United States District Court, D. Hawaii
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
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.
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.
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.
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.
Defendant's Request to Dismiss Plaintiff's Claims
Under the Declaratory Judgment Act is GRANTED.
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)
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.
Defendant's Request for Summary Judgment as to the
Remaining Claims at Issue is GRANTED IN PART AND DENIED IN
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).
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.
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).
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,
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).
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
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
2009 and 2010 Position Rewrites
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.
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.
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. § 1614.105(a)(1). An
employee's failure to initiate contact within 45 days is
grounds for ...