Nimi-Motalbo v. White

• Decision Date: 15 January 2003
• Docket Number: Civ. No. 00-00635 SOM/KSC.
• Citation: 243 F.Supp.2d 1109
• Parties: Lisa NIIMI-MONTALBO, Plaintiff, v. Thomas E. WHITE, Defendant.
• Court: U.S. District Court — District of Hawaii

243 F.Supp.2d 1109

Lisa NIIMI-MONTALBO, Plaintiff, v. Thomas E. WHITE, Defendant.

Civ. No. 00-00635 SOM/KSC.

United States District Court, D. Hawai'i.

January 15, 2003.

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William E.H. Tagupa, Douglas Thomas Moore, Honolulu, Hi, for Plaintiff.

Lisa Niimi-Montalbo, Wahiawa, HI, pro se.

R. Michael Burke, Honolulu, HI, for defendant.

ORDER GRANTING IN PART AND DENYING IN PART DEFEDANT'S MOTIONS TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT.

MOLLWAY, District Judge.

I. INTRODUCTION.

On December 15, 2000, Plaintiff Lisa Niimi-Montalbo ("Niimi-Montalbo"), a former United States Army ("Army") civilian employee, filed a nine-count First Amended Complaint, alleging that Defendant Thomas E. White ("White"), the Secretary of the Army, violated her constitutional and statutory rights in connection with her employment with and termination from the Army. She was removed from her Army position on April 1, 1999.

White has filed two motions to dismiss or, in the alternative, for summary judgment. The first motion seeks dismissal of or summary judgment on certain claims on "jurisdictional" grounds. That first motion is apparently unopposed except to the extent that it seeks affirmance of the Merit Systems Protection Board ("MSPB") decision with respect to Niimi-Montalbo's nondiscrimination claims relating to her removal from employment. White's second motion seeks dismissal of or summary judgment on certain claims on "nonjurisdictional" grounds.¹

The court GRANTS in part and DNIES in part the motions for dismissal or summary judgment. The court dismisses Counts VII, VIII, and IX in their entirety, and dismisses Count IV to the extent that it alleges work-related injuries. The court grants summary judgment to White on Counts II, III, and VI in their entirety, and denies summary judgment to White on Count V in its entirety, and on Counts I and IV to the extent that those counts allege denial of reasonable accommodation of Niimi-Montalbo's alleged disability between March and May 1997.

II. BACKGROUND FACTS.

The events at issue in this case occurred between February 1997 and April 1999.² At all relevant times until her Army employment ended, Niimi-Montalbo was employed in a position at level GS-06 at the Civilian Personnel Advisory Center ("CPAC") at the Fort Shaffer Army base on Oahu. She was a personnel assistant who worked in "office automation." On February 1, 1997, she injured her back while lifting and carrying computer equipment at her job. She then stopped working, filed a Federal Employment Compensation Act ("FECA") claim with the Office of Workers Compensation Program ("OWCP") and received medical payments and Continuation of Pay.

Niimi-Montalbo returned to work in March 1997. Her treating physician, Dr. Thomas Sakoda ("Dr.Sakoda"), recommended that she be placed on light duty, part-time status. Although she was officially on light duty, part-time status, Niimi-Montalbo later claimed that she worked many overtime hours, and that her supervisor at CPAC, Jeffrey Okazaki ("Okazaki"), continued to demand that she produce as much as a full-time employee.

On May 16, 1997, Niimi-Montalbo reinjured herself at work. She stopped work again on May 18, 1997. She filed a recurrence-of-disability claim with OWCP and did not return to work until October 6, 1997.

On October 10, 1997, she filed an informal complaint with the Fort Shatter Equal Employment Opportunity ("EEO") Office, claiming discrimination on the basis of physical disability. In that EEO complaint, she alleged that, although she was formally on light duty, part-time status, from March to May 1997, Okazaki had "heaped" work on her after she had returned to work in March 1997. She also alleged that Okazaki knew that she had worked until 3 a.m. on at least two occasions. She was first interviewed regarding that EEO complaint on November 12, 1997.

On Monday, November 17, 1997, Stephanie Chang ("Chang"), an employee in the Installation Safety Office at the Civilian Personnel Advisory Center ("CPAC"), allegedly learned that Niimi-Montalbo's OWCP files were missing from her desk and left her office to look for the files. Mirabelle Pagala ("Pagala"), another employee, allegedly told Chang that, on the previous Friday, Niimi-Montalbo had told Pagala that she had taken her OWCP files, and that Pagala had seen Niimi-Montalbo take the files out of the office that day. When Chang returned to the office, the files had allegedly been returned. After finding that the files had been returned to her office, Chang reported the incident to the Fort Shafter military police ("MP"). The MP investigation found that there was probable cause to believe that Niimi-Montalbo had had the missing files in her possession.

