J. MICHAEL SEABRIGHT, District Judge.
In this workplace discrimination action against Defendant Eric K. Shinseki, Secretary, United States Department of Veterans Affairs ("Defendant"), Plaintiff Ronald M. Yonemoto ("Plaintiff") asserts that he was discriminated against on the basis of race, national origin, and disability, and retaliated against for engaging in protected activity in violation of Title VII of the Civil Rights Act of 1964 and the Rehabilitation Act. The basis of Plaintiff's claims is that over the course of several years, the Veterans Administration ("VA"), through Plaintiff's supervisor Dr. Michael Carethers, created a hostile work environment
Currently before the court is Defendant's Motion to Dismiss or for Summary Judgment, arguing that Plaintiff has failed to exhaust his administrative remedies as to several claims, and that in any event Plaintiff has failed to raise a genuine issue of material fact. Based on the following, the court GRANTS in part and DENIES in part Defendant's Motion.
Prior to 2000, Plaintiff was an attorney for the Board of Veterans Appeals in Washington D.C. Doc. No. 51, Def.'s Concise Statement of Facts ("CSF") ¶ 1.
Throughout his employment with the VA, Plaintiff has filed a number of EEOC Complaints against VAPIHCS. See Doc. No. 51-4, Def.'s Ex. 2 at 2 (listing complaints). Although the EEOC Complaints forming the basis of this action were filed on July 27, 2010 and September 20, 2011, Plaintiff asserts that the adverse actions taken against him were in retaliation for EEOC Complaints he filed prior to and/or concerning his transfer to GREC. The court therefore briefly provides some background regarding Plaintiff's employment at VAPIHCS prior to his GREC transfer,
From 2000 to 2006, Plaintiff reported directly to the Director of VAPIHCS, a position that was held by several different individuals over this time period. Although Plaintiff led several major projects under VAPIHCS Director David Burge and was praised for his performance from 2000 through 2004, see Doc. No. 63-2, Pl.'s Decl. ¶¶ 8, 9, 12; Doc. Nos. 64-1-64-5, Pl.'s Exs. 4-8 (performance evaluations), later Directors, including Dr. Brian O'Neill and Dr. James Hastings, noted issues with Plaintiff's work. See Doc. No. 51-7, Def.'s Ex. 5 (performance evaluation noting that Plaintiff had variable "interpersonal effectiveness"); Doc. No. 51-12, Def.'s Ex. 10 at 37-45 (Hastings describing incidents he was told of regarding Plaintiff which influenced his assignments to Plaintiff). Also over this period of time, other employees at VAPIHCS—including those in supervisory roles—made disparaging comments regarding Plaintiff (including making racist
In August 2005, Plaintiff applied for the Associate Director's position at VAPIHCS, and was passed over by a committee that included several individuals who were openly critical of Plaintiff. Id. ¶¶ 15-19. Plaintiff asserts that the committee failed to follow proper selection procedures to ensure that Plaintiff, the only qualified individual, would not receive the position. Id. On August 6, 2006, Plaintiff filed an EEO Complaint alleging discrimination on the basis of race, color, and sex, and reprisal for engaging in protected activity, which was all based on the alleged manipulation and irregularities in the selection process for the Associate Director's position. Id. ¶ 20; Doc. No. 64-22, Pl.'s Ex. 25.
On August 20, 2006, Hastings decided to assign Plaintiff to GREC. Doc. No. 63-2, Pl.'s Decl. ¶ 22. Hastings asserts that he made this decision after individuals had relayed to him two or three incidents involving Plaintiff—Hastings was told that after meeting with Plaintiff, a supervisor threatened to resign if she had to interact with him again, and the commanding general at TAMC had said Plaintiff was no longer welcome there. See Doc. No. 51-12, Def.'s Ex. 10 at 37-45. In light of this information, Hastings decided that he "could not afford to have my senior administrative officer, who spoke for me, be perceived by the people in our organization, people we do business with, in a negative way." Id. at 45. Plaintiff agreed to this transfer. Doc. No. 51-13, Def.'s Ex. 11 at 131.
Plaintiff's supervisor at GREC is Dr. Michael Carethers. See Doc. No. 51, Def.'s CSF ¶ 5. Dr. Carethers first became aware that Plaintiff was engaged in EEO activity very soon after Plaintiff started working at GREC, when Plaintiff told him. Id. ¶ 6.
