BROWN v. MABUS
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT - granting in part and denying in part 41 Motion for Summary Judgment. By JUDGE NANCY TORRESEN. (mnw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
VERNON WILLIAM BROWN,1
RAY MABUS, Secretary of the Navy,
) Docket No. 2:14-cv-426-NT
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
This matter comes before the Court on Defendant Ray Mabus, Secretary of the
Navy’s (the “Navy” or the “Defendant”) motion for partial summary judgment
pursuant to Federal Rule of Civil Procedure 56 as to discrimination claims by former
employee Vernon William Brown in violation of the Rehabilitation Act, 29 U.S.C.
§ 791 et seq. (ECF No. 41). For the reasons stated below, the motion is GRANTED
IN PART and DENIED IN PART.
At the motion to dismiss stage, I interpreted Brown’s Complaint as alleging
that the Navy: (1) subjected him to a hostile work environment; (2) discriminated
against him on the basis of his disability; (3) retaliated against him for seeking Equal
Employment Opportunity (“EEO”) protection; (4) failed to accommodate his
disability; and (5) constructively discharged him. Order on Mot. to Dismiss 2, 10 n.8
The caption in the Complaint identified the Plaintiff as “William Vernon Brown.” Compl. 1
(ECF No. 1). The Plaintiff’s name is “Vernon William Brown.” ECF No. 38-1, at 1.
(ECF No. 12). The Navy has now moved for summary judgment on Brown’s disability
discrimination, failure to accommodate, and constructive discharge claims. Def.’s
Mot. for Partial Summ. J. 29 (ECF No. 41). Brown has responded by clarifying that
he is no longer pursuing his disability discrimination claim—specifically, his claim
that the Navy prohibited him from operating certain vehicles because of his disability.
Pl.’s Opp’n to Def.’s Mot. for Partial Summ. J. 1 (“Pl.’s Opp’n”) (ECF No. 47). The
Navy did not move for summary judgment on Brown’s hostile work environment
claim, and neither party addressed the retaliation claim in their summary judgment
briefing. Thus, I must now evaluate whether the Navy is entitled to summary
judgment on Brown’s failure to accommodate and constructive discharge claims.
Because this motion is resolved on the threshold issues of timeliness and
administrative exhaustion, a cursory recitation of the facts will suffice.
Vernon William Brown was hired by the Navy around 1980 through a program
for “handicapped employees.” Parties’ Joint Statement of Undisputed Material Facts
¶ 12 (“JSF”) (ECF No. 55). He suffered from lead poisoning as a child, which caused
developmental and cognitive difficulties. JSF ¶ 10. Over his thirty-five year career
with the Navy, Brown worked as a pipefitter, motor vehicle operator, and other
miscellaneous positions. See JSF ¶¶ 12-13. Brown worked at the Portsmouth Naval
Shipyard in Kittery, Maine (the “Shipyard”), where the Navy overhauls, repairs, and
modernizes submarines. JSF ¶ 1. The Shipyard also serves as an operations hub for
multiple naval commands. JSF ¶ 1.
The present motion first concerns Brown’s contention that the Navy failed to
reasonably accommodate his disability. Well into Brown’s tenure as a motor vehicle
operator, the Navy began to enforce a particular licensing requirement. See
JSF ¶¶ 30-34. That requirement meant that Brown could no longer operate certain
heavier vehicles that he had long driven at the Shipyard. Brown faults the Navy for
not helping him obtain licensing, or alternatively, misinterpreting its own
regulations. JSF ¶¶ 17-26, 53-54.
This motion also concerns Brown’s claim that he was constructively discharged
due to intolerable working conditions. For example, the record includes evidence that
colleagues verbally tormented Brown on a daily basis, including by calling him a “lead
eater,” encouraging him to sniff the edges of lead-laden windows, and sending
pictures of his teeth to a local radio station offering free dental work for the listener
with “the worst smile.” Richardson Dep. 84:4-25, 86:12-14, 90:18-24 (ECF No. 38-4).
The record also reveals that Brown put in for early retirement in the midst of his
administrative complaints to the Navy’s EEO office about the hostile work
environment and harassment at the Shipyard. JSF ¶¶ 55, 57, 67, 76-77, 79-80.
Summary judgment is only appropriate if the moving party “shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). “A dispute is genuine if ‘the evidence about
the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.’ ” Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting
Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if
it has potential to determine the outcome of the litigation.” Id.
