Okemgbo v. Wash. State Dep't of Ecology

• Decision Date: 24 February 2014
• Docket Number: NO: 12-CV-5119-TOR,: 12-CV-5119-TOR
• Court: U.S. District Court — Eastern District of Washington
• Parties: ASOPURU OKEMGBO, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, Defendant.

ASOPURU OKEMGBO, Plaintiff, v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, Defendant.

NO: 12-CV-5119-TOR

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

DATED February 24, 2014

ORDER GRANTING DEFENDANT'S

MOTION FOR SUMMARY

JUDGMENT

BEFORE THE COURT is Defendant's Motion for Summary Judgment (ECF No. 24) and Plaintiff's untimely Motion for Summary Judgment (ECF No. 50).¹ This matter was submitted for consideration without oral argument. The Court has reviewed the briefing and the record and files herein, and is fully informed.

BACKGROUND

Pro se Plaintiff Asopuru Okembgo, Ph.D., ("Plaintiff" or "Dr. Okembgo") alleges that Defendant violated his civil rights under Title VII of the Civil Rights Act by wrongfully terminating him on the basis of race, national origin, and religion. Defendant Washington State Department of Ecology ("Department") now moves for summary judgment on grounds that Plaintiff fails to establish a prima facie case of discrimination; the Department had a legitimate, nondiscriminatory reason for terminating Plaintiff's employment; and Plaintiff fails to show the Department's proffered reason for terminating him was pretext for discrimination. For the reasons explained below, the Court grants Defendant's motion.

FACTS²

Plaintiff Asopuru Okembgo, Ph.D., ("Plaintiff" or "Dr. Okembgo") is a chemist; president of a nonprofit corporation named Skills Development Mission headquartered in Kennewick; and author of a book titled "Pop the Question, Get Yes, Get Married," a book concerning Christianity and marriage advice. DefendantWashington State Department of Ecology ("Department") hired Plaintiff as a Chemist 3 in February 2008. ECF No. 25 at 1. Einar ("Ron") Skinnarland ("Skinnarland"), Waste Treatment Section Manager, was on the hiring committee and became Plaintiff's direct supervisor.³ Id. at 1, 3.

After Dr. Okembgo's probation period had ended, three of Dr. Okembgo's co-workers, N.S., T.W., and A.C., alleged that Dr. Okembgo had engaged in inappropriate touching and/or conversation with them.⁴ ECF No. 25 at 2; Skinnarland Declaration at 3. As a result, on June 11, 2009, Skinnarland contacted his supervisor, and Human Resources investigated the allegations. ECF No. 25 at 10-11; Skinnarland Declaration at 3; Declaration of Polly Zehm at 2; Declaration of Wendy Holton at 2. The investigation focused on alleged violations of Department sexual harassment and use of state resources policies. Holton Declaration at 2. During the investigation, 25 people were interviewed, and "captures" of Dr. Okembgo's computer and internet use were examined.

On December 7, 2009, Polly Zehm, Deputy Director of the Department, sent Dr. Okembgo a predisciplinary notice indicating that the Department was considering taking disciplinary action against him and citing allegations of inappropriate touching and conversations with female employees and inappropriate use of state resources. ECF No. 25 at 12; Zehm Declaration at 2. After a meeting with Dr. Okembgo and Department and Union representatives, Zehm sent Dr. Okembgo a notice suspending him without pay from March 9, 2010, through March 29, 2010.⁵

Dr. Okembgo's supervisor Skinnarland met with Dr. Okembgo before and after his suspension, memorializing each of their discussions in writing in memoranda entitled "Work Expectations." ECF No. 25 at 13. The resulting memoranda indicate that Dr. Okembgo was prohibited from using work time to promote, sell, or distribute his book on marriage, and from using work time to counsel co-workers or offer to pray with them. Id.

After Dr. Okembgo's suspension and meetings with Skinnarland, the Department hired S.N., who became seated in a cubicle close to Dr. Okembgo. ECF No. 25 at 14; S.N. Declaration at 2. S.N. also reported a series ofuncomfortable interactions with Dr. Okembgo, which were reported to Human Resources. ECF No. 25 at 18-19.

After receiving report of the new allegations against Dr. Okembgo, Human Resources began another investigation focusing on the alleged violations of the Department's sexual harassment policy, but more expansive, to include an inquiry into whether Dr. Okembgo distributed his book on marriage and made offers of counseling and prayer. Id. at 19. On March 22, 2011, Dr. Okembgo was sent another pre-disciplinary notice informing him that the Department was considering disciplinary action which included allegations of inappropriate behavior of a sexual nature toward a female co-worker and failure to follow a supervisor's directive. Id. at 20. Dr. Okembgo and Department and Union representatives attended his pre-disciplinary meeting on April 1, 2011. On April 15, 2011, Human Resources sent Dr. Okembgo a notice of dismissal informing him that he was terminated from employment effective that day. ECF No. 25 at 20.

