United States District Court, D. Hawaii
ORDER (a) DISMISSING RETALIATION CLAIM ASSERTED IN
PARAGRAPHS 14, 17, 22, 24, 25, AND 30 OF THE FIRST AMENDED
COMPLAINT, AND (b) GRANTING IN PART AND DENYING IN PART
SUMMARY JUDGMENT WITH RESPECT TO REMAINING CLAIMS
OKI MOLLWAY UNITED STATES DISTRICT JUDGE
Jay Silverstein, a civilian employee with the Department of
Defense, brings retaliation and hostile work environment
claims under Title VII.
Ashton Carter, in his capacity as Secretary of Defense, moves
for dismissal of Silverstein’s First Amended Complaint,
or alternatively for summary judgment on all claims.
concedes that, because he either failed to administratively
exhaust or was untimely in doing so, any retaliation claim
asserted in paragraphs 14, 17, 22, 24, 25, and 30 of the
First Amended Complaint should be dismissed, the sole
exception being any retaliation claim relating to a trip to
Laos. See ECF No. 50, PageID # 604. Relying on the
failure to properly exhaust, the court therefore dismisses
any retaliation claim in any of these paragraphs other than
the retaliation claim relating to the Laos trip.
court grants in substantial part and denies in part
Defendant’s motion for summary judgment on the
remaining claims. With respect to Silverstein’s
retaliation claim, summary judgment is denied to the extent
the claim relates to the selection of a Supervisory
Historian. Summary judgment is granted in favor of Defendant
on all other bases of his retaliation claim. With respect to
Silverstein’s hostile work environment claim, summary
judgment is granted to Defendant.
SUMMARY JUDGMENT STANDARD.
Rule 56 of the Federal Rules of Civil Procedure, summary
judgment shall be granted when “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.”
Fed.R.Civ.P. 56(a). See Addisu v. Fred Meyer, Inc.,
198 F.3d 1130, 1134 (9th Cir. 2000). The movants
must support their position concerning whether a material
fact is genuinely disputed by either “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or
“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). One of the principal
purposes of summary judgment is to identify and dispose of
factually unsupported claims and defenses. Celotex Corp.
v. Catrett, 477 U.S. 317, 323-24 (1986).
judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential
element at trial. See id. at 323. A moving party
without the ultimate burden of persuasion at trial--usually,
but not always, the defendant--has both the initial burden of
production and the ultimate burden of persuasion on a motion
for summary judgment. Nissan Fire & Marine Ins. Co.
v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir.
burden initially falls on the moving party to identify for
the court those “portions of the materials on file that
it believes demonstrate the absence of any genuine issue of
material fact.” T.W. Elec. Serv., Inc. v. Pac.
Elec. Contractors Ass’n, 809 F.2d 626, 630
(9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323). “When the moving party has carried
its burden under Rule 56(c), its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote
nonmoving party may not rely on the mere allegations in the
pleadings and instead must set forth specific facts showing
that there is a genuine issue for trial. T.W. Elec.
Serv., 809 F.2d at 630. At least some
“‘significant probative evidence tending to
support the complaint’” must be produced.
Id. (quoting First Nat’l Bank of Ariz. v.
Cities Serv. Co., 391 U.S. 253, 290 (1968)); see
also Addisu, 198 F.3d at 1134 (“A scintilla of
evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
material fact.”). “[I]f the factual context makes
the non-moving party’s claim implausible, that party
must come forward with more persuasive evidence than would
otherwise be necessary to show that there is a genuine issue
for trial.” Cal. Arch’l Bldg. Prods., Inc. v.
Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec.
Indus. Co., 475 U.S. at 587). Accord Addisu,
198 F.3d at 1134 (“There must be enough doubt for a
‘reasonable trier of fact’ to find for plaintiffs
in order to defeat the summary judgment motion.”).
adjudicating summary judgment motions, the court must view
all evidence and inferences in the light most favorable to
the nonmoving party. T.W. Elec. Serv., 809 F.2d at
631. Inferences may be drawn from underlying facts not in
dispute, as well as from disputed facts that the judge is
required to resolve in favor of the nonmoving party.
