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Campbell v. Department of Human Services

United States District Court, D. Hawaii

April 23, 2019





         Plaintiff Christopher Campbell alleges that he suffered racial discrimination while employed by Defendant Department of Human Services, State of Hawaii (“DHS”). Given this court's earlier order granting partial judgment on the pleadings, Campbell's remaining claims are a disparate treatment claim and a hostile work environment claim, both under Title VII. Campbell and DHS have filed competing motions for summary judgment on those claims.

         The court concludes that DHS is entitled to summary judgment. The majority of Campbell's allegations of discrimination are time-barred or were not administratively exhausted. For the remaining allegations, Campbell has not demonstrated that the reasons offered by DHS are pretexts for race discrimination. As a result, Campbell's motion is denied, and DHS's motion is granted.

         II. BACKGROUND.

         Campbell was employed by DHS in Hilo, Hawaii, from June 2008 until he resigned in July 2018. See ECF No. 97-1, PageID # 866. He worked as a Vocational Rehabilitation Specialist (“VRS”), assisting deaf and hearing-impaired clients. ECF No. 116-1, PageID # 2071. Campbell alleges that, while employed by DHS, he was subjected to “a discriminatory, hostile work environment” based on being African-American. ECF No. 1, PageID # 5. His claims focus on the conduct of his supervisor, Alison Lee, and his co-worker, Claire Castro. Campbell alleges that Lee denied him promotions, yelled at and mocked him, threatened to discipline him based on false accusations, and treated him differently from co-workers who were not African-American. See Id. at 5-10. Campbell also alleges that Castro repeatedly used racial slurs, and that no action was taken in response to Campbell's complaints about Castro. See Id. at 8-10.

         Campbell filed two employment discrimination charges with the U.S. Equal Employment Opportunity Commission (“EEOC”) and the Hawaii Civil Rights Commission (“HCRC”). Campbell filed the first Charge of Discrimination on February 18, 2014 (“February 2014 Charge”). ECF No. 101-17. In the February 2014 Charge, Campbell alleged that “[o]n September 30, 2013, I was falsely accused by [Lee] for avoiding an intake interview with a client, ” and that “[o]n October 30, 2013, I was passed up for a Temporary Assignment (TA) position for which I previously held.” Id., PageID # 1558. The EEOC mailed Campbell a “Dismissal and Notice of Rights” on April 29, 2014, which informed Campbell that he had the right to file suit within 90 days of receipt of the notice. ECF No. 101-19, PageID # 1562. The HCRC mailed Campbell a “Notice of Dismissal and Right to Sue” on May 9, 2014. ECF No. 101-20, PageID # 1563. Campbell did not file suit within 90 days.

         The second Charge of Discrimination was filed on January 9, 2016, and amended on June 9, 2016 (“June 2016 Charge”). ECF Nos. 101-30, 101-31. The June 2016 Charge stated, “Since December 2014, [Lee] (Asian) has bypassed me for TA positions. The last such action took place on July 14, 2015, when she indicated that [Castro] would be TA between July 15 and 21, 2015.” ECF No. 101-31, PageID # 1594. Campbell allegedly filed a union grievance over the matter and communicated with Hawaii State Senator Suzanne Chun Oakland about DHS's “violation of their own discrimination polices.” Id. The June 2016 Charge also stated, “On December 1, 2015, I was placed on a Department Directed Leave of Absence in relation to comments I made about my supervisor. I was allowed to return to work on March 4, 2016.” Id. The EEOC mailed Campbell a “Dismissal and Notice of Rights” letter on December 29, 2016.[1] ECF No. 97-3, PageID # 888.

         On March 29, 2017, Campbell filed a Complaint against DHS asserting: (1) a race discrimination claim involving an alleged violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2000e-17, (2) a hostile work environment claim, [2] and (3) a retaliation claim against him as a whistleblower, brought under chapter 378 of Hawaii Revised Statutes. ECF No. 1, PageID #s 15-21.

         On October 2, 2018, the court granted DHS's motion for partial judgment on the pleadings, determining that the Eleventh Amendment barred Campbell's state law claims against DHS. ECF No. 84. The court dismissed Campbell's state law claims, leaving for adjudication Campbell's Title VII claims of disparate treatment and hostile work environment.[3]

         On February 6, 2019, both parties filed motions for summary judgment. ECF Nos. 94, 96. The court heard argument on the motions on March 19, 2019. ECF No. 121. Trial is currently set for July 9, 2019. ECF No. 63.


