United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY
OKI MOLLWAY, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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. ECF No. 97-3, PageID # 888.
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,  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.
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
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 STANDARD.
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.
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).
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.
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.”
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.
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
Disparate Treatment Claim.
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).
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)).
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.
Adverse Employment Actions.
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)).
Temporary Assignment Positions.
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. See ECF No. 97-8, PageID #s 1091,
1100. Each TA assignment is discussed below.
October 2013 TA Assignment.
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
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).
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.
December 2014 TA Assignment.
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.
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
July 2015 TA Assignment.
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
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.
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
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
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
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.
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)).
alleges that Castro and another co-worker, Keola Harris,
satisfy this standard. 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.
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.
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.
Department Directed Leave in December 2015.
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,
• 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 ...