United States District Court, D. Hawaii
MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S MOTION FOR DISMISSAL AND
SUMMARY JUDGMENT ON PLAINTIFF'S FIRST AMENDED
Richard L. Puglisi United States Magistrate Judge.
12, 2018, Defendant's Motion for Dismissal and Summary
Judgment on Plaintiff's First Amended Complaint 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. During the hearing, the
Court requested additional briefing from both parties
regarding the one claim not addressed in Defendant's
Motion. After carefully considering the parties'
submissions, including the supplemental briefing, the
relevant legal authority, and the arguments of counsel at the
hearing, the Court GRANTS IN PART AND DENIES IN PART
Defendant's Motion. Specifically, the Court DENIES
Defendant's request to dismiss two of Plaintiff's
claims based on a failure to exhaust administrative remedies,
GRANTS summary judgment in favor of Defendant as to all of
Plaintiff's claims of discrimination and retaliation
based on discrete adverse personnel actions, GRANTS
Defendant's request for summary judgment on
Plaintiff's hostile work environment claim based on race,
color, and national origin, and GRANTS Defendant's
request for summary judgment as to Plaintiff's
retaliatory hostile work environment claim.
filed his First Complaint on April 9, 2015, alleging claims
for violations of Title VII of the Civil Rights Act of 1964
(“Title VII”) and violation of the Age
Discrimination in Employment Act of 1967. ECF No. 1 in Civil
No. 15-00121 RLP. 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. These two
actions were consolidated by stipulation on November 17,
2016. ECF No. 42.
February 27, 2018, this Court issued its Order Granting in
Part and Denying in Part Defendant's Motion for Partial
Dismissal and Partial Summary Judgment. See ECF No.
74. In that Order, the Court granted summary judgment in
favor of Defendant on all claims except for Plaintiff's
claim based on his reassignment and Plaintiff's claim
regarding a 2014 performance award. Id. at 21-23.
Following the Court's order, the parties agreed to allow
Plaintiff to file an amended complaint. See ECF No.
filed his First Amended Complaint on April 16, 2018. ECF No.
79, First Amended Complaint (“FAC”). In his First
Amended Complaint, Plaintiff alleges that Defendant
discriminated against him in violation of Title VII on the
basis of his race, color, and national origin, and retaliated
against him for filing Equal Employment Opportunity
(“EEO”) complaints, by reassigning him to a
non-supervisory position, refusing to recommend him for
performance awards, denying him promotions, and taking other
actions. Id. Plaintiff also alleges that Defendant
created a hostile work environment based on these same
actions. Id. ¶ 11.
Defendant asks the Court to dismiss two claims on the basis
that Plaintiff failed to exhaust his administrative remedies
and to grant summary judgment on all remaining claims. ECF
No. 84; ECF No. 94.
has been employed at Pearl Harbor Naval Shipyard since 1982.
See ECF No. 1 ¶ 15. In 2014, Plaintiff was a
WS-10 Production Supervisor at Naval Facilities Engineering
Command Hawaii, responsible for overseeing more than a dozen
employees who work around the clock monitoring and repairing
utilities equipment. See ECF No. 85, Defendant's
Concise Statement of Facts in Support of His Motion for
Dismissal and Summary Judgment on Plaintiff's First
Amended Complaint (“Def.'s Stmnt.”) ¶ 1;
ECF No. 91, Plaintiff Clifford Thomas' Supplemental
Concise Statement of Facts in Opposition to Defendant Richard
V. Spencer's Motion for Dismissal and Summary Judgment on
Plaintiff's First Amended Complaint (“Pl.'s
Stmnt.”) ¶ 1; ECF No. 89-1, Declaration of
Plaintiff Clifford Thomas (“Pl.'s Decl.”),
June 2014, Defendant received several employee complaints
about Plaintiff and about two other supervisors. ECF No. 85,
Def.'s Stmnt., ¶¶ 3, 6; ECF No. 91, Pl.'s
Stmnt., ¶ 6. While the complaints about him were being
investigated, Plaintiff was temporarily reassigned to work in
the office of the Product Line Coordinator for the Utilities
and Energy Management Branch to support administrative
duties. ECF No. 85, Def.'s Stmnt., ¶ 5; ECF No. 91,
Pl.'s Stmnt. ¶ 1; ECF No. 89-1, Pl.'s Decl.,
¶ 13. The two other supervisors were subject to a
separate investigation, but neither of those individuals were
removed from their positions during that investigation. ECF
No. 85, Def.'s Stmnt., ¶ 6; ECF No. 91, Pl.'s
Stmnt., ¶ 6; ECF No. 89-1, Pl.'s Decl., ¶ 17.
