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Thomas v. Spencer

United States District Court, D. Hawaii

February 27, 2018

CLIFFORD THOMAS, Plaintiff,
v.
RICHARD V. SPENCER, SECRETARY OF DEPARTMENT OF THE NAVY, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL DISMISSAL AND PARTIAL SUMMARY JUDGMENT

          Richard L. Puglisi United States Magistrate Judge

         On February 23, 2018, Defendant's Motion for Partial Dismissal and Partial Summary Judgment came on for hearing. Shawn A. Luiz, Esq. appeared on behalf of Plaintiff; Assistant United States Attorney Thomas A. Helper appeared on behalf of Defendant. After carefully considering the parties' submissions, the relevant legal authority, and the arguments of counsel at the hearing, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion.

         BACKGROUND

         Plaintiff filed his First Complaint on April 9, 2015, alleging claims for violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), and declaratory judgment pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201 and 2202. ECF No. 1 in Civil No. 15-00121 RLP (“First Complaint”). Plaintiff filed his Second Complaint on September 1, 2016, alleging additional claims for violation of Title VII. ECF No. 1 in Civil No. 16-00485 RLP (“Second Complaint”). These two actions were consolidated by stipulation on November 17, 2016. ECF No. 42.

         Plaintiff has been employed at Pearl Harbor Naval Shipyard since 1982. ECF No. 60, Defendant's Concise Statement of Facts in Support of His Motion for Partial Dismissal and Partial Summary Judgment of Defendant Richard V. Spencer, Secretary of Department of the Navy (“Def.'s Stmnt.”) ¶ 1; ECF No. 72, Plaintiff Clifford Thomas' Supplemental Concise Statement of Facts in Opposition to Defendants' Motion for Summary Judgment (“Pl.'s Stmnt.”), ECF No. 66-1; Declaration of Plaintiff Clifford Thomas (“Pl.'s Decl.”) ¶ 14. The acts at issue in Plaintiff's Complaints took place between 2009 and 2014. From 2009 through January 2013, Plaintiff was a supervisor in the Utilities branch of the Naval Facilities Engineering Command. Id. Until May 2010, Plaintiff's first-level supervisor was John Cazinha. Id. From May 2010 to January 2013, Plaintiff's first-level supervisor was Tammy Rodrigues. Id. In January 2013, Plaintiff was promoted and Mr. Cazinha became his first-level supervisor again. Id. In July 2014, Plaintiff was transferred out of the Utilities branch. Id. ¶ 2; ECF No. 66-1, Pl.'s Decl. ¶ 5. In June 2015, Plaintiff was reassigned to the Waste Water Treatment Plant. Id.; ECF No. 66-1, Pl.'s Decl. ¶ 3.

         In the present Motion, Defendant argues that it is entitled to dismissal or summary judgment on all of Plaintiff's claims except his claim based on his transfer out of the Utilities branch in 2014, which is set forth in paragraph 32 of his Second Complaint. See ECF No. 59-1.

         DISCUSSION

         I. Defendant's Request to Dismiss Plaintiff's Claims Under the Declaratory Judgment Act is GRANTED.

         Under Federal Rule of Civil Procedure 12(b)(6), a complaint must be dismissed if it fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Review under Rule 12(b)(6) is generally limited to the contents of the complaint. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). Plaintiff's allegations of material fact are taken as true and construed in the light most favorable to Plaintiff. Id. Dismissal is appropriate under Rule 12(b)(6) if the facts alleged do not state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (citation omitted).

         Defendant asks the Court to dismiss Plaintiff's claims for declaratory and injunctive relief under the Declaratory Judgment Act. See ECF No. 59-1 at 4-5. As noted by Defendant, Title VII is the exclusive remedy for claims of discrimination and retaliation in federal employment. See Brown v. GSA, 425 U.S. 820, 835 (1976); see also Boyd v. U.S. Postal Serv., 752 F.2d 410, 413 (9th Cir. 1985) (same); Niimi-Montalbo v. White, 243 F.Supp.2d 1109, 1118 (D. Haw. 2003) (same). Plaintiff does not address this argument in his Opposition. Because Plaintiff's claims are ripe and justiciable under Title VII, the Court GRANTS Defendant's request to dismiss Plaintiff's request for injunctive and declaratory relief under the Declaratory Judgment Act.

