Botelho v. Transportation Security Administration
Filing
108
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 63) - Signed by JUDGE ALAN C. KAY on 9/30/2021.For the reasons discussed above, the Court GRANTS Defendant Mayorkas's Motion for Summary Judgment, ECF No. 63. There being no remaining claims in this case, the Clerk's Office is DIRECTED to enter judgment and close this case.(jni)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
___________________________________
)
MICHAEL BOTELHO,
)
)
Plaintiff,
)
)
v.
) Civ. No. 18-00032 ACK-WRP
)
ALEJANDRO MAYORKAS, U.S.
)
Secretary of the Department of
)
Homeland Security,
)
)
Defendant.
)
___________________________________)
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO.
63)
On March 9, 2012, former Transportation Security
Administration (“TSA”) employee Plaintiff Michael Botelho was
removed from federal service.
In 2018, Botelho filed a
complaint with this Court alleging two causes of action:
a
violation of the Rehabilitation Act and a violation of Title
VII.
ECF No. 1.
On December 26, 2019, this Court granted in
part and denied in part Defendant Kirstjen M. Nielsen’s motion
to dismiss.
ECF No. 29.
What remains is Botelho’s Title VII
cause of action, alleging retaliation and a hostile work
environment.
Defendant Alejandro Mayorkas has now moved for
summary judgment on the remaining Title VII claims.
ECF No. 63.
For the reasons discussed below, the Court GRANTS Defendant
Mayorkas’s Motion for Summary Judgment, ECF No. 63.
1
BACKGROUND
The following facts are principally drawn from the
Parties’ Concise Statements of Fact (“CSF”), ECF Nos. 64, 101,
and 106.
I.
Factual Background
Botelho was hired as a Transportation Security
Screener on November 10, 2002, to work at Honolulu International
Airport (“HNL”) and was promoted to Supervisory Transportation
Security Screener at HNL in 2003.
See Def. Ex. 1.
In 2004,
Botelho was demoted to Lead Transportation Security Screener at
HNL after he was disciplined for using inappropriate language.
See Def. Ex. 2.
On May 16, 2005, Botelho filed a formal EEO complaint
regarding his demotion, alleging that another TSA employee
sexually harassed him.
See Def. Ex. 3.
Around the same time,
some sort of inquiry was conducted regarding Botelho’s conduct
at work.
Compl. at ¶ 8.
This inquiry, which Botelho does not
describe, was apparently so stressful that it caused him to take
leave for two and a half years.
Id. at ¶ 10.
The TSA issued Botelho a Notice of Proposed Removal
(“NOPR”) on January 26, 2007 based on his excessive absences and
being absent without authorized leave.
See Def. Ex. 4.
was diagnosed with diabetes in February 2007.
2
Botelho
Compl. ¶ 11.
The
TSA issued Botelho a second Notice of Removal on March 7, 2007.
Id. at ¶ 16.
Two days later, Botelho and the TSA entered into a
“Last Chance/Abeyance Agreement” that set forth certain terms
Botelho agreed to abide by for one year in order to avoid being
removed.
See Def. Ex. 5.
Botelho complied with the agreement
and withdrew his EEO complaint when he returned to work in 2007.
Compl. at ¶¶ 10, 16-17.
On July 6, 2008, Botelho was assigned
to the position of Behavior Detection Officer and remained in
this position until he was terminated in March 2012.
Id. ¶¶ 18-
19; see Def. Ex. 1.
In March of 2009, Botelho applied for intermittent
leave under the Family and Medical Leave Act (“FMLA”) on the
basis of his diabetes diagnosis, which was granted.
¶ 4.
See Okinaka
In December of 2010, Botelho traveled to Cranbrook, Canada
to check on his rental properties.
See Def. Ex. 1.
Botelho
traveled with two other men who were filming their television
show, “Board Stories/Whiteroom Episodes.”
Id.
Botelho had been
listed as an executive producer for other Board Stories
episodes.
Id.
According to Botelho, he intended to stay only a
few days in Canada.
Id.
While in Canada, Botelho experienced a diabetic
reaction and his doctor informed Botelho not to fly home until
3
he felt better.
Id.
Botelho then called the TSA Coordination
Center daily to invoke his FMLA leave.
Id.
Botelho remained in
Canada on medical leave for two weeks before returning to work
in Honolulu.
Compl. ¶¶ 22-25.