Id. When “direct evidence” produced by
the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the
judge must assume the truth of the evidence set forth by the
nonmoving party with respect to that fact.”
July 2009, Jay Silverstein has been a Supervising
Investigation Site Survey Manager for the Department of
Defense, POW/MIA Accounting Agency. That agency, which
acquired its present name in January 2015, was previously
known as the Joint POW/MIA Accounting Command. The agency
locates and returns the remains of American soldiers killed
in the service of this country. For five years before
becoming a Supervising Investigation Site Survey Manager,
Silverstein was a Forensic Anthropologist with the
agency’s Central Identification Laboratory. First
Amended Complaint ¶¶ 4, 6, 9, ECF No. 14, PageID #s
39, 41; Answer to Amended Complaint ¶¶ 4, 6, 9, ECF
No. 24, PageID #s 84-85 (admitting same).
2012, the agency had about 400 employees. It now has more
than 600 employees. See Declaration of Kelly
Fletcher ¶ 1, ECF No. 42-4, PageID # 388.
claims to have suffered retaliation and a hostile work
environment in violation of Title VII of the Civil Rights Act
of 1964 based on a number of events. Title VII forbids
employment discrimination based on “race, color,
religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a). Title VII also has an anti-retaliation provision
that forbids discrimination against an employee who has
opposed any unlawful employment practice prohibited by Title
VII or who has made a charge, testified, assisted, or
participated in a Title VII proceeding or investigation. 42
U.S.C. § 2000e-3(a).
brings his claims under Title VII, see First Amended
Complaint ¶¶ 1, 2, 3, ECF No. 14, PageID #s 38-39,
but the connection between Title VII and any alleged
retaliation or hostile work environment is often unclear. In
fact, Silverstein himself concedes that he cannot proceed
under Title VII with respect to some of what he claims. The
court has no duty to scour the record for facts not
identified by a party in the party’s concise statement.
See Local Rule 56.1(f). Silverstein’s concise
statement includes speculation and conclusions, but lacks
evidentiary support with respect to many of his claims. The
court does its best in this order to examine whether there is
evidence that there was arguably retaliation or a hostile
work environment related to any matter covered by Title VII,
as well as to determine whether Silverstein raises any
genuine issues of fact that preclude summary judgment.
court begins its analysis by examining Silverstein’s
Title VII retaliation claim, determining that the Government
is entitled to dismissal of the parts of the claim that were
not properly exhausted and to summary judgment with respect
to all but one basis of the remaining parts of the
retaliation claim. The court then turns its attention to the
Title VII hostile work environment claim, determining that
the Government is entitled to summary judgment with respect
to the hostile work environment claim.
Law Applicable to Title VII Retaliation Claims.
VII’s anti-retaliation provision generally forbids
retaliation against an employee who has exercised rights
under Title VII. See 42 U.S.C. § 2000e-3(a).
“Title VII retaliation claims must be proved according
to traditional principles of but-for causation . . . . This
requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or
actions of the employer.” Univ. of Texas Sw. Med.
Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013).
purposes of a summary judgment motion, a plaintiff may
demonstrate a retaliation claim under Title VII by applying
the burden-shifting analysis set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). See
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1064 (9th Cir. 2002). Under the McDonnell
Douglas framework, a plaintiff must establish a prima
facie case of discrimination. 411 U.S. at 802. The degree of
proof required to establish a prima facie case for summary
judgment is minimal. See Coghlan v. Am. Seafoods
Co., 413 F.3d 1090, 1094 (9th Cir. 2005).
out a prima facie retaliation claim under Title VII, a
plaintiff must show that “(1) the employee engaged in a
protected activity, (2) she suffered an adverse employment
action, and (3) there was a causal link between the protected
activity and the adverse employment action.” Davis
v. Team Elec. Co., 520 F.3d 1080, 1093-94
(9th Cir. 2008).
activity includes the filing of a charge or a complaint, or
providing testimony regarding an employer’s alleged
unlawful practices, as well as engaging in other activity
intended to oppose an employer’s discriminatory
practices. Raad v. Fairbanks N. Star Borough Sch.
