Counts v. Reno

• Decision Date: 13 November 1996
• Docket Number: Civ. No. 96-00400 ACK.
• Citation: 949 F.Supp. 1478
• Parties: Mary COUNTS, Plaintiff, v. Janet RENO, Defendant.
• Court: Hawaii Supreme Court

949 F.Supp. 1478

Mary COUNTS, Plaintiff, v. Janet RENO, Defendant.

Civ. No. 96-00400 ACK.

United States District Court, D. Hawai`i.

November 13, 1996.

Norman K.K. Lau, Radius & Lau, Honolulu, HI, Richard L. Swick, Swick & Shapiro, P.C., Washington, DC, for Mary Counts.

Mary Counts, Alexandria, VA, pro se.

Theodore G. Meeker, United States Attorneys Office, Honolulu, HI, Bruce R. Hegyi, U.S. Attorney's Office, Washington, DC, Anne M. Gulyassy, David M. Glass, Department of Justice Civil Division, Washington, DC, for Janet Reno.

ORDER DENYING DEFENDANT'S MOTION FOR JUDGEMENT ON THE PLEADINGS OR IN THE ALTERNATIVE FOR SUMMARY JUDGEMENT

KAY, Chief Judge.

BACKGROUND

Plaintiff Mary Counts ("Plaintiff") brings this employment discrimination suit against Defendant Janet Reno, Attorney General for the United States, (hereinafter "Government"). Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., that the Federal Bureau of Investigation ("FBI") engaged in gender discrimination and retaliation against her. In the instant motion before the Court, the Government seeks judgement on the pleadings or in the alternative summary judgement on grounds that Plaintiff's claims are time-barred. Plaintiff filed an opposition to this motion, to which the Government filed a reply. A hearing on this matter was held on October 28, 1996.

FACTS

This suit stems from Plaintiff's employment with the FBI. In 1982 Plaintiff was hired by the FBI as a Special Agent. She worked in the FBI's Washington, D.C. office and various offices across the nation until she transferred to the Honolulu office in June of 1991. As of October 1991 Plaintiff worked in the Honolulu office's Violent Crimes/Major Drug Offender Unit ("Violent Crimes Squad") and as the FBI's media coordinator. In addition from that date until June of 1993 Plaintiff acted as the Relief Supervisor for the Violent Crimes Squad. In that capacity, in 1991 Plaintiff served as Acting Supervisor of the Squad for a month when a vacancy temporarily arose in the permanent supervisor position. The Relief Supervisor position is not permanent but is rotated annually among qualified supervisors. The FBI's "career board" periodically ranks supervisors qualified for this position, and in 1992 the Honolulu career board gave Plaintiff the second highest ranking out of 5 candidates.

The discriminatory conduct of which Plaintiff complains traces back to an altercation in June of 1993 between Plaintiff and her supervisor, SSA Popolano. The dispute arose when Plaintiff arrested certain bank robbery suspects without first notifying Popolano in accordance with FBI policy. When Popolano discovered this he allegedly spoke very abusively to Plaintiff and threatened to write up the incident in her personnel file. Popolano also ordered Plaintiff to utilize the SWAT team on all future arrests. Plaintiff asserts this requirement had never been imposed on any male agent in the office.

In accordance with FBI policy for resolving employment disputes Plaintiff brought the incident to the attention of the FBI's Equal Employment Opportunity ("EEO") Counselor, Agent Lowell. The Government contends Plaintiff's discussions with Lowell were purely informal. Lowell did not issue Plaintiff a Notice of Right to File Complaint (hereinafter "notice of right-to-file") per the administrative regulations. Such a notice would have entitled (and required) Plaintiff to file an administrative complaint within 15 days of the notice. According to the Government, EEO Counselor Lowell did not issue this notice because he believed the matter had been resolved in Plaintiff's favor. The Government contends that both Lowell and Jim Freeman, the Special Agent in Charge of the Honolulu Field Office, agreed that Popolano had acted inappropriately. They apparently encouraged Plaintiff to challenge Popolano's allegations by writing a memo to put in her personnel file in response to the memo which Popolano had written about her. In addition apparently they arranged that Popolano's memo did not go into Plaintiff's personnel file. Moreover, Lowell told Plaintiff and/or Plaintiff's husband, also an FBI agent, that Freeman "chewed out" Popolano for his actions.

Plaintiff also brought Popolano's conduct to the attention of ASAC Girardi. According to Plaintiff, Girardi blamed her for damaging Popolano's career and would not speak with her for several weeks. Apparently Freeman "chewed out" Girardi for this.

