Nishibayashi v. England

• Decision Date: 19 January 2005
• Docket Number: No. CIV.04-00248 ACK/LEK.,CIV.04-00248 ACK/LEK.
• Citation: 360 F.Supp.2d 1095
• Parties: Teruyo NISHIBAYASHI, Plaintiff, v. Gordon R. ENGLAND, Secretary, Department of the Navy, Defendant.
• Court: U.S. District Court — District of Hawaii

Page 1095

360 F.Supp.2d 1095

Teruyo NISHIBAYASHI, Plaintiff, v. Gordon R. ENGLAND, Secretary, Department of the Navy, Defendant.

No. CIV.04-00248 ACK/LEK.

United States District Court, D. Hawai'i.

January 19, 2005.

COPYRIGHT MATERIAL OMITTED

Teruyo Nishibayashi, Okinawa, Japan, Pro se.

Harry Yee, Office of the United States Attorney, Honolulu, HI, for Navy, Department of the, United States of America, defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

KAY, District Judge.

BACKGROUND

I. Factual History

Teruyo Nishibayashi ("Plaintiff") is a Japanese citizen who lives and works on Okinawa, Japan. Plaintiff is employed under a contract between the United States Government and the Government of Japan that provides for employees, funded by the Japanese Government, to provide administrative and logistical support to the United States Forces based in Japan. (Master Labor Contract Number DA-92-557-FEC-28000, as amended, (effective October 1, (1957))) ("MLC"). Plaintiff works for the United States Marine Corps Base at Camp Smedley D. Butler, Okinawa ("Camp Butler").

On April 4, 1989, Plaintiff received an initial, 60-day, limited-term appointment under the MLC as a BWT1-4, Personnel/Manpower Coordinating Clerk and was assigned to Camp Butler. She later received a one-month extension of her employment term, not to exceed June 30, 1989. Following the extension, effective July 1, 1989, Plaintiff's employment status was changed from "limited-term" to "permanent" and she was promoted to the position of BWT1-6, Real Property Specialist.

On August 1, 1989, she was transferred from the Facilities Engineer Division-Environmental Branch to the G-4 Division-Safety Branch, both within Camp Butler. This transfer was initially scheduled to last up to two (2) years. Plaintiff alleges that she requested that her supervisor, Mr. Joseph E. Vogel, change the action from a "transfer" to a "detail" to ensure that she would return after the two-year period and that Mr. Vogel told Plaintiff to stay out of the matter. (Compl. at 5). Plaintiff alleges that "Mr. Vogel abused his authority and wrongfully transferred Plaintiff for his own interest" and that "[h]is radical discriminatory animosity had been secretly expressed to Plaintiff." (Compl. at 6).

On December 1, 1993, Plaintiff was promoted to BWT1-9, Chemist. On August 21, 2001, Plaintiff's supervisors in the Safety Division submitted a personnel action request to the Camp Butler Civilian Human Resources Office, Japanese National Labor Branch, requesting reassignment of Plaintiff's position from a BWT1-9, Chemist to a BWT1-9, Scientific Advisor. Thus, a desk audit was conducted of Plaintiff's position description and resulted in a rewrite of Plaintiff's task list to accurately reflect the duties and responsibilities Plaintiff performed. However, Plaintiff claims that Ms. Joyce Shingaki, Class and Wage Technician/Classifier in the Civilian Human Resources Office, deleted a large portion of what was included in the original task list. (Compl. at 7). Plaintiff further alleges that Ms. Shingaki then forwarded the list to the Safety Division for its signature as the requestor even though the list should have been prepared by the requesting agency. (Compl. at 7-8). Plaintiff attached to her Opposition to Defendant's Motion to Dismiss an e-mail correspondence from her supervisor Mr. Charles E. Roberts to Ms. Shingaki indicating that he received the revised task list and that the list did not reflect the full scope of the duties that Plaintiff performed. (Opp'n to Def.'s Motion to Dismiss Ex. 8). Ms. Shingaki replied that Mr. Roberts did not have to use the revised list if he felt uncomfortable using it. (Opp'n to Def.'s Motion to Dismiss Ex. 8).

It was determined that the position Plaintiff occupied did not support a BWT1-9, Chemist or Scientific Advisor designation. Consequently, the Civilian Human Resources Office recommended that Plaintiff's position be reclassified as a Safety Program Administrator and downgraded from a BWT1-9 to BWT1-6. Plaintiff argues that the grading did not reflect the more complex tasks that her position occasionally required. (Compl. at 8-9). Plaintiff contends that this was "deliberate systematic attack on Plaintiff's specific job" because other positions throughout Camp Butler could have been similarly downgraded but were not. (Compl. at 8).