At the time of Plaintiff's transfer, Carethers believed that Plaintiff could perform a range of tasks without needing much in the way of day-to-day supervision, including GS-13 or GS-14 level tasks that required significant interaction with other VA employees and with people outside the VA. Id. ¶ 7. Such tasks appear in line with the Position Description for Plaintiff's Health Systems Specialist position, which provides:
Doc. No. 65-6, Pl.'s Ex. 32.
Carethers initially assigned Plaintiff to two significant GREC projects which Carethers thought were appropriate to Plaintiff's GS-13 grade and skill level. Doc. No. 51, Def.'s CSF ¶ 7. The first was a project to prepare VAPIHCS to oversee the quality of care of veterans in the State Veterans Home being built in Hilo. Id. Carethers hoped that Plaintiff could take lead on this project, taking over the complex discussions and arrangements with dozens of state, federal, and private contractor persons and entities, including high-ranking political officials. Id. The second major project was to assist in establishing a VA Medical Foster Home Program. Id. Although Carethers acknowledged that this project was not as complex as the first project, he asserts that it required initiative and diplomacy. Doc. No. 51-2, Carethers Decl. ¶ 7.
Carethers asserts that by August 2008, he came to the conclusion that Plaintiff was not performing well on the two projects. See Doc. No. 51-2, Carethers Decl. ¶ 8. Carethers further asserts that he decided to take Plaintiff off these projects due to Carethers' personal observations and reports of others that Plaintiff (1) appeared to lack the initiative Carethers expected in a GS-13 employee; (2) required detailed step-by-step guidance on things Carethers believed he could figure out himself; and (3) appeared to alienate people due to the manner in which he spoke to them. Id. According to Carethers, his concerns that Plaintiff was not effective on the first project were confirmed when Wayne Valey, a VA employee from the mainland assigned to assist with the project, raised the concern that Plaintiff may pose a threat of workplace violence (Carethers asserts he did not concur with this concern). Id. ¶ 9; see also Doc. No. 51-8, Def.'s Ex. 6.
Despite Carethers' explanations as to why he took Plaintiff off these projects, Carethers testified that Plaintiff performed satisfactorily and that he replaced Plaintiff on the first project only after it transitioned to the clinical survey phase. See Doc. No. 65-5, Pl.'s Ex. 31 at 319-28. Because Plaintiff was not a clinician, he was not qualified to perform the survey and even Carethers required additional training for this phase of the project. Id. Further, Carethers rated Plaintiff's work performance as "fully satisfactory" every year. See Doc. Nos. 64-7-64-11, Pl.'s Exs. 10-14.
From August 2008 to the present, Carethers reduced Plaintiff's duties and responsibilities to the point where Plaintiff has little or no work to occupy his time more than ninety percent of the time. Doc. No. 63-2, Pl.'s Decl. ¶ 24. Carethers has instead assigned Plaintiff "clerical and menial" work normally performed by GS-5 employees such as updating the inventory counts for the Material Safety Data Sheets, filling VAPIHCS vehicles with gasoline and getting them washed, inspecting fire extinguishers, collecting donations, and inspecting controlled substances. Id. ¶ 25; see also Doc. Nos. 64-9-64-11, Pl.'s Exs. 12-14 (performance evaluations describing Plaintiff's job duties).
In response to his significantly diminished workload, Plaintiff has repeatedly requested work from Dr. Carethers, explaining that the lack of work is causing Plaintiff stress. See Doc. No. 63-2, Pl.'s Decl. ¶ 25; Doc. No. 65-7, Pl.'s Ex. 33. Despite these requests, Plaintiff has not received any additional work—Carethers asserts that although he continues to look for tasks for Plaintiff both within GREC and in other areas of the VA, Carethers is unwilling to assign him work that requires significant initiative. Doc. No. 51-2, Carethers Decl. ¶ 15; see also Doc. No. 65-4, Pl.'s Ex. 30 (Carethers testifying that in response to Plaintiff's requests for work during meetings, Carethers' response was that "I had nothing for you now, Ron").
