Funai v. Brownlee

• Decision Date: 23 November 2004
• Docket Number: No. CIV.03-00160 ACK/BMK.,CIV.03-00160 ACK/BMK.
• Citation: 369 F.Supp.2d 1222
• Parties: Joyce R. FUNAI, Plaintiff, v. R.L. BROWNLEE, in his capacity as the Acting Secretary of the Army, Defendant.
• Court: U.S. District Court — District of Hawaii

369 F.Supp.2d 1222

Joyce R. FUNAI, Plaintiff, v. R.L. BROWNLEE, in his capacity as the Acting Secretary of the Army, Defendant.

No. CIV.03-00160 ACK/BMK.

United States District Court, D. Hawai`i.

November 23, 2004.

COPYRIGHT MATERIAL OMITTED

Clayton C. Ikei, Jerry P.S. Chang, Honolulu, HI, for Joyce R. Funai, plaintiff.

ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT AS A MATTER OF LAW and DENYING DEFENDANT'S ALTERNATIVE MOTION FOR NEW TRIAL

KAY, District Judge.

On April 7, 2003, Plaintiff Joyce R. Funai sued the United States Army for failing to remedy a work environment hostile to her religion and for suspending and demoting her from her position as a computer operator at Tripler Army Hospital in violation of Title VII of the Civil Rights Act of 1964. On June 14, 2004, the Court denied summary judgment in Defendant's favor on Plaintiff's claims of a hostile work environment based on religion and retaliation.¹ These claims were tried by a jury beginning on August 17, 2004. At the end of Plaintiff's case-in-chief and at the close of evidence, Defendant made Rule 50 motions for judgment as a matter of law, which the Court denied.

On September 1, 2004, the jury found in favor of Defendant on Plaintiff's hostile work environment claim (Count I) but found that Defendant had suspended and demoted Plaintiff in retaliation for her engagement in one or more protected activities (Count II). The jury awarded Plaintiff $110,000 for her emotional pain and suffering. On September 15, 2004, Defendant filed a renewed Rule 50 motion as to the retaliation claim and an alternative motion for a new trial should the Rule 50 motion be denied. Plaintiff filed her Opposition to Defendant's motions on September 28, 2004. Defendant did not file an optional reply, which was due by October 11, 2004.²

For the reasons set forth below, Defendant's motion for judgment as matter of law and Defendant's alternative motion for a new trial are each DENIED.

I. MOTION FOR JUDGMENT AS A MATTER OF LAW

A. Background

The Court will first set forth a summary of the testimony and evidence in order to provide a background of what transpired at trial.

Plaintiff is of Japanese descent and a practicing Shinto. During the time of the relevant events Plaintiff was employed as a civilian, "GS-7" computer operator in the Information Systems Engineering Division ("ISE-C") of Tripler Army Medical Center ("Tripler").

Plaintiff presented witnesses and evidence indicating that starting in October 2000 and continuing until April 2001, Plaintiff's coworker, Laurel Waters, began to regularly harass Plaintiff on the basis of her Shinto religion. Plaintiff contended that her supervisors, Shirley Okamoto, Joel Tanaka, and especially, Dion Cortel, failed to adequately remedy the religious harassment despite her repeated complaints to them about it. Thus, on April 9, 2001, upon the advice of her union representative, Debbie Amaral, Plaintiff obtained a temporary restraining order ("TRO") against Waters. The TRO came on for hearing on April 23, 2001, at which time the parties agreed to mediate and the TRO was dissolved.

On April 24th, 2001, Plaintiff was interviewed by Sgt. Poppert from the Provost Marshall's office regarding her alleged improper use of the Defense Enrollment Eligibility Registration ("DEERS") program on Tripler's computer system to obtain Anthony Waters' social security number (which Plaintiff had mistakenly placed on the TRO petition) and regarding her involvement in the disappearance of a critical computer operations manual and the deletion of the manual's back-up computer files. Plaintiff denied these allegations and at trial contended that she was being retaliated against for complaining of religious harassment and obtaining the TRO against Waters. Thus, Amaral advised Plaintiff to file an EEO complaint of discrimination on the basis of her religion. Plaintiff's supervisors all knew that Plaintiff contacted the EEO office on April 26, 2001. Plaintiff filed a formal EEO complaint of discrimination in July 2001.

