United States District Court, D. Hawaii
DANIEL K. TORRES, Plaintiff,
KIRSTJEN NIELSEN, TRANSPORTATION SECURITY ADMINISTRATION, et al., Defendants.
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANTS' RENEWED MOTION FOR DISMISSAL AND SUMMARY
JUDGMENT, AND (2) DENYING PLAINTIFF'S COUNTER MOTION FOR
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
Kirstjen Nielsen (Nielsen), the Secretary of the Department
of Homeland Security, and the Transportation Security
Administration (TSA, and, together with Nielsen,
“Defendants”) move for dismissal and/or summary
judgment on Plaintiff Daniel K. Torres' sole remaining
count for retaliation under Title VII (Count
One). Because the absence of a causal link
between Torres' protected activity and his termination
prevents Torres from establishing a prima facie case of
retaliation, and because, even with a prima facie case, there
is no evidence of pretext, Defendants are entitled to summary
judgment on Count One. In addition, because Torres has failed
to explain why he is entitled to summary judgment
with respect to any part of Count One, his counter motion for
summary judgment is denied.
Court acknowledges that Defendants move for dismissal,
pursuant to Fed.R.Civ.P. 12(b), and summary judgment,
pursuant to Fed.R.Civ.P. 56, with respect to Torres'
claim of retaliation. The question therefore is from what
source the Court is meant to draw the factual background of
this case: the Complaint, for purposes of Rule 12 dismissal,
or the concise statements of fact and evidence filed in
connection with summary judgment, for purposes of Rule 56. As
discussed below, because Rule 12 dismissal of the retaliation
claim is not appropriate, the Court draws the factual
background from the parties' concise statements of fact
and the accompanying evidence.
hired Torres on October 12, 2002, as a Supervisory
Transportation Security Officer (TSO) at Kona International
Airport (Kona Airport) in Kailua Kona, Hawaii. Decl. of
Gregory Knott ¶ 3(a), Dkt. No. 48-1; 10/12/02
Notification of Personnel Action, Dkt. No. 48-7.
September 2009, Torres encouraged a co-worker, TSO Fumi
Koizumi, to inform management of alleged sexual harassment by
Assistant Federal Security Director (FSD) Wallace Sahara.
7/30/10 Individual Complaint of Employment Discrimination at
4, Dkt. No. 48-16. When Kona Airport FSD James Correa learned
of Koizumi's allegations, he followed TSA policy by
taking Sahara out of Koizumi's chain of command and
referring the matter for investigation. Decl. of James Correa
¶¶ 1, 3, Dkt. No. 48-3. Torres submitted a
statement to TSA's Management Inquiry Branch (MIB) on
November 19, 2009. Decl. of Sozit Mohamed ¶ 5, Dkt. No.
48-5; 11/19/09 Statement of Daniel K. Torres, Dkt. No. 48-10.
In March 2010, Transportation Security Manager (TSM) Nelson
Dangtayan and TSM Evan Hokoana received letters of reprimand,
arising from the MIB investigation into Koizumi's
complaint. Decl. of Robert Kawamoto ¶¶ 9-10, Dkt.
November 2009, Correa received a complaint from Behavioral
Detection Officer (BDO) Kristy Lungo, alleging that Torres
(who was also a BDO at the time) failed to disclose an
intimate relationship with another BDO, made lewd and
sexually explicit comments, and racially profiled passengers.
Correa Decl. ¶ 4. Following standard TSA procedures,
Correa took Torres out of Lungo's chain of command and
referred the matter to TSA's Office of Investigations
(OI). OI declined the investigation, sending it back to Kona
Airport. Correa then requested that Assistant FSD for Law
Enforcement Dana Chong Tim handle the inquiry because Correa
had worked with him before, and because Chong Tim was based
in Honolulu, and not in the chain of command of anyone at
Kona Airport. Chong Tim was appointed as the inquiry officer
on November 13, 2009. Id. Chong Tim submitted a
report to Correa on December 18, 2009, and the report was
under legal review at the time Correa left the TSA on January
2, 2010. Id. at ¶¶ 1, 4. Correa did not
take any disciplinary action or form any conclusions
regarding the allegations against Torres before departing.
