McEvoy vs Mabus

Filing 34

ORDER signed by Judge Benjamin H. Settle granting 12 Motion for Summary Judgment; denying 15 Motion for Partial Summary Judgment.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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EDWARD P. MCEVOY,

CASE NO. C16-5672 BHS

Plaintiff,
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v.
RICHARD V. SPENCER,

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Defendant.

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION
FOR PARTIAL SUMMARY
JUDGMENT

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This matter comes before the Court on the motion for summary judgment of

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Defendant Richard Spencer, Secretary of the United States Navy (“Defendant”), Dkt. 12,

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and Plaintiff Edward McEvoy’s (“McEvoy”) motion for partial summary judgment, Dkt.

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15. The Court has considered the pleadings filed in support of and in opposition to the

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motions and the remainder of the file and hereby rules as follows:

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I.

PROCEDURAL HISTORY

On August 1, 2016, McEvoy filed a complaint against Defendant asserting claims

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for unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title

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VII”), as amended, 42 U.S.C. § 2000e–3(a) and Title II of the Americans with

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Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132, denial of reasonable

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accommodations in violation of the ADA, violation of the First Amendment, violation of

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the Fifth Amendment, and breach of a settlement agreement. Dkt. 1.

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On November 21, 2017, Defendant filed a motion for summary judgment on all of

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McEvoy’s claims. Dkt. 15. On November 29, 2017, McEvoy filed a 53-page motion for

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partial summary judgment on liability for his retaliation claims. Dkt. 15.

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On December 15, 2017, Defendant filed a reply to its motion noting that McEvoy

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failed to respond to the motion. Dkt. 20. On December 18, 2017, McEvoy filed a 28-

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page untimely response. Dkt. 22. On December 19, 2017, McEvoy filed a second

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untimely response. Dkt. 24. Later that day, Defendant filed a surreply requesting that the

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Court strike McEvoy’s untimely responses. Dkt. 26. On December 21, 2017, McEvoy’s

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attorney filed a declaration asserting that the untimely filing was due to a calendaring

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error in his office and requesting that the Court accept the late responses. Dkt. 27.

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On December 26, 2017, Defendant responded to McEvoy’s motion. Dkt. 28. On

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December 28, 2017, McEvoy replied and submitted additional evidence in support of his

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motion. Dkts. 29, 30.

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II. FACTUAL BACKGROUND

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The Navy hired McEvoy in December 2005 as a Work Control Assistant at the

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Naval Facilities Engineering Command, Northwest, (“NAVFAC NW”), in the Public

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Works Department (“PWD”). Dkt. 13-1 at 33–34. The mission of the PWD is facility

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maintenance, repair, construction, and engineering services for all military tenants

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located on the Naval Base Kitsap (“NBK”) in Kitsap County, Washington, which

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includes Naval Base Kitsap Bangor (“NBK Bangor”), Naval Base Kitsap Bremerton

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(“NBK Bremerton”), and Naval Base Kitsap, Keyport. Initially, McEvoy worked in NBK

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Bremerton. Id. at 33.

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Problems arose almost immediately. In 2006, one of McEvoy’s supervisors,

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Robert Fojtik, terminated McEvoy for performance reasons. Dkt. 15 at 2. McEvoy filed

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a complaint with the Equal Employment Opportunity (“EEO”) office. The parties

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resolved the complaint with a settlement resulting in Defendant reinstating McEvoy.

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This pattern continued over the next eight years with McEvoy filing “between 10 and 14

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EEO complaints, alleging that he was being subjected to discrimination and retaliatory

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harassment because of his EEO activity.” Dkt. 15 at 11.

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On August 13, 2014, the parties entered into another settlement agreement to

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resolve three pending EEO complaints. Dkt. 1-1. Under the terms of the agreement,

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McEvoy’s 14-day suspension was reduced to ten working days, and the temporary detail

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at Bangor was extended until he was permanently reassigned on April 19, 2015. Id.

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After his reassignment, Joshua Bass (“Bass”) became McEvoy’s first-level supervisor

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and Lieutenant Commander (“LCDR”) Ross Pitcairn became McEvoy’s second-level

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supervisor. Dkt. 13-9 at 2–3. The Navy intended the move to provide McEvoy with a

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“fresh start.” Dkt. 13-2 at 19–20.