his temporary reassignment in 2014, Plaintiff's former
supervisor did not recommend Plaintiff for a bonus. ECF No.
60 ¶ 11. Despite his former supervisor's decision to
not recommend Plaintiff for a bonus, Plaintiff did receive a
bonus that year. ECF No. 60 ¶ 11; ECF No. 66-1 ¶
63. Other employees in Plaintiff's
former work center received bonuses of up to $500; Plaintiff
received a bonus of $300. ECF No. 66-1 ¶ 63.
employee complaints against Plaintiff were investigated by
Guy Masuda, which included interviews with Plaintiff's
subordinates and with Plaintiff. ECF No. 85, Def.'s
Stmnt., ¶ 7; ECF No. 91, Pl.'s Stmnt., ¶ 7; ECF
No. 89-1, Pl.'s Decl., ¶¶ 19-21. Mr. Masuda
issued a report following his investigation. Id.
that report, Plaintiff was reassigned to the Wastewater
Treatment Plant, where he was no longer a supervisor, but
retained his grade and pay. ECF No. 85, Def.'s Stmnt.,
¶ 8; ECF No. 91, Pl.'s Stmnt., ¶ 8; ECF No.
89-1, Pl.'s Decl., ¶ 32. During a meeting in June
2016, Plaintiff was told that his reassignment to the
Wastewater Treatment Plant was indefinite. ECF No. 85,
Def.'s Stmnt., ¶ 10; ECF No. 91, Pl.'s Stmnt.,
¶ 10; ECF No. 89-1, Pl.'s Decl., ¶ 37. During
that meeting, Plaintiff stated that he was likely going to
file an EEO complaint about his indefinite reassignment. ECF
No. 85, Def.'s Stmnt., ¶ 11; ECF No. 91, Pl.'s
Stmnt., ¶ 11; ECF No. 89-1, Pl.'s Decl., ¶ 38.
Following that meeting, Plaintiff's former supervisor and
current supervisor spoke about EEO complaints and
Plaintiff's former supervisor said that he had dealt with
about 15 EEO complaints over the years. ECF No. 85,
Def.'s Stmnt., ¶ 11; ECF No. 91, Pl.'s Stmnt.,
¶ 11; ECF No. 89-1, Pl.'s Decl., ¶ 42. At the
Wastewater Treatment Plant, Plaintiff was assigned duties
that include cleaning up human waste after spills or leaks.
ECF No. 85, Def.'s Stmnt., ¶ 14; ECF No. 91,
Pl.'s Stmnt., ¶ 14.
November 2016 and March 2017, Plaintiff was not selected for
a Utilities Manager position and for a Utilities Supervisor
position. ECF No. 85, Def.'s Stmnt., ¶¶ 15-16;
ECF No. 91, Pl.'s Stmnt., ¶¶ 15-16.
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 Based on
Plaintiff's Failure to Exhaust his Administrative
Remedies is DENIED.
asks the Court to dismiss two of Plaintiff's claims
because Defendant contends that Plaintiff did not timely
exhaust his administrative remedies. ECF No. 84-1 at 3-5. 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 dismissal. Id. § 1614.107(a)(2);
Cherosky v. Henderson, 330 F.3d 1243, 1245 (9th Cir.
2003) (“Failure to comply with this regulation is fatal
to a federal employee's discrimination claim.”)
First Amended Complaint, Plaintiff alleges that he was
discriminated and retaliated against when Defendant failed to
monitor coworker misbehavior and failed to take prompt
remedial action about the misbehavior of coworkers. ECF No.