Dist., 323 F.3d 1185, 1197 (9thCir. 2003)
(quotation marks and citation omitted); 42 U.S.C. §
2000e-3(a) (forbidding discrimination against employee who
“opposed any unlawful employment practice prohibited by
Title VII or who has made a charge, testified, assisted, or
participated in a Title VII proceeding or
purposes of the second prong of the McDonnell
Douglas framework, an “adverse employment
action” is an action that is “materially
adverse” to a reasonable employee or job applicant.
Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006) (internal quotations omitted). An
“adverse employment action” is one that
“materially affects the compensation, terms,
conditions, or privileges of employment.”
Davis, 520 F.3d at 1089. An “adverse
employment action exists” when the employer’s
actions are so harmful that they could dissuade a reasonable
worker from making or supporting a charge of discrimination.
White, 548 U.S. at 68. Normally, “petty
slights, minor annoyances, and simple lack of good
manners” will not deter a reasonable worker from making
a charge of discrimination, id., while termination,
dissemination of a negative employment reference, issuance of
an undeserved performance review, and refusal to consider a
plaintiff for a promotion may. See Brooks v. City of San
Mateo, 229 F.3d 917, 928-29 (9th Cir. 2000).
Ninth Circuit has adopted the EEOC’s guidelines for
what constitutes an adverse employment action in the Title
VII context, ruling that an adverse employment action is any
adverse treatment that “is reasonably likely to deter
the charging party or others from engaging in protected
activity.” Ray v. Henderson, 217 F.3d 1234,
1242-43 (9th Cir. 2000); accord Elvig v.
Calvin Presbyterian Church, 375 F.3d 951, 965
(9th Cir. 2004). Thus, the Ninth Circuit defines
“adverse employment actions” broadly, not
limiting them to actions such as discharges, transfers, or
demotions. See Lyons v. England, 307 F.3d 1092, 1118
(9th Cir. 2002). While adverse employment actions
may include lateral transfers, unfavorable job references,
and changes in work schedules, not “every offensive
utterance by co-workers” is an adverse employment
action because “offensive statements by co-workers do
not reasonably deter employees from engaging in protected
activity.” Ray, 217 F.3d at 1243.
the present order is divided into a retaliation section and a
hostile work environment section, there is an overlap. The
Ninth Circuit has recognized that actionable retaliation may
occur in the form of a hostile work environment; that is, a
hostile work environment may be considered an adverse
employment action for purposes of a claim alleging
retaliation resulting from an employee’s protected
activity. See Ray, 217 F.3d at 1245. However,
“a hostile work environment can form the basis for a
retaliation claim only when the harassment is
‘sufficiently severe or pervasive to alter the
conditions of the victim’s employment and create an
abusive working environment.’” Morgan v.
Napolitano, 988 F.Supp.2d 1162, 1174 (E.D. Cal. 2013)
(quoting Ray, 217 F.3d at 1245).
respect to the causation requirement in a prima facie case of
retaliation, a court may infer causation when an adverse
employment action occurs “fairly soon after the
employee’s protected expression.” See
Villiarimo, 281 F.3d at 1065. “Causation
sufficient to establish the . . . [causal link] element of
the prima facie case may be inferred from circumstantial
evidence, such as the employer’s knowledge that the
plaintiff engaged in protected activities and the proximity
in time between the protected action and the allegedly
retaliatory employment decision.” Yartzoff v.
Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987).
court has noted, a “temporal distance of several months
makes a causal link more difficult to prove; a distance of
five years severely undermines it.” Stucky v. State
of Haw., Dept. of Educ., 2007 WL 602105, *5 (D. Haw.
