Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Thomas v. Spencer

United States District Court, D. Hawaii

July 30, 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 DISMISSAL AND SUMMARY JUDGMENT ON PLAINTIFF'S FIRST AMENDED COMPLAINT

          Richard L. Puglisi United States Magistrate Judge.

         On July 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.

         PROCEDURAL 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”) 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.

         On 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. 77.

         Plaintiff 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.

         Here, 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.

         FACTUAL BACKGROUND

         Plaintiff 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.”), ¶ 1.

         In late 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.

         Following 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.

         The 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.

         Following 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.

         In 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.

         DISCUSSION

         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 Based on Plaintiff's Failure to Exhaust his Administrative Remedies is DENIED.

         Defendant 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.”) (citation omitted).

         In the 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 Fed.R.Civ.P. 12(d).

         First, 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.

         Second, 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.

         B. Defendant's Request for Summary Judgment as to all of Plaintiff's Claims of Discrimination and Retaliation Based on Discrete Adverse Personnel Actions is GRANTED.

         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). “Should the defendant carry its burden, the burden then ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.