On days he credited all his work
time to FMLA leave, Botelho accompanied his friends to a ski
resort a “few times” and he snowboarded while being filmed for
Board Stories.
See Def. Ex. 1.
Botelho also went out to
dinners and attended a hockey game that was being filmed for
Board Stories.
Id.
a. FMLA Abuse Investigation
During a December 30, 2010 meeting, Thomas Biniek
(Botelho’s second-level supervisor) informed Pam Soto (Botelho’s
first-level supervisor) that Botelho was absent from his shift
on FMLA leave.
Biniek Decl. ¶ 5.
Ms. Soto then told Mr. Biniek
that it was common knowledge that Botelho went skiing each year
at this time.
Id.
That same day, Botelho’s car was observed in
the airport parking lot.
Id. ¶ 8.
Mr. Biniek then raised Botelho’s absence to his
manager, Adam Myers.
Id. ¶ 9.
As a result, TSA managers
monitored incoming flights to HNL to confirm Botelho’s return to
Hawaii.
Id. ¶ 10.
Botelho arrived at HNL on January 12, 2011.
See Def. Ex. 1.
4
Between January 21, 2011 and June 2, 2011, TSA’s
Office of Inspection formally investigated Botelho’s misuse of
FMLA.
Okinaka Decl. ¶ 7.
investigation.
Id.
Cy Okinaka reviewed the report of
Mr. Okinaka also viewed a Board Stories
video and saw Botelho, identifiable by his face, as well as
another TSA employee snowboarding-Cory Matsuoka.
Id.
Mr.
Okinaka interviewed Mr. Matsuoka, who identified Botelho in the
excerpts of the video.
Id. ¶ 8.
Shortly after the investigation closed, on June 27,
2011, Botelho stopped attending work.
Id. ¶ 10.
Botelho’s
physician submitted a note stating that Botelho was medically
unable to work effective June 27, 2011, and it was not clear
when he would be able to return.
Id.; see Def. Ex. 6.
Botelho
was granted Leave Without Pay status through December 26, 2011.
See Okinaka Decl. ¶ 11.
Botelho was ordered to report to work
on December 27, 2011, and explicitly warned that if he failed to
do so, he would be marked Absent Without Leave-which could lead
to further disciplinary action.
Id.
Botelho did not report to
work on December 27, 2011, and he was recorded as Absent Without
Leave.
Id. ¶ 12.
As a result of Botelho’s extended absences, Mr.
Okinaka drafted a Notice of Proposed Removal, proposing to
terminate Botelho’s employment from TSA.
5
Okinaka Decl. ¶ 15.
The NOPR cited two reasons for the termination:
unprofessional
conduct and inability to maintain a regular full-time work
schedule.
Id.; see Def. Ex. 8.
The NOPR set forth, inter alia,
that Botelho had been absent from work from 9/15/2011 to
2/12/2012 and absent without official leave (“AWOL”) from
12/27/2011 to 2/11/2012.
Def. Ex. 8.
The NOPR afforded Botelho
a seven-day period in which to respond, but Botelho did not do
so.
Okinaka Decl. ¶ 20.
Following the expiration of the response deadline, the
Deputy Federal Security Director-Frank Abreu-reviewed and
discussed the NOPR with Mr. Okinaka, and found the NOPR to be
credible.
Abreu Decl. ¶ 7.
On March 9, 2012, Mr. Abreu signed
the Notice of Decision for Removal, which removed Botelho from
federal service.
Id. ¶ 9.
At the time of the issuance of the
NOPR and the Notice of Decision for Removal, neither Mr. Okinaka
nor Mr. Abreu possessed knowledge of Botelho’s 2005 EEO
activity.
Id. ¶ 10; Okinaka Decl. ¶ 19.
b. Botelho’s EEO Activity
While at TSA, Botelho engaged with EEO in 2005 and
2011.
On May 16, 2005, Botelho filed a formal EEO complaint
regarding his demotion, alleging that another TSA employee
sexually harassed him.
See Def. Ex. 3.
6
As discussed supra,
Botelho withdrew this EEO complaint after he was offered a Last
Chance/Abeyance Agreement.
Compl. ¶ 10.
Botelho also made initial EEO contact on January 31,
2011.
See Def. Ex. 1.
Botelho then filed a formal EEO
complaint in the first week of July 2011.
II.