Feb. 15, 2007). Compare Nidds v. Schindler Elevator
Corp., 113 F.3d 912, 919 (9th Cir. 1996)
(four-month period between protected activity and layoff was
sufficiently close to satisfy “causal link”
prong), and Yartzoff v. Thomas, 809 F.2d 1371, 1376
(9th Cir. 1987) (three-month period sufficient to
infer causation), with Manatt v. Bank of Am., NA,
339 F.3d 792, 802 (9th Cir. 2003) (no causal
inference possible when nine months separated protected
activity from adverse employment action).
years after the Ninth Circuit decided Nidds and
Yartzoff, the Supreme Court observed in Clark
County School District v. Breeden, 532 U.S. 268, 273
(2001), that the requisite “temporal proximity must be
‘very close.’” Breeden cites with
approval cases from the Seventh and Tenth Circuits holding
that three- and four-month periods do not support an
inference of causation. Id. More recently, the Ninth
Circuit has cautioned courts against engaging in a
“mechanical inquiry into the amount of time between the
speech and alleged retaliatory action.” Anthoine v.
N. Central Counties Consortium, 605 F.3d 740, 751
(9th Cir. 2010). In short, there is no
“bright line” rule providing that any particular
period is always too long or always short enough to support
an inference. See Coszalter v. City of Salem, 320
F.3d 968, 977-78 (9th Cir. 2003).
the McDonnell Douglas framework, once a plaintiff
succeeds in presenting a prima facie case, the burden then
shifts to the defendant to articulate a “legitimate,
nondiscriminatory reason” for its employment decision.
Noyes v. Kelly Servs., 488 F.3d 1163, 1168
(9th Cir. 2007). “Should the defendant carry
its burden, the burden then shifts back to the plaintiff to
raise a triable issue of fact that the defendant’s
proffered reason was a pretext for unlawful
Title VII retaliation claim must be timely. In National
Railroad Passenger Corporation v. Morgan, the Supreme
Court explained that a plaintiff may assert claims based on
discrete acts only if the plaintiff timely exhausted his
[D]iscrete discriminatory acts are not actionable if time
barred, even when they are related to acts alleged in timely
filed charges. Because each discrete act starts a new clock
for filing charges alleging that act, the charge must be
filed within the [applicable] period after the act occurred.
The existence of past acts and the employee’s prior
knowledge of their occurrence, however, does not bar
employees from filing charges about related discrete acts so
long as the acts are independently discriminatory and charges
addressing those acts are themselves timely filed. Nor does
the statute bar an employee from using the prior acts as
background evidence to support a timely claim. In addition,
the time period for filing a charge remains subject to
application of equitable doctrines such as waiver, estoppel,
536 U.S. 101, 102 (2002).
federal employee, Silverstein was required to initiate
contact with an employment discrimination counselor within 45
days of an alleged discriminatory act. See 29 C.F.R.
§ 1614.105(a)(1). This counselor, referred to as an
Equal Employment Opportunity (“EEO”) counselor,
is part of the employer’s internal system, not part of
the independent Equal Employment Opportunity Commission. When
the EEO counselor does not resolve the matter, an aggrieved
employee must then file a complaint with the agency that
allegedly discriminated against him or her, assuming the
matter does not go through the Merit Systems Protection Board
process. 29 C.F.R. § 1614.106(a) and (b). If the agency
dismisses the complaint and issues a final decision regarding
such a complaint pursuant to § 1614.107, the decision
must contain a “notice of the right to appeal the final
action to the Equal Employment Opportunity Commission, the
right to file a civil action in federal district court, the
name of the proper defendant in any such lawsuit and the
applicable time limits for appeals and lawsuits.”
See 29 C.F.R. § 1614.110(b).
