United States District Court, D. Hawaii
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
For Shannon Wigent, Plaintiff: Roman F. Amaguin, LEAD ATTORNEY, Law Office of Roman Amaguin, Honolulu, HI.
For Science Applications International Corp., Defendant: Christian P. Gray, Louise K.Y. Ing, LEAD ATTORNEYS, Alston Hunt Floyd & Ing, Honolulu, HI.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Alan C. Kay, Senior United States District Judge.
On February 7, 2013, Plaintiff Shannon Wigent (" Plaintiff" ) filed a Complaint against Science Applications International Corporation, now known as Leidos Holdings, Inc. (" Leidos" or " Defendant" ), in the Circuit Court of the First Circuit, State of Hawaii. (Doc. No. 1 (" Notice of Removal" ) Ex. A.) On March 13, 2013, Leidos removed the case to this Court pursuant to 28 U.S.C. § § 1332 and 1441. (Notice of Removal at ¶ 4.) On March 20, 2013, Leidos filed an Answer to Plaintiff's Complaint. (Doc. No. 5.)
Plaintiff's Complaint pleads claims arising out of her termination of employment from Leidos. Plaintiff's first claim alleges that Leidos discriminated against her on the basis of her marital status in violation of Hawaii Revised Statute (" H.R.S." ) § 378-2(1). (Compl. at ¶ ¶ 31-36.) Plaintiff also brings retaliation claims, pursuant to H.R.S. 378-2(2). (Id. at ¶ ¶ 37-40, 42-46.)
Leidos filed the instant Motion for Summary Judgment (" Motion" or " Mot." ) along with a Concise Statement of Facts (" Def.'s CSF" ) on February 18, 2014, seeking summary judgment as to all the claims asserted by Plaintiff. (Doc. Nos. 48-49.) On February 20, 2014, Leidos filed an Errata in order to correct Exhibit 1 of its Concise Statement of Facts. (Doc. No. 51.) In the original Exhibit 1, Leidos omitted the first half of Exhibit 1 and uploaded the second half twice. (Id.) A complete copy of Exhibit 1 is attached to the Errata. (Id.) On March 26, 2014, Plaintiff filed her Opposition to Defendant's Motion (" Opp." ) along with a Concise Statement of Facts (" Pl.'s
CSF" ). (Doc. Nos. 54-55.) Leidos filed a Reply (" Reply" ) on April 7, 2014. (Doc. No. 57.) Also on April 7, 2014, Leidos filed objections and a response to Plaintiff's Concise Statement of Facts (" Def.'s Obj.'s" ). (Doc. No. 58.)
The Court held a hearing regarding Defendant's Motion on April 21, 2014. (Doc. No. 62.)
A. Background on Leidos, Formerly Known as SAIC
Prior to September 27, 2013, Leidos was known as Science Applications International Corporation (" SAIC" ). (Def.'s CSF at 2, ¶ 1; Pl.'s CSF at 1, ¶ 1.) The original SAIC was a scientific, engineering and technology applications company that served commercial and government customers. (Id.) On September 27, 2013, SAIC changed its name to Leidos and spun off a separate new corporation, which kept the name SAIC. (Declaration of Jim Murray (" Murray Decl." ) ¶ 5.) The divisions which Plaintiff and her husband (collectively " the Wigents" ) worked for remained under Leidos. (Id.)
In 2002, Leidos  was awarded a federal government contract, the Maritime Synthetic Range (" MSR" ), to be integrated on the island of Kauai, State of Hawaii. (Def.'s CSF at 3, ¶ 3; Pl.'s CSF at 1, ¶ 3.) In 2005, as a follow-up to the MSR program, the Pacific Region Integrated Test and Evaluation Capability (" PRITEC" ) program was awarded to Leidos. (Def.'s CSF at 3, ¶ 4; Pl.'s CSF at 1, ¶ 4.) The PRITEC project lasted for several years and ended in 2011 when federal funding ceased. (Id.)
B. Plaintiff and Her Husband Begin Working at Leidos
Leidos hired Plaintiff as a Systems Engineer in October 2001. (Def.'s CSF Ex. 1 (" Pl.'s Dep." ) 20:10-23.) Plaintiff began working at the company's Virginia office. (Id.) In March 2002, Plaintiff was transferred to Kauai to help implement the MSR program. (Def.'s CSF at 3, ¶ 5; Pl.'s CSF at 1, ¶ 5.)