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On September 16, 2014, McEvoy’s temporary supervisor, Commander Michael

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Leonard, placed the new suspension notice on McEvoy’s work chair, with a red folder.

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McEvoy filed an EEO complaint alleging that this was retaliatory.

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In November of 2014, Defendant appointed Glen Miller to investigate McEvoy’s
claims of retaliation from his previous chain of command. McEvoy refused to participate

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in the investigation and asserted that continuing the investigation after the settlement was

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retaliatory. McEvoy filed another EEO complaint based on this alleged retaliation.

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In January of 2015, McEvoy and thirteen other employees sent a letter to Senator

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Patty Murry detailing alleged retaliation and discrimination on the Naval Base. Senator

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Murray sent a letter to the Navy requesting a response. On March 12, 2015, the Navy

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responded assuring Senator Murray that all employees had access to numerous

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administrative agencies to address and investigate any retaliation or discrimination. Dkt.

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15-6.

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In May 2015, McEvoy posted numerous comments about the Navy on his social

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media accounts. For example, McEvoy asserted that he and his coworkers were

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experiencing constant discrimination and retaliation, that his commanders were part of

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the “biggest mafia in the world,” and that they even had tried to kill him. Dkt. 13-5 at 36,

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38, 40.

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In late May 2015, McEvoy had an anxiety attack at work. Bass refused to allow

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McEvoy to go to the base infirmary under the mistaken assumption that the infirmary was

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only for active duty personnel on the base. McEvoy left work, went straight to his

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doctor, and then returned to work on June 8, 2015. When McEvoy returned to work,

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Bass delivered a letter of reprimand to McEvoy for leaving the base without permission

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from his supervisor.

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On August 5, 2015, LCDR Pitcairn issued McEvoy a proposed removal. Dkt. 13-

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5 at 8–15. The notice was based on one charge of disrespectful conduct with five

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specifications, which are separate incidents. Id. On August 28, 2015, McEvoy

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responded arguing that the allegations violated his constitutional rights, federal laws, and

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amounted to unlawful retaliation for his numerous EEO complaints. Dkt. 15-2 at 2–7.

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On September 9, 2015, LCDR Pitcairn issued a new proposed removal, which rescinded

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the original notice. Dkt. 13-5 at 2–7. The notice included one charge of unacceptable

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conduct with eight specifications and one charge of insolent language with six

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specifications. Id. In relevant part, the notice provides as follows:

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Charge I: Unacceptable Conduct

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Specification 1: On Monday, 08 June 2015, at building 1101, NA VF AC
NW, Bangor, WA, you were directed by two female Navy Region
Northwest Master at Arms (MAAs) to present your Common Access Card
(CAC) and your bag for random inspection. After being told by the MAA’s
that they were conducting a Random Anti-Terrorism Measure (RAM)
directed by the Naval Base Kitsap Commanding Officer, you demanded to
know what their probable cause was; moved into their personal space,
hovering over their clipboard with your arms crossed; stated “make it
quick, I have a meeting in three (3) mikes, I don’t have time for rookies”;
stated that you were “doing their jobs since before they were born” and not
to tell you “how to do your job,” or words to that effect; and when the
random inspection was completed stated to MA2 Walz “good girl.”

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Specification 2: On 7 May 2015 you utilized the social media account
Twitter and made the following statement concerning NAVFAC NW
employee Lisa Evans: “NAVFAC NW Legal L. Evans & PRI/ATT. C.
Johnson illegal deals behind clients back.” At the time, Lisa Evans was
employed at NA VFAC NW in the Office of Counsel.

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Specification 3: On 7 May 2015 you utilized the social media account
Twitter and made the following statements concerning NAVFAC NW:
“NAVFAC NW CMD/UNION/HRJEEO all corrupt in my experience and
opinion. Fed Employees & Veterans being discriminated/retaliated & WA.
DC condones.”

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Specification 4: On 7 May 2015 you utilized the social media account
Twitter and made the following statements concerning NAVFAC NW:
“Anyone surprised? Veterans being discriminated from NAVFAC NW, and
GOV. ignores our pleas for help. Corruption HI!!.”