Id. at ¶ 4.
TSA's counsel reviewed the Chong Tim report, TSM Calvin
Okahara and Chong Tim transmitted further written questions
to various witnesses over the next few months. Kawamoto Decl.
¶ 4. Okahara also sent Torres a written list of
specifications of possible wrongdoing and obtained
Torres' written response. Id.
point between March and April 2010, Torres was accused of
theft, resulting in assignment to a training room for 45 days
without any responsibilities. 8/29/16 Testimony of Daniel K.
Torres at 55:23-56:16, Dkt. No. 54-3. After Torres complained to
Stanford Miyamoto, the acting FSD at the time, Miyamoto had
Torres restored to his duties. Id. at 57:9-25. No.
charges were filed as a result of this matter. Id.
March 2, 2010, Torres made initial contact with an Equal
Employment Opportunity (EEO) counselor, bringing allegations
against Sahara and Okahara. Mohamed Decl. ¶ 6.
April 23, 2010, Assistant FSD Robert Kawamoto proposed
Torres' removal based on six specifications of
unprofessional conduct and six specifications of failure to
follow agency policy. Kawamoto Decl. ¶ 5; 4/23/10 Notice
of Proposed Removal, Dkt. No. 48-13. The day before, during a
telephone discussion in which Kawamoto informed Torres of the
proposed removal, Torres became quite agitated and said
something about “going upstairs to shoot the
bastards” in an apparent reference to TSA management.
Kawamoto Decl. ¶ 6. Following TSA policy, Kawamoto
immediately referred the matter for investigation as a
possible threat of workplace violence, and, at the direction
of Miyamoto, requested that Torres' access to the airport
be suspended. Chong Tim was assigned to investigate this
matter. In an interview on April 28, 2010, Kawamoto told
Chong Kim that he did not believe Torres intended to harm
anyone. On April 29, 2010, Miyamoto determined that Torres
was not a threat, and Torres' airport access was
April 25, 2010, Richard Wiles was appointed FSD at Kona
Airport, beginning work on May 7, 2010. Decl. of Richard
Wiles ¶ 3, Dkt. No. 48-4. Wiles became the deciding
official with respect to the proposed removal of Torres.
Id. ¶ 4. Torres and his appointed
representative provided Wiles with oral and written responses
in June 2010. Id. ¶ 5. After taking into
consideration all of the evidence in the record, including
Torres' responses, Wiles sustained 9 of the 12
specifications for removal. Id. In issuing his
decision, Wiles offered Torres a “Last Chance/Abeyance
Agreement” (LCA). Id. at ¶ 6. Torres was
given the choice of the LCA or being terminated. 10/20/10 EEO
Counselor's Report at 3, Dkt. No. 48-27. Although Wiles
believed that the charges against Torres were very serious
and completely justified his termination, Wiles offered him
the LCA because of the length of Torres' service and his
willingness to take responsibility for his actions.
Id. at ¶ 7. Wiles was also new to Kona Airport,
and he wanted to give everyone the benefit of the doubt.
Wiles gave LCAs to two other employees for whom he had
received proposed terminations. Id.
discussion about the LCA, Wiles learned for the first time
that Torres had filed a prior Equal Employment Opportunity
(EEO) complaint. Id.
to the LCA, if Torres adhered to its terms for 12 months, the
removal action against him would be rescinded. LCA ¶ 12.
Torres agreed to conduct himself in a professional manner
while in the workplace and follow all agency policies.
Id. at ¶ 5. Torres also agreed to waive any
appeal or grievance rights related to a removal action taken
by TSA as a result of a violation of the LCA. Id. at
¶ 7. The LCA required Torres to withdraw any pending EEO
complaint. Id. Torres acknowledged that the LCA
meant that he was being given one more chance to prove that
he could keep his job. Id. at 3. Torres signed the
LCA on June 28, 2010. Id.
30, 2010, Torres provided an Affidavit to an EEO investigator
in connection with Koizumi's allegations of harassment.
Mohamed Decl. ¶ 5; 6/30/10 Affidavit of Daniel Torres,
Dkt. No. 48-12.