In April 2010, Carethers moved Plaintiff from a private office to a semi-public space where patients and staff congregate and near a malfunctioning alarm that goes off sporadically. Doc. No. 63-2, Pl.'s Decl. ¶ 27; see also Doc. No. 65-9, Pl.'s Ex. 35. Carethers told Plaintiff that he needed to move immediately, and laughed when he saw that Plaintiff was upset. Doc. No. 63-2, Pl.'s Decl. ¶ 27.
Carethers asserts that this move was part of a major reshuffling of work areas caused by the increase in employees, that Plaintiff was required to move so that an incoming doctor could have an office, and that all offices were occupied by one or more doctors, supervisors who needed privacy to counsel employees, persons who needed to keep confidential information under lock and key, or persons who needed privacy to make confidential medical communications. Doc. No. 51-2, Carethers Decl. ¶¶ 11-12. Although Carethers told Plaintiff that the loss of an office would be temporary, the workforce has continued to grow and no office is available. Id. ¶ 13.
Plaintiff asserts that his workplace, with no privacy, makes it difficult for him to administer his insulin, monitor his blood sugar, and work. Doc. No. 63-2, Pl.'s Decl. ¶ 27. Plaintiff further asserts that there are open offices in patient wings that could have been assigned to doctors and would have allowed Plaintiff to retain his office. Id.
On June 15, 2010, Plaintiff requested that Lavern Spillane, Carethers' administrative officer, grant him Authorized Absence ("AA") (i.e., leave with pay) to attend
On June 16, 2010 at 10:12 a.m. (i.e., after Plaintiff's interview was set to take place), Spillane emailed Plaintiff that he is granted AA for one hour and that she would not grant AA for a longer period of time given that the interview could have been conducted on site in a private office. Id. Although Carethers was not in the office at this time, he concurred with Spillane's decision on the basis that the interview was conducted by telephone and all parties could have participated by phone. See Doc. No. 51-2, Carethers Decl. ¶ 15.
On June 10, 2010, Plaintiff contacted the EEOC, and on July 27, 2010, Plaintiff filed an EEOC Complaint. See Doc. No. 51-3, Def.'s Ex. 1. The EEOC Complaint asserts that the bases for his claims are "reprisal" and "hostile working condition," and explains them as follows:
Id.
In September 2010, Carethers charged Plaintiff with being absent without leave on September 27, 2010 because Plaintiff failed to notify Carethers that he would be out of the office. Doc. No. 51, Def.'s CSF ¶ 13. After Plaintiff produced records from his telephone company indicating that he had called the office, Carethers rescinded the AWOL charge. Id. Plaintiff asked that the VA reimburse him $150 that he had paid to obtain the records, but Dr. Carethers was informed by an administrator, Gary Van Brocklyn, that there was no authority for reimbursement. Id.
Although this event occurred after Plaintiff's July 27, 2010 EEOC Complaint, the circumstances regarding this event were investigated during the EEOC investigation. See Doc. No. 51-4, Def.'s Ex. 2 at 7.
In November 2010, Plaintiff obtained a letter from his doctor Jennifer Loh, requesting sick leave for Plaintiff. In her November 23, 2010 letter, Dr. Loh states that Plaintiff is under her care for diabetes, that work-related stress has negatively impacted his ability to care for his diabetes and health, and that Plaintiff needs ninety days of sick leave after which time he
Carethers was not previously aware of Plaintiff's diabetes, and called Dr. Loh to obtain information to evaluate the sick leave request. Doc. No. 51-2, Carethers Decl. ¶ 14. Dr. Loh testified that Carethers identified himself as a doctor with the VA, leading her to the impression that Carethers was also treating Plaintiff. Doc. No. 66-2, Pl.'s Ex. 43 at 15-25. As a result, Dr. Loh provided Carethers information she would not have otherwise provided without Plaintiff's express consent. Id.
Carethers approved the 90-day sick-leave request and all subsequent requests until Plaintiff's return to work in April 2012. Doc. No. 51-2, Carethers Decl. ¶ 18.
While Plaintiff was on sick leave, Dr. Loh requested several accommodations for Plaintiff to return to work, including (1) being able to regularly walk at work; (2) to have an appropriate place at work to take his blood sugar levels and his insulin; (3) providing Plaintiff a reasonably quiet area to work; (4) giving Plaintiff assignments/tasks commensurate with his grade level; and (5) avoiding social isolation and providing reasonable opportunity to socialize with peers and VA patients as his work allows. See Doc. No. 70-3, Def.'s Ex. 13.