See Def. Ex. 10.
Procedural History
On January 19, 2018, Botelho filed a Complaint against
the TSA and Elaine C. Duke in her official capacity as Acting
Secretary of the United States Department of Homeland Security
(“DHS”).
ECF No. 1.
Botelho asserted claims against the
Defendants pursuant to (1) the Rehabilitation Act of 1973 and
(2) Title VII of the Civil Rights Act of 1964.
38.
Compl. at ¶¶ 37-
Specifically, Botelho appeared to allege that he was
discriminated against on the basis of his disability (diabetes),
subjected to a hostile work environment, and retaliated against
for engaging in a protected activity.
Prior to filing his
Complaint in this Court, Botelho exhausted his administrative
remedies on July 5, 2011 when he filed an Employment Opportunity
(“EEO”) complaint alleging that he was discriminated against on
7
the basis of his age, disability, and engaging in a protected
activity. 1/
Id. at ¶ 32.
On June 1, 2018, Defendant Kirstjen M. Nielsen,
Secretary of the United States DHS, filed a Motion for Dismissal
or, in the Alternative, for Summary Judgment.
ECF No. 15.
On
December 26, 2019, this Court granted in part and denied in part
Nielsen’s motion to dismiss.
ECF No. 29.
On August 7, 2021, Defendant Alejandro Mayorkas moved
for summary judgment on the remaining Title VII claims, ECF No.
63.
Defendant also submitted a CSF in support, ECF No. 64.
Botelho filed his Opposition, ECF No. 100, and a CSF in
Opposition, ECF No. 101.
Defendant filed his Reply, ECF No.
104, and CSF in support, ECF No. 106.
A hearing on the Motion
was held on September 23, 2021.
STANDARD
Summary judgment is proper where there is no genuine
issue of material fact and the moving party is entitled to
It appears that Botelho did not include his hostile work environment
claim in his EEO complaint. See ECF No. 1-1, Final Order at 2-3. However,
at the hearing, in response to the Court’s questioning regarding his apparent
failure to exhaust his administrative remedies regarding his claim,
Defendant’s counsel stated Defendant had not pursued such apparent failure
because an EEO investigator had noted he construed the EEO complaint as
including a hostile work environment claim.
1/
8
judgment as a matter of law.
Fed. R. Civ. P. 56(a).
Rule 56(a)
mandates summary judgment “against a party who fails to make a
showing sufficient to establish the existence of an element
essential to the party’s case, and on which that party will bear
the burden of proof at trial.”
Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); see also Broussard
v. Univ. of Cal., 192 F.3d 1252, 1258 (9th Cir. 1999).
“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, 477 U.S. at 323, 106
S. Ct. at 2553); see also Jespersen v. Harrah’s Operating Co.,
392 F.3d 1076, 1079 (9th Cir. 2004).
“When the moving party has
carried its burden under Rule 56[(a)] 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.”
Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586–87, 106 S. Ct.
1348, 89 L. Ed. 2d 538 (1986) (citation and internal quotation
marks omitted and emphasis removed); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S. Ct. 2505, 91
L. Ed. 2d 202 (1986) (stating that a party cannot “rest upon the
9
mere allegations or denials of his pleading” in opposing summary
judgment).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202).
When considering the evidence on a motion for summary judgment,
the court must draw all reasonable inferences on behalf of the
nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587,
106 S. Ct. 1348, 89 L. Ed. 2d 538; see also Posey v. Lake Pend
Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008)
(stating that “the evidence of [the nonmovant] is to be
believed, and all justifiable inferences are to be drawn in his
favor” (internal citation and quotation omitted)).
DISCUSSION
As discussed above, the Court must decide whether to
grant Defendant summary judgment on the remaining Title VII
claims.
For the reasons set forth below, the Court finds
summary judgment is warranted on both the retaliation and
hostile work environment Title VII claims.
10
I.
Title VII Retaliation Claim
Defendant Mayorkas first moves for summary judgment on
Botelho’s claim that he was retaliated against based on his
prior EEO activity.
Specifically, Defendant argues that Botelho
cannot establish a prima facie case of retaliation, and even if
he could, the TSA had a non-retaliatory reason for its personnel
action against Botelho.
Mot. at 10, 16.