On a motion for summary judgment, the Court construes the record in the light
most favorable to the non-movant and resolves all reasonable inferences in the nonmovant’s favor. Burns v. Johnson, 829 F.3d 1, 4 (1st Cir. 2016). “Thus, ‘to survive
summary judgment a plaintiff is not required to rely only on uncontradicted
evidence.’ ” Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145, 153 (1st Cir.
2009) (quoting Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).
Instead, “[w]here the record contains inconsistencies ‘that favor in some lights the
defendants and in others the plaintiff,’ as long as the ‘plaintiff’s evidence is both
cognizable and sufficiently strong to support a verdict in her favor, the factfinder
must be allowed to determine which version of the facts is most compelling.’ ” Id.
(quoting Calero-Cerezo, 355 F.3d at 19).
“The Rehabilitation Act forbids discrimination on the basis of disability against
otherwise qualified individuals working for an executive agency or a program
receiving federal funds.” Vázquez-Rivera v. Figueroa, 759 F.3d 44, 47 (1st Cir. 2014).
The Act incorporates the procedural provisions found in sections 717 and 706(f)-(k) of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Id. Under those
provisions, an employee seeking to file a discrimination action against the head of an
agency must first file an administrative complaint. Id.
An administrative complaint is both a prerequisite for entry into federal court
and a scope-setting device for the civil action that follows. The civil complaint is
“ ‘limited to the charge filed with the [EEO] and the investigation which can
reasonably be expected to grow out of that charge.’ ” Fantini v. Salem State College,
557 F.3d 22, 27 (1st Cir. 2009) (quoting Powers v. Grinnell Corp., 915 F.2d 34, 37 (1st
Cir. 1990)). In evaluating the relationship between the administrative complaint and
the civil complaint, district courts may “look beyond the four corners of the underlying
administrative charge to consider collateral and alternative bases or acts that would
have been uncovered in a reasonable investigation.” Thornton v. United Parcel Serv.,
Inc., 587 F.3d 27, 32 (1st Cir. 2009).
Once the appropriate administrative body has had the opportunity to
investigate the administrative charge, it sends a notice of final action to the employee,
who may then proceed to federal court. Vázquez-Rivera, 759 F.3d at 47 (citing 42
U.S.C. § 2000e-16(c)). The employee must file his or her civil action within ninety
days of receipt of the notice of final action on the administrative complaint. Id. (citing
42 U.S.C. § 2000e-16(c)); Rivera-Díaz v. Humana Ins. of P.R., Inc., 748 F.3d 387, 390
(1st Cir. 2014). Otherwise, the civil action is time-barred. Rivera-Díaz, 748 F.3d at
Failure to Accommodate
Brown filed a Formal Complaint of Discrimination with the Navy EEO office
on July 19, 2013 (“2013 EEO Complaint”). JSF ¶ 64. In the 2013 EEO Complaint,
Brown alleged that “in or about December 2012,” he was informed he could no longer
operate certain vehicles for the Navy. ECF No. 38-3, at 24. Brown further alleged that
the Navy failed to provide him with reasonable job accommodations that would
enable him to continue to operate vehicles he had previously operated. ECF No. 383, at 24. On November 6, 2013, the Navy EEO office dismissed Brown’s 2013 EEO
Complaint for failure to state a claim and mootness. JSF ¶ 73. On February 7, 2014
Brown filed a “Pre Complaint of Discrimination” with the Navy EEO Office (“2014
Pre-Complaint”), which described a new incident of “hostile activity” and noted that
his requests for accommodation had been “ongoing.” JSF ¶¶ 76-78. It is undisputed
that Brown did not bring suit in federal court within ninety days of the dismissal of
his 2013 EEO Complaint. JSF ¶ 75.
Brown maintains that his failure to accommodate claim is not time-barred
because he “went back to the EEO with new, additional information” by way of the
2014 Pre-Complaint “within the 90-day period.” Pl.’s Opp’n 7. Brown’s only “new”
information with respect to his failure to accommodate claim was that his requests
for such accommodation were “ongoing.” JSF ¶ 78. The ongoing nature of Brown’s
requests for accommodation does not toll his time period for bringing suit in federal
court on his failure to accommodate claim. See Ayala v. Shinseki, 780 F.3d 52, 57 (1st
Cir. 2015); Rivera-Díaz, 748 F.3d at 391; Ziehm v. Radioshack Corp., No. 09-69-P-S,
2010 WL 2079550, at *27 (D. Me. May 22, 2010). Brown’s reasonable accommodation
claim is time-barred because he did not file suit within ninety days of his receipt of
the Navy EEO office’s dismissal of that claim.
