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Gipaya v. Department of Air Force

United States District Court, D. Hawaii

September 28, 2018

GERALD D. GIPAYA, Plaintiff,


          Leslie E. Kobayashi United States District Judge.

         On May 2, 2018, Defendant Heather Wilson, Secretary of the Air Force (“Defendant”), filed her Motion for Dismissal and Summary Judgment (“Motion”). [Dkt. no. 15.] Plaintiff Gerald D. Gipaya (“Plaintiff”) filed his memorandum in opposition on July 9, 2018, and Defendant filed her reply on July 16, 2018. [Dkt. nos. 18, 20.] This matter came on for hearing on July 30, 2018. On August 31, 2018, this Court issued an entering order ruling on the Motion. [Dkt. no. 23.] The instant Order supersedes that entering order. Defendant's Motion is hereby granted for the reasons set forth below.


         I. Complaint

         On October 6, 2017, Plaintiff filed his Employment Discrimination Complaint (“Complaint”). [Dkt. no. 1.] Plaintiff states served in the United States Air Force (“Air Force”) from 1969 until his honorable discharge in 1977. He then worked for the Air Force as a civilian employee from 1978 until his retirement in 2005. In 2006, Plaintiff was hired as a reemployed annuitant to be Quality Assurance (“QA”) Specialist. At all times relevant to this case, Plaintiff was employed as a QA Specialist at Joint Base Pearl Harbor-Hickam, formerly known as Hickam Air Force Base (“Hickam”). [Id. at ¶¶ 6-10.]

         In August 2010, Plaintiff suffered a stroke, which Defendant was aware of. He returned to work later that month, but experienced limitations as a result of the stroke. [Id. at ¶¶ 11-13, 15.] According to Plaintiff, in spite of these limitations, “he was able to complete his regular duties effectively and on time, ” but he was also asked to perform additional duties that were not part of his position description. [Id. at ¶¶ 13-14.] Plaintiff alleges Defendant failed to provide him with reasonable accommodations for his stroke-related limitations. For example, Plaintiff was not provided with the requested ergonomic chair for six months after his return to work, and his June 29, 2012 email request to reduce his workload to his original job duties was denied. [Id. at ¶¶ 15-18.]

         Plaintiff alleges: in February 2013, he was one of five reemployed annuitants who were notified they would be terminated, effective March 2013; [id. at ¶ 20;] supervisors could seek a waiver allowing a reemployed annuitant avoid termination, but no waiver was sought for Plaintiff; [id. at ¶¶ 21-22, 25;] and waivers were sought and approved for the other four reemployed annuitants, [id. at ¶ 23]. Thus, Plaintiff was the only reemployed annuitant who was terminated. [Id. at ¶ 26.] Plaintiff asserts that an waiver was not sought for him because he was the only reemployed annuitant who had a disability. [Id. at ¶¶ 24-25.] He also states he is of Native Hawaiian ancestry, and he was sixty-two years old at the time of the events in question. [Id. at ¶ 6.]

         Plaintiff was terminated effective March 9, 2013. [Id. at ¶ 27.] Plaintiff filed an Equal Employment Opportunity (“EEO”) Complaint on April 22, 2013. On December 17, 2013, he requested a hearing before the Equal Employment Opportunity Commission (“EEOC”). [Id. at ¶¶ 30-31.]

         Plaintiff alleges three causes of action, each with multiple theories of liability. Plaintiff alleges violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII” and “Count I”), based on theories of: hostile work environment; race discrimination (Hawaiian/Pacific Islander); and retaliation. [Id. at ¶ 34.] Next, Plaintiff alleges violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 633a (“ADEA” and “Count II”), based on theories of hostile work environment and termination based on his age. [Id. at ¶ 35.] Finally, Plaintiff alleges the conduct described in the Complaint constitutes disability discrimination, in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et. seq. (“Rehab Act” and “Count III”). [Id. at ¶ 36.]

         II. Relevant Facts

         Plaintiff's employment as a QA Specialist at Hickam is undisputed. [Def.'s Concise Statement in Supp. of Motion (“Def.'s CSOF”), filed 5/2/18 (dkt. no. 16), at ¶ 1; Pltf.'s Concise Statement of Facts in Opp. to Def.'s Motion (“Pltf.'s CSOF”), filed 7/9/18 (dkt. no. 19), at ¶ 1 (admitting Def.'s ¶ 1).] Plaintiff's August 2010 stroke is also undisputed, as is the fact that he continued to receive high ratings on his job performance evaluations after returning to work. [Def.'s CSOF at ¶ 2; Pltf.'s CSOF at ¶ 2 (admitting Def.'s ¶ 2 in part).]