The Army's Criminal Investigation Command ("CID") investigated the matter and concluded that Niimi-Montalbo had falsified several United States Department of Labor Duty Status Reports ("Form CA-17s") by intentionally filling out the section of the Form CA-17s reserved for the supervisor's summary of the employee's duties, and that she had submitted the falsified Form CA-17s to the United States Department of Labor in support of her workers' compensation claim. Her workers' compensation claim was denied. The United States Attorney's Office declined to prosecute the case, as there had been no loss to the government.

Niimi-Montalbo denies that she falsified the Form CA-17s. She alleges in the Complaint filed with this court that it was Okazaki, not she, who falsified the claim forms. She has not, however, offered any evidence in support of her assertions.

On January 13, 1998, Niimi-Montalbo was examined by Dr. Ramon Bagby ("Dr.Bagby") in an independent OWCP examination. On January 14, 1998, Niimi-Montalbo told Dr. Sakoda that Dr. Bagby's examination had worsened her injury, and Dr. Sakoda deemed her totally disabled through February 23, 1998. As stated below, however, Niimi-Montalbo did not return to work in February 1998 or at any time before her termination in April 1999.

On February 5, 1998, Niimi-Montalbo filed her first formal EEO complaint with the Fort Shafter EEO Office, in which she alleged discrimination on the bases of sex, disability, and reprisal. Following an investigation, which included a Fact Finding Conference at which a number of witnesses, including Niimi-Montalbo, testified under oath, the Office of Complaint Investigations ("OCI") concluded that Niimi-Montalbo had failed to demonstrate that her sex, disability, or filing of EEO complaints had motivated any of the challenged conduct by her supervisors. The OCI recommended a finding of no discrimination on September 29, 1998. At Niimi-Montalbo's request, an Equal Employment Opportunity Commission ("EEOC") Administrative Judge was appointed in her case on December 17,1998.

Dr. Sakoda referred Niimi-Montalbo to Dr. William Quigley ("Dr.Quigley"), a psychologist, who began treating her on January 30, 1998. On February 20, 1998, Dr. Quigley opined to Dr. Sakoda that Niimi-Montalbo should not return to the "work environment" she had left, and that she should be placed elsewhere. On or around March 2, 1998, Niimi-Montalbo requested clearance to begin work in another office. Dr. Sakoda recommended the transfer. On March 3, 1998, Niimi-Montalbo told Dr. Sakoda that Okazaki would not release her to work in another office, and that she had decided not to return to work because of the stress caused by the work environment in her current position.

On March 2, 1998, Niimi-Montalbo filed a recurrence-of-injury claim with OWCP, claiming that Dr. Bagby's examination had exacerbated her injury. OWCP denied that claim on June 24, 1998. Niimi-Montalbo requested reconsideration, and the denial of her claim was sustained.

On April 30, 1998, and August 18, 1998, Niimi-Montalbo wrote letters to her Congresswoman in which she complained about alleged discrimination at her job. Niimi-Montalbo's letter of April 30, 1998, also refers to an earlier letter allegedly sent to the Congresswoman on March 17, 1998.

In a letter dated November 11, 1998, Dr. Quigley stated that Niimi-Montalbo's "psychiatric disability .... limited her functional capacity in a major life activity essential to her employment." Dr. Quigley wrote: "The specific activity which is impaired by this condition is her ability to perform a broad range of jobs within the workplace environment to which she is currently assigned and under the specific administration and supervision of this workplace setting."

On November 19, 1998, Okazaki wrote a letter to Niimi-Montalbo informing her that he considered her absences from work to be "beyond a reasonable period of time for an employer to be expected to hold a position open for an employee who is incapacitated due to a job related illness or injury." He stated, "Unless you can make yourself ready, willing and able to report for duty in your assigned position on a regular, full-time basis and perform the normal duties of your position on or before 20 Nov 98, action to ... remove you from your position may be taken." That date was later extended to December 4, 1998. Niimi-Montalbo did not return to work as requested.

Niimi-Montalbo filed a second formal EEO complaint, alleging discrimination on the bases of gender and disability, and also alleging reprisal, on December 24, 1998. That complaint was received by the Fort Shatter EEO Office on January 5, 1999. The OCI investigator conducted a Fact Finding Conference on September 29, 1999, and recommended a finding of no discrimination on December 7, 1999.

Niimi-Montalbo requested leave pursuant to the Family and Medical Leave Act ("FMLA") on January 9,1999.

According to White, Okazaki issued a proposed notice of removal on February 8, 1999.³ On April 1, 1999, Bryson Jhung, the deciding official, notified Niimi-Montalbo of her removal, effective April 10, 1999.

Niimi-Montalbo appealed her removal to...