As described above, Brown’s 2014 Pre-Complaint contained new allegations
related to his hostile work environment claim. About a month after he filed the 2014
Pre-Complaint, Brown requested early retirement from the Navy. See ECF No. 3812, at 3. Brown followed up on his 2014 Pre-Complaint on May 27, 2014 by filing a
formal complaint of discrimination (“2014 EEO Complaint”), which included facts
describing workplace harassment and a hostile work environment. ECF No. 38-3, at
1-15. The effective date for Brown’s retirement from the Navy was the next day, May
28, 2014. ECF No. 38-12, at 1. The 2014 EEO Complaint did not mention Brown’s
early retirement or connect it in any way to his allegations of workplace harassment.
Approximately two months later, on July 24, 2014, the Navy dismissed Brown’s 2014
EEO Complaint. JSF ¶ 84.
The issue here is whether a plaintiff who exhausted administrative remedies
for a hostile work environment claim, and took early retirement before the
investigating body issued a decision on that charge, also exhausted administrative
remedies for a constructive discharge claim, despite failing to file a new EEO charge
specifically addressing constructive discharge. The Navy argues that Brown’s
constructive discharge claim should be dismissed because he failed to include
allegations regarding his separation from the Navy in his administrative complaint.
Def.’s Mot. for Partial Summ. J. 27. Brown counters that the hostile work
environment claim is identical to the issue of Mr. Brown leaving work. “Leaving work
is a consequence of the hostile work environment.” Pl.’s Opp’n 10. The truth is
somewhere in the middle.
As an initial matter, it is clear that hostile work environment and constructive
discharge are distinct claims that require plaintiffs to prove different elements. See
Green v. Brennan, 136 S. Ct. 1769, 1779 (2016). But the task at hand is not crafting
jury instructions, it is evaluating whether a reasonable investigation into the facts
alleged in Brown’s charge would have revealed the constructive discharge claim.
Here, where Brown’s administrative materials described years of workplace
harassment based on his disability, and he put in for early retirement well before the
Navy EEO issued a determination on his charge, I find that a reasonable
investigation would have uncovered and addressed the lurking constructive
The Navy resists this conclusion by citing out-of-circuit decisions dismissing
constructive discharge claims that were not presented in underlying administrative
charges. Def.’s Mot. for Partial Summ. J. 28 (collecting cases); Def.’s Reply 12 (citing
Terveer v. Billington, 34 F. Supp. 3d 100, 113 (D.C.C. 2014)) (ECF No. 52). These
cases suggest that hard-and-fast rules in this area are elusive, since the court’s task
is to compare the particular administrative charge to the allegations in the complaint,
and determine whether they are reasonably related. So, for example, the fact that a
court found that an EEO charge involving a failure to accommodate was not
sufficiently like or related to the constructive discharge claim that appeared in the
plaintiff’s civil complaint, Cannon v. Paulson, 531 F. Supp. 2d 1, 7 (D.D.C. 2008), does
not answer whether Brown’s administrative charge was sufficiently related to his
constructive discharge claim. See also Diefenderfer v. Peters, No. 08-958Z, 2009 WL
1884419, at *3 (W.D. Wash. June 29, 2009) (“Plaintiff’s EEO claims involved a
reassignment, denied positions, a reprimand, denial to a database and other discrete
acts . . . . Plaintiff’s retaliatory constructive discharge claim presents a different
theory of liability not presented by Plaintiff’s EEO claims.”).
Ideally, Brown’s counsel would have filed a new administrative charge
following Brown’s decision to put in for early retirement, which clearly described his
allegations supporting the constructive discharge theory. But that absence is not fatal
to Brown’s constructive discharge claim, which was a short inferential leap from the
allegations that did appear in his administrative charge. My conclusion would likely
be different if, for example, Brown had only filed administrative charges related to
his failure to accommodate claim, and then added a claim for constructive discharge
in federal court. Cf. Cannon, 531 F. Supp. 2d at 7. But here, where Brown took early
retirement in the midst of allegations of years of workplace hostility, a reasonable
investigation would have delved into the latent constructive discharge claim. I thus
decline to grant summary judgment for Brown’s constructive discharge claim on
failure to exhaust grounds.
For the reasons stated above, I GRANT the Defendant’s motion for summary
judgment with respect to the Plaintiff’s failure to accommodate claim and DENY the
Defendant’s motion for summary judgment with respect to the Plaintiff’s constructive
discharge claim (ECF No. 41).
/s/ Nancy Torresen
United States Chief District Judge
Dated this 14th day of October, 2016.
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