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Specification 5: On 24 May 2015 you utilized the social media account
Facebook and posted statements concerning NAVFAC NW. stating in part:
“… the Civilian/Navy NAVFAC NW /Shipyard NAVAL Officers are
attacking us . . . these Navy Officers, and civilian Human Resources/EEO
counselors and the Union are all Corrupt, and in collusion with each other
to harm us, and fire us. It’s getting this crazy. I have heard the same thing
happened to a Civil service worker who was abused so bad he came back
and shot up the Naval Shipyard in Washington D.C . . . you don’t know
who will crack under this NAVY ‘ABUSE OF AUTHORITY.”

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Specification 6: Between 26 May 2015 and 28 May 20 J 5, you utilized the
social .media account Facebook and posted statements concerning
NAVFAC NW stating in part: “. . . I will die fight (sic) for our rights . . .
We are fighting the biggest mafia in the world. My own Government . . .
had several formal discrimination charges against my Naval Command, &
coincidently was about to receive a decision, & all of a sudden I was
involved in. A hit and run where someone attempting to kill me ... our local
NAVFAC NW NAVY may have attempted to take me out of the picture . .
. I’m living proof of the threats & others have had their lives threatened . . .
The Government NAVFAC NW may have attempted murder to me.”
Specification 7: On 18 June 2015, you spoke at a public forum sponsored
by the Kitsap Chapter of Blacks in Government. The forum was held at the
Norm Dicks Government Center in Bremerton WA. In the presence of
approximately twenty-five (25) people you identified that you currently
work for Naval Facilities Engineering Command and stated in part: “. . . I
don’t believe in coincidences, however, I was leaving a gentlemen’s, he’s
sitting in the audience; house, on my new motorcycle and was involved in a
hit and run. I almost died; was in critical condition. Two days after that
those 2 EEOs formals–that were completely investigated–were dismissed
by summary judgment. I’m not sure of the details of what that means but
like I said, I don’t believe in coincidences. It’s been said to me that but it
didn't cross my mind until it was brought to my attention that some people
said that, because I was rocking the boat, in layman’s terms per se at such a
high level . . . all the way to Washington DC . . . some people suggested
that they were . . . trying to take me out. I didn’t want to believe that but the
reality of it is, it may exist. I’m still here; I’m still filing.” This event was
recorded by Bremerton Kitsap Access Television (BKAT), available for
download on the BKAT’s website for several days and was aired on public
television on BKAT’S channel on Friday, 26 June and Sunday, 05 July
2015.

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Specification 8: The morning of 26 June 2015, your supervisor, Josh Bass,
was having a discussion with you regarding your efforts to overcome
obstacles to completing some job tasks. You explained why you had been
having some computer issues. The conversation was professional and civil,
and then you stated "I know people are worried about how I react to
different things, but I’m not an engineer like Timothy McVeigh who blew
up the Federal Building in Oklahoma City.” This was not relevant to the
discussion. Your supervisor was surprised at this topic and you followed on
by saying something like: “What I’m saying is that I’d be more concerned
with engineers who can think like McVeigh, as opposed to someone like
me who just has a background in math.”

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Charge II: Insolent Language

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Specification 1: On 19 May 2015, at 6:28 a.m. you utilized a government
computer to send an e-mail to Joshua Bass, your immediate supervisor;
Leonard Schilling, Deputy Public Works Officer NAVFAC NW, your third
level supervisor; CDR Michael Leonard. Public Works Officer NAVFAC
NW; CDR Michael Kenney, Executive Officer NAVFAV NW; CAPT
Mark Geronime, Commander NAVFAC NW; RADM Katherine Gregory,
Commander NAVFAC; Ray Mabus, Secretary of the Navy; ADM Jonathan
Oreenert, CNO; and [e-mail]; copying John
Andrews, your personal attorney; Hata Tomoyuki. OSC; Senator Murray;
Kevin Evans, NAVFAC NW employee; Stephen Miller, IAM&AW NonProfessional Union Chairman; Ed O’Neil, (presumably) an aide in Senator
Murray’s office; Ray Kasper, Inspector General NAVFAC NW;
[e-mail]; and [e-mail], stating in part:
“. . . NAVFAC NW egocentric management still appear (sic) to think you
are all above the law, and the rules of protections in place for the Federal
employee . . . I will also charge you, and all involved for harassment,
intimidation, retaliation . . . and shall face severe legal charges, and all who
received this email in the NAVFAC NW chain of Command for allowing
these adverse acts to occur.”