In a June 24, 2011 letter to Plaintiff, Carethers addressed the requested accommodations by stating:
Doc. No. 51-11, Def.'s Ex. 9.
In responding to and denying Plaintiff's requests for accommodations, Carethers failed to follow VA policy by using the proper forms, documenting his responses, and timely responding. Doc. No. 66-3, Pl.'s Ex. 44, at 48-50.
On August 17, 2011, Plaintiff contacted the EEOC, and on September 20, 2011, Plaintiff filed a second EEOC Complaint. Doc. No. 67-2, Pl.'s Ex. 52. The September 20, 2011 EEOC Complaint asserts that the basis for his claims is "Disability (physical and mental)," and that the date of occurrence is "today, and continuous
Id.
Plaintiff filed this action on August 31, 2011, and his October 10, 2012 FAC asserts claims for: (1) race and national origin discrimination in violation of Title VII (Count I); (2) retaliation in violation of Title VII (Count II); (3) disability discrimination in violation of the Rehabilitation Act (Count III); and (4) retaliation in violation of the Rehabilitation Act (Count IV).
On November 22, 2013, Defendant filed his Motion to Dismiss or for Summary Judgment. Doc. No. 50. Plaintiff filed an Opposition on February 7, 2014, Doc. No. 62, and Defendant filed a Reply on February 14, 2014. Doc. No. 70. A hearing was held on February 24, 2014.
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).
"A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548);
"An issue is `genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is `material' only if it could affect the outcome of the suit under the governing law." In re Barboza, 545 F.3d 702, 707 (9th Cir.2008) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S.Ct. 1348; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir.2008) (stating that "the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor" (citations omitted)).
Defendant's Motion raises two main arguments—(1) that Plaintiff has impermissibly expanded his claims in this action beyond those contained in his EEOC Complaints and/or made part of the resulting EEOC investigations, and (2) Plaintiff cannot establish a genuine issue of material fact in support of any of his claims. The court addresses each of these arguments.
The scope of Plaintiff's claims in this action has been a moving target—the EEOC Complaints, the FAC, and now Plaintiff's Opposition to Defendant's Motion contain ever expanding allegations that form the basis of Plaintiff's claims.
Specifically, the July 27, 2010 EEOC Complaint asserts claims of "reprisal" and "hostile working condition" based on (1) Plaintiff's reassignment into a semi-public workspace; (2) the lack of meaningful work assignments; and (3) the June 16, 2010 denial of AA to attend a teleconference at his attorney's office with an EEO counselor. See Doc. No. 51-3, Def.'s Ex. 1. The subsequent EEO investigation also included Plaintiff's assertions regarding Carethers' September 2010 AWOL charge against Plaintiff, resulting in Plaintiff incurring $150 to prove he called work. See Doc. No. 51-4, Def.'s Ex. 2 at 7. The September 20, 2011 EEOC Complaint asserts that since November 29, 2010, Plaintiff has been discriminated on the basis of disability (diabetes and major depressive disorder) and that he requested reasonable accommodation on February 11, 2011. See Doc. No. 67-2, Pl.'s Ex. 52.
In comparison, the FAC alleges claims based on retaliation, and race, national origin, and disability discrimination, and includes many allegations not specifically asserted in the EEOC Complaints, including that (1) "beginning in 2006," Carethers has refused to grant AA on various occasions for Plaintiff to attend EEOC conferences and proceedings, Doc. No. 18, FAC ¶ 37; (2) Carethers invaded Plaintiff's privacy by speaking to Dr. Loh regarding Plaintiff's medical issues, id. ¶¶ 57-60; and (3) Plaintiff made additional requests for reasonable accommodation after the September 15, 2011 EEOC Complaint, which were all ignored. Id. ¶¶ 69-70. Plaintiff's Opposition goes even further, including new allegations
Defendant argues that many of Plaintiff's expanding claims were not asserted in the EEOC Complaints and therefore cannot be asserted in this action because such claims were not exhausted and/or are untimely. The court first outlines the relevant legal principles regarding exhaustion and timeliness of claims, and then applies these principles to Plaintiff's claims.
