United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF NO.
Michael Seabright, Chief United States District Judge
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
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.
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.
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.
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.
Plaintiff's Time at 397
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.
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.
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.
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.
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.
Plaintiff Goes on Medical Leave for Work Stress
August 23, 2012, Plaintiff went out on medical leave for work
stress. Llewellyn Decl. ¶ 17; Ex. UU, ECF No. 61-43.
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,  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.
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.
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.
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.
HR Conducts New Investigation and Plaintiff Returns to
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.
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.
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.
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.
Plaintiff Goes on Medical Leave for a Work-Related Physical
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.
Accommodating “Light Duty”
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.
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
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
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 ...