Gregory v. Widnall

Decision Date03 September 1998
Docket NumberNo. 97-35600,97-35600
Citation153 F.3d 1071
Parties77 Fair Empl.Prac.Cas. (BNA) 1750, 74 Empl. Prac. Dec. P 45,562, 98 Cal. Daily Op. Serv. 6953, 98 Daily Journal D.A.R. 9580 Eric R. GREGORY, Plaintiff-Appellant, v. Sheila E. WIDNALL, Secretary of the Air Force, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Robert A. Sparks, Fairbanks, Alaska, Robert John, Law Office of Robert John, Fairbanks, Alaska, for plaintiff-appellant.

James E. Torgerson, Assistant United States Attorney, Anchorage, Alaska, for defendant-appellee.

On Appeal from the United States District Court for the District of Alaska; James K. Singleton, Chief Judge, Presiding. D.C. No. CV-95-00026-JKS.

Before: FARRIS, O'SCANNLAIN and HAWKINS, Circuit Judges.

PER CURIAM:

Eric Gregory, an African-American civilian technician in the Alaska Air National Guard, was awarded $150,000 after prevailing in an EEOC action and subsequent Title VII suit against his employer ("Gregory I"). Judgment was based on a series of discriminatory acts by Colonel Van Williams, the second in command, which culminated in Gregory's termination in 1992. Sergeant Gregory was reinstated to his old position in September 1994, but relations remained tense with some of his supervisors. After a short time back on the job, Gregory brought a series of new EEOC actions, alleging a variety of discriminatory practices by his superiors based on his race, sex, and prior protected actions.

In his second formal EEOC complaint, filed November 1994, Gregory claimed to have been falsely accused by a management-level employee, Senior Master Sergeant Mary Hamby, of losing the promotion package of a senior officer, Major Burton. Hamby was the subject of an outstanding military social actions complaint brought by Gregory. When the Burton promotion package could not be located, she continued to maintain that she left the package on Gregory's desk. Gregory informed her that he kept logs of everything that came in and out of his office; the promotion package was not entered in the logs. Major Burton later returned from a trip off base and it was discovered that Burton himself had taken the package off Gregory's desk. Hamby's supervisor, Lt. Colonel William Hutchinson, verbally counselled her for her mistake. The EEOC hearing officer who investigated the complaint found no evidence of discrimination or reprisal and dismissed the case.

In his third formal EEOC complaint, filed March 1995, Gregory alleged that National Guard Bureau officials and officers at the Alaska Air National Guard withheld a witness statement from the previous EEOC hearing officer, thereby denying Gregory a fair hearing. During Gregory's second formal EEOC claim, his attorney had requested from the National Guard Bureau any additional information from Alaska Air National Guard about Senior Master Sergeant Hamby's response to Gregory's discrimination claim. The National Guard Bureau agreed to release the "official case file" on Gregory. However, the case file contained only cursory remarks by Hamby about the Burton incident. The Air National Guard did not reveal to the Bureau or Gregory that it had obtained a more detailed witness statement from Senior Master Sergeant Hamby. Gregory first became aware of Hamby's statement at the close of the investigation hearing, when the Air National Guard offered it into evidence. Gregory's objection to its admission was sustained. Gregory did not receive a copy. Major Oisted of the Air National Guard testified later that he had tried repeatedly to fax the witness statement to the Bureau and thought the fax had gone through. Gregory's claim with respect to the witness statement incident was undecided as of the time Gregory filed the current lawsuit and was therefore dismissed by the EEOC.

In his fourth formal EEOC complaint, filed in May 1995, Gregory brought extensive allegations of reprisal and discrimination. He complained that a similarly-situated white colleague, Brian McCarthy, received preferential treatment. At about the time Gregory became eligible for promotion, Major Shumaker, his supervisor, implemented a new policy in which she said she would evaluate candidates for at least six months before recommending their promotion. Gregory claims that his promotion to master sergeant was improperly delayed eight months as a result of the new policy. Moreover, Shumaker recommended McCarthy for promotion after only five months of evaluation and ended the policy so that McCarthy's promotion could be effected.

Gregory further alleged that Major Shumaker gave him the customer service responsibilities of a retiring superior, Major Trout, without granting him any increase in authority. He was given additional responsibilities for the customer service section, yet Major Shumaker maintained that, because Gregory did not have an "s" next to his name on the Unit Manning Document, he could not supervise other personnel. Within a few days of complaining, Gregory was relieved of his new responsibilities.

Gregory also accused his superiors of selectively using the sick leave policy to overload him with other people's work. When Gregory attempted to fulfill his additional responsibilities in the customer service section, he discovered that full-time military members in the Air National Guard were being allowed to call in sick without reporting to sick call, in violation of Major Shumakers's stated policy. The absences of full-time military members forced Gregory to perform more than one job at a time.

Gregory also alleged that his supervisors withheld positive performance evaluations during the second EEOC action; that he was threatened with receiving a poor performance rating, even though he was actually given a rating of "outstanding"; and that the Air National Guard took insufficient remedial actions in response to his pre-September 1994 complaints. Gregory's fourth EEOC action was pending as of the time he filed the current lawsuit; therefore, it was dismissed.

Gregory consolidated his last three EEOC complaints in federal district court, alleging unlawful racial and sex discrimination, a hostile work environment based on racial, sexual and retaliatory animus, and intentional infliction of emotional distress. In support of his hostile work environment claim, he pointed to an incident in which a monkey was drawn on an interoffice memo, and to the fact that most of his supervisors are female. He also included extensive evidence of a hostile discriminatory environment in the period up to September 1994, when the stipulated judgment was reached in Gregory I.

Summary judgment was granted for defendants. Gregory appeals only the dismissal of his hostile work environment claims. We affirm.

DISCUSSION

Defendants raised preliminary legal matters. We address those matters first.

The district court agreed with defendants that res judicata applies to Gregory's claims regarding incidents prior to September 6, 1994, the date judgment was entered in Gregory I. We review de novo the trial court's determination that res judicata applies. See In re Russell, 76 F.3d 242, 244 (9th Cir.1996).

In his first Title VII action, Gregory claimed that he was subject to discrimination on the basis of his race and sex, and in retaliation for making complaints. He pointed to precisely the same incidents from 1992-1994 as he now cites in support of his hostile work environment claim. "[R]es judicata (or claim preclusion) bar(s) all grounds for recovery which could have been asserted, whether they were or not, in a prior suit between the same parties ... on the same cause of action." Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir., 1982)(internal quotations omitted). We are therefore estopped from considering evidence of incidents before September 6, 1994 to prove that Gregory was subject to a hostile work environment.

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