The same month in which Plaintiff spoke to Lowell and to Girardi, Plaintiff's term as Relief Supervisor coincidentally expired. Two months later, in August of 1993, Popolano decided to leave the ranks of FBI management. The FBI granted his request to do so on September 5, 1993. At that time Popolano's position was temporarily filled by Agent Hasychak, the agent who was to serve the next term as Relief Supervisor. Plaintiff contends the Government purposely timed Popolano's departure until after her term as Relief Supervisor had expired. In contrast the Government contends it rotated Hasychak into the position of Relief Supervisor and hence into the temporary position as Acting Supervisor in accordance with the routine rotation process which governed the Relief Supervisor position. Plaintiff appears to contend, however, that Girardi had discretion as to who to appoint as acting supervisor and discriminated against her when he appointed Hasychak, a male agent who was purportedly less qualified than Plaintiff for the position.

On January 20, 1994 the FBI's Honolulu career board reconvened to update its rankings for Relief Supervisors. The board did not rank Plaintiff within the top five candidates, allegedly in retaliation for her complaints about Popolano. Plaintiff's husband, also an agent with the FBI's Honolulu office, inquired about the career board's actions. Subsequently a new career board convened (or perhaps the same career board reconvened), although it is unclear whether it did so in response to the inquiry by Plaintiff's husband. The career board gave Hasychak the highest ranking out of 5 candidates and gave Plaintiff the lowest ranking. This ranking stands in contrast to the 1992 ranking in which Plaintiff received the second highest ranking and Hasychak received the lowest of 5 rankings.

In April of 1994 Plaintiff was relieved of her position as the bank robbery coordinator on the Violent Crimes Squad and was transferred to the Organized Crime/Drug Squad. Plaintiff apparently agreed to the transfer because she "had been led to believe that she would still be able to pursue career advancement as the principal relief supervisor on the [Organized Crime] Squad." See Plaintiff's Opposition at p. 7. Plaintiff contends she later learned that she had been transferred to the Organized Crime Squad in retaliation for her previous complaints to EEO Counselor Lowell about Popolano.

According to Plaintiff, in July of 1994 Supervisor Stern suggested she apply for the Relief Supervisor position on the Organized Crime Squad. Purportedly Stern stated Plaintiff was his first choice for the position and that she was more qualified than Agent Blake, whose judgement Stern supposedly questioned. Subsequently the Honolulu career board convened on September 20, 1994 to select the new Principal Relief Supervisor. The board chose Agent Blake over Plaintiff despite the fact Plaintiff was allegedly more qualified than he. Plaintiff contends that the day after the career board's decision Stern said her opportunity for selection had been stymied by Girardi and by Robert Chiardio. However, Plaintiff claims she later learned Stern himself had also thwarted her promotion by changing one of the selection criteria at the last minute to favor the board selecting Agent Blake.

In response to this action by the career board, Plaintiff consulted an EEO Counselor on November 3, 1994. The Counselor initiated the EEO process and apparently issued a notice of right-to-file. Subsequently Plaintiff filed a formal administrative complaint of discrimination with the Department of Justice on December 9, 1994.

Plaintiff contends the male FBI agents in the Honolulu office retaliated against her because she filed this discrimination complaint. She claims they denigrated her performance and personal behavior, subjected her to sexual stereotypes, refused to cooperate with her in connection with her duties as media agent, diminished her responsibility and authority, and reduced her opportunities for career advancement. Plaintiff contends she felt compelled as a result of these actions to transfer to another office. On December 6, 1994 Plaintiff was selected for a supervisory position in Washington, D.C., for which she had applied with the Central/South American/Caribbean Drug Unit. She transferred to this position despite the alleged hardship of uprooting her children and husband from Hawaii.

STANDARD OF REVIEW

I. Judgement on the Pleadings

Judgement on the pleadings, pursuant to Federal Rules of Civil Procedure 12(c), is proper when the moving party clearly establishes on the face of the pleadings that (1) no material issue of fact remains to be resolved; and (2) it is entitled to judgement as a matter of law. Doleman v. Meiji Mut. Life Ins. Co., 727 F.2d 1480, 1482 (9th Cir.1984).

In reviewing a defendant's motion under Rule 12(c), the district court views the facts as presented in the pleadings in the light most favorable to the plaintiffs, accepting as true all the allegations in their complaint and treating as false those allegations in the answer that contradict the plaintiffs' allegations. Hoeft v. Tucson Unified School Dist., 967 F.2d 1298, 1301 (9th Cir.1992); Hal Roach Studios v. Richard Feiner and Co., 896 F.2d 1542, 1550 (9th Cir.1990).

Where the district court goes beyond the pleadings to resolve an issue, the motion properly is treated as one for summary judgement. Fed.R.Civ.P. 12(c); Hal Roach...