         Summary judgment shall be granted when “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); see Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movant must support his or her position that a material fact is or is not genuinely disputed by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c).

         One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See Id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

         The burden initially falls on the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted). The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., 809 F.2d at 630. “A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu, 198 F.3d at 1134.

         All evidence and inferences must be construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” Id.

         IV. ANALYSIS.

         Title VII forbids certain employers from “discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Campbell argues that DHS violated Title VII by subjecting him to disparate treatment and a hostile work environment on the basis of his race.

         The court addresses both claims in this order and concludes that Campbell raises several allegations of discrimination that are time-barred or that were not administratively exhausted. The remaining allegations may support a prima facia case of disparate treatment, but Campbell fails to establish that the reasons offered by DHS are pretexts for race discrimination. The court therefore denies Campbell's motion and grants DHS's motion.

         A. Disparate Treatment Claim.

         “A person suffers disparate treatment in his employment ‘when he or she is singled out and treated less favorably than others similarly situated on account of race.'” Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (quoting McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir. 2004)). To establish a prima facie case for his disparate treatment claim, Campbell must show that: (1) he belongs to a protected class, (2) he was qualified for the position in question, (3) he was subject to an adverse employment action, and (4) similarly situated individuals outside his protected class were treated more favorably. See Campbell v. Hawaii Dep't of Educ., 892 F.3d 1005, 1012 (9th Cir. 2018) (citing Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir. 2000)). If he makes that showing, then the court applies the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

         Under the McDonnell Douglas framework, the burden of production shifts to DHS to articulate a legitimate, nondiscriminatory reason for the challenged conduct. See Campbell, 892 F.3d at 1012. If DHS does so, the burden then shifts back to Campbell to show that the reason offered is pretextual. See Id. Campbell “may prove pretext ‘either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'” See Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003), opinion amended on denial of reh'g, No. 00-35999, 2003 WL 21027351 (9th Cir. May 8, 2003) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981)).

         The parties do not dispute that Campbell satisfies the first two elements of a disparate treatment claim. They focus on whether Campbell was subjected to an adverse employment action and whether similarly situated individuals who are not African-American were treated more favorably. Campbell alleges that he suffered from several adverse employment actions. The court considers each allegation in turn and concludes that Campbell may have established a prima facie case of disparate treatment with respect to being bypassed for the Temporary Assignment (“TA”) position in July 2015 and being placed on Department Directed Leave (“DDL”) in December 2015. However, because Campbell cannot prove pretext with respect to those two actions, his disparate treatment claim fails.

         1. Adverse Employment Actions.

         “For claims of disparate treatment under Title VII, an adverse employment action is one that ‘materially affects the compensation, terms, conditions, or privileges of employment.'” Campbell, 892 F.3d at 1012 (quoting Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008)).

         a. Temporary Assignment Positions.

         Campbell argues that he suffered an adverse employment action when Lee assigned the TA position to “Claire Castro, who had less seniority [than Campbell] and [was] not qualified to serve in the position.” ECF No. 96-1, PageID # 831. His motion for summary judgment does not specify when or how often he was passed over for the TA position, but in his deposition, Campbell mentioned that Castro was assigned the TA position in October 2013, December 2014, and July 2015.[4] See ECF No. 97-8, PageID #s 1091, 1100. Each TA assignment is discussed below.

         i. October 2013 TA Assignment.

         DHS argues that Campbell missed the 90-day deadline to file suit with respect to the claims in the February 2014 Charge, which included the allegation that he was passed over for the TA position on October 30, 2013. ECF No. 94-1, PageID # 494. The court agrees.

         “Title VII contains several distinct filing requirements which a claimant must comply with in bringing a civil action.” Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172, as amended by 815 F.2d 570 (9th Cir. 1987). To file a claim under Title VII, a plaintiff must file a charge with the EEOC within 180 days of the last discriminatory act, or within 300 days “if the aggrieved person has instituted proceedings with a state or local agency with authority to grant or seek relief from such practices.” See Bouman v. Block, 940 F.2d 1211, 1219 (9th Cir. 1991) (citing 42 U.S.C. § 2000e5(e)). Also, a plaintiff's Title VII civil action must be filed within 90 days of receipt of an EEOC right-to-sue letter. See 42 U.S.C. § 2000e-5(f)(1).