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Specification 2: On 22 May 2015 at 7:24, you utilized a government
computer to send an e-mail to Stephen Miller, IAM&AW Non-Professional
Union Chairman; Lisa Ellingboe, Human Resources Specialist NAVFAC
NW; Joshua Bass, your immediate supervisor; John Andrews your personal
attorney; Jennifer Herbig, Director Human Resources NAVFAC NW;
Leonard Schilling, Deputy Public Works Officer NAVFAC NW, your third
level supervisor; CDR Michael Leonard, Public Works Officer NAVFAC
NW; CDR Michael Kenney, Executive Officer NAVFAC NW; CAPT
Mark Geronime, Commander NAVFAC NW; RADM Katherine Gregory,

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Commander NAVFAC; Ray Mabus, Secretary of the Navy;
[e-mail]; [e-mail];
[e-mail]; Judy Conlow, OGC NAVFAC NW; Lisa
Evans. OGC NAVFAC NW; Hata, Tomoyuki, OSC; stating in part; “. . .
This is direct proof of Mr. Bass and all involved again are trying to set me
up for another false adverse action to cover up their prohibited Personnel
practices. I will not deal with intentional corrupt federal personnel . . . I
have caught them intentionally violating so many Federal employees’
rights. It shall come out in a Court room Venue.”
Specification 3: On 08 June 2015 at 9:20 a.m., you utilized a government
computer to send an e-mail to Joshua Bass, your supervisor; Leonard
Schilling, Deputy Public Works Officer, your third level supervisor; CDR
Michael Leonard, Public Works Officer NAVF AC NW; CDR Michael
Kenney, Executive Officer NAVFAV NW; CAPT Mark Geronime,
Commander NAVFAC NW; and RADM Katherine Gregory, Commander
NAVFAC. You copied LCDR William (Ross) Pitcairn, your second level
supervisor; John Andrews, your personal attorney; Stephen Miller,
IAM&AW Non-Professional Union Chairman; Robert Westbrook,
IAM&AW Business Manager; and Kevin Kirkpatrick, Deputy EEO
NAVFAC NW; stating in part: “. . . It’s not the job, in fact it’s you Josh
Bass . . . you and LCDR Pitcairn to include the whole NAVFAC NW
command knowingly set me up, and violated my rights . . . With as much
respect as I can provide, I am saddened to see what intentional mean people
like you and this command abuse the rule of law by direct
retaliation/intimidation.”

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Specification 4: On 25 June 2015 at 10:33 a.m., you utilized your
government computer to send an e-mail to Joshua Bass, your supervisor
and LCDR William (Ross) Pitcairn, your second level supervisor, stating in
part: “. . . please communicate to Mr. Ross pit corn that I would not like
another retaliatory adverse action without reasonableness, or consideration
of my serious illness please.” (Emphasis added).
Specification 5: On 06 July 2015 at 8:49 a.m., you utilized a government
computer to send an e-mail to CAPT Mark Geronime, Commanding
Officer NAVFAC NW, stating in part: “. . . so many times I have reached
out for you to nip this in the bud per–say you ignored me, and continued to
allow the disparate treatment to go on against me, and you again
vicariously all this recidivist attack on my person both career, and character
. . . any reasonable Commander, or person would at least meet me half way
. . . Again any reasonable Boss/Company, and Command would go the
extra mile to help an older disabled veteran. You and all NAVFAC NW

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Command to include Human resources, EEO, civilian management, and
navy officers have intentionally degraded me . . . I am fully aware of the
intent of NAVFAC NW, and how ever bi (sic) the disparate treatment, and
corrupt cronyism goes is beyond my understanding . . . the fact that I stand
up against your tyranny, and intentional abuse of authority to harm om own
patriots is disgraceful, and liable . . . And I can’t believe you sleep knowing
your hurting your own people . . . Thank you again for at a minimum a
response. Now I’m 100% sure of the disparate treatment is with
premeditation, and intent to discredit a Veteran.”

