as the other Supervisor of Maintenance
Operations for the third shift’s days-off were Sunday and
Monday, and at least one Supervisor of Maintenance Operations
was needed to work during the third shift on Sundays. (Id.;
Ex. C of Defs. CSF at p. 1).

Tomooka offered to work in

Plaintiff’s place for some of the Sundays on which he was
scheduled to work, and asked Plaintiff to provide her with the
dates he would require an accommodation.

(Ex. C of Defs. CSF

at p. 2).
On July 23, 2014, Plaintiff responded by listing 21 work
dates for which he sought accommodation for the period between
August 2, 2014, and October 31, 2014.

(Id. at p. 5).

Plaintiff also indicated “[t]here might be some other day(s)
that I cannot foresee at this time.”

(Id.)

On the same date,

July 23, 2014, Tomooka replied to Plaintiff’s request.

She

stated that while she would be able to work in his place for
the first two Sundays of his new shift assignment, she would
be unable to accommodate him on the remaining requested dates.

10

(Id. at p. 6).

Tomooka instructed Plaintiff to submit leave

requests for the remaining dates, which would be approved
subject to the Postal Service’s staffing needs.

(Id.)

Plaintiff responded by expressing his dissatisfaction with
Tomooka’s response, stating that the arrangement caused him
significant hardship.

(Id. at p. 9).

Plaintiff did not

accept Tomooka’s offer to work in his place for the first two
Sundays of his new shift assignment.

(Id. at p. 13).

Plaintiff’s Application for a Promotion

On July 27, 2014, Plaintiff applied for a promotion to
become a Manager of Maintenance Operations.

(Arakaki Decl. at

¶ 25, ECF 36-1; Manager of Maintenance Operations posting, Ex.
E of Defs. CSF, ECF No. 30-12).

Plaintiff’s Long-Term Absence from Work

On August 1, 2014, the day before his scheduled temporary
reassignment to the third shift, Plaintiff informed Tomooka
via e-mail that he was feeling ill.
ECF No. 30-1).

(Tomooka Decl. at ¶ 27,

Plaintiff left work on the same day and did

not return until June 29, 2015.

(Id. at ¶¶ 24; 30).

On August 5, 2014, Plaintiff submitted documentation
concerning his absence to the Human Resources Department but

11

did not provide that same information to Tomooka.

(Id. at ¶

28; Arakaki Decl. at ¶ 28, ECF No. 36-1).

Plaintiff’s Formal Complaint

On August 6, 2014, Plaintiff filed a formal Equal
Employment Opportunity complaint.
No. 36-1).

(Arakaki Decl. at ¶ 7, ECF

Plaintiff’s declaration, while difficult to

understand, appears to indicate that the formal complaint’s
allegations concerned the alleged May 20, 2014 conversation he
stated he overheard, Tomooka’s act of assigning him to work on
July 4, 2014, and Tomooka’s act of temporarily reassigning
Plaintiff to the third shift.

(Id.)

Tomooka’s Absence Inquiry Letter

Tomooka attests that given the extended duration of
Plaintiff’s absence, she sent an absence inquiry letter to him
on August 19, 2014.

(Tomooka Decl. at ¶ 28, ECF No. 30-1).

The letter stated that pursuant to Postal Service employment
procedures, Plaintiff must produce, within five days of
receipt of the letter, “medical documentation or other
acceptable evidence of incapacity to work.”
CSF at p. 1, ECF No. 30-11).

(Ex. D of Defs.

The letter advised Plaintiff of

his rights pursuant to the Family and Medical Leave Act, 29

12

U.S.C. 2601, et seq., and provided detailed instructions
concerning the information that must be provided in cases of
extended absences from work.

(Id.)

Plaintiff states that Tomooka’s August 19, 2014 letter
“forced me to make an emergency appointment with my physician
on August 27, 2014.”

Plaintiff subsequently submitted a

physician’s note to Tomooka, as well as the documentation he
previously provided to the Human Resources department on
August 5, 2014.

(Arakaki Decl. at ¶ 28, ECF No. 36-1).

Plaintiff also requested to use accrued leave during his
absence from work.

(Id. at ¶¶ 28; 30).

request and approved Plaintiff’s absence.

Tomooka accepted the
(Tomooka Decl. at

¶¶ 29-30, ECF No. 30-1).

Denial of Promotion

The Manager of Maintenance Operations promotion to which
Plaintiff applied on July 27, 2014 was a competitive position;
15 Postal Service employees submitted applications.
Decl. at ¶ 7, ECF No. 30-3).

(Yonamine

To evaluate the applicants for

the position, the Human Resources department selected a review
board comprised of three senior Postal Service employees:
Daniel Hirai (“Hirai”), Risa McDowell (“McDowell”), and Milton
Kokubun (“Kokubun”).

(Id. at ¶ 7).
13

McDowell and Kokubun were

not aware of Plaintiff’s internal complaints during their
tenure on the review board.

(McDowell Decl. at ¶ 7, ECF No.

30-5; Kokubun Decl. at ¶ 7, ECF No. 30-6, attached to Defs.
CSF).