         The EEOC right-to-sue letter regarding the February 2014 Charge was mailed to Campbell on April 29, 2014. See ECF No. 101-19. Campbell had 90 days from the receipt of that letter to file suit. He did not file his Complaint until three years later on March 29, 2017. See ECF No. 1. Therefore, the claims in the February 2014 Charge, including the allegation that he was passed over for the October 2013 TA assignment, are time-barred.

         ii. December 2014 TA Assignment.

         DHS broadly argues that any alleged adverse employment actions occurring before March 16, 2015, are time-barred because Campbell did not timely file an EEOC charge with respect to any action occurring before that date. See ECF No. 94-1, PageID #s 495-96. As mentioned above, a plaintiff must file an employment discrimination charge with the EEOC either 180 days or 300 days “after the alleged unlawful employment practice occurred, ” otherwise the plaintiff will “lose the ability to recover for it.” 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) (explaining that a discriminatory act “occurred” on the day that it “happened”). “Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.'” Nat'l R.R. Passenger Corp., 536 U.S. at 114.

         Campbell filed his June 2016 Charge with the EEOC and the HCRC on January 9, 2016, before amending it on June 9, 2016. ECF Nos. 101-30; 101-31. Three hundred days before January 9, 2016, is March 15, 2015. This means that the June 2016 Charge could not have encompassed discrete incidents that occurred before March 15, 2015. The allegation that Campbell was bypassed for the December 2014 TA assignment is time-barred because he did not file a charge with the EEOC 300 days after the assignment occurred.[5]

         iii. July 2015 TA Assignment.

         It is undisputed that Castro got a TA position on July 14, 2015, that Campbell filed a union grievance over this incident, and that this incident was administratively exhausted in the June 2016 Charge. See ECF No. 1, PageID # 10; ECF No. 96-1, PageID # 840; ECF No. 94-1, PageID #s 489, 498. However, DHS argues that the incident does not constitute an adverse employment action supporting Campbell's disparate treatment claim.

         The record provides little detail about the TA position. The position appears to give an employee in a VRS position supervisory responsibilities on a short-term basis while the full-time supervisor is out of the office. See, e.g., ECF No. 113, PageID # 1774 (“There was a rotation whereby some of the counselors took turn[s] being a TA when Lee was absent.”); ECF No. 101-31, PageID # 1594 (June 2016 Charge stating that Castro served as TA for one week); ECF No. 97-8, PageID # 1100 (indicating during Campbell's deposition that Castro served as TA from December 26, 2014, to January 5, 2015). It is not entirely clear what the TA's responsibilities were and how they differed from those of a VRS.

         During his deposition, Campbell testified that, under his collective bargaining agreement, the TA position was supposed to be assigned on a rotating basis. ECF No. 97-8, PageID # 1100 (“[B]asically there needs to be alternate selection of TAs, you know. It's Claire, then it's Chris, then it's--now it would be Keola, then it's Claire--you know, whatever the pattern is. Everyone given an equal opportunity to TA. And that wasn't given to me.”). There is also evidence in the record that the TA position carries increased compensation and responsibilities. Id. at 1091-1101. The decision not to assign Campbell the TA position therefore could have “materially affect[ed] the compensation, terms, conditions, or privileges of employment” and could have been an adverse employment action. See Campbell, 892 F.3d at 1012; see also Fonseca v. Sysco Food. Servs. of Ariz., Inc., 374 F.3d 840, 847-48 (9th Cir. 2004) (holding that an adverse employment action occurred when the plaintiff was passed over for opportunities to work overtime); Singleton v. Berryhill, No. 16-cv-02400-SK, 2018 WL 1989545, at *6 (N.D. Cal. Mar. 5, 2018) (holding that denying a temporary assignment constituted an adverse employment action because the position offered a “career opportunity to learn something new”).

         DHS responds, “Plaintiff filed a grievance with respect to the 7/14/15 TA incident and was reimbursed the amount he would have earned had he TA'd. It was a mistake that the DHS acknowledged and took responsibility for.” ECF No. 94-1, PageID #s 505-06; see also ECF Nos. 101-25, 101-26, 101-27. The Ninth Circuit has “noted that a successful grievance could change the adverse nature of an employment action, such as where an employee was assigned to less favorable shifts and vacation days, but the employer accommodated her preferences after she complained.” Fonseca, 374 F.3d at 848 (discussing Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir. 2000)). There is a dispute about whether the reimbursement, which amounted to $50.49, sufficiently addressed DHS's admitted error.