Leidos hired Plaintiff's husband, Mark Wigent (" Mark" ), in February 2002, also as a Systems Engineer to help implement a separate program located on Kauai. (Pl.'s Dep. 27:8-16.) On March 16, 2002, Leidos relocated Plaintiff and her husband from Virginia to Kauai. (Def.'s CSF at 3, ¶ 7; Pl.'s CSF at 1, ¶ 7.)
Plaintiff concedes that her husband was initially hired to implement a separate program on Kauai. (Pl.'s Dep. 27:8-16.) Plaintiff asserts, however, that by November 2002, both her and her husband had started working on the MSR program. (Decl. of Pl. ¶ 8.) Leidos contends that the Wigents only began working on the MSR
program together in late 2004. (Def.'s CSF at 4, ¶ 9.)
C. SH-2 Policy Adopted
In 2004, Leidos adopted Staffing Policy SH-2 (" SH-2" ). (Id. at 3, ¶ 8; Pl.'s CSF at 1, ¶ 8.) The purpose of SH-2 is to
[e]nsure that a supervisor or manager does not have closely related individuals (such as a spouse, domestic partner, person involved in a dating relationship, children, stepchildren, parents, in-laws, or siblings) under his or her direct or indirect supervision in order to prevent potential conflicts of interest and/or allegations of favoritism or sexual harassment.
(Pl.'s Dep. Ex. 2.) Section 3.6.1 of SH-2 defines the terms " direct supervision" and " indirect supervision" as follows:
Direct supervision Includes any of the following responsibilities: assigning work, conducting performance or salary reviews, approving timecards or expense reports, or making recommendations affecting the person's employment, compensation, or retention.
Indirect supervision Having program management, profit and loss (P& L), or budgetary responsibility for the affected group, business unit, or organization.
D. 2005 Assessment
In late 2004, Plaintiff was working with the MSR program under division 1548, and Mark, under division 1805, became the Program Manager (" PM" ) for the MSR program. (Def.'s CSF at 4, ¶ 9; Pl.'s CSF at 1, ¶ 9.) As the PM, Mark's responsibilities included managing the people assigned to the MSR, interfacing with the customer, ensuring customer satisfaction, and ensuring the program remained within budget and on schedule. (Id.)
Mark's supervisor, Steven Karwoski, in late 2004 raised the issue of whether the working relationship between Plaintiff and her husband violated SH-2 because Plaintiff was working on the MSR program while Mark was the Project Manager. (Id.) As a result, in January 2005, an assessment of whether the Wigents' working relationship violated SH-2 was administered. (Def.'s CSF at 4, ¶ 11; Pl.'s CSF at 1, ¶ 11.) The assessment was conducted by Karwoski, Leidos' Human Resources Senior Vice President Marjorie Bailey, and Plaintiff's division supervisor Sam Mudrak. (Decl. of Murray ¶ 13.)
Ultimately, Leidos did not find a violation of SH-2 policy because the Wigents, Karwoski, Bailey, and Mudrak agreed upon a " MSR Organizational Structure" plan in which Plaintiff was to become a program consultant to the MSR program. (Pl.'s Dep. 65:5-66:14 & Ex. 5; Def.'s CSF Exs. 3-4.) Under the MSR Organizational Structure plan, Plaintiff would also not receive work assignments from her husband, and she would work in future program development, rather than current project execution. (Pl.'s Dep. Ex. 5.) Although the Wigents' supervisors and Leidos' Human Resources representative approved the plan, they stated that " [i]f the business circumstances change, we will need to revisit the issue." (Def.'s CSF Exs. 3-4.)
From 2005 to 2008, Plaintiff and her husband continued to work on the same project but in separate divisions and under different management chains. (Def.'s CSF at 4, ¶ 14; Pl.'s CSF at 1, ¶ 14.) During this time, Plaintiff also worked on a project that her husband was not assigned to: the Unmanned Test Bed. (Pl.'s Dep. 39:24-40:9, 56:22-24.)
E. 2008 and 2009 Assessments
In 2007, Plaintiff began working on the PRITEC project where her husband was
the PM. (Def.'s CSF at 5, ¶ 15; Pl.'s CSF at 1, ¶ 15.) On October 29, 2008, Leidos conducted an assessment of Plaintiff and her husband's working relationship. (Pl.'s Dep. Ex. 6; Pl.'s CSF Ex. M.) The assessment report was prepared by Mudrak, Plaintiff's division supervisor, and sent to Iva Heflin (Leidos' Human Resources Manager) and Reed Heddleston (Leidos' Operations Manager). (Id.)