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Specification 6: On 05 August 2015, a meeting was held; in attendance
were you; Lisa Ellingboe, Human Resources Advisor; George Karl, your
witness; Steve Miller, IAM&AW Non–Professional Union Chairman; and
your second level supervisor LCDR William (Ross) Pitcairn. During that
meeting you referred to LCDR Pitcairn, as “Mr. Pit corn.”

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Id.
The proposed removal also provided that any response should be sent to the

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Deciding Official, Charles Monie, Acting Deputy Public Works Officer. On September

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25, 2015, McEvoy responded arguing that the removal would violate his constitutional

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rights, other federal rights, and amounted to unlawful retaliation for his numerous EEO

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complaints. Dkt. 15-3 at 2–13.

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On November 30, 2015, Mr. Monie issued his decision on the proposed removal.

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Mr. Monie concluded that the action should be sustained as proposed. Dkt. 13-7. In

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addition to his analysis of the factors to be considered when determining the

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appropriateness of a penalty, Mr. Monie commented that

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Mr. McEvoy’s disrespectful conduct towards security personnel,
reckless and disparaging public comments concerning the agency,
disturbing comments concerning workplace violence, and his insolent and
disrespectful language targeted at management have all adversely impacted
the efficiency of the agency and warranted his removal from federal
service.

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Id. at 6. As a result, the Navy terminated McEvoy effective December 6, 2015. Dkt. 13-

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6 at 2.

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McEvoy timely appealed the termination to the Merit Systems Protection Board

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(“MSPB”). On March 7 and 8, 2016, Administrative Law Judge Richard Slizeski held a

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hearing via videoconference. Id. On September 21, 2016, Judge Slizeski affirmed the

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action in a written decision. Id. Relevant to the instant complaint, Judge Slizeski

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considered McEvoy’s claims that his termination was retaliation for his EEO complaint

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and concluded that McEvoy “failed to prove by preponderant evidence his affirmative

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defense of retaliation based on prior protected EEO activity.” Id. at 42. Judge Slizeski

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ultimately concluded as follows:
Preponderant evidence shows and I find that the deciding official
considered the relevant factors and exercised his discretion within the
tolerable limits of reasonableness. Under the circumstances, I cannot find
that the agency’s choice of penalty was so excessive as to be an abuse of
discretion or that it exceeds the maximum reasonable penalty. Accordingly,
I affirm the agency’s action.

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Id. at 51.
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III. DISCUSSION
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Defendant moves for summary judgment on all of McEvoy’s claims, and McEvoy
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moves for summary judgment on his claim for retaliation and discrimination. In his
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response, McEvoy concedes his reasonable accommodation claim and breach of contract
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claim. Dkt. 22 at 27–28.
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Regarding Defendant’s motions to strike McEvoy’s untimely response and
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overlength brief, the Court agrees that both pleadings violate the local rules of procedure.
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While an accidental mistake in calendaring the proper response date is excusable, the

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intentional decision to file a motion that is over twice the allowed length is not excusable.

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Upon review of the motion, however, the argument section is only sixteen pages. See

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Dkt. 15 at 36–53. The Court finds that reviewing this portion of the motion is not

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prejudicial. To the extent McEvoy takes issue with the Court not considering the other

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pages of his brief, any fact that is material to his position should have been specifically

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cited in his argument section. Therefore, the Court will consider McEvoy’s untimely

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response and a portion of McEvoy’s overlength motion.

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Regarding McEvoy’s first amendment and due process claims, Defendant argues

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that it is protected by sovereign immunity. Dkt. 12 at 12, 20. McEvoy contends that

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Judge Slizeski waived Defendant’s immunity by stating that McEvoy “may file a civil

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action against the agency on both your discrimination claims and your other claims in an

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appropriate United States district court.” Dkt. 22 at 11–12 (citing Dkt. 13-6 at 56).

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McEvoy has failed to show that this is an express waiver of sovereign immunity by the

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Navy, which “is a prerequisite for jurisdiction.” Clemente v. United States, 766 F.2d

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1358, 1363 (9th Cir. 1985). Therefore, the Court dismisses McEvoy’s constitutional

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claims for lack of jurisdiction.