30, 2010, Torres filed a formal complaint of employment
discrimination, alleging wrongdoing against Sahara and
Okahara. Mohamed Decl. ¶ 7; 7/30/10 Individual Complaint
of Employment Discrimination, Dkt. No. 48-16.On November 22,
2010, TSA issued Torres a letter identifying the allegations
accepted for investigation as whether he was subjected to
harassment on the basis of reprisal with respect to three
separate matters. Mohamed Decl. ¶ 8. On December 13,
2010, TSA issued Torres' counsel a letter acknowledging
Torres' withdrawal of his complaint. Id. ¶
December 5, 2010, Torres was re-assigned to the position of
Expert TSO-Security Training Instructor. Knott Decl. ¶
3(b); 12/5/10 Notification of Personnel Action, Dkt. No.
March 17, 2011, Wiles learned that TSO Dalene Kamakea had
reported Torres sexually harassed her while on duty at a
checkpoint on March 16, 2011. Wiles Decl. ¶ 10. Wiles
spoke with Kamakea about the incident within the next few
days, and observed that she was quite upset about it.
Id. Wiles appointed Hokoana to conduct an
administrative inquiry into Kamakea's allegations.
Id. ¶ 11. Dangtayan assisted Hokoana.
March 25, 2011, Hokoana provided Wiles with the
administrative inquiry report, which included statements from
Torres, Kamakea, Dangtayan, David Nakano, and Maureen
Schwenk. 3/25/11 Informal Administrative Inquiry Report at 6,
Dkt. No. 48-19. Wiles shared this report with Kawamoto,
who proposed reinstating Torres' removal action on March
28, 2011. Wiles Decl. ¶ 13. The proposed removal was
based upon a specification of unprofessional conduct in that,
while on duty on March 16, 2011, Torres said to Kamakea,
“You touching your tits when you see me coming?”
3/28/11 Proposed Reinstatement of Removal Action at 1, Dkt.
No. 48-20. The proposed removal was further based upon four
specifications of failure to provide truthful information.
Id. at 1-2.
April 5, 2011, Torres and his lawyer presented oral and
written responses to Wiles regarding the proposed removal
action. 4/5/11 Response to the March 28, 2011 Proposed
Reinstatement of Removal Action, Dkt. No. 48-21. Torres
denied Kamakea's account of the March 16, 2011 incident,
asserting that he said to her: “Why are you beating on
your chest of breast.” Id. at 7; Wiles Decl.
¶ 14. At around the same time, Wiles interviewed Kamakea
herself, and heard her account of the March 16, 2011
incident. Wiles Decl. ¶ 15.
making a determination, Wiles relied on: (1) his review of
the statements from all relevant witnesses; (2) his review of
the materials Torres and his attorney submitted in response
to the notice of proposed termination; (3) his interaction
with Kamakea after the incident; (4) his interview of
Kamakea; (5) his knowledge of Kamakea's character; (6)
his interview with Torres; (7) Kamakea not having an apparent
motive to lie, while Torres might have been motivated to lie
to save his job; and (8) Torres engaging in similar
misconduct in the past when he discussed at work an oral sex
act that a TSO purportedly performed on him. Id.
¶ 16. Wiles reviewed Hokoana's report, but he did
not rely on it in deciding what to do.
upon Wiles' review of the evidence, he determined that
Kamakea's account of the March 16, 2011 incident was
accurate and Torres' was not. Id. at ¶ 17.
Wiles also found that Torres had not been candid with
investigators about the incident, and had misrepresented a
conversation he had with Kamakea on March 17, 2011.
Id.; 4/29/11 Final Decision of Reinstatement of
Removal Action at 1-2, Dkt. No. 48-22. Wiles further
determined that a preponderance of the evidence supported
finding that Torres had violated the LCA. Wiles Decl. ¶
18. Wiles found that any one of the five sustained violations
of the LCA would have been sufficient to support
reinstatement of Torres' removal. Final Decision of
Reinstatement of Removal Action at 6.