Hirai attests that “whether the applicant had made a

prior complaint to the Equal Employment Office is generally
not known by the review board, and plays no role in this
process.”

(Hirai Decl. at ¶ 10, attached to Defs. CSF, ECF

No. 30-4).
Hirai, McDowell, and Kokubun each ranked the individual
applicants according to the their qualifications.
6).

(Id. at ¶

An applicant’s qualifications were assessed through a

review of his or her responses to the job posting’s
descriptions of the Knowledge, Skills, and Abilities (“KSA”)
that were desired for the position.

(Id.)

Hirai, McDowell,

and Kokubun then met to create a consensus score for each
applicant’s KSA, which formed the basis of a total score
calculation.

(Id. at ¶¶ 7-8; KSA Matrix, Ex. F of Defs. CSF,

ECF No. 30-13).

The review board then ranked the relative

total scores of the applicants.

(Id. at ¶ 9).

Yonamine instructed the review board to provide him with
the names of the top four applicants.

(Id.)

Plaintiff was

not among the top four applicants; at least six other
applicants received higher total scores than Plaintiff.

14

(Ex.

F of Defs. CSF at p. 3).

Plaintiff did not obtain the

promotion to the Manager of Maintenance Operations position.

Plaintiff’s Return to Work
Plaintiff states that upon his return to work in June
2015, no desk was provided for him.

Plaintiff also states

that his regular computer, which he says he could recognize
from its serial number, “disappeared.”

(Arakaki Decl. at ¶

33).
Plaintiff also indicates that an unspecified time after
he returned to work, Tomooka asked to meet with him to discuss
his work performance.

(Id. at ¶ 34, ECF No. 36-1).

Plaintiff

states that upon hearing this request, he repeatedly insisted
that he was not comfortable meeting her without the presence
of a union representative as a witness.

(Id.)

Plaintiff

alleges that Tomooka was unhappy about Plaintiff’s position
and subsequently suspended him for a day. (Id.)

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law.

Fed. R. Civ. P. 56(c).

To

defeat summary judgment there must be sufficient evidence that
a reasonable jury could return a verdict for the nonmoving
15

party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916
(9th Cir. 1997).
The moving party has the initial burden of “identifying
for the court the portions of the materials on file that it
believes demonstrate the absence of any genuine issue of
material fact.” T.W. Elec. Serv., Inc. v. Pacific Elec.
Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)).

The

moving party, however, has no burden to negate or disprove
matters on which the opponent will have the burden of proof at
trial.

The moving party need not produce any evidence at all

on matters for which it does not have the burden of proof.
Celotex, 477 U.S. at 325.

The moving party must show,

however, that there is no genuine issue of material fact and
that he or she is entitled to judgment as a matter of law.
That burden is met by pointing out to the district court that
there is an absence of evidence to support the non-moving
party’s case.

Id.

If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the
absence of probative evidence tending to support its legal
theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d
270, 282 (9th Cir. 1979).

The opposing party must present

16

admissible evidence showing that there is a genuine issue for
trial. Fed. R. Civ. P. 56(e); Brinson v. Linda Rose Joint
Venture, 53 F.3d 1044, 1049 (9th Cir. 1995).

“If the evidence

is merely colorable, or is not significantly probative,
summary judgment may be granted.” Nidds, 113 F.3d at 916
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)).
The court views the facts in the light most favorable to
the non-moving party.

State Farm Fire & Casualty Co. v.

Martin, 872 F.2d 319, 320 (9th Cir. 1989).

Opposition

evidence may consist of declarations, admissions, evidence
obtained through discovery, and matters judicially noticed.
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324.

The opposing

party cannot, however, stand on its pleadings or simply assert
that it will be able to discredit the movant’s evidence at
trial. Fed. R. Civ. P. 56(e); T.W. Elec. Serv., 809 F.2d at
630.

The opposing party cannot rest on mere allegations or

denials.

Fed. R. Civ. P. 56(e); Gasaway v. Northwestern Mut.

Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994).

When the

non-moving party relies only on its own affidavits to oppose
summary judgment, it cannot rely on conclusory allegations
unsupported by factual data to create an issue of material
fact.

Hansen v. United States, 7 F.3d 137, 138 (9th Cir.
17

1993); see also National Steel Corp. v. Golden Eagle Ins. Co.,
121 F.3d 496, 502 (9th Cir. 1997).

ANALYSIS
I. PLAINTIFF’S EMPLOYMENT DISCRIMINATION CLAIMS

On June 15, 2015, Plaintiff Keith Y. Arakaki
(“Plaintiff”) filed his Complaint, in which he alleges claims
for employment discrimination on the basis of his race and
sex, and retaliation for reporting the alleged discriminatory
conduct, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §2000e et seq.

(ECF No. 1).

On October 12, 2016, Defendants United States Postal
Service (“the Postal Service”) and Postmaster General Megan J.
Brennan (collectively, “Defendants”) filed an amended Motion
for Summary Judgment as to each of the claims in Plaintiff's
Complaint.

(ECF No. 29).

In his Opposition, Plaintiff concedes that he cannot
support his employment discrimination claims.
p. 1, ECF No. 35).