79, FAC, ¶ 17. Plaintiff also alleges that he was
discriminated and retaliated against when Defendant did not
select him to attend boiler inspector training in 2014 and
2015. Id. ¶ 25. Defendant asks the Court to
dismiss Plaintiff's claims based on these two acts
because Plaintiff never raised a claim regarding monitoring
and taking action about coworker misbehavior and Plaintiff
did not raise the claims regarding boiler inspector training
until August 2016. ECF No. 84-1 at 3-5. 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
regarding Plaintiff's claim that Defendant failed to
monitor and take action regarding coworker misbehavior, the
Court finds that Plaintiff did exhaust his administrative
remedies regarding this claim. Although Plaintiff does not
address this issue in his Opposition, see ECF No.
88, based on the Court's review of the record in this
case, it appears that Plaintiff raised this issue in an EEO
complaint in 2015. Specifically, the Final Agency Decision
dated June 2, 2016, states that in an amended EEO claim
accepted for investigation on January 30, 2015, Plaintiff
alleged that he was discriminated against when management did
not conduct an investigation into his coworkers' behavior
or move his alleged harassers when he filed his prior EEO
complaints. See ECF No. 1-3 filed in Civil No.
16-00485 RLP at 4. Plaintiff included an allegation in one of
his prior complaints regarding this activity. See
ECF No. 1 ¶ 35 filed in Civil No. 16-00485 RLP.
Specifically, Plaintiff alleged that he was discriminated
against and subject to a hostile work environment “when
management did not conduct an investigation or move his
harassers from the work center when he had filed his prior
EEO complaints alleging that he was subjected to a hostile
work environment.” Id. ¶ 35. Defendant
did not seek summary judgment on this claim in its prior
motion for partial summary judgment. See ECF No.
59-1. Because the evidence suggests that Plaintiff properly
exhausted his administrative remedies regarding
Defendant's failure to take action regarding coworker
misbehavior, the Court DENIES Defendant's Motion as to
this claim based on a failure to exhaust.
regarding Plaintiff's claims regarding the boiler
inspector training in 2014 and 2015, Plaintiff states in his
declaration that he raised this issue with the Office of the
EEO the day after he discovered this information.
See ECF No. 89-1, Pl.'s Decl., ¶ 47. As
alleged in the First Amended Complaint, Plaintiff learned
that he was not given the opportunity to attend the boiler
inspector training in 2014 and 2015 on August 26, 2016. ECF
No. 79, FAC, ¶ 25. Defendant concedes that Plaintiff
raised this issue in August 2016. ECF No. 84-1 at 4. Although
a federal employee is required to initiate contact with an
EEO counselor within 45 days of an alleged discriminatory
act, the agency “shall extend the 45-day time limit . .
. when the individual shows . . . that he or she did not know
and reasonably should not have been known that the
discriminatory matter . . . occurred.” 29 C.F.R. §
1614.105(a)(2). Therefore, the time period for contacting an
EEO counselor is extended until the employee knew or should
have known that “other employees with qualifications
similar to her own were treated more favorably.”
Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220
(9th Cir. 1998). Defendant argues in its Reply that Plaintiff
was aware that the training existed and that he had not
received it. ECF No. 92 at 4. However, Plaintiff expressly
states in his Declaration that this training “was never
disclosed to me.” See ECF No. 89-1, Pl.'s
Decl., ¶ 47. Additionally, at his deposition Plaintiff
states that he “had no idea that [this training] was
available.” ECF No. 85-9 at 7. Aside from its argument
in its Reply, Defendant does not provide evidence that
Plaintiff knew or should have known about the boiler
inspector training before 2016. Accordingly, there is a
genuine issue of material fact regarding when Plaintiff knew
or reasonably should have known about the boiler inspector
training. The Court DENIES Defendant's Motion as to these
claims based on a failure to exhaust.
Defendant's Request for Summary Judgment as to all of
Plaintiff's Claims of Discrimination and Retaliation
Based on Discrete Adverse Personnel Actions is
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).
“Should the defendant carry its burden, the burden then