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Torres v. Nielsen

United States District Court, D. Hawaii

November 5, 2018

DANIEL K. TORRES, Plaintiff,




         Defendants, 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).[1] 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.


         The 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.

         I. Factual Background

         TSA 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.

         In 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. No. 48-2.

         In 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.

         After 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.

         At some 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.[2] 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. at 57:20-24.

         On March 2, 2010, Torres made initial contact with an Equal Employment Opportunity (EEO) counselor, bringing allegations against Sahara and Okahara. Mohamed Decl. ¶ 6.

         On 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 restored. Id.

         On 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.[3] 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.

         During discussion about the LCA, Wiles learned for the first time that Torres had filed a prior Equal Employment Opportunity (EEO) complaint. Id.[4]

         Pursuant 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.

         On June 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.

         On July 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.[5]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. ¶ 9.

         On 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. 48-8.

         On 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.[6] Wiles appointed Hokoana to conduct an administrative inquiry into Kamakea's allegations. Id. ¶ 11.[7] Dangtayan assisted Hokoana. Id.

         On 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.[8] 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.

         On 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.

         In 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. Id.[9]

         Based 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.

         On 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.[10]

         Torres 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.

         II. Procedural Background

         On 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.

         After 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 One.

         Defendants 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.

         In the 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.

         On 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.


         I. Rule 12

         Federal 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. 12(b)(1), (6).

         “Under 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.” Id.

         “To 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 party.” Id.

         II. Rule 56

         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.” 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 ...

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