The Court agrees.
a. Prima Facie Case
To prevail on his retaliation claim, Botelho must show
that “(1) he engaged or was engaging in activity protected under
Title VII, (2) the employer subjected him to an adverse
employment decision, and (3) there was a causal link between the
protected activity and the employer’s action.”
Yartzoff v.
Thomas, 809 F.2d 1371, 1375 (9th Cir. 1987); see also Vasquez v.
Cty. of L.A., 349 F.3d 634, 646 (9th Cir. 2003).
The parties do
not dispute that protected activity encompasses prior EEO
activity.
See Learned v. City of Bellevue, 860 F.2d 928, 932-33
(9th Cir. 1988).
The parties dispute whether Botelho has established
the third element of a prima facie case:
a causal link between
the protected activity and the employer’s action.
Mot. at 11.
The causal link element is governed by a “but for” test.
Univ.
of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362, 133 S. Ct.
2517, 2534, 186 L. Ed. 2d 503 (2013).
11
Botelho contends that he was terminated in retaliation
for his prior EEO activity.
Opp. at 12.
But Botelho has failed
to raise a genuine issue of material fact that the proposing
official-Cy Okinaka-or the deciding official-Frank Abreuconsidered Botelho’s prior EEO activity during the removal
process.
Indeed, Botelho fails to provide any evidentiary
support to the contrary.
Instead, without a citation to any
evidence, Botelho asserts that Ms. Alo stated in her deposition
“that she was aware of Plaintiff’s prior EEO activity, when he
filed an EEO complaint against his then-supervisor Warren
Kadokawa.”
Opp. at 12.
However, Botelho has provided no
evidence that Ms. Alo was the deciding official or even had any
say in his termination. 2/
To the extent that Botelho relies on temporal
proximity to demonstrate causation, he fails to show that the
adverse employment action (Botelho’s removal) occurred in close
2/
Botelho also raises the “cat’s paw theory”-that a biased subordinate
influenced the decision to remove him or was involved in the decision-making
process. Opp. at 14 ; see Poland v. Chertoff, 494 F.3d 1174, 1182 (9th Cir.
2007) (“[I]f a subordinate, in response to a plaintiff’s protected activity,
sets in motion a proceeding by an independent decisionmaker that leads to an
adverse employment action, the subordinate’s bias is imputed to the employer
if the plaintiff can prove that the allegedly independent adverse employment
decision was not actually independent because the biased subordinate
influenced or was involved in the decision or decisionmaking process.”).
Yet Mr. Biniek was unaware of Botelho’s 2005 EEO activity, Biniek Decl.
¶ 12, and Botelho concedes that it was Mr. Biniek who raised Botelho’s leave
abuse, and that Botelho has no evidence that Mr. Biniek knew about his 2005
EEO activity. Opp. at 14. Indeed, Mr. Botelho’s supposed evidence of Mr.
Biniek’s knowledge of the prior EEO activity was based on “intuition.” Opp.
at 14-15; see Def. Ex. 1. Botelho has clearly failed to set forth any
admissible evidence that any of the subordinates of the deciding officialFrank Abreu-were biased and influenced the decision on Botelho’s termination.
12
proximity to his protected activity (the 2005 and 2011 EEO
activity).
Temporal proximity between an employer’s knowledge
of protected activity and an adverse employment action is
sufficient to establish a prima facie case, but the temporal
proximity must be “very close.”
Clark Cty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511, 149 L. Ed. 2d
509 (2001); see, e.g., Govan v. Sec. Nat. Fin. Corp., 502 F.
App’x 671, 674 (9th Cir. 2012) (6-month period insufficient);
Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (9month period insufficient); Swan v. Bank of Am., 360 F. App’x
903, 906 (9th Cir. 2009) (4-month period insufficient).
The
Ninth Circuit has “caution[ed] that a specified time period
cannot be a mechanically applied criterion,” because “[a] rule
that any period over a certain time is per se too long (or,
conversely, a rule that any period under a certain time is per
se short enough) would be unrealistically simplistic.”
Coszalter v. City of Salem, 320 F.3d 968, 977-78 (9th Cir.
2003).
Here, the prior EEO activity alleged is in May of 2005
and January of 2011.
See Def. Ex. 3.
By the time Botelho was
removed in March of 2012, it had been more than six years since
his 2005 EEO activity, and eight months since his 2011 EEO
activity.
Such a timeline by itself suggests no causality.