(Pla. Opp. at

Plaintiff’s Opposition does not argue

against Defendants’ motion for summary judgment as to the
employment discrimination claims.
The Court finds that Plaintiff has withdrawn his
employment discrimination claims.

18

Defendants’ amended Motion for Summary Judgment as to
Plaintiff’s employment discrimination claims is GRANTED.

II. PLAINTIFF’S RETALIATION CLAIMS

Title VII prohibits employers from retaliating against
employees who have “opposed, complained of, or sought remedies
for, unlawful workplace discrimination.”

Univ. of Texas Sw.

Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2522 (2013); 42 U.S.C.
§2000e–3(a).

Title VII’s protections apply to employees of

the Postal Service.

42 U.S.C. § 2000e-16; Ray v. Henderson,

217 F.3d 1234, 1240 (9th Cir. 2000).
Courts analyze Title VII retaliation cases by applying
the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).

Dawson v. Entek Int'l, 630 F.3d

928, 936 (9th Cir. 2011).
Under the McDonnell Douglas framework, the plaintiff is
first required to establish a prima facie case of retaliation.
Id.

If the plaintiff successfully establishes a prima facie

case, the burden shifts to the defendant to offer a
legitimate, non-discriminatory reason for its actions.

Id.

If the defendant satisfies its burden of showing a legitimate,
non-discriminatory reason, the burden then shifts back to the
plaintiff to prove that the legitimate, non-discriminatory
19

reason offered by the defendant was not the employer’s true
reason, but was a pretext for impermissible discrimination.
Id.

Prima Facie Case of Retaliation

To establish a prima facie case of retaliation, Plaintiff
must demonstrate that:
(1)

He engaged in a protected activity;

(2)

Defendants subjected him to an adverse employment
action; and

(3)

a causal link existed between the protected activity
and the adverse employment action.

Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185,
1197 (9th Cir. 2003).
The Supreme Court has recognized that a plaintiff
alleging unlawful retaliation pursuant to Title VII must
establish “but-for” causation, meaning the employee must
demonstrated that he would not have suffered the adverse
employment action but for his engagement in protected
activity.

Nassar, 133 S.Ct. at 2533.

But-for causation may

be shown through direct and circumstantial evidence.
v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
A.

Engagement in Protected Activity
20

Yartzoff

A Postal Service employee must pursue internal
administrative remedies, including making an informal
complaint for counseling and filing a formal administrative
complaint, before bringing a Title VII action in federal
court.

Sommatino v. United States, 255 F.3d 704, 707–08 (9th

Cir. 2001) (citing 29 C.F.R. § 1614.105 (concerning informal
counseling) and 29 C.F.R. § 1614.106 (concerning formal
complaints)).

The initiation of the administrative remedy

process within the Postal Service constitutes protected
activity under Title VII.

Gomez v. U.S. Postal Serv., 32 F.

App'x 889, 892 (9th Cir. 2002).
Between May 20, 2014, and May 23, 2014, Plaintiff
complained that he overheard co-workers stating that his
supervisor, Bonnie Tomooka (“Tomooka”), “was trying to get
[Plaintiff] fired.”

(Arakaki Decl. at ¶ 24, ECF No. 36-1).

In response to the complaint Tomooka’s supervisor, Gaylen
Yonamine (“Yonamine”), held an informal mediation with
Plaintiff and Tomooka on May 23, 2014.

(Tomooka EEO

Investigative Affidavit at p. 2, Ex. 1 of Pla. CSF, ECF No.
36-3).

At the mediation, Plaintiff verbally requested an

Initial Management Inquiry Process (“IMIP”), which is an
internal procedure designed to resolve workplace conflicts.

21

(Arakaki Decl. at ¶ 10).

Plaintiff subsequently filed a

formal Equal Employment Opportunity complaint with the Postal
Service on August 6, 2014.

(Id. at ¶ 7).

Plaintiff began engaging in protected activity when he
made the informal complaint about Tomooka between May 20 and
May 23, 2014.

Gomez, 32 F. App'x at 892; see also Kraus v.

Presidio Trust Facilities Div./Residential Mgmt. Branch, 572
F.3d 1039, 1044-46 (9th Cir. 2009) (broadly interpreting the
internal complaint requirement to include contacts with any
agency official logically connected with the process of
handling discrimination complaints).

B. Adverse Employment Action

The appellate courts have adopted a relatively expansive
view of the types of conduct that qualify as adverse
employment actions.

See Pardi v. Kaiser Found. Hosps., 389

F.3d 840, 850 (9th Cir. 2004).

An adverse employment action

is generally considered to be any act that would dissuade a
reasonable worker from making or supporting a charge of
discrimination.

Burlington N. and Santa Fe Ry. Co. v. White,

548 U.S. 53, 68 (2006).
Despite the broad scope of the definition, the United
States Supreme Court has emphasized that “petty slights, minor

22

annoyances, and simple lack of good manners” do not constitute
adverse employment actions.

Id.

