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Morris v. Verizon Federal, Inc.

United States District Court, D. Hawaii

August 3, 2017

OSIAN MORRIS, Plaintiff,
v.
VERIZON FEDERAL, INC., a Foreign Profit Corporation;, Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF NO. 60

          J. Michael Seabright, Chief United States District Judge

         I. INTRODUCTION

         Plaintiff Osian Morris (“Plaintiff” or “Morris”), a current employee of Defendant Verizon Federal, Inc. (“Defendant” or “Verizon”), brings this action against Verizon seeking damages for hostile work environment, retaliation, and disability discrimination under both federal and state law.

         Currently before the court is Defendant's Motion for Summary Judgment (“Defendant's Motion”), ECF No. 60. For the reasons that follow, the court GRANTS in part and DENIES in part Defendant's Motion.

         II. BACKGROUND

         A. Factual Background

         Verizon has two primary locations in Hawaii: (1) the 397 office at the Pearl Harbor Naval Base (“397”), where employees primarily work on installation and maintenance; and (2) Aiea, where employees primarily splice cables. Mattos Decl. ¶ 3, ECF No. 61-2. In February 2010, Plaintiff began working for Verizon as a splicing technician in Aiea. Morris Dep. 14:1-5, 36:2-37:16, Mar. 28, 2016, ECF No. 61-4. Beginning in February 2011, Plaintiff worked under Verizon employee Gordon Mattos (“Mattos”), the Outside Plant Supervisor at Aiea. Mattos Decl. ¶¶ 4, 6.

         During a two-year period ranging from March 2011 to June 2013, Plaintiff alleges that she was “constantly subjected to . . . discriminatory epithets based on both my sex and my sexual orientation, as well as numerous derogatory comments from fellow employees and managers that they did not want to work with [her], that [she] should not be there, and other comments.” Morris Decl. ¶ 6, ECF No. 80-2. Plaintiff “specifically recall[s] repeatedly hearing the terms, ‘bitch, ' ‘gay, ' ‘dyke, ' and ‘faggot.'” Id.

         Beginning in March 2011, at the start of this two-year period, Mattos assigned Plaintiff to a cable splicing project for Time Warner Cable, but in April 2011, Time Warner Cable informed Mattos that Plaintiff needed to be replaced. Mattos Decl. ¶¶ 8, 9. Mattos then reassigned Plaintiff to 397, switching her with an employee at 397 who had splicing experience. Id. ¶ 9.

         1. Plaintiff's Time at 397

         On April 18, 2011, Plaintiff began working at 397, where she joined the troubleshooting group. Id. ¶ 13; Morris Dep. 47:23-25. The group consisted of Plaintiff and approximately nine men, all of whom were supervised by Verizon employee Tom Cathcart (“Cathcart”). Morris Dep. 73:24-75:17.

         On November 4, 2011, Plaintiff filed an internal complaint regarding two incidents that happened two months earlier. Mattos Decl. ¶ 18. First, on September 23, 2011, Plaintiff told Cathcart that she believed he was treating her unfairly after he assigned her more work that afternoon. Morris Dep. 148:13-149:10. Cathcart replied: “I fucking bring you on my team. You fucking don't appreciate. You better wake up.” Id. 145:23-146:16. Second, on September 27, 2011, Plaintiff double parked her van along a fence outside of 397. Id. 151:4-12. Although other Verizon employees were also double parked along the fence, Plaintiff's van was blocking a gate. Id. 151:20-24. As Cathcart drove by Plaintiff (still in her van), he called Plaintiff and told her to move her van. Id. 152:7-23. Cathcart then parked his car, approached Plaintiff, and yelled at her to move her van. Id. In response to Plaintiff's November 4, 2011 internal complaint, Cathcart was counseled to treat employees with respect. Ex. L, ECF No. 61-14.

         On March 26, 2012, Mattos moved Cathcart to Aiea and promoted Verizon employee Manny Contreras (“Contreras”) to acting supervisor at 397. Mattos Decl. ¶ 23. On July 10, 2012, Plaintiff filed an internal complaint concerning a couple of instances when Contreras greeted the group with “Good morning, men” during morning briefings. Llewellyn Decl. ¶ 9, ECF No. 61-3. On July 11, 2012, Verizon employee Deborah Llewellyn (“Llewellyn”), a support person in Human Resources (“HR”), contacted Plaintiff about her complaint. Id. ¶ 10. During the phone call, Plaintiff reiterated Contreras's greeting, and also requested that her group take classes on harassment and discrimination. Id. Verizon employee Dave Brown (“Brown”), Contreras's manager, counseled Contreras to avoid gender-based greetings and to instead use words such as “team.” Ex. N, ECF No. 61-16. Plaintiff does not remember Contreras using gender-based greetings after she filed her internal complaint. Morris Dep. 157:9-12. In response to Plaintiff's request for a class, Llewellyn arranged for a “Respect in the Workplace” training, which was administered to all Verizon employees in Hawaii on August 22, 2012. Llewellyn Decl. ¶ 13, 15.