Further, Defendant points out that Botelho contacted an EEO
13
counselor ten days after TSA began its investigation into
Botelho’s trip to Canada.
Mot. at 13; see Okinaka Decl. ¶ 7.
Botelho does not rebut Defendant’s assertion that the 2011 EEO
activity was filed to forestall a potential disciplinary action
against him.
See Mot. at 12; Reply at 6.
Thus, regardless of any temporal proximity, the FMLA
abuse investigation and subsequent termination cannot be
considered retaliatory.
See Miller v. Fairchild Indus., Inc.,
797 F.2d 727, 731 n.1 (9th Cir. 1986) (“[W]e simply reached the
obvious conclusion that an employer who had already decided upon
a course of action adverse to the plaintiff prior to learning of
the plaintiff’s protected activity did not intend to
retaliate.”).
Without a causal link between Botelho’s protected EEO
activity and his termination, Botelho has failed to establish a
prima facie case of retaliation.
b. Non-Retaliatory Reason
Even assuming arguendo that Botelho could establish a
prima facie case, Defendant further argues that Botelho is
unable to rebut the non-retaliatory reason for his termination.
Mot. at 16.
If Botelho could establish a prima facie case, the
McDonnell Douglas framework applies, under which the burden
shifts to Defendant to show a non-retaliatory justification for
14
the challenged action, and then back to Botelho to show that the
proffered justification is pretextual.
McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d
668 (1973); see Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94
(9th Cir. 2008).
Even assuming Botelho met his burden of
proving a prima facie case, Defendant nonetheless set forth
legitimate, non-retaliatory reasons for Botelho’s termination.
According to the TSA, Botelho’s removal was based on
two reasons:
his FMLA abuse and his inability to maintain a
full-time work schedule.
See Def. Ex. 4.
Mr. Okinaka stated
that either one of those two specifications on its own would
have been sufficient to terminate Botelho.
Okinaka Decl. ¶ 18.
The deciding official, Mr. Abreu, reviewed the NOPR prepared by
Mr. Okinaka, as well as the video footage of Botelho
snowboarding in Canada.
See Def. Ex. 9.
In his decision, Mr.
Abreu found that Botelho’s activities while in Canadasocializing, snowboarding, and assisting with the snowboarding
television show-were “inconsistent” with his claimed
debilitating diabetic reaction supporting FMLA.
Id.
Based on
these facts, the Court finds that Botelho’s misuse of FMLA was a
legitimate, non-retaliatory reason for his removal.
Botelho’s inability to perform the essential functions
of his positions-maintaining a full-time work schedule-was also
a legitimate, non-discriminatory reason for his termination.
15
Botelho was required to return to work on December 27, 2011
because his Leave Without Pay Status expired on December 26,
2011.
See Okinaka Decl. ¶ 11.
on December 27, 2011.
Botelho failed to return to work
Id. ¶ 12.
As discussed supra, Botelho
had been absent from work from 9/15/2011 to 2/12/2012 and AWOL
from 12/27/2011 to 2/11/2012.
See Def. Ex. 8. 3/
In his
deposition, Botelho agreed that he was unable to maintain a
regular full-time work schedule.
See Def. Ex. 1. 4/
Botelho also
testified that he believes his employment with TSA was
terminated “because [he] was still medically off work.”
Id.
Failure or inability to go to work as scheduled is a legitimate,
nonretaliatory reason to terminate employment.
See Nguyen v.
Dep’t of Navy, 412 F. App’x 926, 929 (9th Cir. 2011).
The burden thus shifts back to Botelho to show these
stated reasons regarding his performance were mere pretext.
See
Surrell v. California Water Serv. Co., 518 F.3d 1097, 1105-06
(9th Cir. 2008).
A “plaintiff may establish pretext either
directly by persuading the court that a discriminatory reason
more likely motivated the employer or indirectly by showing that
the employer’s proffered explanation is unworthy of credence.”
The Court notes, as stated earlier, that the TSA previously issued
Botelho a NOPR on January 26, 2007, based on similar reasons: his excessive
absences and being absent without leave. See Def. Ex. 4.
4/
“Q: Do you agree with the agency’s second charge, which was that
you were unable to maintain a regular full time work schedule?
A: I mean yeah, it says it here, so—yes.”
Def. Ex. 1 at 100:24-101:2.