Rather, the appellate courts

generally consider more significant acts, such as termination,
dissemination of a negative employment reference, issuance of
an undeserved performance review, and refusal to consider a
plaintiff for a promotion, as the type of conduct that would
dissuade a reasonable worker from making or supporting a
charge of discrimination.

See Brooks v. City of San Mateo,

229 F.3d 917, 928-30 (9th Cir. 2000).
Plaintiff claims he was subjected to adverse employment
actions in seven separate instances.

1.

Conclusion of the IMIP Investigation

Plaintiff faults Chuck Lum (“Lum”), the Postal Services’
acting Human Resources Manager, for terminating the
investigation of Plaintiff’s complaint concerning Tomooka’s
alleged statement that she would try to get Plaintiff fired.
Plaintiff has provided no evidence that Lum’s decision to
cease the IMIP investigation qualifies as the type of conduct
that would dissuade a reasonable worker from making or
supporting a charge of discrimination.

Upon receiving the

IMIP investigation request, Lum proceeded to interview both
Plaintiff and Tomooka.

(Arakaki Decl. at ¶ 12, ECF No. 36-1).

23

At the meeting, Tomooka denied stating that she was trying to
get Plaintiff fired from the Postal Service.

(Id. at ¶ 13;

Lum Decl. at ¶ 5, ECF No. 30-2; Ex. G of Pla. CSF, ECF No. 3014).

Lum attests that both Plaintiff and Tomooka indicated

that they had met prior to speaking with him to resolve the
issue.

(Lum Decl. at ¶ 6, ECF No. 30-2).

Tomooka asserts

that Plaintiff told her “that he could work with me, and I
understood the matter to be resolved.”
ECF No. 30-1).

(Tomooka Decl. at ¶ 7,

Lum states that as a result of

Plaintiff and

Tomooka’s indications that the conflict had been resolved, no
further action was necessary.

(Lum Decl. at ¶ 6).

Plaintiff suffered no injury or harm as a result of Lum’s
decision to cease the IMIP investigation.

See Burlington N.

and Santa Fe Ry. Co., 548 U.S. at 67 (holding that the
“anti-retaliation provision protects an individual not from
all retaliation, but from retaliation that produces an injury
or harm”).

He was able to, and did in fact, continue the

internal complaint process by filing a formal Equal Employment
Opportunity charge with the Postal Service, which Plaintiff
concedes was accepted for further investigation.
Decl. at ¶ 7, ECF No. 36-1).

(Arakaki

Lum’s decision to conclude his

investigation did not constitute adverse employment action.
See Swindle v. Jefferson Cnty. Comm'n, 593 F. App'x 919, 927-

24

29 (11th Cir. 2014) (holding that the manner of the employer’s
investigation into the plaintiff’s complaint was not
considered to have a tangible, negative effect on her
employment).
Even if Lum’s decision to cease the IMIP investigation
did constitute an adverse action, Defendants have offered a
legitimate non-discriminatory reason for the action.

Davis v.

Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
Defendants posit that Lum concluded the IMIP investigation
after interviewing both Plaintiff and Tomooka and
understanding that they met prior to speaking with him to
resolve the issue.

(Lum Decl. at ¶ 6).

Lum believed that

further investigation would be unwarranted in light of his
interviews with Tomooka and Plaintiff and the “he said, she
said situation.”

(Lum EEO Investigative Affidavit, Ex. 3 of

Pla. CSF, ECF No. 36-5).
Plaintiff offers no direct or specific and substantial
circumstantial evidence that shows Lum’s reason for
discontinuing the IMIP investigation to be pretextual.
Plaintiff’s conclusory allegation that “[b]ecause of my prior
EEO case against Bonnie Tomooka, Chuck Lum didn’t want to take
action or be any part of this” is insufficient to show
pretext.

(Arakaki Decl. at ¶ 14). Cafasso, U.S. ex rel, 637

25

F.3d at 1060-61.
The evidence presented establishes that even if Plaintiff
could establish a prima facie case of retaliation based on
Lum’s conclusion of the IMIP investigation, he has failed to
show that Defendants’ proffered explanation for Lum’s decision
to conclude the investigation was pretextual.

France v.

Johnson, 795 F.3d 1170, 1175 (9th Cir. 2015).

2.

Assignment to Work on July 4, 2014

Plaintiff asserts that Tomooka’s decision to assign him
to work on July 4, 2014 over his objection constituted adverse
employment action.
During the week of June 21-27, 2014, Tomooka held a
staffing meeting with the three Supervisors of Maintenance
Operations who were regularly assigned to the second shift,
including Plaintiff.

At the meeting, Tomooka asked for a

volunteer to work on July 4, 2014, a federal holiday on which
the Postal Service continues operations.
8-9).

(Tomooka Decl. at ¶¶

Unlike prior instances, none of the three Supervisors

of Maintenance Operations volunteered.

(Id. at ¶ 9).

Tomooka

then selected Plaintiff to work on July 4, 2014.
The Ninth Circuit Court of Appeals has recognized that
schedule changes may constitute adverse employment actions for
26

the purposes of the Title VII prima facie case analysis.