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McEvoy’s remaining claims are for retaliation and hostile work environment in

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violation of federal statutes. The Court will address the merits of these claims.

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A.

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Summary Judgment Standard
Summary judgment is proper only if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any material

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fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

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The moving party is entitled to judgment as a matter of law when the nonmoving party

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fails to make a sufficient showing on an essential element of a claim in the case on which

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the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

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323 (1986). There is no genuine issue of fact for trial where the record, taken as a whole,

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could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec.

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Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must

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present specific, significant probative evidence, not simply “some metaphysical doubt”).

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See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists

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if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or

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jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477

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U.S. 242, 253 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d

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626, 630 (9th Cir. 1987).

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The determination of the existence of a material fact is often a close question. The

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Court must consider the substantive evidentiary burden that the nonmoving party must

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meet at trial – e.g., a preponderance of the evidence in most civil cases. Anderson, 477

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U.S. at 254; T.W. Elec. Serv., Inc., 809 F.2d at 630. The Court must resolve any factual

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issues of controversy in favor of the nonmoving party only when the facts specifically

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attested by that party contradict facts specifically attested by the moving party. The

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nonmoving party may not merely state that it will discredit the moving party’s evidence

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at trial, in the hopes that evidence can be developed at trial to support the claim. T.W.

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Elec. Serv., Inc., 809 F.2d at 630 (relying on Anderson, 477 U.S. at 255). Conclusory,

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nonspecific statements in affidavits are not sufficient, and missing facts will not be

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presumed. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888-89 (1990).

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B.

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Retaliation
To establish a prima facie claim of retaliation, a plaintiff must prove that (1) the

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plaintiff engaged in a protected activity, (2) the plaintiff suffered an adverse employment

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action, and (3) there was a causal link between the plaintiff’s protected activity and the

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adverse employment action. Villiarimo v. Aloha Is. Air, Inc., 281 F.3d 1054, 1064 (9th

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Cir. 2002) (Title VII); Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th

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Cir. 2004) (ADA). Under both Title VII and the ADA, “the standard for the ‘causal link’

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is but-for causation.” T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d

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451, 473 (9th Cir. 2015). “This requires proof that the unlawful retaliation would not

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have occurred in the absence of the alleged wrongful action or actions of the

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[defendant].” Univ. of Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 133 S.Ct. 2517,

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2533 (2013); see also Gallagher v. San Diego Unified Port Dist., 668 Fed. Appx. 786

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(9th Cir. 2016) (“Gallagher’s evidence does not show that retaliation was the cause of the

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non-renewal of his anchorage permit, as the but-for test requires.”); Brenneise, 806 F.3d

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at 473 (“there were many plausible explanations why the district may have [committed

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the alleged adverse action]. Retaliation was not one of them.”).

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In this case, McEvoy identifies four adverse employment actions. First, McEvoy

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contends that Mr. Leonard placing the suspension notice on McEvoy’s work chair in a

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red folder was an adverse employment action. Dkt. 22 at 14–15. Defendant contends

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that this act is not an adverse action. An action is adverse “if it is reasonably likely to

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deter employees from engaging in protected activity.” Ray v. Henderson, 217 F.3d 1234,

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1243 (9th Cir. 2000). Other than McEvoy’s self-serving argument that the placement of

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the notice was “a petulant message designed to warn McEvoy against filing any more

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EEO claims,” Dkt. 22 at 15, McEvoy submits no evidence that such delivery of a notice

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would deter a reasonable employee from filing EEO complaints. In other words, if any

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harm resulted, the harm was at most merely “trivial,” instead of “materially adverse.”

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Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“We speak of

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material adversity because we believe it is important to separate significant from trivial

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harms.”). Moreover, McEvoy fails to submit any evidence that his prior activity was the

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cause of his new supervisor’s decision to place the notice on McEvoy’s chair in a red

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folder. Gallagher, 668 Fed. Appx. at 786. In light of these two failures, McEvoy fails to

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establish that any reasonable juror could conclude that Mr. Leonard’s action supports a

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retaliation claim. Therefore, the Court grants Defendant’s motion on McEvoy’s

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retaliation claim on this basis.