For the court to have federal subject matter jurisdiction over a Title VII claim, Plaintiff must have first exhausted his EEOC administrative remedies with respect to that claim. EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th Cir.1994); see also Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1104 (9th Cir.2008); Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990). Similarly, a federal employee filing a claim of disability discrimination under the Rehabilitation Act must first exhaust administrative remedies available under Title VII. See Vinieratos v. U.S. Dept. of Air Force, 939 F.2d 762, 773 (9th Cir.1991) (citing Boyd v. U.S. Postal Serv., 752 F.2d 410, 413-14 (9th Cir.1985)). An EEOC remedy has been exhausted for a given claim where "that claim fell within the scope of the EEOC's actual investigation or an EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." Farmer Bros. Co., 31 F.3d at 899 (internal quotations and citation omitted).
The exhaustion analysis often turns on what is asserted in the EEOC charge, which must be construed "with utmost liberality since [it is] made by those unschooled in the technicalities of formal pleading."
B.K.B., 276 F.3d at 1100 (citation omitted).
A related principle is that of timeliness. Federal law mandates that
In determining whether a claim is timely, there is a distinction between discrete acts of discrimination and/or retaliation, versus hostile work environment claims. A discrete act consists of an unlawful practice that "occurred" on the day it "happened," which includes, for example, "termination, failure to promote, denial of transfer, or refusal to hire." Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 111, 114, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). In comparison, hostile work environment claims are "different in kind from discrete acts," because they "are based on the cumulative effect of individual acts," "occur[] over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).
Morgan explains that a plaintiff may assert claims for discrete acts only if the plaintiff timely filed an EEOC Complaint for that particular act:
Id. at 113, 122 S.Ct. 2061.
In comparison, because hostile work environment claims do not happen on a particular day as with discrete acts, but instead develop over time, the events making up a hostile work environment claims are not limited to those within the limitations filing period. Morgan explains:
Id. at 117-18, 122 S.Ct. 2061; see also Stanley v. Trs. of Cal. State Univ., 433 F.3d 1129, 1136 (9th Cir.2006).
Although Morgan discusses the continuing violation doctrine in the context of Title VII, the Ninth Circuit has applied its reasoning equally to claims under the Rehabilitation Act. See Cherosky v. Henderson, 330 F.3d 1243, 1246-47 (9th Cir.2003) (holding that denial of employees' request for respirators under the Rehabilitation
Neither EEOC Complaint that is the basis of this action asserts claims for race or national origin discrimination. As a result, Defendant argues that Plaintiff's national origin and race discrimination claim, Count I, fails for lack of exhaustion. Doc. No. 50-1, Def.'s Mot. at 7-8; See also Farmer Bros. Co., 31 F.3d at 899. In response, Plaintiff concedes this claim is not ripe for adjudication. See Doc. No. 62, Pl.'s Opp'n at 26-27. The court therefore GRANTS Defendant's Motion for Summary Judgment on Count I of the FAC.
For the respective EEOC Complaints, Plaintiff made initial contact with the EEOC on June 10, 2010, and August 17, 2011. Thus, to be timely, the discrete acts which are the basis of Plaintiff's claims must have occurred on or after April 26, 2010 for the June 10, 2010 EEOC Complaint, or on or after July 2, 2011 for the August 17, 2011 EEOC Complaint.
Applying Morgan, some of Plaintiff's claims alleged in the EEOC Complaints are discrete acts that occurred more than forty-five days before Plaintiff's first contacts with the EEOC. Specifically, Plaintiff's allegation that he was moved out of his office and into a semi-public area (asserted in the July 27, 2010 EEOC Complaint), and that he was denied the reasonable accommodations requested in Dr. Loh's February 24, 2011 letter (asserted in the September 15, 2011 EEOC Complaint) are discrete acts—these events are actionable in and of themselves at the time of the occurrence.
Plaintiff's claims regarding discrete acts that were not articulated in either EEOC Complaint and which likewise appear untimely include (1) Plaintiff's 2008/2009 criminal investigation by individuals at the VA, see Doc. Nos. 66-4-66-7, Pl.'s Exs. 45-48; (2) the denials of AA starting in 2006 (other than the June 16, 2010 denial asserted in the July 27, 2010 EEOC Complaint); and (3) Carethers' December 2010 phone call to Dr. Loh breaching Plaintiff's privacy.