Ray,

217 F.3d at 1243; see also Camper v. Potter, No. CV072251PHX-GMS, 2010 WL 1742537, at *2 (D. Ariz. Apr. 29, 2010)
(postal service’s act of modifying employee’s days-off was
considered to be an adverse employment action).
The United States Supreme Court has recognized, however,
that a plaintiff alleging unlawful retaliation must establish
causation by demonstrating that “but-for” his engagement in
the protected activity, he would not have suffered the adverse
employment action.

Nassar, 133 S.Ct. at 2533.

Plaintiff engaged in a protected activity between May 20,
2014 and May 23, 2014, when he made an internal complaint
against Tomooka.

In the week of June 21-27, 2014,

approximately 30 days after Plaintiff made his internal
complaint and Tomooka learned of the complaint, she assigned
him to work on July 4, 2014, over his objection.

(Tomooka

Decl. at ¶¶ 9-15).
Plaintiff attempts to rely on temporal proximity alone to
establish a prima facie case of retaliation.

Villiarimo v.

Aloha Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002)
(finding that a district court may infer causation when an
adverse employment action occurs “fairly soon after the
employee's protected expression.”).
27

While the Ninth Circuit

Court of Appeals has not defined the specific parameters to
infer temporal proximity, the appellate court has recently
recognized three months as too remote, Serlin v. Alexander
Dawson Sch., LLC, 656 F. App'x 853, 856 (9th Cir. 2016), and
36 days as sufficiently close in time, to warrant the
inference.

See Bagley v. Bel-Aire Mech. Inc., 647 F. App'x

797, 800 (9th Cir. 2016).
Plaintiff’s only other supporting evidence is found in
his declaration, in which he alleges that in the past, while
she worked on different shifts, Tomooka worked as a stand-in
during the holidays when no Supervisor of Maintenance
Operations was available.

(Arakaki Decl. at ¶ 15).

Plaintiff’s evidence concerning causation is scant, “even
given the low threshold of evidence required” to establish a
prima facie case.

Villiarimo, 281 F.3d at 1062.

The Court

finds that the record does not support a finding of but-for
causation as required pursuant to Nassar, 133 S.Ct. at 2533.
Even if Plaintiff had demonstrated causation, Defendants
have provided a legitimate, non-discriminatory reason
explaining Tomooka’s decision to pick Plaintiff to work on
July 4, 2014.
The Parties agree that the second shift operates with
reduced staffing on federal holidays, but one Supervisor of
28

Maintenance Operations is required to work on those days.
(Tomooka Decl. at ¶ 8).

Tomooka held a meeting during the

week of June 21-27, 2014 to discuss which of three Supervisors
of Maintenance Operations regularly assigned to the second
shift, including Plaintiff, would work on July 4, 2014.

(Id.

at ¶ 9).
According to Defendants, one or more Supervisors of
Maintenance Operations typically volunteers to work on a
federal holiday, as he or she would earn either additional pay
or annual leave.

(Id.)

At the meeting, however, none of the

three Supervisors of Maintenance Operations volunteered to
work on July 4, 2014.

(Id.)

Defendants state that Tomooka selected Plaintiff to work
on July 4, 2014, as he (1) was the least senior of the three
Supervisors of Maintenance Operations who were regularly
assigned to the second shift, and (2) had previously worked
the fewest number of holidays over the last ten holidays.
(Id. at ¶¶ 8-10).

Tomooka attests that the methodology used

to select Plaintiff was her usual practice.

(Id. at ¶ 10).

Defendants provided a legitimate, non-discriminatory reason as
to why Tomooka chose Plaintiff to work on July 4, 2014.
Davis, 520 F.3d at 1089.
Plaintiff does not dispute that he was the least senior

29

of the three Supervisors of Maintenance Operations, nor does
he disagree with Tomooka’s assertion that he worked the fewest
number of holidays among the three Supervisors of Maintenance
Operations.

Plaintiff instead argues that when Tomooka

previously acted as the Manager of Maintenance Operations for
the first and third shifts, she worked as a stand-in during
the holidays when no Supervisor of Maintenance Operations was
available.

(Arakaki Decl. at ¶ 15).

Plaintiff’s declaration fails to show that Defendants’
proffered explanation was pretextual.

The mere fact that

Tomooka may have previously offered to work in the place of
employees who did not wish to work in the past does not
discredit Defendants’ explanation as to why Tomooka picked
Plaintiff to work on July 4, 2014.

France, 795 F.3d at 1175.

Plaintiff’s claim based on his assignment to work on July 4,
2014 fails.

3.

Temporary Reassignment to the Third Shift

Plaintiff claims that Tomooka’s plan to temporarily reassign him to work during the third shift was also an adverse
employment action.
In early May 2014, Tomooka proposed a plan to temporarily
rotate all supervisors who had worked only on one shift to

30

another shift for two to three months in order to remedy a
lack of teamwork and cohesion between the shifts.

(Tomooka

Decl. at ¶ 15).
Tomooka’s rotation plan involved four Supervisors of
Maintenance Operations, including Plaintiff.

(Id. at ¶ 20).