On February 5, 2003, Plaintiff's supervisor Mr. Roberts recommended that the downgrade occur after the position was vacated and refilled so as not to affect Plaintiff. (Compl. at 9). Plaintiff alleges that this has been done with regard to other positions at Camp Butler and cites an incident in 2000 that involved the reclassification of engineering positions. (Compl. at 9). Plaintiff alleges that all the employees in that reclassification were male and that none were downgraded based on the reclassification. (Complaint at 10). Thus, she argues this demonstrates sexual discrimination.

On February 14, 2003, Plaintiff filed a grievance, pursuant to Chapter 12 Grievance Procedures of the Master Labor Contract regarding the proposed reclassification and downgrade. The Master Labor Contract allows an employee to officially state dissatisfaction with any aspect of his/her employment and receive a decision from the grievance authority. (Whitaker Decl. at 3). Plaintiff went through four grievance and appeal levels contesting the proposed actions. On February 27, 2003, Plaintiff filed a "Second-Step" grievance appealing the "First-Step" decision. On March 24, 2003, she filed a "Third-Step" grievance appealing the "Second-Step" decision with the office of Mr. Richard C. Whitaker, Assistant Chief of Staff/Comptroller at Camp Butler.

On March 27, 2003, Mr. Whitaker, pursuant to the Master Labor Contract, appointed a Grievance Advisory Committee to conduct a hearing to determine the issues and facts pertaining to Plaintiff's grievance and to provide a recommended course of action. The Committee provided a report on April 7, 2003. Plaintiff alleges that the Grievance Advisory Committee recommended that Mr. Richard C. Whitaker, Assistant Chief of Staff/Comptroller at Camp Butler, sustain Plaintiff's grievance. (Compl. at 10-11). She further claims that Mr. Whitaker ignored the Committee's recommendation. (Compl. at 11). On April 10, 2003, Mr. Whitaker corrected the Reclassification and Change to a lower grade action which reclassified Plaintiff from Chemist, BWT1-9 to Safety Program Administrator, BWT1-6. The corrected action reclassified Plaintiff to Engineering Technician, BWT1-7. Plaintiff claims that this designation does not adequately reflect her skills or duties and that the United States civilian who had previously held her position was classified as professional while she was classified as a non-professional. (Compl. at 14). She concludes that this is the result of discrimination against her national origin. (Compl. at 16). On April 17, 2003, Plaintiff filed a "Fourth-Step" grievance to the final decision authority. On June 17, 2003, Mr. Whitaker's decision was upheld.

Finally, on April 19, 2004, Plaintiff filed a complaint against Gordon R. England, Secretary, Department of the Navy, alleging discrimination based on her sex and national origin. Plaintiff requests a judgment indicating that her rights have been violated, permanent reassignment to Basic Wage Table 1-9 Scientific advisor or Chemist, to have all references to her allegedly wrongful downgrade removed from her record, back pay, compensatory damages, and punitive damages in the amount of two-million dollars.

II. Procedural History

On April 19, 2004, Plaintiff filed her Complaint alleging discrimination based on her sex and national origin.

On July 21, 2004, Defendant filed an Answer to Plaintiff's Complaint.

On October 7, 2004, Plaintiff filed a Scheduling Conference Statement, and on October 8, 2004, Defendant filed a Scheduling Conference Statement.

On October 13, 2004, Defendant filed a Motion to Dismiss and attached a Declaration of Richard C. Whitaker, Assistant Chief of Staff/Comptroller at Marine Corps Base, Camp Smedley D. Butler, Okinawa, Japan.

On October 18, 2004, a Rule 16 Scheduling Conference was held.

On October 21, 2004, Magistrate Judge Leslie E. Kobayashi filed a Rule 16 Scheduling Order.

On December 28, 2004, Plaintiff filed her Opposition to Defendant's Motion to Dismiss.

STANDARD

I. Dismissal for Lack of Subject Matter Jurisdiction

"A party invoking the federal court's jurisdiction has the burden of proving the actual existence of subject matter jurisdiction." See Thompson v. McCombe, 99 F.3d 352, 353 (9th Cir.1996). On a Rule 12(b)(1) motion, the court is not "restricted to the face of the pleadings, but may review any evidence, such as affidavits and testimony, to resolve factual disputes concerning the existence of jurisdiction." McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988). "Once the moving party [converts] the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court, the party opposing the motion must furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1040 n. 2 (9th Cir.2003).

"The requirement that the nonmoving party present evidence outside his pleadings in opposition to a motion to dismiss for lack of subject matter jurisdiction is the same as that required under Rule 56(e) that the nonmoving party to a motion for summary judgment must set forth specific facts, beyond his pleadings, to show that a genuine issue of material fact exists." Trentacosta v. Frontier Pac. Aircraft Indus., Inc., 813 F.2d 1553, 1559 (9th Cir.1987). Thus, the moving party "should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Casumpang v. Int'l Longshoremen's &...