In opposition, Plaintiff argues that the untimely events described above are all part of his hostile work environment claims, and that the untimely events are therefore properly part of his claims because at least one act constituting his hostile work environment claims occurred within forty-five days of his initial contact with the EEOC.
Porter v. California Department of Corrections, 419 F.3d 885 (9th Cir.2005), is instructive. In determining the timeliness of plaintiff's hostile work environment claim containing allegations of both discrete acts and non-discrete acts, Porter relied on Morgan's instruction that "discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges." Id. at 893 (quoting Morgan, 536 U.S. at 113, 122 S.Ct. 2061). Porter therefore sorted the plaintiff's allegations between discrete acts and non-discrete acts, and then considered only the non-discrete acts in determining whether the sexual harassment claim was timely. Id. at 893-94. Porter colorfully explained:
Id. at 893. Porter ultimately concluded that the plaintiff provided sufficient evidence that the timely non-discrete events involved the same type of activity as the earlier non-discrete events such that all the non-discrete acts could be considered as part of the hostile work environment claim. Id. at 894.
Thus, Porter teaches that Plaintiff's allegations of discrete acts are separate from the allegations of non-discrete acts making up his hostile work environment claim, and that merely asserting otherwise untimely discrete acts as part of a hostile work environment claim does not make them timely. See also Rekow v. Sebelius, 2011 WL 1791272, at *3 (D.Ariz. May 11, 2011) (collecting various cases standing for the proposition that "[b]ecause the Supreme Court has explicitly differentiated between discrete employment acts and a hostile work environment, many courts have concluded that a discrete act cannot be part of a hostile work environment claim and instead constitutes a separate unlawful employment practice" (quotations omitted)); Montoya v. Regents of Univ. of Cal., 2010 WL 2731767, at *7 (S.D.Cal. July 9, 2010) (describing that under Porter "the only way to state a hostile environment claim under current Ninth Circuit law is to allege a timely non-discrete act"); Picouto v. W. Star Truck Plant Portland LLC, 2010 WL 3607956, at *25 (D.Or. May 27, 2010), report and recommendation adopted as modified, 2010 WL 3607913 (D.Or. Sept. 13, 2010).
Confirming that Plaintiff did not assert a disability claim in his July 27, 2010 EEOC Complaint is that Carethers was not even aware that Plaintiff had any disability—it is undisputed that Carethers did not know of Plaintiff's diabetes until Dr. Loh's November 23, 2010 letter requesting sick leave, and Plaintiff's 2009 emails to Carethers asserting that the lack of work was causing him stress do not suggest that Plaintiff was asserting that his stress was a disability that required accommodation (and in any event such emails fell well outside the forty-five day window of the July 27, 2010 EEOC Complaint). Indeed, Plaintiff's September 20, 2011 EEOC Complaint asserted disability discrimination starting since November 29, 2010, see
Finally, the court rejects Plaintiff's remaining arguments. Specifically, Plaintiff argues that his Rehabilitation Act claims do not require exhaustion. See Doc. No. 60, Pl.'s Opp'n at 27. Plaintiff fails to cite any legal support for this proposition, and the law clearly provides otherwise. See, e.g., Leong v. Potter, 347 F.3d 1117, 1121 (9th Cir.2003) ("The district court properly held that Leong was required to exhaust his administrative remedies with the EEOC before pursuing his Rehabilitation Act claim in district court."). Plaintiff also argues that Defendant waived any exhaustion argument when Defendant failed to deny this allegation in the FAC. See Doc. No. 62, Pl.'s Opp'n at 21. Instead, Defendant stated that this allegation in the FAC is a conclusion of law to which no answer is required. Doc. No. 19, Answer ¶ 83. Defendant's Answer is correct—the FAC's allegation that Plaintiff exhausted administrative remedies is a legal conclusion not requiring an answer, and in any event Defendant asserted the affirmative defense of failure to exhaust. See Doc. No. 19, Answer at 14.