         II. Defendant's Request for Summary Judgment as to the Remaining Claims at Issue is GRANTED IN PART AND DENIED IN PART.

         Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to summary judgment “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.” Fed.R.Civ.P. 56(a). “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “A fact is material when, under the governing substantive law, it could affect the outcome of the case. A genuine issue of material fact arises if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 310 F.3d 1188, 1194 (9th Cir. 2002) (internal citations omitted). If the evidence “could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If the moving party carries its burden, then “its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] . . . come forward with specific facts showing that there is a genuine issue for trial.” Id. at 586-87 (citations omitted).

         A. Defendant's Request for Summary Judgment as to Plaintiff's Claims of Discrimination and Retaliation Based on Discrete Adverse Personnel Actions is GRANTED IN PART AND DENIED IN PART.

         In his Complaints, Plaintiff alleges that Defendant discriminated and retaliated against him based on his age, race, color, national origin, and prior protected activity in violation of Title VII and the ADEA. To establish a prima facie case of unlawful discrimination, a plaintiff must plausibly allege that: (1) he is a member of a protected class; (2) he was qualified for his position; (3) he experienced an adverse employment action; and (4) similarly situated individuals outside the protected class were treated more favorably or other circumstances surrounding the adverse employment action give rise to an inference of discrimination. Hawn v. Exec. Jet Mgmt., 615 F.3d 1151, 1156 (9th Cir. 2010); Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116 (9th Cir. 2009). The degree of proof required to establish a prima facie case at the summary judgment stage is minimal. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).

         Under Title VII, it is also unlawful for an employer to retaliate against an employee on the basis of the employee's opposition to practices or actions prohibited by Title VII. See 42 U.S.C. § 2000e-3(a); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 62 (2006) (citations omitted). Retaliation can be shown by evidence that (1) Plaintiff engaged in protected activity, [1] (2) that he was thereafter subjected to an adverse employment action, and that (3) there is a causal link between the protected activity and the adverse employment action. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994); Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9th Cir. 2008).

         Under the burden-shifting analysis set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), after a plaintiff presents a prima facie case, the burden 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); Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir. 2008) (applying McDonnell Douglas burden-shifting framework to Title VII case); Shelley v. Geren, 666 F.3d 599, 607-08 (9th Cir. 2012) (noting that the McDonnell Douglas burden-shifting framework applies to ADEA claims evaluated in the context of a summary judgment motion). “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 discrimination.” Id.

         As discussed in detail below, Defendant argues that it is entitled to summary judgment on Plaintiff's claims of discrimination and retaliation stemming from discrete adverse personnel actions because Plaintiff has failed to establish a genuine issue of material fact regarding his prima facie case.

         1. 2009 and 2010 Position Rewrites

         Plaintiff's first alleged adverse employment action is that he was discriminated against when Defendant made changes to certain position descriptions and series classifications in 2009 and 2010. Second Compl. ¶¶ 11-12.

         In 2009, Defendant made changes to certain positions resulting in a downgrade in these positions from WG-11 to WG-10. ECF No. 60, Def.'s Stmnt. ¶ 5. In 2010, there was a reorganization in which a position that Mr. Cazinha formerly occupied was converted from a GS Pay Grade to a WS Pay Grade. Id. Although Plaintiff states in his Supplemental Concise Statement that these facts are “partially disputed, ” see ECF No. 72 at 3, his Declaration, which is cited in his Supplemental Concise Statement, does not provide any facts to dispute these statements, see ECF No. 66-1, Pl.'s Decl. 22-28.

         First, Defendant asks the Court to dismiss Plaintiff's claims based on these two acts because Plaintiff did not timely exhaust his administrative remedies. ECF No. 59-1 at 10-12. Because the Court must consider evidence outside of the pleadings to determine whether Plaintiff timely exhausted his administrative remedies, the Court considers Defendant's request to dismiss as a request for summary judgment. See Fed.R.Civ.P. 12(d). Defendant argues that Plaintiff failed to raise the 2009 and 2010 incidents with an Equal Employment Opportunity (“EEO”) counselor within the applicable 45-day window. ECF No. 59-1 at 10-12. A federal employee is required to initiate contact with an EEO counselor within 45 days of an alleged discriminatory act. See 29 C.F.R. ยง 1614.105(a)(1). An employee's failure to initiate contact within 45 days is grounds for ...


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