Based on Silverstein’s Failure to Properly
Exhaust, the Court Dismisses the Retaliation Claim
(Except Insofar as It Relates to the Cancellation of
Silverstein’s Trip to Laos) To the Extent the Claim is
Based on Factual Allegations in Paragraphs
14, 17, 22, 24, 25, and 30 of the First Amended
details of what occurred in administrative proceedings
relating to Silverstein’s claims are largely missing
from the record. Nor does this court have the final agency
decision or any notice of right to sue. It is not even clear
whether Silverstein pursued his claims with the Equal
Employment Opportunity Commission. What is clear is that no
party challenges Silverstein’s exhaustion of his
administrative remedies, except as set forth in the next
argues that, except with respect to the cancellation of a
trip to Laos, Silverstein did not exhaust his retaliation
claim to the extent it is based on factual allegations in
paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended
Complaint. In his Opposition, Silverstein agrees that,
because he failed to administratively exhaust any retaliation
claim based on those allegations, or untimely did so, the
court should dismiss the retaliation claim arising out of the
facts alleged in paragraphs 14 (2010 Tarawa Atoll mission),
17 (reprimand for abuse of Government property), 22
(discussion arising out of University of Hawaii proposal), 24
(October 2011 counseling regarding preparation of reports),
25 (April 2012 grievance), and 30 (2012 Tarawa Atoll mission)
of the First Amended Complaint. See ECF No. 50,
PageID # 604. Putting aside the allegations about the Laos
trip, this court therefore dismisses as not properly
exhausted Silverstein’s retaliation claim to the extent
based on the facts alleged in the identified paragraphs. In
dismissing what Silverstein concedes was not properly
exhausted, the court treats Silverstein’s concession as
akin to a voluntary dismissal of the affected matters
pursuant to Rule 41(a)(1) of the Federal Rules of Civil
Procedure. The dismissal does not rely on factual assertions
outside the First Amended Complaint or on evidence.
The Court Grants Summary Judgment in Favor of
Defendants With Respect to the Remaining Parts of the
Retaliation Claim, Except For the Portion of the Retaliation
Claim Relating to the Failure to Promote Silverstein to the
Supervisory Historian Position.
First Amended Complaint asserts retaliation in violation of
Title VII, but it does not clearly link allegedly retaliatory
events to the exercise of rights under Title VII. The court
examines the remaining allegedly retaliatory events below,
determining that the Government is entitled to summary
judgment with respect to all but one event alleged to have
General Allegations that Silverstein Supported Women
appears to be broadly asserting that he was retaliated
against for having supported women co-workers who were
allegedly discriminated against based on their gender. But
Silverstein does not point to any evidence supporting a
relationship between the allegedly retaliatory acts and that
support. At the hearing on the present motion, Silverstein
indicated that any associational discrimination claim he is
bringing is tied to actual things Defendant knew he had said
or done (i.e., to protected activity), not to having been
discriminated against simply for having felt supportive of
women or for having befriended them.
respect to his actions supporting women co-workers,
Silverstein does not establish that any of the acts he
complains of were close enough in time to the things that he
said or did that causation can be inferred. For example, as
discussed in more detail below, he says he was discriminated
against because he supported Dr. Joan Baker’s 2009
gender discrimination complaint and because he protested the
alleged harassment of Dr. Kristina Giannotta in May 2011. Not
only has Silverstein conceded that his failure to
administratively exhaust precludes any recovery of damages
for direct discrimination based on his support for Dr. Baker
and Dr. Giannotta, any retaliation he says he suffered
occurred so long after that support that that causation
cannot be inferred. Silverstein must instead point to some
evidence of causation. This court discusses later in this
order Silverstein’s EEO complaints, which alleged
“reprisals” for his support of women co-workers.
With respect to any alleged retaliation preceding October
2012, when Silverstein’s informal EEO complaint was
filed, Silverstein presents no evidence of a causal
connection between his actions in support of women co-workers
and an adverse employment action.
his clarification that this particular broad claim of
retaliation is based on things he himself said or did
underscores the irrelevancy of anonymous survey responses
that Silverstein earlier sought to have this court consider.
See ECF No. 54. (Motion to File Publicly Exhibits
33, 34 and 35 to His Concise Statement of Facts to His
Memorandum in Opposition to Defendant’s Motion to
Dismiss and Summary Judgment). Silverstein contended that the
anonymous survey responses showed general concern among
agency employees about sex discrimination. This court denied
that motion, noting that the court could not tell whether the
survey responses related to matters Silverstein was suing
over. The court also notes here that it has no way of knowing
whether the responses might be from the very people whose
declarations are already before the court (such as
Silverstein himself). If the responses were from the same
people, then they should not be used as evidence that sex
discrimination was so rampant that it was noted even by those
uninvolved with the present lawsuit.