Tomooka sought to reassign Plaintiff from the second shift to
the third shift, which began at 2:00 p.m. and ended at 10:30
p.m.
Shortly after learning of the Tomooka’s plan and before
May 10, 2014, Plaintiff informed her that he would be unable
to move to the third shift because of family care concerns.
(Id. at ¶ 18).

Tomooka responded by delaying the effective

date of Plaintiff’s shift change to August 2, 2014, and
advancing the effective dates of two other Supervisors of
Maintenance Operations’ shift changes from August 2, 2014 to
May 10, 2014.

(Id.)

On July 8, 2014, Tomooka sent an e-mail to all the
Supervisors of Maintenance Operations about the temporary reassignment to different shifts.

(Id. at ¶ 19).

In the e-

mail, Tomooka reminded Plaintiff that beginning August 2,
2014, he would be swapping positions with the regularlyassigned Supervisor of Maintenance Operations for the third
shift.

(Ex. C of Defs. CSF at p. 1, ECF No. 30-10).

31

Plaintiff never worked on the third shift, as he went on
an extended leave of absence beginning August 1, 2014, the day
before his scheduled temporary reassignment to the third
shift. (Tomooka Decl. at ¶¶ 24; 27; 30).
A prima facie case of retaliation can only exist if the
defendant was aware that the plaintiff had engaged in
protected activity when the defendant caused the plaintiff
some adverse employment action.

Thomas v. City of Beaverton,

379 F.3d 802, 812 n. 4 (9th Cir. 2004); Raad, 323 F.3d at
1197.
The evidence presented establishes that in early May
2014, Tomooka proposed a plan to temporarily rotate all
supervisors who had worked only on one shift to another shift
for two to three months.

(Tomooka Decl. at ¶ 15).

informed Yonamine and Lum of her plan.

Tomooka

Both Yonamine and Lum

approved the plan and confirmed its compliance with applicable
labor agreements and workplace policies.

(Yonamine Decl. at ¶

4; Lum Decl. at ¶ 9; Tomooka Decl. at ¶ 16).

The rotation

plan involved Plaintiff and three other Supervisors of
Maintenance Operations.

(Tomooka Decl. at ¶ 20).

Tomooka

originally scheduled Plaintiff to move from the second shift
to the third shift on May 10, 2014, until Plaintiff’s
objection precipitated her to accommodate him by delaying the
32

effective date of the shift change until August 2, 2014.

(Id.

at ¶¶ 17-18).
Tomooka learned of Plaintiff’s internal complaint against
her on May 23, 2014.

(Tomooka EEO Investigative Affidavit at

p. 3, Ex. 1 of Pla. CSF).

The gap in time between Tomooka’s

decision to reassign Plaintiff to the third shift and
Tomooka’s awareness of Plaintiff’s internal complaint is fatal
to Plaintiff's claim that the reassignment was an act of
retaliation.

Brooks v. Capistrano Unified Sch. Dist., 1

F.Supp.3d 1029, 1037 (C.D. Cal. 2014) (observing that “[i]n
general, if the decision maker does not have knowledge of the
plaintiff's protected activity, there can be no retaliation
for engaging in that activity”).

The fact that Tomooka

delayed, but still intended on implementing, Plaintiff’s shift
change after she knew of his protected activity does not
justify a causal inference; Tomooka conceived of the plan
before Plaintiff made his internal complaint.

Cheeks v. Gen.

Dynamics, 22 F.Supp.3d 1015, 1036 (D. Ariz. 2014).

Plaintiff

has failed to show a causal link between his protected
activity and Tomooka’s decision to reassign to the third
shift.
Even if Plaintiff was able to establish causation,
Defendants provided a legitimate, non-discriminatory motive

33

for the temporary shift reassignment.
Defendants assert that Tomooka’s decision to move
Plaintiff to the third shift was part of a larger plan to
address a lack of teamwork and cohesion among Postal Service
workers, as employees failed to grasp the different
responsibilities associated with each shift. (Tomooka Decl. at
¶ 15).

Significantly, there is no dispute that Tomooka

decided to conduct the shift change in early May 2014, before
Plaintiff engaged in a protected activity.

Defendants

underscore that Plaintiff was not the only Supervisor of
Maintenance Operations affected by Tomooka’s plan; Tomooka
scheduled three other Supervisors of Maintenance Operations to
temporarily change their shifts as well.

(Id. at ¶ 20).

Plaintiff states that one of the Supervisors of
Maintenance Operations affected, Gordon Yoshimura, had prior
experience working on the second shift before being
temporarily transferred there.

(Arakaki Decl. at ¶ 17).

Plaintiff also indicates that none of the other three
Supervisors of Maintenance Operations who were subject to the
shift change were Okinawan or had an active case alleging
discrimination.

(Id. at

¶ 21).

Plaintiff’s assertions,

however, do not show directly or circumstantially that
Defendants’ reason for the shift change affecting four

34

employees was a prextext for Tomooka to retaliate against
Plaintiff.

France, 795 F.3d at 1175.

Plaintiff’s statement

indicating that other similarly situated Supervisors of
Maintenance Operations were also subject to the shift change
disfavors finding pretext.

4.

See Vasquez, 349 F.3d at 641.