         In August 2012, Plaintiff filed two separate internal complaints. The first complaint, filed on August 9, 2012, reported “misconduct in the workplace” regarding events on August 6, 7, and 8, 2012. Ex. O at 1, ECF No. 61-17. On August 6, 2012, Plaintiff attended a morning meeting with other Verizon employees, and Verizon employee Steven Chee (“Chee”) “ma[de] comments to Clarence Lewis that he looks like he is going to be in the ‘gay parade' and the rest of the team start[ed] to laugh.” Id. at 2. The next morning, Chee made a “comment about grabbing Mr. Lewis by the shirt and bending him over.” Id. And on August 8, 2012, AT&T supervisor Penny Bortman (“Bortman”) “walked by [the Verizon employees'] table and said ‘good morning fellas.'” Id.

         The second complaint, filed on August 23, 2012, concerned comments made at that day's morning meeting (the morning after the “Respect in the Workplace” training). Ex. R, ECF No. 61-20. Contreras “announced to employees that Oliver Reyes had an announcement, ” and “Gabriel Preciado yelled out, that [Contreras] ‘is coming out of the closet.'” Id. at 2. Contreras replied “Yeah, yeah, he's coming out of the closet.” Id.

         2. Plaintiff Goes on Medical Leave for Work Stress

         On August 23, 2012, Plaintiff went out on medical leave for work stress. Llewellyn Decl. ¶ 17; Ex. UU, ECF No. 61-43.

         During that time, Llewellyn and Verizon employee Theresa Boudet (“Boudet”) launched an investigation in response to Plaintiff's August 2012 internal complaints. Llewellyn Decl. ¶ 18. Lewellyn and Boudet interviewed several Verizon employees between September 10 and October 2, 2012, including Glenn Gouveia, Brad Cathcart, [1] Harry Andaya, Van Kinilau, Darryl Goya, Noa Kaopuiki, Clarence Lewis, Steven Chee, and Gabriel Preciado. Id. On October 4, 2012, Llewellyn emailed Plaintiff to inform her that Verizon completed its investigation and would be “taking the appropriate steps to address the respective matters.” Ex. EE, ECF No. 61-33. The next day, Chee and Preciado were given “a documented Verbal Warning for inappropriate and unprofessional conduct in violation of the Code.” Llewellyn Decl. ¶ 23; see also Ex. FF, ECF No. 61-34; Ex. GG, ECF No. 61-35.

         Plaintiff believed that Llewellyn's October 4, 2012 email meant that she could return to work, and Plaintiff subsequently attempted to return to work on October 5, 2012. Ex. VV, ECF No. 61-44. But it does not appear that anyone knew she was planning to return on that day. See, e.g., Llewellyn Decl. ¶ 25; Mattos Decl. ¶ 25, 27; Morris Dep. 216:22-217:1.

         Prior to her medical leave, Plaintiff had primarily used a specific Verizon “bucket truck” for her job. Mattos Decl. ¶ 25. Because there were a limited number of bucket trucks, Mattos allowed other Verizon employees to use Plaintiff's bucket truck while Plaintiff was out on leave. Id. When Plaintiff arrived at work on October 5, 2012, another Verizon employee had her bucket truck. Morris Dep. 216:12-16, 217:2-8. Later, Contreras informed Plaintiff that she was not getting the truck back, as he was reassigning the truck to a different employee, id. 224:16-21, and this reassignment was “permanent, ” Morris Decl. ¶ 12. Mattos called Plaintiff, requesting her doctor's release, but she could not find it. Morris Dep. 228:8-229:5. Plaintiff used her personal truck to do some work, but went home after two hours. Id. 226:15-21, 231:21-24. Plaintiff extended her medical leave until March 14, 2013. Id. 231:21-232:2.

         On November 1, 2012, Plaintiff filed an internal complaint regarding the bucket truck incident on October 5, 2012. Ex. WW, ECF No. 61-45. Llewellyn's investigation into the incident “failed to yield evidence that the actions that occurred on October 5, 2012 constituted discrimination or retaliation against Morris.” Llewellyn Decl. ¶ 26. On December 2, 2012, Llewellyn emailed Plaintiff the results of the investigation. Ex. XX, ECF No. 61-46.

         3. HR Conducts New Investigation and Plaintiff Returns to Aiea

         Plaintiff returned to work on March 14, 2013, and chose to be assigned to Aiea rather than stay at 397. Ex. J, ECF No. 61-12; Mattos Decl. ¶ 29. This decision was consistent with her doctor's recommendation. Ex. H, ECF No. 61-11. At Aiea, Cathcart was once again her supervisor. Morris Dep. 236:15-17.