In December 2001, Col. Gilbertson, chief of Tripler's Information Management Division and the ultimate decisionmaker regarding adverse employment actions, informed Plaintiff that she would be suspended for 30 days and demoted to "GS-5" due to her alleged misconduct. At trial, Plaintiff argued that she would not have been suspended and demoted but for her engagement in protected activities, specifically repeatedly complaining to supervisors about unremedied religious harassment, obtaining the TRO to stop the alleged religious harassment, and contacting, and eventually filing a complaint with, the EEO office.

Defendant contended that Plaintiff became increasingly annoyed with Waters' work-related incompetence and when her complaints about Waters' incompetence went unanswered, Plaintiff began making false allegations of religious harassment by Waters in order to have Waters fired.

Defendant also presented testimony asserting that Plaintiff had taken the critical operations manual and deleted the manual's back-up files out of anger at her coworkers for writing a negative letter about Plaintiff, which she accidentally read just before the manual was discovered missing.

Defendant also contended that not only did Plaintiff engage in misconduct warranting the adverse employment actions taken against her, but that the social security number investigation was set into motion by Waters' complaint to Sgt. Poppert of the Provost Marshall's office, who was unaware of Plaintiff's complaints of unremedied religious harassment, and was conducted prior to Plaintiff's EEO contact.

However, Plaintiff contended that Dion Cortel had a retaliatory animus toward Plaintiff, which can be imputed to Col. Gilbertson, the ultimate decisionmaker because of Cortel's involvement in Sgt. Poppert's investigation and Col. Gilbertson's reliance on Sgt. Poppert's report and Cortel's memorandum recommending Plaintiff's removal from employment.

B. Applicable Law

To establish a prima facie case of retaliation under Title VII, Plaintiff must show: [1] she engaged in a protected activity; [2] she suffered an adverse employment action; and [3] a causal link between the protected activity and the adverse employment action. Payne v. Norwest Corp., 113 F.3d 1079, 1080 (9th Cir.1997). If a Plaintiff establishes a prima facie case of retaliation, the burden of production shifts to Defendant to articulate a legitimate (nonretaliatory) reason for the adverse employment action. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). If Defendant satisfies this burden, Plaintiff has the ultimate burden of persuasion; Plaintiff must show "both that the reason was false, and that [retaliation] was the real reason." St. Mary's Honor Center v. Hicks, 509 U.S. 502, 516-17, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)(explaining "that proving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional" [retaliation]). "It is not enough ... to dis believe the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Id. at 519, 113 S.Ct. 2742. In other words, "plaintiff must show that the articulated reason is pretextual `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.'" Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th Cir.2002)(quoting Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 1123 (9th Cir.2000)). "Although a plaintiff may rely on circumstantial evidence to show pretext, such evidence must be both specific and substantial." Villiarimo, supra.

1. Pretext v. Mixed-Motive Standard of Proof

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), the Supreme Court articulated the mixed-motive standard of proof. In short, if a Title VII plaintiff can show that an illegal consideration was a "motivating factor" in the adverse employment action taken against her, the burden of persuasion shifts to defendant to show by a preponderance of the evidence that it would have made the "same decision" even if it had not considered the illegal factor. Id. at 244-45, 109 S.Ct. 1775. In her concurrence, Justice O'Connor indicated that "the burden on the issue of causation" would only shift to defendant if the "disparate treatment plaintiff [could] show by direct evidence that an illegitimate criterion was a substantial factor in the decision." Id., at 276, 109 S.Ct. 1775 (emphasis added). "Direct evidence is evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir.1998)(alteration in original) (citation omitted).

Two years after Price Waterhouse was decided, Congress passed the 1991 Civil Rights Act, which amended Title VII to allow plaintiffs that can show that "discrimination" was a motivating factor in an adverse employment action against them to obtain injunctive relief and recover attorney's fees and costs even if defendants are able to show that they would have come to the "same decision" without the illegal consideration. The relevant provisions in the 1991 Act provide:

On a claim in which an individual proves a violation under section 2000e-2(m) of this title and a respondent demonstrates that the respondent would have taken the same action in the absence of the impermissible motivating factor, the court —

(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)), and attorney's fees and costs demonstrated to be directly attributable only to the pursuit of a claim under section 2000e-2(m) of this title; and

(ii) shall not award damages or issue an order requiring any admission, reinstatement, hiring,...