In the October 2008 assessment report, Mudrak found that the Wigents' working relationship did not violate SH-2 because there was no direct or indirect supervisory relationship between Plaintiff and her husband, as defined by SH-2. (Id.) Specifically, Mudrak found that there was no direct supervisory relationship because (1) Plaintiff was a consultant on PRITEC and did " not receive specific tasking or work under direct supervision from Mark" ; (2) Plaintiff's role on PRITEC was, " by its very nature, independent of the program execution work being directed by Mark" ; (3) Mark did " not direct or provide any inputs" to Plaintiff's assignments or reviews; and (4) on all non-PRITEC projects, Plaintiff had no " programmatic link" to the work her husband was doing. (Id.) Mudrak further determined that there was no indirect supervisory relationship because " [w]hile Mark is the PM on PRITEC[,] he has no responsibilities that impact [Plaintiff] within Division 1548. . . All indirect matters regarding [Plaintiff] are dealt with by [Plaintiff's immediate supervisor] or me." (Id.)
Accordingly, Mudrak concluded that there was " no direct supervision and no indirect supervision issues regarding Policy SH-2 that are applicable to the particular situation." (Id.) (emphasis in original.) Mudrak further stated that he " will make certain that position and role assignments in the future are carefully reviewed" in the context of SH-2, prior to any changes to the Wigents' work assignments. (Id.)
On November 30, 2009, Mudrak completed an additional assessment report on whether the Wigents' working relationship violated SH-2. (Def.'s CSF Ex. 5.) The results of the assessment report were sent to Heddleston and Angela Marquez, Leidos' Human Resources Manager. (Id.) For virtually the same reasons as those listed in the 2008 assessment report, Mudrak found that there was no violation of the SH-2 policy because there was no direct or indirect supervisory relationship between Plaintiff and her husband. (Id.)
Consequently, Plaintiff continued to work on PRITEC and another project from 2007 through 2010, both with her husband as PM. (Def.'s CSF at 5, ¶ 18; Pl.'s CSF at 2, ¶ 18.) Plaintiff was considered a consultant to those projects, not subject to the direction of the PM. (Id.) Her work on Mark's projects included: external customer interface and demonstrations; creating and keeping program documentation; and assisting the customer with any documentation they may need for annual reports or briefings. (Id.)
Plaintiff asserts that the 2008 and 2009 reports only focus on the structural separation between the two divisions in which she and her husband worked, and do not place any significance in the amount of time she spent on a project in which her husband was the PM. (Decl. of Pl. ¶ ¶ 20-21.) Plaintiff states that around the time Leidos performed the 2008 and 2009 assessments, she charged at least ninety percent of her time to Mark's PRITEC project. (Id. ¶ ¶ 21-22.) Leidos admits that " from 2008 to her removal from the PRITEC contract in 2011, Plaintiff charged 90 - 100 % of her time to projects in which Mark Wigent was the Project Manager." (Pl.'s CSF Ex. H at 4-5.)
F. 2011 Assessment
From January to mid-March 2011, Leidos conducted an assessment of the working relationship between Plaintiff and her husband. (Def.'s CSF Ex. 7.) The investigation into the Wigents' working relationship was triggered by Edwin Foreman, Mark's division manager, who questioned Mark's submission of a budget proposal for a project called " EQDR." (Id. Ex. 6.) Leidos contends that " Mark included Plaintiff on a staffing plan for the PRITEC program" and, as a result, Foreman reported to HR a potential violation of SH-2. (Def.'s CSF at 5, ¶ 19.) According to Plaintiff, her name had been placed on the EQDR proposal to merely represent the need in the budget for a systems engineer. (Decl. of Pl. ¶ 30.) In other words, Plaintiff asserts that her name was a " placeholder" and that the placement of her name on the proposal did not mean that she would be assigned work on the project. (Id.) Plaintiff further asserts that the amount of work her husband allocated on the EQDR proposal for the particular systems engineer represented by her name was approximately five percent of the total budget for the project. (Id.)
The 2011 assessment report was prepared by Jim Murray (Leidos' Vice President of Human Resources), Foreman, and Sergio Nirenberg (Plaintiff's supervisor). (Def.'s CSF Ex. 7.) The report provides, in relevant part:
Background. During a recent proposal effort (EQDR), Mark, as the Program Manager, included [Plaintiff] in the staffing plan which raised concerns about a potential conflict with the SH-2 policy. This concern was raised by Division Manager Ed Foreman. Given the recent SAIC reorganization and the concerns raised by Ed Foreman, a reassessment of the possible nepotism issues regarding the relationship between [Plaintiff] & Mark is recommended to ensure compliance with SAIC policy SH-2 and to 'prevent potential conflicts of interest and/or allegations of favoritism or sexual harassment.'