         A. The Ergonomic Chair

In late 2011, [Plaintiff] asked his supervisor [Technician Sergeant Toby] Jones for an ergonomic chair. [Plaintiff] explained that he needed the chair “because someone was playing with my chair, and it makes it very hard for me to adjust these things in the morning.” His request did not refer to disability or to reasonable accommodation. Jones asked him to provide information about what chair he wanted and where to purchase it. By the time [Plaintiff] provided the information it was late in the fiscal year, and the purchase had to wait until the new fiscal year. It took about five or six months for the chair to be delivered. [Plaintiff] did not believe that anyone discriminated against him on the basis of his race, age or disability in connection with the chair.

[Def.'s CSOF at ¶ 3; Pltf.'s CSOF at ¶ 3 (disputing Def.'s ¶ 3 only to the extent that Plaintiff asserts he “requested the ergonomic chair because of his limitations after the stroke - limited use of his hand/arm.”).]

         B. The 6/29/12 Email

         On June 29, 2012, Plaintiff emailed Master Sergeant Albert Murphy (“6/29/12 Email”). [Def.'s CSOF, Decl. of Thomas A. Helper (“Helper Decl.”), Exh. 3 (6/29/12 Email) at 2-3.[1] The 6/29/12 Email stated Plaintiff's concerns that: he consistently worked more than other QA staff; he worked in excess of his “Core Documents” - i.e., job description; and management knew others were unfairly shifting their workload to Plaintiff. [Id. at 3.] The email continued, “[t]hat needs to STOP right now. Here's to inform you, I too, am throttling back to my 10% level, ” which was specified for Plaintiff's work on the Product Improvement Program in his Core Document. [Id. (emphasis in original).] The 6/29/12 Email further stated Plaintiff's appointment did not qualify him for managerial duties, and continued: “I've rode solo from day one. Core documents/TBA, no one adheres to them? If your position states to do this and this and that, step up and contribute.” [Id.] The 6/29/12 Email “did not refer to [Plaintiff's] national origin, disability or age.” [Def.'s CSOF at ¶ 4; Pltf.'s CSOF at ¶ 4 (only disputing other portions of Def.'s ¶ 4).]

         On July 10, 2012, Master Sergeant Murphy replied to the 6/29/12 Email. [6/29/12 Email at 1-2.] Master Sergeant Murphy stated he had consulted with the civilian personnel department, and disagreed with Plaintiff's concerns stated in the 6/29/12 Email because: 1) as Plaintiff's supervisor, Master Sergeant Murphy was authorized to assign work as needed for mission operations; 2) unless the assignments were illegal, unethical, or immoral, Plaintiff was obliged to complete his assigned tasks; 3) the Core Document was not an exhaustive description of the permissible work that an employee may be assigned. [Id. at 1-2.] Master Sergeant Murphy concluded by warning that: “[b]latant disregard for a direct order and/or failure to properly carry out an assigned duty/task may result in disciplinary action taken against you up to and including removal, ” and stated that he and Plaintiff would meet in person, the next day, to verbally discuss expectations. [Id. at 2.]

         C. The Directive and Plaintiff's Termination

         For budgetary reasons, the Air Force directed all of its components to separate certain civilian personnel, including reemployed annuitants (“Directive”). A reemployed annuitant is an employee who is receiving a federal pension while employed with the Air Force. Plaintiff was a reemployed annuitant. The Directive “provided an exception for employees whose skills were ‘mission critical.'” [Def.'s CSOF at ¶ 5; Pltf.'s CSOF at ¶ 5 (admitting Def.'s ¶ 5).]

         Colonel Michael Novotny was the Commander of the Fifteenth Maintenance Group and was Plaintiff's fourth level supervisor. At the time of the Directive, there were two reemployed annuitants under Colonel Novotny's command: Plaintiff and Fuel Systems Specialist Roger Horiuchi (“Horiuchi”). Colonel Novotny was assigned to recommend whether each was mission critical. [Def.'s CSOF at ¶ 6; Pltf.'s CSOF at ¶ 6 (only disputing Def.'s ¶ 6 insofar as “Human Resources advised that the command could not provided exception packages for every reemployed annuitant.”).] Colonel Novotny approved a waiver request for Horiuchi, who “was the QA Specialist

responsible for evaluating the maintenance performed by the Fuels Systems Maintenance Shop, which was responsible for the essential task of ensuring that aircraft fuel systems worked properly.” [Def.'s CSOF, Decl. of Michael Novotny (“Novotny Decl.”) at ¶ 4.] Horiuchi had current certifications necessary for his job, and there were only a few individuals in the unit, whether uniformed or civilian, who could perform the QA work Horiuchi did. [Id.] Colonel Novotny did not approve a wavier request for Plaintiff, whose work involved investigating incidents in which damage had occurred to airplanes. Plaintiff's work “was more administrative in nature” and did not require specialized certifications. [Id. at ¶ 5.]