A. The Sexual Harassment Allegations

Dr. Okembgo disputes many of his four co-workers' substantive allegations; however, he does not appear to dispute the fact that they made the allegations to the Department. Each co-worker's allegations are as follows:

1. N.S.⁶

According to the Fact-Finding Inquiry Form summary resulting from Human Resources' investigation, N.S.'s allegations against Dr. Okembgo included the following:

• Unwanted hugging

• Bringing her Bible verses

• Coming into N.S.'s cubicle and standing very close to her

• Patting her on the shoulder sliding his hand down to just above her elbow, and pinching her—an action repeated three times

ECF No. 29-1, Exhibit D.

2. T.W.

According to the Fact-Finding Inquiry Form summary resulting from Human Resources' investigation, T.W.' allegations against Dr. Okembgo included the following:

• Unwanted back rubs in her cubicle—a "couple"

• "Forced" hugging, in which Dr. Okembgo would grab her elbows and pull her to him for a hug—an estimated ten occasions

• "Pulling" her into a conference room to pray after she told him about a miscarriage

ECF No. 30, Exhibit E.

3. A.C.

According to the Fact-Finding Inquiry Form summary resulting from Human Resources' investigation, A.C.'s allegations against Dr. Okembgo included thefollowing:

• Commenting on A.C.'s coat, which was hanging outside her cubicle. When she stated that it had stains from her young child's food, he said that some stains have value, mentioning "Monica Lewinsky," and her "blue dress."

• After lunch with Mr. Okembgo, he told A.C. "Tell your husband not to worry. I won't take you away from him.

ECF No. 28, Exhibit C.

4. S.N.

According to the Fact-Finding Inquiry Form summary resulting from Human Resources' investigation and her declaration, S.N.'s allegations against Dr. Okembgo included the following:

• Giving S.N. his book on marriage, which includes discussion about ovulation.

• Asking personal questions about female reproduction.

• Asking when her body temperature changed and stating that he could sense when his wife's temperature changed.

• Asking if she was "early in her cycle," if she "knew how to tell," and if she had "a regular 28-day cycle."

• Stating in a conversation about getting pregnant, "You have to hold on until you get a full deposit."

• Standing close to her after she told him to clean his desk and stating "what will be my reward for cleaning my desk?"

• Repeatedly whispering her name from his cubicle.

• Telling S.N. that she should try to get pregnant over the weekend.

• Telling her he would pray for her over the weekend and making a gesture similar to holding a baby.

• Keeping a piece of candy S.N. had given him in a heart-shaped box and telling S.N. that it was special to him and he was keeping it in his heart.

• Stating that he could not look on the floor for a piece of candy S.N. had dropped because people would think he was looking between her legs.

• Suggesting that S.N. bring her husband's elastic exercise band to work because he could show her things her husband and she could do together with it.

Declaration of S.N., ECF No. 27; ECF Nos. 27-1 and 27-2, Exhibits A and B.

B. Other Allegations

The Department also claims that Dr. Okembgo misused state resources by using his email for personal emails and viewing large numbers of non-work-related internet sites. Though Plaintiff disputes at least some of these allegations, Human Resources Consultant Wendy Holton declared that a "capture" of Plaintiff's computer and internet use indicated that between April 28, 2009, and June 1, 2009, Dr. Okembgo had accessed 1,416 non-work-related websites. Holton Declaration, ECF No. 33. She also stated that between February 15, 2009 and July 1, 2009, he had sent or received 155 non-work-related emails, 44 of which appeared to be related to Dr. Okembgo's non-profit organization. Id.

Skinnarland also claims that Dr. Okembgo appeared to be spending time at the Washington State University library (a place where employees sometimes went for legitimate reasons) to work with students on his nonprofit corporation during work hours. ECF No. 32-4, Exhibit M. Skinnarland reported seeing Dr. Okembgocome in late from lunch, take personal calls, and leave meetings to take personal calls. Id.

C. The Work Expectations Memoranda

The Work Expectations memoranda provide, inter alia, the following supervisory directives:

4) You are not to use your work time for any non-work activity, including:

• Promoting and soliciting contributions of money, time or other donations for your non-profit organization or other non-work related activities that you are involved in

• Promoting, selling and/or distributing your book on marriage

• Promoting religious opinions, providing religious information, counseling, offers to pray

5) You are not to use your assigned state computer, work phone, copy machine, fax machine or any other state equipment for any non-work related activity.

ECF No. 32-5, Exhibit N. The other Work Expectation memorandum has substantially the same provisions. ECF No. 32-6, Exhibit O.

D. Procedural Background

Through his union, Dr. Okembgo filed a grievance challenging his discharge. ECF No. 25 at 21. An arbitration hearing was held...