Absence Inquiry Letter

Plaintiff claims that Tomooka’s act of sending a letter,
inquiring as the nature of Plaintiff’s absence and requesting
additional supporting documentation, qualifies as an adverse
employment action.
An investigation of an employee engaged in protected
activity is, without more, insufficient to be an adverse
employment action.

Higdon v. Mabus, 5 F.Supp.3d 1199, 1212

(S.D. Cal. 2014).
On August 1, 2014, the day before he was scheduled to
begin his temporary placement on the third shift, Plaintiff
informed Tomooka via e-mail that he was feeling ill.
Decl. at ¶ 27).

(Tomooka

Plaintiff left work on the same day and did

not return until June 29, 2015.

(Id. at ¶¶ 24; 30).

Plaintiff provided some documentation of the reason behind his
leave to the Human Resources department, but he did not
provide that same information to Tomooka.
35

(Id. at ¶ 28;

Arakaki Decl. at ¶ 28).
On August 19, 2014, eighteen days after Plaintiff left
work, Tomooka sent an absence inquiry letter to him.
Decl. at ¶ 28).

(Tomooka

The letter stated that pursuant to Postal

Service employment procedures, Plaintiff must produce, within
five days of receipt of the letter, “medical documentation or
other acceptable evidence of incapacity to work.”
Defs. CSF at p. 1, ECF No. 30-11).

(Ex. D of

The letter advised

Plaintiff of his rights pursuant to the Family and Medical
Leave Act, 29 U.S.C. 2601, et seq., and provided detailed
instructions concerning the information that must be provided
in cases of extended absences from work.

(Id.)

While Tomooka’s letter may have caused Plaintiff to seek
additional supporting documentation from his physician, the
added stress and inconvenience caused by Tomooka’s letter is
not a “materially adverse change in the terms and conditions
of employment” that would qualify as adverse employment
action.

Ray, 217 F.3d at 1242 (quotations and citation

omitted); Vaughn v. Donahoe, No. C 09-05746 SI, 2011 WL
2199245, at *11 (N.D. Cal. June 7, 2011) (holding that a
warning letter requiring documentation validating her
disability could not support a Title VII retaliation claim).
Plaintiff suffered no cognizable harm as a result of the
36

letter; Tomooka approved his extended absence after he
submitted additional documentation to her.

5.

Denial of Promotion

On July 27, 2014, Plaintiff applied for a promotion to
become a Manager of Maintenance Operations.

(Arakaki Decl. at

¶ 25; Manager of Maintenance Operations job posting, Ex. E of
Defs. CSF, ECF no. 30-12).

A review board comprised of three

senior Postal Service employees, Daniel Hirai (“Hirai”), Risa
McDowell (“McDowell”), and Milton Kokubun (“Kokubun”),
analyzed Plaintiff’s application and ranked him below the top
four applicants who were subsequently advanced to the next
step of the application process.

(Yonamine Decl. at ¶ 7, ECF

No. 30-3; Hirai Decl. at ¶ 9, ECF No. 30-4; Knowledge, Skills,
Abilities (“KSA”) Matrix, Ex. F of Defs. CSF, ECF No. 30-13)).
Plaintiff was denied the promotion.
The Ninth Circuit Court of Appeals has recognized denial
of a promotion as an adverse employment action.

See Bergene

v. Salt River Project Agr. Imp. & Power Dist., 272 F.3d 1136,
1141 (9th Cir. 2001).
Plaintiff’s claim based on the denial of his promotion
fails because he has not demonstrated a causal link between

37

his engagement in a protected activity and the denial of his
promotion.

Plaintiff has not presented evidence that the

Postal Service review board that considered his application to
become a Manager of Maintenance Operations knew of his
protected activity when it denied the promotion.

Gonzalez v.

Nat’l R.R. Passenger Corp., 376 F. App'x 744, 747 (9th Cir.
2010) (knowledge of protected activity is required to
establish causation in Title VII retaliation cases) (citing
Raad, 323 F.3d at 1197); Brooks, 1 F.Supp.3d at 1037.
There is no evidence that the three members of the Postal
Service’s review board, Hirai, McDowell, and Kokubun, knew of
Plaintiff’s engagement in protected activity when they
evaluated his application and forwarded their list of
finalists.
at 1197.

See Thomas, 379 F.3d at 812 n. 4; Raad, 323 F.3d

Hirai states, and Plaintiff does not dispute, that

“whether the applicant had made a prior complaint to the Equal
Employment Office is generally not known by the review board,
and plays no role in this process.”

(Hirai Decl. at ¶ 10).

McDowell and Kokubun specifically attested that they were not
aware of Plaintiff’s internal complaints during their tenure
on the review board.

(McDowell Decl. at ¶ 7, ECF No. 30-5;

Kokubun Decl. at ¶ 7, ECF No. 30-6).
Plaintiff’s declaration alleges that Hirai “made comments

38

to my co-workers that he heard from Tomooka that I was a
trouble maker. I took that to mean because (sic) I filed EEO
complaints as I had not (sic) performance issues.”
Decl. at ¶ 32).