The court therefore GRANTS Defendant's Motion to the extent it argues that many of Plaintiff's claims are for discrete acts for which Plaintiff failed to file a timely charge with the EEOC. Stripping away the untimely claims, remaining is Plaintiff's retaliation and hostile work environment claims based on the denial of meaningful work assignments (which Defendant conceded was an on-going violation, Doc. No. 50-1, Def.'s Mot. at 9), the denial of paid leave on June 16, 2010 (part of the July 27, 2010 EEOC Complaint), and the AWOL charge and refusal to reimburse Plaintiff $150 for his September 27, 2010 absence (investigated by the EEOC as part of the July 27, 2010 EEOC Complaint). This determination, however, does not prevent Plaintiff from presenting evidence of untimely discrete acts "for purposes of placing non-discrete acts in the proper context" for the hostile work environment claim. See Porter, 419 F.3d at 893 n. 4 (citing Morgan, 536 U.S. at 113, 122 S.Ct. 2061).
As to Plaintiff's disability claims, to the extent Plaintiff is asserting a denial of reasonable accommodation claim based on the February 24, 2011 letter from Dr. Loh, it is untimely because Defendant responded on June 24, 2011, which is outside forty-five days of Plaintiff's first contact with the EEOC (on July 2, 2011) regarding his disability claim. The FAC includes additional allegations, however, that Plaintiff made other requests for accommodation after the June 24, 2011 letter, which were all ignored and/or denied. See Doc. No. 18, FAC ¶¶ 69-75. The parties failed to present any evidence regarding these requests, much less any argument as to whether these denials of accommodation are reasonably related to the September 20, 2011 EEOC Complaint such that they are properly part of Plaintiff's claims before this court. See also Cherosky, 330 F.3d at 1248 (explaining that each denial of an accommodation restarts the time period for EEOC consultation). The court therefore leaves open what aspects of Plaintiff's Rehabilitation Act claims, Counts III and IV of the FAC, remain in this action.
Defendant seeks summary judgment on all of Plaintiff's remaining claims for retaliation and hostile work environment in violation of Title VII (as described above, the parties did not adequately address the scope of Plaintiff's Rehabilitation Act claims such that the court cannot discern the applicability of Plaintiff's summary judgment arguments to them). The court addresses Plaintiff's Title VII claims in turn.
An employer may not discriminate against an employee because the employee has opposed an employment practice made unlawful by Title VII. 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice [prohibited by Title VII] ... or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII]."); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ("Title VII's anti-retaliation provision forbids employer actions that discriminate against an employee ... because he has opposed a practice that Title VII forbids or has made a charge, testified, assisted, or participated in a Title VII investigation, proceeding, or hearing." (citations and quotation signals omitted)).
To establish a prima facie case of retaliation, the plaintiff must show that (1) he opposed an employment practice made unlawful by Title VII; (2) the defendant took an adverse action against him; and (3) there was a causal link between his involvement in this opposition and the adverse action taken by the defendant.
Setting aside the untimely discrete acts dismissed above, Plaintiff's retaliation claim is based on the denial of AA for Plaintiff to attend an interview with an EEO counselor at his attorney's office, and the AWOL charge/refusal to reimburse Plaintiff for his phone bills (the denial of meaningful work is addressed below as to Plaintiff's hostile work environment claim). Defendant argues that Plaintiff cannot establish the required causal link between his protected activity and these adverse personnel actions necessary for his prima facie case given that these adverse actions occurred in 2010 and Carethers was aware of Plaintiff's protected activity since 2006. See Doc. No. 50-1, Def.'s Mot. at 17. Defendant further argues that even if Plaintiff could establish a prima facie case, Plaintiff is unable to show that Carethers' explanations for the adverse personnel actions are pretexts for retaliation. Id. at 15-17.