[Plaintiff] and Mark Wigent are married.
. . .
Direct Supervision Discussion. Although Mark's responsibilities do not include conducting [Plaintiff's] performance or salary reviews, approving her timecards or expense reports, he does manage the overall work of the program, he may be assigning work to [Plaintiff] and he may affect [Plaintiff's] employment if there was a funding reduction on the program.
Indirect Supervision Discussion. Mark has overall Program Management responsibility over the programs that [Plaintiff] works. All of [Plaintiff's] work is in support of two programs on which Mark is the PM (PRITEC and DCDS). In previous SH-2 assessments, [Plaintiff] was working under TENA and not exclusively under PRITEC. The policy lists 'program management' as an indirect supervision area.
Conclusion: It is management and HR's conclusion that there is a violation of SH-2 in the area of indirect supervision and potentially in the area of direct supervision. Management, in conjunction with HR, needs to address the working relationship to comply with the SH-2 policy.
(Id.) (emphasis in original).
Leidos contends that the 2011 assessment revealed that Plaintiff's involvement on her husband's projects " was more extensive than was previously realized." (Def.'s CSF at 5, ¶ 20.) Plaintiff asserts that Leidos' HR personnel, the divisions, and the division managers were " fully aware of the extent to which Plaintiff worked on Mark's projects." (Pl.'s CSF at 2, ¶ 20.) Plaintiff further asserts that there had been no changes to the Wigents' working relationship, the structure established by Leidos to comply with SH-2, or the nature of the Wigents' work since the previous 2005, 2008 and 2009 assessments. (Decl. of Pl. ¶ 32.)
Following the 2011 assessment report, Leidos' supervisors and HR discussed various alternatives for restructuring the Wigents' jobs in order to rectify the violation of SH-2. (Def.'s CSF at 6, ¶ 22; Pl.'s CSF at 2, ¶ 22.) On March 28, 2011, via teleconference, the Wigents, Foreman, Roger Medd (Mark's immediate supervisor), Nirenberg, Alicia Larosa-Lowe (Leidos' Senior Human Resources Generalist), and Murray discussed the best course of action to avoid a direct or indirect supervisory relationship. (Def.'s CSF Ex. 9.) Murray suggested having Plaintiff's husband step down as PM; but Mark " indicated that it didn't make sense for him to not be the PM on the project." (Id.) As a result, Leidos decided to remove Plaintiff from PRITEC effective April 5, 2011. (Id.) Nirenberg and Leidos' HR personnel stated during the March 28, 2011 teleconference meeting that they would help " redeploy" Plaintiff. (Id.)
On April 5, 2011, Plaintiff was removed from PRITEC and notified that if she was unable to find another position she would eventually have to be laid-off from the company. (Def.'s CSF at 6, ¶ 25; Pl.'s CSF at 2, ¶ 25.) A few weeks later, on April 20, 2011, Plaintiff sent a letter to Leidos through her legal counsel stating her belief that being removed from PRITEC was unlawful and in violation of Hawaii's
antidiscrimination law. (Pl.'s Dep. Ex. 10.)
G. Asserted Attempts to Restructure Plaintiff's Employment
Leidos contends that, around April 2011, Plaintiff was asked if she would consider transferring to another location, which she declined. (Def.'s CSF at 7, ¶ 27.) Leidos further contends that in April and May 2011 Nirenberg (Plaintiff's supervisor) contacted the other program managers in his division and inquired whether there was work for her in those programs. (Def.'s CSF at 7, ¶ 28.) Nirenberg states in his declaration that due to both the location and Plaintiff not being a software developer, he was unable to find any work for her on these other programs. (Declaration of Sergio Nirenberg (" Nirenberg Decl." ) ¶ 8.) Nirenberg further states that between April and August 2011 he worked with Plaintiff to respond to a proposal in which Plaintiff would have had full-time work as the systems engineer on another project; however, Leidos did not win the contract for that project. (Id. ¶ 9.)
Plaintiff disputes Leidos' contentions and asserts that " [o]ther than vaguely asking if I would be interested in working 'part-time' [Nirenberg] did not contact me about specific and available jobs." (Decl. of Pl. ¶ 58.) Plaintiff further notes that Leidos did not attempt to place her on the " redeployment list" until after she was informed of her termination of employment from Leidos on November 4, 2011. (Decl. of Murray ¶ 26.) According to Plaintiff, the " redeployment list is shared with managers and departments who are [in] need of employees currently employed but without 'coverage.'" (Id. ¶ 57.) At the April 21, 2014 hearing, Leidos conceded that the company should have placed Plaintiff on the redeployment list following her removal from PRITEC. (Rough Transcript at 46.)