         Campbell stated in his deposition that he would have earned “much more” had he TA'd:

Q. So the TA pay that you would have received if you had TA'd during the period of July 15th through July 21st was 50.49?
A. No, it would not have been that. If I were TA'ing on July 15 though 21, it would be much more than $50.

See ECF No. 97-8, PageID #s 1101-02. At the hearing, Campbell's counsel also mentioned that Campbell had been promised a future TA position, but that never happened. See ECF No. 116-5, PageID # 2532 (letter dated August 12, 2015 from DHS to Campbell's union representative stating that Campbell would receive compensation for the TA position and “will be given the next Temporary Assignment opportunity”). Thus, whether DHS “accommodated” Campbell following his grievance about the July 2015 TA assignment remains in issue.

         Campbell may also be able to show that there were similarly situated employees who were treated more favorably. To do that, Campbell “must identify employees outside [his] race who were similarly situated to [him] ‘in all material respects' but who were given preferential treatment; they must ‘have similar jobs and display similar conduct.'” See Campbell, 892 F.3d at 1015 (quoting Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116, 1125 (9th Cir. 2009)); Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1157 (9th Cir. 2010) (“[W]hether two employees are similarly situated is ordinarily a question of fact.” (quoting Beck v. United Food & Commercial Workers Union Local 99, 506 F.3d 874, 885 n.5 (9th Cir. 2007)).

         Campbell alleges that Castro and another co-worker, Keola Harris, satisfy this standard.[6] ECF No. 96-1, PageID #s 841-42. The record indicates that Castro and Harris were VRS employees who were assigned the TA position and who are not African-American. See ECF No. 97-8, PageID #s 1077, 1083, 1091, 1100; ECF No. 97-10, PageID # 1133. This suggests that other employees may have been “treated more favorably” with respect to the assignment of TA positions. See Campbell, 892 F.3d at 1016.

         DHS argues that Campbell “was the only African-American in the office . . ., and the only deaf and hard-of-hearing specialist counselor.” ECF No. 94-1, PageID # 512. According to DHS, Campbell “cannot demonstrate evidence of similarly situated employees” because he was the only VRS designated as a deaf and hard-of-hearing counselor. Id. DHS explains that Castro had less seniority than Campbell and that Harris “was the youth counselor who handled all the teenagers.” Id. at 509; ECF No. 113, PageID # 1771. However, “[t]he employees' roles need not be identical; they must only be similar ‘in all material respects.'” Hawn, 615 F.3d at 1157 (quoting Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006)). DHS does not explain how these differences are material or would have had any impact on the TA assignment process.

         On the present record, there are questions of fact going to whether Campbell can present a prima facie case of disparate treatment based on the July 2015 TA assignment. On these motions, this court views the facts in the light most favorable to Campbell and draws reasonable inferences in his favor. However, as discussed below, Campbell does not establish that DHS's reasons for bypassing him for the July 2015 TA position are pretexts for race discrimination.

         b. Department Directed Leave in December 2015.

         On December 1, 2015, DHS placed Campbell on DDL with pay. Campbell returned to work on March 4, 2016. See ECF No. 97-8, PageID # 1113; ECF No. 101-29; ECF No. 101-38. According to a letter from DHS to Campbell informing him that he was being placed on leave effective immediately, DDL was instituted on the basis of statements that Campbell had allegedly made to his co-worker Lori Nakamura:

You made the following statements during a telephone conversation with co-worker Ms. Lori Nakamura on November 20, 2015:
• Ms. Alison Lee (your supervisor) has mental problems.
• A psychologist under contract with [the Vocational Rehabilitation Division (“DVR”)] stated to you that Ms. Lee is mentally unstable.
• Ms. Lee contributed to the death of her husband.
• You have stumbled onto something big that involves key people within the DVR agency and because of this people in the agency are going to have you removed and you will never be seen again.
• You feel that people in the agency will have you removed much like how Ms. Lee's husband was.
These statements are highly inappropriate and your perceptions cause concern regarding your safety and health. This DDL is being taken to obtain a medical evaluation and address these concerns. The duration of the DDL will be determined by the time it takes to complete this process.
You may be required to report to an independent medical examination conducted by a physician selected by the Employer, the details of which will be arranged and communicated to you when they are available. You are also invited to submit information from your personal physician that certifies your ability to ...

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