         Colonel Novotny knew, prior to Plaintiff's termination, that Plaintiff had serious health issues, but Colonel Novotny was not aware that Plaintiff's work was affected by those health issues. Colonel Novotny understood Plaintiff's work performance to be good. Further, Colonel Novotny was not aware Plaintiff had ever sought accommodation for a disability or otherwise engaged in protected activity opposing discrimination. [Def.'s CSOF at ¶ 9; Pltf.'s CSOF at ¶ 9 (disputing Def.'s ¶ 9 only “as to whether Plaintiff's age, race, and medical condition, or prior protected activity played a role in the determination he was not mission critical”).]

         Plaintiff's “first contact with an EEO counselor came on March 29, 2013, after his termination.” [Def.'s CSOF at ¶ 10; Pltf.'s CSOF at ¶ 10 (admitting Def.'s ¶ 10).] Plaintiff told the EEO counselor that: on February 5, 2013, he received notice that reemployed annuitants within the QA office would be terminated; and, on March 8, 2013, he was terminated. [Helper Decl., Exh. 4 (EEO Counselor's Report) at 13.]

         III. The Motion

         In the instant Motion, Defendant argues all of Plaintiff's claims, except for his claims based on his termination should be dismissed because he failed to exhaust his administrative remedies. As to any claim that is not dismissed, Defendant seeks summary judgment on the merits.


         I. Dismissal - Exhaustion of Administrative Remedies

         Both the Rehab Act and Title VII require a plaintiff to exhaust his administrative remedies prior to filing suit.[2]Martinez v. Stackley, CIV. NO. 16-00475 HG-RLP, 2018 WL 1093810, at *8 (D. Hawai`i Feb. 28, 2018) (citing Vinieratos v. United States, 939 F.2d 762, 768 n.5 (9th Cir. 1991)).

         A. Failure to Accommodate Plaintiff's Disability

         In evaluating the portion of Defendant's Motion seeking dismissal of Plaintiff's claim alleging failure to provide reasonable accommodations for his disability, the Court assumes the ergonomic chair requested upon Plaintiff's return to work and the workload reduction requested in the 6/29/12 Email were reasonable and necessary to accommodate Plaintiff's disability. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007))).

         As to the exhaustion requirement applicable to a federal employee's EEO claims:

This Court has explained that failure to contact a counselor within the required time frame can be dispositive:
29 C.F.R. § 1614.105(a)(1) requires a federal employee who believes that she has been subjected to . . . discrimination in the workplace to initiate contact with an EEO counselor within forty-five days of the alleged discrimination. The forty-five day period, however, is “subject to waiver, estoppel and equitable tolling.” See 29 C.F.R. § 1614.604(c). If waiver, estoppel or equitable tolling does not apply, failure to comply with § 1614.105(a)(1) is “fatal to a federal employee's discrimination claim in federal court.” Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch, 572 F.3d 1039, 1043 (9th Cir. 2009) (citations and internal quotation marks omitted).
Marugame v. Napolitano, Civil No. 11-00710 LEK-BMK, 2013 WL 4608079, at *9 (D. Hawai`i Aug. 28, 2013).
While timely filing of an administrative complaint is “not a jurisdictional prerequisite to suit in federal court, ” it is a necessary requirement, “subject to waiver, estoppel and equitable tolling.” “Equitable estoppel focuses on the defendant's wrongful actions preventing the plaintiff from asserting his claim.” Leong v. Potter, 347 F.3d 1117, 1123 (9th Cir. 2003). “Equitable tolling focuses on a plaintiff's excusable ignorance and lack of prejudice to the defendant.” Id.

Banks v. McHugh, Civil No. 11-00798 LEK-KSC, 2014 WL 2932479, at *2 (D. Hawai`i June 30, 2014) (alteration in Banks). In Banks, this Court found the plaintiff had “failed to exhaust her administrative remedies” because she had “not contact[ed] an EEO counselor before the required deadline.” Id. at *4.

         Plaintiff fails to allege he contacted an EEO counselor within forty-five days of either the delay of the ergonomic chair following his return to work in August 2010 or the response to the 6/29/12 Email. To the extent Plaintiff asserts claims for failure to reasonably accommodate his disability based on these incidents, those fail to state plausible claims for relief because Plaintiff fails to allege he contacted an EEO counselor within forty-five days of the respective incidents. Those claims must therefore be dismissed. See Iqbal, 556 U.S. at 678 (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” (quoting Twombly, 550 U.S. at 570)).

         Plaintiff admits he first contacted an EEO counselor on March 29, 2013 - much more than forty-five days after these incidents. See Def.'s CSOF at ¶ 10; Pltf.'s CSOF at ¶ 10. Because it is clear that any amendment would be futile, the portion of Plaintiff's claims alleging failure to accommodate his disability must be dismissed with prejudice. See Sonoma Cty. Ass'n of Retired Emps. v. Sonoma Cty., 708 F.3d 1109, 1118 (9th Cir. 2013) (“As a general rule, dismissal without leave to amend is improper unless it is clear, upon de novo review, that the complaint could not be saved by any amendment.” (brackets, citation and internal quotation marks omitted)).

         B. Hostile ...

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