Plaintiff stated during her deposition that she had access to internal job postings on the company's website in 2011, but she did not apply to any job listings on the website or discuss her resume or job options with Leidos' HR personnel. (Pl.'s Dep. 121:7-16; 135:21-138:1; 197:16-198:20.) Plaintiff further stated that she submitted an updated resume to the company website and regularly reviewed the website, but found no positions that could be performed from her home in Kauai. (Id. 139:18-141:4.)
On June 29, 2011, Nirenberg spoke with Plaintiff's husband about stepping down as PM in order to eliminate any potential violations of SH-2. (Def.'s CSF Ex. 13.) The following day, on June 30, 2011, Mark sent an email to Nirenberg stating that he declined to step down from his PM position. (Id.)
In August 2011, Nirenberg asked Plaintiff if she would consider working part-time in a marketing position. (Pl.'s Dep. 171:19-172:17; Decl. of Nirenberg ¶ 12.) On August 3, 2011, via email, Plaintiff declined the part-time offer and stated the following:
I believe that the reason stated by SAIC for not permitting me to continue in my position, violation of Policy SH-2, is unlawful. Therefore, I ask that SAIC permit me to continue working in the position for which I was hired, with the same terms and conditions.
(Def.'s CSF Ex. 14.) Plaintiff asserts that, in response to her August 3, 2011 email, Nirenberg told her that HR was going to begin the lay-off process. (Pl.'s Dep. 172:12-17.) Plaintiff further asserts that her husband offered to step down as PM in August 2011, but Leidos still continued with the lay-off process. (Decl. of Pl. ¶ 59.)
On November 4, 2011, Leidos issued a Notice of Lay-off to Plaintiff. (Def.'s CSF at 8, ¶ 36; Pl.'s CSF at 2, ¶ 36.) Plaintiff was given the option to terminate her employment on December 2, 2011, or take leave without pay for four extra weeks (until December 30, 2011) in order to remain covered under her benefit plans and seek any available positions within Leidos. (Def.'s CSF Ex. 15.) Plaintiff chose the first option. From November 11, 2011, to November 29, 2011, Plaintiff was placed on Leidos' redeployment lists. (Def.'s CSF at 8, ¶ 37; Pl.'s CSF at 2, ¶ 37.) Plaintiff was officially separated from employment with Leidos on December 2, 2011. (Def.'s CSF at 8, ¶ 38; Pl.'s CSF at 2, ¶ 38.)
H. Plaintiff's Allegations of Discrimination
Plaintiff asserts that her and her husband's working relationship that Leidos claimed violated SH-2 had not only been condoned by, but created by, the company for its benefit; and that it had been approved by the company's HR department in 2005, 2008, and 2009. (Decl. of Pl. ¶ ¶ 25, 31-32, 41.) According to Plaintiff, Leidos applied SH-2 differently to non-married closely related employees and permitted them to continue working without penalty. (Id. ¶ ¶ 66-70.) Plaintiff also asserts that Plaintiff retaliated against her and her husband for complaining about the alleged marital status discrimination. (Compl. at ¶ ¶ 37-40, 42-46.)
On July 7, 2011, Plaintiff filed a " Pre Complaint Questionnaire" with the Hawaii Civil Rights Commission (" HCRC" ). (Decl. of Pl. ¶ 46.) On September 24, 2011, Plaintiff filed a formal Charge of Discrimination with the HCRC alleging marital status discrimination and retaliation in violation of H.R.S. § 378-2. (Pl.'s Dep. Ex. 14.) After her termination, Plaintiff filed an Amended Charge of Discrimination on January 13, 2012, adding to her original charge " the fact that she has been laid-off from SAIC." (Pl.'s CSF Ex. E.)
A party may move for summary judgment on any claim or defense - or part of a claim or defense - under Federal Rule of Civil Procedure (" Rule" ) 56. Summary judgment " should be granted 'if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Maxwell v. Cnty. of San Diego, 697 F.3d 941, 947 (9th Cir. 2012) (quoting Fed.R.Civ.P. 56(a)). Under Rule 56, a " party asserting that a fact cannot be or is genuinely disputed must support the assertion," either by " citing to particular parts of materials in the record" or by " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1).
The substantive law determines which facts are material; " [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). " The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (citation omitted) (emphasis in original).
A genuine issue of material fact exists if " a reasonable jury could return a verdict for the nonmoving party." United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012) (quoting
Anderson, 477 U.S. at 247). Conversely, " [w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving ...