Morris v. McHugh
| Decision Date | 07 April 2014 |
| Docket Number | Civ. No. 13–00182 ACK–KSC. |
| Parties | Dennis K. MORRIS, Plaintiff, v. John McHUGH, Secretary Department of U.S. Army, Defendant. |
| Court | U.S. District Court — District of Hawaii |
OPINION TEXT STARTS HERE
Daphne E. Barbee, Honolulu, HI, for Plaintiff.
Thomas A. Helper, Office of the United States Attorney, Honolulu, HI, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT
On April 23, 2013, Plaintiff Dennis Morris (“Plaintiff” or “Morris”) filed a First Amended Complaint and Summons (“FAC”). ECF No. 4. In the FAC, Morris alleges Defendant John McHugh (“Defendant” or “Army”) in his official capacity as United States Secretary of the Army discriminated against Morris on the basis of his age. FAC at 1, ¶ 1. Specifically, Plaintiff brings the following claims against Defendant: (1) violation of the Age Discrimination in Employment Act (“ADEA”) and (2) violation of Plaintiff's due process rights under the 5th and 14th Amendments to the United States Constitution and under 5 U.S.C. § 7701(c)(2)(A). FAC at 24, ¶¶ 70–74.
Defendant filed the instant Motion to Dismiss or in the Alternative for Summary Judgment and Motion to Strike Jury Demand (“Motion” or “Def.'s Mot.”) along with a Concise Statement of Facts (“Def.'s CSF”) on August 9, 2013. ECF Nos. 10–11. On August 13th, 2013, Defendant filed an Errata to correct the caption to the Motion and remove the portion titled “Motion to Strike Jury Demand.” ECF No. 13. The caption was erroneous because Plaintiff's FAC does not contain a jury demand and Defendant's Motion does not contain an argument to strike a jury demand. Id. at 2. On August 21, 2013, Defendant's Motion was set for hearing on November 4, 2013. ECF No. 16. After two joint requests for continuances, the hearing was eventually moved to January 23, 2014. ECF Nos. 17, 19 & 23. On December 27, 2013, Plaintiff filed his Opposition to Defendant's Motion (“Pl.'s Opp.”) along with a Concise Statement of Facts (“Pl.'s CSF”). ECF Nos. 25–26. Defendant filed a reply (“Def.'s Reply”) on January 9, 2014. ECF No. 31. This Court held a hearing regarding Defendant's Motion on January 23, 2014.
Plaintiff was born on March 17, 1942, and is seventy-one years old. FAC at 2, ¶ 4. After retiring from the U.S. Army as a Lieutenant Colonel (“LTC”) following 24 years of service, Plaintiff worked as a Supervisory Operations Officer with the Army at the Fort Shafter Police Station in Hawaii. Id. at 3, ¶ 6. Plaintiff served as an Operations Officer for over 16 years, from September 1991 to April 2008. Id. Plaintiff received excellent evaluations for his work and received a Commander's Award for civilian service. Id. ¶ 27.
As a Supervisory Operations Officer, Plaintiff was required under the National Security Personnel System (“NSPS”) to rate subordinates and submit the ratings to a Pay Pool Panel (“Panel”) for review. Def.'s CSF at 2, ¶ 3; Pl.'s CSF at 2, ¶ 3. In October and November 2007, Plaintiff completed annual performance appraisals for three subordinates under the NSPS. FAC at 3, ¶ 8. Plaintiff was required to rate the subordinates using a five-point scale with five being the highest rating and three considered an average rating. Id. ¶ 9. Plaintiff gave all three subordinates an overall rating of four. Id.
On November 9, 2007, the Panel evaluated Plaintiff's annual appraisal ratings for the three employees and determined that the ratings were unsubstantiated. Def.'s CSF Ex. 2 at 1. On November 13, 2007, Roy Brown, Acting Deputy Director of Emergency Services and Plaintiff's immediate supervisor, told Plaintiff that the Panel members wanted additional justification for the ratings or for Plaintiff to change the ratings to those recommended by the Panel. Id. When the Panel reconvened on November 15, 2007, no changes had been made to the ratings. Id. Brown spoke again with Plaintiff to discuss why the changes to the appraisal ratings had not been made. Id. After Plaintiff told Brown he was “firm in [his] decision and would not be making any changes,” Brown explained to Plaintiff that under the United State Army Installation Management Command's (“IMCOM”) NSPS Business Rules the rater was required to make the changes. Id.2 Plaintiff reiterated that he would not make the changes and told Brown that he “wanted to see everything in writing so [he] could seek legal counsel prior to making a final decision.” Id.
On November 16, 2007, LTC Michael Wallace, Director of Emergency Services and Plaintiff's second-level supervisor, spoke with Plaintiff and provided him with a copy of IMCOM's Pay Pool Business Rules. Id. After Brown directed Plaintiff to make the changes, Plaintiff told Brown and LTC Wallace that he “could not in good conscience make any changes to their appraisals.” FAC at 7, ¶ 14. Plaintiff then explained to Brown and LTC Wallace that the Panel members had the authority to make the changes themselves. Id. Brown and LTC Wallace again explained to Plaintiff that he had to comply with the Panel's orders. Id. ¶ 15. Plaintiff stated that he was “still thinking about it,” but ultimately did not make any of the requested changes. Def.'s CSF Ex. 2 at 2. By November 21, 2007, no changes had been made to the appraisals. Id. Brown made the required changes to the appraisals and returned them to the Panel's administrator. Id.
Because Plaintiff did not comply with the Panel's directives about changing the performance appraisals, LTC Wallace relieved Plaintiff of his job and reassigned him to a nonsupervisory position at Wheeler Army Airfield. FAC at 8, ¶ 18; Def.'s CSF at 3, ¶ 9. On December 13, 2007, LTC Wallace delivered a memorandum titled “Subject: Notice of Directed Reassignment—Dennis Morris.” FAC at 8, ¶ 18. Lieutenant Colonel Wallace told Plaintiff he was relieving him of his job as Supervisory Operations Officer and directed him to report to the non-supervisory job at Wheeler beginning on January 6, 2008. FAC at 8, ¶ 18; Def.'s CSF at 3, ¶ 10. Lieutenant Colonel Wallace explained his decision to reassign Plaintiff in the memorandum:
Your demonstrated inability to follow supervisory standards negatively affected this entire organization. You deliberately refused to abide by written standards and repeated requests from your Chain of Command. You allowed your personal obstinacy to override your professional responsibilities causing irreparable damage to my trust in you as a supervisor.
A week later, Plaintiff met with Colonel (“COL”) Matthew Margotta, Commander of the U.S. Army Garrison–Hawaii and Bryson Jhung, Deputy to COL Margotta, to object to his reassignment. FAC at 9, ¶ 21. On January 2, 2008, after reviewing the proposal, COL Margotta gave Plaintiff a written decision stating that Plaintiff would be reassigned. FAC at 10, ¶ 23; Def.'s CSF at 4, ¶ 11.
On January 7, 2008, Plaintiff sent a memorandum to Debra Zedalis, Director of the U.S. Army Installation Management Command Pacific Region. FAC at 12, ¶ 26; Def.'s CSF at 4, ¶ 12. In the memorandum, Plaintiff indicated that he was being treated unfairly and wrote the following:
As a compromise offer to my being removed from my job, I will submit a formal written intent to retire to the civilian personnel office with a retirement date of April 30, 2008. I respectfully request that you allow me to remain as the Operations Officer of the Fort Shafter Military Police Station so I can retire with dignity from the job I have performed faithfully for the last 16 years.
FAC at 12, ¶ 27; Def.'s CSF at 4, ¶ 12.
Subsequently, the Army Command drafted a settlement agreement that Plaintiff signed on February 1, 2008. FAC at 12–13, ¶¶ 29–30; Def.'s CSF at 4, ¶ 12–13. Pursuant to the settlement agreement, Morris agreed to “resign” on April 26, 2008, in exchange for the “Agency agree[ing] to cancel the directed reassignment, and allow[ing] Morris to remain in his supervisory Operations Officer position until April 26, 2008.” FAC at 13, ¶ 31; Def.'s CSF at 4–5, ¶ ¶ 14–15.
On March 14, 2008, Plaintiff submitted a memorandum to COL Margotta requesting that COL Margotta rescind the settlement agreement and allow him to remain in his position as Supervisory Operations Officer without retiring. Def.'s CSF at 5, ¶ 15 & Ex. 6. On April 5, 2008, COL Margotta emailed Morris and stated that he would adhere to the settlement agreement accepting Plaintiff's retirement effective April 26, 2008. FAC at 15, ¶¶ 40–41; Def.'s CSF at 5, ¶ 16. On April 26, 2008, the personnel office sent Plaintiff a “Notification of Personnel Action” indicating the nature of the action as “resignation.” FAC at 20, ¶ 54; Def.'s CSF at 6, ¶ 17 & Ex. 16.
Between the 5th and 8th of April 2008, Plaintiff sent letters complaining of age discrimination and unfair treatment to various elected officials and Army personnel. FAC at 42, ¶ 42. When COL Margotta learned that Plaintiff wrote to several U.S. Congressmen, he called Plaintiff into his office and indicated that he was upset about Plaintiff's letters. Id. at 16–17, ¶ 43.
A few weeks after meeting with COL Margotta, Plaintiff met with COL Howard Killian, Deputy Director of the U.S. Army Installation Management Command of the Pacific Region. Id. at 18, ¶ 46. Colonel Killian stated that Debra Zedalis, COL Killian's immediate supervisor, indicated to him that she did not believe an employee should lose his job for doing what Plaintiff had done. Id. Colonel Killian also told Plaintiff that he may be willing to allow Plaintiff to work in the Command but not in a supervisory position. Id.
Based on this conversation, Plaintiff called COL Margotta and asked him if he had a job for Plaintiff because he did not want to resign or be removed from employment with the Army. Id. at 19, ¶ 47. Colonel Margotta...
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