3/
16
Dep’t of Fair Emp. & Hous. v. Lucent Techs., Inc., 642 F.3d 728,
746 (9th Cir. 2011) (quoting Godwin v. Hunt Wesson, Inc., 150
F.3d 1217, 1220 (9th Cir. 1998)).
If a plaintiff uses
circumstantial evidence to satisfy this burden, such evidence
“must be specific” and “substantial.”
Id.
Botelho has not offered evidence that would carry his
burden of showing that Defendant’s justification was pretextual.
Botelho fails to identify evidence that would either directly
persuade the Court that a retaliatory reason more likely
motivated Defendant or indirectly demonstrate that Defendant’s
proffered explanation is unworthy of credence.
See Kaaumoana v.
Dejoy, Civ No. 19-00294 JAO-KJM, 2021 WL 1270452, at *3 (D. Haw.
April 6, 2021) (citing Campbell v. Hawaii Dep’t of Educ., 892
F.3d 1005, 1016-17 (9th Cir. 2018)).
Indeed, Botelho does not
appear to dispute that the action Defendant took against Botelho
flowed from the investigation into Botelho’s use of FMLA and
extended absences from work.
For the foregoing reasons, the Court GRANTS
Defendant’s motion for summary judgment with regard to Botelho’s
Title VII retaliation claim.
II.
Title VII Hostile Work Environment Claim
Defendant also moves for summary judgment on Botelho’s
Title VII hostile work environment claim.
This claim appears to
also arise out of the investigation into his use of FMLA leave
17
while in Canada and his termination over a year later.
Defendant argues that such a claim is time-barred and that the
incidents described by Botelho are not sufficiently severe such
that Botelho can state a prima facie case.
Mot. at 20-22.
The
Court again agrees.
a. Timeliness of the Hostile Work Environment Claim
As a threshold matter, Defendant argues that Botelho
failed to consult with an EEO counselor within forty-five days
of the alleged discriminatory events, as required by 29 C.F.R. §
1614.105(a)(1).
Id.
Botelho’s briefing fails to address the
timeliness of his claims.
Title VII requires a plaintiff to exhaust his
administrative remedies prior to filing suit.
Gipaya v. Dep’t
of the Air Force, 345 F. Supp. 3d 1286, 1295 (D. Haw. 2018).
Failure to contact a counsel within the required time frame can
be dispositive:
29 C.F.R. § 1614.105(a)(1) requires a federal employee
who believes that she has been subjected to . . .
discrimination in the workplace to initiate contact with
an EEO counselor within forty-five days of the alleged
discrimination. The forty-five day period, however, is
“subject to waiver, estoppel, and equitable tolling.”
See 29 C.F.R. § 1614.604(c).
If waiver, estoppel or
equitable tolling does not apply, failure to comply with
§ 1614.105(a)(1) is “fatal to a federal employee’s
discrimination claim in federal court.”
Kraus v.
Presidio Trust Facilities Div./Residential Mgmt. Branch,
572 F.3d 1039, 1043 (9th Cir. 2009) (citations and
internal quotation marks omitted).
18
Banks v. McHugh, Civ No. 11-00798 LEK-KSC, 2014 WL 2932479, at
*2 (D. Haw. June 30, 2014).
“Equitable estoppel focuses on the
defendant’s wrongful actions preventing the plaintiff from
asserting his claim,” whereas equitable tolling “focuses on a
plaintiff’s excusable ignorance and lack of prejudice to the
defendant.”
Leong v. Potter, 347 F.3d 1117, 1123 (9th Cir.
2003).
Botelho contacted an EEO official on January 31, 2011.
See Def. Ex. 10.
Therefore, any incidents related to the claim
which occurred more than forty-five days prior to that date, are
time-barred as the Court does not see-and Botelho does not
argue-any facts to support an argument of waiver, estoppel, or
tolling.
This includes Botelho’s assertion that he was treated
differently following his 2004 demotion and his 2005 sexual
harassment claim. 5/
Opp. at 19; see Pl. Ex. 1.
Two incidents were raised to the EEO counselor within
forty-five days of their occurrence:
the investigation into
Botelho’s use of FMLA while he was in Canada, and his subsequent
termination in 2012.