Viewing the evidence in a light most favorable to Plaintiff, the court finds that Plaintiff has established a genuine issue of material fact in support of his prima facie case for both these disparate acts. Although Defendant is correct that there appears to be no connection between the EEOC Complaint Plaintiff filed in 2006 regarding the VA's failure to award Plaintiff the Assistant Director position and these adverse actions four years later,
As to the denial of AA, Defendant asserts that Carethers did not believe that it was necessary for Plaintiff to travel to his attorney's office for a teleconference. See Doc. No. 50-1, Def.'s Mot. at 16. Viewed in a light most favorable to Plaintiff, this explanation is not legitimate—at the time of the meeting, Plaintiff was not told he was granted AA for the meeting and he was not offered a private office at GREC to attend the teleconference. Rather, Plaintiff was sent an email during the conference that he was granted AA for the meeting itself and that GREC could have arranged for an office for him to conduct the meeting. See Doc. No. 65-12, Pl.'s Ex. 38. These facts raise the inference that Carethers' explanation is not legitimate, or at the very least pretext for an improper purpose. The court therefore DENIES Defendant's Motion as to denial of AA.
As to the AWOL charge/refusal to provide reimbursement, Carethers explains both of these acts—Carethers charged Plaintiff with being absent without leave on September 27, 2010 because Plaintiff failed to notify Carethers that he would be out of the office, Carethers rescinded the AWOL charge once Plaintiff produced records indicating that he called the office, and Carethers denied Plaintiff's request for reimbursement for his phone records after Carethers was told there was no authority for reimbursement. See Doc. No. 51, Def.'s CSF ¶ 13. Plaintiff does not dispute these facts, and fails to provide any facts or even argument explaining why these explanations are pretext. Rather, the undisputed evidence establishes that Carethers could not have granted Plaintiff's request for reimbursement under any circumstances. The court therefore GRANTS Defendant's Motion as to the denial of reimbursement.
A hostile work environment is cognizable under the anti-retaliation provisions of Title VII. See Ray v. Henderson, 217 F.3d 1234, 1245 (9th Cir.2000). Harassment is actionable only if it is "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Id. (quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)). In considering whether the retaliatory conduct was "severe or pervasive," the court looks to "all the circumstances, including the frequency of the [retaliatory] conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'"
The court must consider the totality of the circumstances, including whether the harassment was both objectively and subjectively abusive. Freitag, 468 F.3d at 539. "The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct." McGinest, 360 F.3d at 1113 (citation and quotation signals omitted). While "[i]t is enough if such hostile conduct pollutes the victim's workplace, making it more difficult for her to do her job, to take pride in her work, and to desire to stay in her position," to "[s]imply caus[e] an employee offense based on an isolated comment is not sufficient to create actionable harassment under Title VII." Id.
The basis of Plaintiff's hostile work environment claim is the continued denials of meaningful work starting in 2008, which Plaintiff asserts was in retaliation for his protected activity. Defendant argues—in a single sentence— that Plaintiff cannot establish that the denial of work was retaliatory, see Doc. No. 50-1, Def.'s Mot. at 17, presumably because the time lapse between Plaintiff's protected conduct and the denial of work prevents Plaintiff from establishing his prima facie case, as well as because Carethers reduced Plaintiff's work based on the legitimate reason that Plaintiff did not adequately handle duties involving initiative or diplomacy. The court rejects Defendant's argument— as explained above, Plaintiff engaged in protected conduct throughout his time at GREC, raising a genuine issue as to whether he was denied work in retaliation for such conduct. Further, although it is undisputed that Carethers received reports that Plaintiff lacked initiative, required detailed guidance, and appeared to alienate people, see Doc. No. 51-2, Carethers Decl. ¶ 8, Carethers has consistently rated Plaintiff's work performance as "fully satisfactory," including the two years during which Carethers assigned Plaintiff substantive work. See Doc. Nos. 64-7-64-11, Pl.'s Exs. 10-14. Viewed in a light most favorable to Plaintiff, this evidence raises an issue of fact whether Carethers' reasons for refusing to assign Plaintiff meaningful work are pretext for unlawful discrimination. The court therefore DENIES Defendant's Motion for Summary Judgment on Plaintiff's retaliatory hostile work environment claim.
For the reasons stated above, the court GRANTS in part and DENIES in part Defendant's Motion to Dismiss or for Summary Judgment. Remaining in this action are: (1) Plaintiff's Title VII retaliation claim based on the June 16, 2010 denial of AA; (2) Plaintiff's Title VII retaliatory hostile work environment claim based on a refusal to assign Plaintiff meaningful work; and (3) Plaintiff's Rehabilitation Act claims, to the extent based on conduct occurring after the June 24, 2011 denial of requests for accommodation.
IT IS SO ORDERED.