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Second, McEvoy asserts that the multiple investigations by his superiors were

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adverse actions. Dkt. 22 at 15–16. On this issue, McEvoy would have his cake and eat it

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as well. McEvoy personally sent emails and supported at least one letter to Senator

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Murray containing allegations of unlawful discrimination and retaliation in the workplace

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and then, when his supervisors conducted investigations into the allegations, he alleges

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that the investigations are retaliatory. At the very least, he has failed to show that EEO

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activity was the but-for cause of the investigations when he personally requested

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additional investigations in the workplace. He also fails to show that any investigation

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concerning his EEO complaints was adverse as opposed to an attempt to substantiate his

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own allegations. Therefore, the Court grants Defendant’s motion on McEvoy’s

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retaliation claim on this basis because McEvoy fails to establish that any reasonable juror

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could conclude that Defendant’s investigations were retaliatory.

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Third, McEvoy asserts that Bass’s June 8, 2015 letter of caution was an adverse

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employment action. Dkt. 22 at 16–17. Defendants contend that McEvoy fails to

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establish a causal connection because McEvoy did not file an EEO complaint against

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Bass until June 29, 2015. Dkt. 12 at 18–19. McEvoy responds that the action was still

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retaliation because other employees had previously engaged in the protective activity of

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filing EEO complaints against Bass. Dkt. 22 at 17. In other words, McEvoy implicitly

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concedes that there is no but-for causation between any of his protective activity and an

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adverse action by Defendant. Therefore, the Court grants Defendant’s motion on

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McEvoy’s retaliation claim on this basis.

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Finally, McEvoy asserts that his termination was a retaliatory adverse employment

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action. Dkt. 22 at 17–24. While the Court agrees with McEvoy that termination is an

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adverse action, he fails to show that his EEO complaint was the but-for cause of the

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termination. The record is replete with findings and conclusions by independent decision

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makers that the termination was because of McEvoy’s own actions. Even under the more

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liberal “motivating factor” test, Judge Slizeski found that McEvoy had failed to prove

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retaliation was a factor for the termination. Now, under the higher burden of but-for

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causation, McEvoy also fails to establish a prima facie case of termination because of

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retaliation. 1 In other words, there exists many plausible reasons for McEvoy’s

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termination, and “[r]etaliation is not one of them.” Brenneise, 806 F.3d at 473.

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Therefore, the Court grants Defendant’s motion on McEvoy’s retaliation claims because

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no reasonable juror would find for McEvoy.

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C.

Hostile Work Environment

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To prove that a hostile work environment existed, a plaintiff must show that: (1)

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he was subjected harassment, (2) this conduct was unwelcome, and (3) the conduct was

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“sufficiently severe or pervasive to alter the conditions of the victim’s employment and

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create an abusive working environment.” Fuller v. City of Oakland, Cal., 47 F.3d 1522,

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1527 (9th Cir. 1995), as amended (Apr. 24, 1995).
In this case, McEvoy asserts that he was subjected to a hostile work environment

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because Bass kept a supervisor’s journal and kept McEvoy under a heightened level of

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scrutiny. Dkt. 22 at 15. Defendant argues that McEvoy’s claim fails because McEvoy

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has failed to show any conduct that is “both objectively and subjectively offensive.” Dkt.

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12 at 16 (citing Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir. 2000)). The Court

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agrees. McEvoy fails to show that keeping a journal of interactions with an employee is

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offensive in any manner. Moreover, McEvoy has failed to show that receiving one letter

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of reprimand is severe and pervasive conduct that alters the conditions of his

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employment. Therefore, the Court grants Defendant’s motion on McEvoy’s hostile work

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environment claim.

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McEvoy’s response is based on the motivating factor test. See Dkt. 22 at 17.

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IV. ORDER

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Therefore, it is hereby ORDERED that Defendant’s motion for summary

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judgment (Dkt. 12) is GRANTED and McEvoy’s motion for partial summary judgment

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(Dkt. 15) is DENIED. The Clerk is directed to enter JUDGMENT for Defendant and

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close this case.

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Dated this 20th day of February, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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