         Before Morris returned to work, she sent HR signed statements from Verizon employee Harry Andaya (“Andaya”), dated March 5, 2013, and Verizon employee Van Tanabe (“Tanabe”), dated March 10, 2013. Llewellyn Decl. ¶ 29; Ex. II, ECF No. 61-37; Ex. JJ, ECF No. 61-38. The statements described the allegedly hostile working conditions Plaintiff endured at 397. Ex. II, ECF No. 61-37; Ex. JJ, ECF No. 61-38. For instance, Andaya writes that Verizon employees “made comments about [Plaintiff] being gay constantly, ” which he then told Plaintiff. Ex. II, ECF No. 61-37.

         In April 2013, Llewellyn and Michelle Starks (“Starks”) conducted a new investigation into Plaintiff's complaints. Llewellyn Decl. ¶ 32. Llewellyn and Starks interviewed Plaintiff, Andaya, Tanabe, Cathcart, Brown, Mattos, Contreras, and Gouveia, among others. Id. In a May 9, 2013 email to Plaintiff, Llewellyn explained how Verizon needed “to establish and clarify policies and procedures in a number of areas.” Ex. KK, ECF No. 61-39. In addition, Llewellyn recommended that an earlier unrelated three-day suspension from October 27, 2011 be rescinded and Plaintiff provided with back pay for the suspension. Id.; Llewellyn Decl. ¶ 35. The recommendations were adopted. Id. ¶ 36.

         On May 25 and 27, 2013, Plaintiff emailed Lewellyn complaining about an incident on May 22, 2013. Ex. YY, ECF No. 61-47. Cathcart warned Plaintiff and her coworkers that they were “being watched for safety violations.” Id. When Plaintiff later contacted Cathcart to get “a manhole entry sheet, ” Cathcart “flipped” and claimed their actions were a safety violation. Id. Lewellyn investigated and concluded that Cathcart was appropriately upset with Plaintiff and her male coworker for violating established safety procedures. Llewellyn Decl. ¶ 38; Ex. ZZ, ECF No. 61-48.

         4. Plaintiff Goes on Medical Leave for a Work-Related Physical Injury

         On June 17, 2013, Plaintiff went on medical leave after injuring her back when working in a manhole. Ex. CCC, ECF No. 61-50; Mattos Decl. ¶ 31.

         a. Accommodating “Light Duty”

         Dr. Leonard N. Cupo (“Dr. Cupo”) evaluated Plaintiff and completed a medical report, dated August 15, 2013. Ex. 1, ECF No. 73-1. Dr. Cupo concluded:

[Plaintiff] is not totally disabled and can work full time limited duty as she completes further diagnostic testing and treatment of . . . the injury of 6/17/13, with the following restrictions: no squatting, kneeling, or ladder climbing; no driving a commercial vehicle; no standing greater than 15 minutes without a five-minute sitting break; and no lifting greater than 15 lbs.

Id.

         In November 2013, Morris began communicating with Llewellyn, Verizon employee Cynthia Clark (“Clark”), and Verizon employee Linda Cerminaro (“Cerminaro”), through email and phone calls, regarding Plaintiff's possible return to work. Ex. NN, ECF No. 61-41; Llewellyn Decl. ¶ 43. On November 22, 2013, Cerminaro emailed Plaintiff to memorialize a phone conversation they had the day prior. Ex. NN at 3, ECF No. 61-41. In the email, Cerminaro lists all of Plaintiff's restrictions and states that Plaintiff “requested ‘light duty' in some unspecified fashion.” Id. She also writes that Plaintiff “openly stated that [she] could not return to work to perform [her] job at this time since basic tasks like getting in and out of the truck and walking on terrain would be very difficult.” Id. Cerminaro determined that Plaintiff's “request for light duty does not have an end in sight, is open ended and unreasonable.” Id.

         On November 26, 2013, Clark sent Plaintiff an email to follow up on their previous phone call. Id. at 5. Plaintiff forwarded the email to her attorney, Charles H. Brower (“Brower”), who told her to “[t]ell them you are represented by counsel and you can not speak to them. Tell them they can contact me.” Id. at 6. It does not appear that Plaintiff replied to Clark's November 26, 2013 email. On April 10, 2014, Cerminaro emailed Plaintiff a “follow up of [Verizon's] efforts to determine [Plaintiff's] return to work status.” Id. at 7. In the email, Cerminaro details how Plaintiff's restrictions “were last evaluated on March 13, 2014, ” and included:

1. No lifting/carrying over 15 pounds.
2. No bending at the knees.
3. No work above chest height.
4. Must be able to lie down for 10 minutes for every hour spent working.
5. Only allowed to work up to four hours per day.

Id. Cerminaro then expressed how Verizon could not reasonably accommodate Plaintiff's restrictions:

Unfortunately, your request for some form of “light duty” assignment is not one that can be accommodated. As you know, Verizon's operations in Hawaii are limited. Its workforce in Hawaii consists almost exclusively of technicians and management. There are no “light duty” technician ...

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