2005 Support of Dr. Elliot Moore.
says that, in 2005, he complained about what he viewed as the
Central Identification Laboratory’s publicly
humiliating treatment of one of his colleagues, Dr. Elliot
Moore. Silverstein says that Dr. Moore, who is deaf, was
assigned a small desk in the middle of a well-traveled
hallway, and that this location prevented Dr. Moore from
having access to a TELEX machine that had been provided to
accommodate his disability. See Decl. of Jay
Silverstein ¶ 11(a), ECF No. 51-1, PageID # 625; see
also Report of Investigation (Nov. 7, 2013), ECF No.
42-10, PageID # 413 (indicating that Silverstein
“voiced opposition to the way management treated a
disabled employee (in approximately 2005 or 2006)”).
Silverstein also says that Moore and another employee, Dr.
David Rankin, were investigated. Id.
the court assumes that Silverstein’s retaliation claim
relating to the 2005 treatment of Dr. Moore and Dr. Rankin is
timely, Silverstein does not indicate how his opposition to
Moore’s or Rankin’s treatment constituted
protected activity under Title VII. That is, Silverstein does
not submit any evidence demonstrating that the treatment of
Moore or Rankin, or, for that matter, Silverstein’s
opposition to that treatment related to anyone’s race,
color, religion, sex, or national origin, the classes
protected by Title VII. 42 U.S.C. § 2000e-2(a)(1). Even
if the First Amended Complaint included a claim relating to
the Americans with Disabilities Act, Silverstein does not
provide evidence that any investigation was tied to
Moore’s hearing disability. In fact, the record
contains no hint as to what the subject of the investigation
was. At most, Moore says he was investigated and simply
concludes that Silverstein was retaliated against for having
supported him. See Decl. of Chester Elliott Moore,
II ¶¶ 3, 6, ECF No. 51-2, PageID # 644-45. The
court therefore grants summary judgment in favor of the
Government with respect to any Title VII retaliation claim
relating to Silverstein’s support of Moore and Rankin
in or around 2005.
Association with Dr. Joan Baker in 2009.
October 6, 2009, Dr. Joan Baker filed a Title VII gender
discrimination complaint in this court. See Baker v.
Mabus, Civ. No. 09-00470 SOM/LEK, ECF No. 1. Dr. Baker
alleged that Dr. Thomas Holland, the Scientific Director of
the Joint POW/MIA Accounting Command, had sexually harassed
her. Id. Baker ultimately settled that suit. See
Baker, Civ. No. 09-00470 SOM/LEK, ECF No. 33 (minute
order indicating settlement); see also First Amended
Complaint ¶ 18, PageID # 44; Answer ¶ 18 (admitting
allegation). According to Baker, Silverstein’s
association with her contributed to alleged hostility against
Silverstein. See Decl. of Joan E. Baker, Ph.D ¶
32, ECF No. 51-4, PageID # 669.
claims in the present lawsuit that he was retaliated against
for having provided support to Baker in 2009, but it is
unclear what form either his support or the alleged
retaliation took or that the alleged retaliation was
reasonably close in time to that support. See, e.g.,
Opposition at 24, ECF No. 50, PageID # 606 (“He has
engaged in protected activity by way of objecting to
discriminatory treatment of other JPAC/DPAA employees such as
Baker, Giannotta and Moore, as well as filing his own
grievance and EEO complaints for the harassment and
retaliation by JPAC/DPAA managers. As a result of his
protected activities, Plaintiff has been subjected to several
adverse employment actions described in his
may be arguing that the alleged retaliation consisted of (1)
pulling his team from a March 2010 deployment to Tarawa
Atoll; (2) an August 2010 reprimand by his supervisor, Robert
Richeson; and (3) a 2011 counseling by Richeson concerning a
proposed University of Hawaii project. See Decl. of
Jay Silverstein, ECF No. 50-1 (listing events without
connecting them to any particular matter relevant to Title
VII); Report of Investigation (Sept. 1, 2014) (indicating
that Richeson is Silverstein’s “first level
supervisor”). However, as discussed below, Silverstein
did not administratively exhaust claims relating to the March
2010 Tarawa Atoll deployment, the August 2011 reprimand, or
the 2011 counseling. Moreover, Silverstein provides no
admissible evidence that the cancellation of the deployment,
the reprimand, or ...