April 29, 2011, Wiles issued Torres a Notice of Final
Decision of Removal (Reinstated). 4/29/11 Notice of Final
Decision of Removal (Reinstated), Dkt. No. 48-23. At the time
of Torres' removal, Wiles was aware that Torres had filed
a prior EEO complaint. Wiles Decl. ¶ 7.
was terminated from his employment with TSA effective as of
May 3, 2011. Knott Decl. ¶ 3(c); 5/3/11 Notification of
Personnel Action, Dkt. No. 48-9. Torres made initial contact
with TSA's EEO office on May 26, 2011 about his
termination. Mohamed Decl. ¶ 10; 9/26/11 EEO
Counselor's Report, Dkt. No. 48-24.
December 28, 2016, Torres filed a Complaint alleging three
counts: (1) retaliation for protected activity in violation
of Title VII of the Civil Rights Act of 1964 (Title VII), 42
U.S.C. § 2000e et seq.; (2) termination in
violation of public policy; and (3) intentional and/or
negligent infliction of emotional distress. Compl. at 11-13,
Dkt. No. 1.
Defendants moved for and then withdrew an initial request for
dismissal and summary judgment, Defendants filed the instant
renewed motion for dismissal and summary judgment on August
22, 2018. Renewed Mot. for Dismissal & Summ. Judg., Dkt.
No. 47. Defendants moved for dismissal of Counts Two and
Three on various grounds. Subsequently, the parties
stipulated to the dismissal of those counts. Dkt. No. 59. As
a result, the only remaining count before the Court is Count
move for dismissal of Count One on the grounds that (1)
Torres failed to allege timely contact with an EEO counselor,
and (2) other than Torres' termination, all of the
alleged conduct occurred more than 45 days before Torres
contacted an EEO counselor. Defendants also argue that, to
the extent Torres may claim that he was subject to a hostile
work environment, he did not allege any such claim in the
Complaint, he did not administratively exhaust any such
claim, and any such claim would not be viable.
alternative, Defendants move for summary judgment on
Torres' retaliation claim. Defendants argue that Torres
has not established a prima facie case of retaliation, TSA
had legitimate and non-retaliatory reasons for its actions,
and Torres has failed to show that TSA's reasons for its
actions were pretextual.
September 28, 2018, Torres filed an opposition to the renewed
motion for dismissal and summary judgment. Opp., Dkt. No. 53.
Torres argues that TSA engaged in a pattern and practice of
retaliatory actions that created a hostile work environment.
Torres also argues that there are genuine issues of material
fact as to whether TSA retaliated against him for providing
assistance to Koizumi. Torres further asserts that he should
be granted summary judgment as to the LCA being coerced, void
ab initio as contrary to public policy, and an illegal basis
for his termination. In that regard, Torres filed a counter
motion for summary judgment, challenging the validity of the
LCA and the propriety of it serving as the basis of his
termination. Counter Mot. for Summ. Judg., Dkt. No. 55.
Rule of Civil Procedure 12 allows a defendant to move for
dismissal of a claim on the grounds of, inter alia,
lack of subject matter jurisdiction and failure to state a
claim upon which relief can be granted. Fed.R.Civ.P.
Rule 12(b)(1), a defendant may challenge the plaintiff's
jurisdictional allegations in one of two ways. A
‘facial' attack accepts the truth of the
plaintiff's allegations but asserts that they are
insufficient on their face to invoke federal
jurisdiction.” Leite v. Crane Co., 749 F.3d
1117, 1121 (9th Cir. 2014) (quotation omitted). “A
‘factual' attack, by contrast, contests the truth
of the plaintiff's factual allegations, usually by
introducing evidence outside the pleadings.”
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
allege enough facts to state a claim to relief that is
plausible on its face.” Turner v. City & Cty.
of San Francisco, 788 F.3d 1206, 1210 (9th Cir. 2015)
(quotation omitted). In assessing such a motion, “a
court must take all allegations of material fact as true and
construe them in the light most favorable to the nonmoving
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.” The moving
party is entitled to judgment as a matter of law when the
non-moving party fails to make a sufficient showing on an
essential element of a claim in the case on which the
non-moving party has the burden of proof. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). In assessing a
motion for ...