(Arakaki

Notwithstanding the hearsay issues involved

with Plaintiff’s assertion, mere speculation, without more,
cannot raise an issue of fact to defeat summary judgment.
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d
1047, 1060-61 (9th Cir. 2011) (“[t]o survive summary judgment,
a plaintiff must set forth non-speculative evidence of
specific facts, not sweeping conclusory allegations”).
Plaintiff has presented no admissible evidence establishing
that the review board had actual knowledge of his protected
activity when they evaluated his application.

Cf. McDaniels

v. Mobil Oil Corp., 527 F. App'x 615, 617 (9th Cir. 2013).
Even if Plaintiff was able to establish a prima facie
case based on the denial of his application for a promotion,
Defendants provided a legitimate, non-discriminatory reason
for denying his promotion.

Defendants state that Plaintiff

was denied a promotion to the Manager of Maintenance
Operations position because a review board objectively ranked
Plaintiff’s Knowledge, Skills, and Abilities score below that
of competing applicants.

(McDowell Decl. at ¶ 7; Kokubun

Decl. at ¶ 7; Hirai Decl. at ¶¶ 6-9).

39

Plaintiff does not dispute Defendants’ position that each
application was scored objectively on the basis of the
application materials.

(Hirai Decl. at ¶ 10).

Plaintiff’s speculation, without more, fails to establish
pretext.

Cafasso, U.S. ex rel., 637 F.3d at 1060-61 (“[t]o

survive summary judgment, a plaintiff must set forth
non-speculative evidence of specific facts, not sweeping
conclusory allegations”).

6.

Unavailable Desk and Missing Computer

Plaintiff complains that upon his return to work in June
2015, no desk was immediately available for him to use.
Plaintiff also indicates that his regular work computer
“disappeared.”

(Arakaki Decl. at ¶ 33).

Plaintiff’s bare-bones allegations are insufficient to
raise a genuine issue of material fact as to whether the
unavailable desk and missing computer constituted an adverse
employment action.

Plaintiff was away from work for

approximately 11 months.

The vagueness of Plaintiff’s

declaration fails to indicate the context and severity of the
issue.

Plaintiff has failed to show that the desk and

computer issues he faced upon his return from an extended
leave of absence were anything more than “minor annoyances.”

40

Burlington N. and Santa Fe Ry. Co., 548 U.S. at 68.

7.

One-Day Suspension

Plaintiff contends that sometime after his return to work
in June 2015, Tomooka suspended him for one day without pay
after he insisted on having a union representative serve as a
witness for a meeting to discuss Plaintiff’s work performance.
Plaintiff states that his pay was reinstated after grieving
the issue with his union.

(Arakaki Decl. at ¶ 34).

The United States Supreme Court has indicated that
suspensions without pay may be considered adverse employment
actions, even if the employee is reinstated with full backpay.
See Burlington N. and Santa Fe Ry. Co., 548 U.S. at 73.
Plaintiff has failed to provide sufficient evidence
concerning the causal link between Tomooka’s alleged decision
to suspend him for one day and his engagement in protected
activity.
Plaintiff’s only evidence to support a causal link is his
own declaration.

Plaintiff’s declaration states that on an

undefined date sometime after he returned to work in June
2015, Tomooka suspended him for one day without pay.
Decl. at ¶ 34).

(Arakaki

Even if read in the light most favorable to

Plaintiff, the declaration does not connect the suspension to

41

Plaintiff’s protected activity.

“An unpleasant interaction

with one's supervisor, even one that occurs after protected
activity, is not necessarily actionable retaliation.”

Ambat

v. City & Cnty. of San Francisco, No. C 07-03622 SI, 2010 WL
934006, at *5 (N.D. Cal. Mar. 15, 2010) (citing Burlington N.
and Santa Fe Ry. Co., 548 U.S. at 68).

Plaintiff has not met

the but-for causation standard required in Title VII
retaliation cases.

Nassar, 133 S.Ct. at 2533.

Plaintiff has not satisfied the McDonnell Douglas burden
shifting framework for any of the seven alleged adverse
employment actions.

See Davis, 520 F.3d at 1089.

Summary

judgment is warranted as to his claims of unlawful retaliation
pursuant to Title VII.

CONCLUSION

Plaintiff Keith Y. Arakaki withdrew his claims of
employment discrimination on the basis of race and sex
pursuant to Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §2000e et seq.
Plaintiff failed to present evidence sufficient to defeat
summary judgment as to his claims of unlawful retaliation
pursuant to Title VII.

42

Defendants United States Postal Service and Postmaster
General Megan J. Brennan’s Amended Motion for Summary Judgment
(ECF No. 29) is GRANTED.
IT IS SO ORDERED.
DATED: March 31, 2017, Honolulu, Hawaii.

_________________________________
__
Helen Gillmor
United States District Judge

Keith Y. Arakaki v. Megan J. Brennan, Postmaster General;
United States Postal Service, Civil No. 15-00229 HG-RLP; ORDER
GRANTING DEFENDANTS’ AMENDED MOTION FOR SUMMARY JUDGMENT (ECF
NO. 29)
43