The Court therefore addresses the merits
Moreover, by withdrawing his 2005 EEO complaint under the Last
Chance/Abeyance Agreement, the claims asserted in that complaint are
considered abandoned and Botelho has failed to exhaust his administrative
remedies. See Bankston v. White, 345 F.3d 768, 771 (9th Cir. 2003) (citing
Vinieratos v. United States Dep’t of Air Force, 939 F.2d 762 (9th Cir. 1991)
and McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir. 1996)); Bowers v.
Nicholson, 271 Fed. App’x 446, 449 (5th Cir. 2008).
5/
19
of the hostile work environment claim predicated on those two
incidents.
b. Merits of the Hostile Work Environment Claim
A hostile work environment claim relies on a series of
separate acts that collectively are so severe and offensive that
they alter the conditions of plaintiff’s employment.
Williams
v. Modly, 796 Fed. App’x 378, 380-81 (9th Cir. 2020) (citing
Nat’l Ry. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.
Ct. 2061, 153 L. Ed. 2d 106 (2002)).
“Not every insult or
harassing comment will constitute a hostile work environment.”
Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000).
The work
environment must be both subjectively and objectively perceived
as abusive.
Campbell, 892 F.3d at 1016-17.
A court considers
all the circumstances, including “the frequency of the
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.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 23,
114 S. Ct. 367, 371, 126 L. Ed. 2d 295 (1993).
The information Botelho provided regarding the alleged
hostile work environment is mild and vague at best.
For
instance, during his deposition, Botelho testified that he was
treated differently after his demotion (which occurred in 2004)
and his sexual harassment claim (which occurred in 2005).
20
See
Def. Ex. 1.
Botelho described managers who did not speak to
him, colleagues whose attitudes changed toward him, and not
receiving duty assignments.
Id.
But as discussed supra, such
incidents are time-barred as they were not timely raised to an
EEO contact.
Botelho also argues that his use of FMLA was
investigated “without going through proper official channels.”
Opp. at 20.
Botelho does not explain how the action contributed
to a hostile work environment.
In his Opposition, Botelho
attaches but does not reference the deposition of Kathie
Kaopuiki-Nestrick, in which she says that she did not have “the
authority to ask any airline for a manifest” but instead had to
call the Missions Operations Center (“MOC”).
See Pl. Ex. 1.
Botelho’s counsel did raise the foregoing deposition testimony
at the hearing.
Ms. Kaopuiki-Nestrick did not contact the MOC
regarding the Botelho investigation.
Id.
As the government points out, Botelho was legitimately
suspected of misusing FMLA, so his use of FMLA was investigated.
Mot. at 23.
Over a year later, a large portion of which Botelho
failed to report to work, Botelho was terminated (1) due to his
admitted inability to maintain a full-time work schedule,
including being AWOL for about six weeks, and (2) as well as due
to his unprofessional conduct, including wrongful use of FMLA.
Id. at 23-24; see Def. Ex. 8, 9.
21
Such an investigation cannot
be the basis for a hostile work environment claim.
See Surrell,
518 F.3d at 1108 (9th Cir. 2008) (finding no hostile work
environment based on comments that “were all performance
related” without a showing that any protected status was
involved).
Considering the totality of the circumstances, the
acts raised by Botelho were not so serious or pervasive as to
alter the conditions of Botelho’s employment.
See Jura v. Cty.
of Maui, Civ. No. 11-00338 SOM/RLP, 2012 WL 5187845, at *7 (D.
Haw. Oct. 17, 2012) (“Title VII is not a general civility code
for the American workplace.”) (internal citation and quotation
marks omitted); Succar v. Dade Cty. Sch. Bd., 229 F.3d 1343,
1345 (11th Cir. 2000) (stating that “[p]ersonal animosity is not
the equivalent of sex [or race] discrimination,” and that a
plaintiff “cannot turn a personal feud into a sex [or race]
discrimination case.”).
There is no genuine issue of material
fact as to whether a hostile environment existed here.
CONCLUSION
For the reasons discussed above, the Court GRANTS
Defendant Mayorkas’s Motion for Summary Judgment, ECF No. 63.
There being no remaining claims in this case, the Clerk’s Office
is DIRECTED to enter judgment and close this case.
22
IT IS SO ORDERED.
DATED:
Honolulu, Hawai`i, September 30, 2021.
________________________________
Alan C. Kay
Sr. United States District Judge
Botelho v. Mayorkas, Civ. No. 18-00032 ACK-WRP, Order Granting Defendant’s
Motion for Summary Judgment (ECF No. 63).
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