Phillips v. Mabus
| Decision Date | 29 August 2013 |
| Docket Number | CIVIL NO. 12-00384 LEK-RLP |
| Parties | CALVIN PHILLIPS, Plaintiff, v. RAY MABUS, in his capacity as the Secretary of the Navy, Defendant. |
| Court | U.S. District Court — District of Hawaii |
Before the Court is Defendant Ray Mabus's1 ("Defendant") Motion for Summary Judgment ("Motion"), filed on April 18, 2013. [Dkt. no. 17.] Plaintiff Calvin Phillips ("Plaintiff") filed his memorandum in opposition on July 15, 2013, and Defendant filed his reply on July 22, 2013. [Dkt. nos. 24, 27.] This matter came on for hearing on August 5, 2013. Appearing on behalf of Defendant was Assistant United States Attorney Thomas Helper, and appearing on behalf of Plaintiff were Cleyton Ikei, Esq., and Jerry Chang, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendant's Motion is HEREBY GRANTED for the reasons set forth below.
Plaintiff filed his Complaint for Declaratory Relief and Damages ("Complaint") on July 6, 2012. The Complaint alleges that, in December 2010, Plaintiff applied for a GS-9 grade, Financial Management Analyst ("FMA") position with the Department of the Navy ("the Navy") but was not selected for the position. Plaintiff alleges that he was not selected because of discrimination against his race (Caucasian), gender (male), age (over the age of fifty), and disability status. He also alleges that he was not selected because of retaliation for his statement to one of the members of his interview panel that he was filing a discrimination complaint based on how he was treated during his interview. Plaintiff filed his informal complaint on February 4, 2011. [Complaint at ¶¶ 1, 9, 11, 14.]
On April 11, 2011, after the position was offered to a non-Caucasian female candidate, Plaintiff filed a formal discrimination complaint. Plaintiff filed the instant action after more than 180 days passed from the filing of the formal complaint. [Id. at ¶¶ 13, 15-16.]
Plaintiff seeks: a declaratory judgment that his non-selection violated his "right to be free from workplace discrimination on the basis of his race, gender, age, disability status and reprisal;" an order awarding him the FMA position as of January 19, 2011; an award of past and future lost wages andbenefits; compensatory damages; attorney's fees and costs; and any other appropriate relief. [Id. at pg. 6.]
In the instant Motion, Defendant seeks summary judgment on all claims in the Complaint.
Defendant first contends that Plaintiff cannot prevail on his claim under the Rehabilitation Act of 1973, 29 U.S.C. § 791(g), for disability discrimination because he is not disabled for purposes of the Americans with Disabilities Act ("ADA"). [Mem. in Supp. of Motion at 4-6.] Plaintiff's purported disabilities are a lung condition and an eye condition. [Def.'s Concise Statement of Facts ("Def.'s CSOF"), filed 4/18/13 (dkt. no. 18), Decl. of Thomas A. Helper ("Helper Decl."), Exh. 5 () ( ) at 18-22.] Plaintiff testified that his lung condition affects his stamina. It prevents him from being "a good marathoner[.]" [Id. at 18-19.] In other words, Plaintiff was able to complete the "Hawaii Marathon" in 2011, but it took him eight and half hours. [Id. at 19-20.] Plaintiff testified that his eye condition has effects on his peripheral vision because, when he tracks with his eyes, he can only use one eye at a time and his eyes do not stay together. Plaintiff, however, is still able to read and drive, and he testified that, while others might perceive his eye condition as a disability, he does not considerit a disability. [Id. at 20-21.]
According to Defendant, Plaintiff cannot establish that, when he applied for the FMA position, he was disabled, was regarded as disabled, or requested a reasonable accommodation, because his conditions did not substantially limit any of his major life activities. Defendant therefore urges this Court to grant summary judgment to Defendant on Plaintiff's disability discrimination claim. [Mem. in Supp. of Motion at 5-6.]
As to Plaintiff's other discrimination claims arising from the selection process which ended with an offer of the FMA position to Felicia Williams, Defendant concedes that Plaintiff will be able to establish a prima facie case of race and gender discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e-1, et seq., and a prima facie case of age discrimination pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. [Id. at 6; Def.'s CSOF, Decl. of Glenn I. Murayama ("Murayama Decl.") at ¶ 3.] After Williams declined the position, the recruitment was cancelled for budgetary reasons. [Def.'s CSOF, Decl. of Paul Pollock ("Pollock Decl.") at ¶ 6.2] Defendant therefore argues that Plaintiff cannot establish aprima facie case for his discrimination claims based on the decision not to hire anyone after Williams declined the position. [Mem. in Supp. of Motion at 6.]
Murayama became the selecting official for the position after one of his subordinates, Nessie Martin, asked to be recused from making the final selection.3 [Murayama Decl. at ¶ 2.] Martin was the chairperson of the interview panel before she asked to be recused. [Def.'s CSOF, Decl. of Nessie P. Martin ("Martin Decl.") at ¶ 9.] While Martin was corresponding with Plaintiff regarding the interview process, Plaintiff asked for contact information so that he could file a formal complaint because the Navy was not following federal personnel guidelines. Martin believed this accusation was baseless. [Id. at ¶¶ 6-7, Exh. 1 ().] Two days after his interview, Plaintiff sent Martin an email accusing her of mistreating him during the interview ("January 21 Email"). Martin believed this accusation was also baseless. [Martin Decl. at ¶ 14, Exh. 4 (January 21 Email).]
Murayama and Pollock, Murayama's supervisor, sought the recommendations of the three panelists who interviewed Plaintiff and Williams - Martin, Karen Hare, and Mark Chong. After all three recommended Williams, Murayama selected her, and Pollockconcurred. [Murayama Decl. at ¶ 3.]
Defendant argues that Plaintiff will not be able to identify any evidence of discriminatory intent. In an October 19, 2011 declaration, when asked to identify evidence which he believed establishes he was not selected because of his race, gender, age, and medical condition, the only specific evidence Plaintiff identified was that he wore a two-piece suit and a tie to the interview, and Martin said that he looked like a lawyer and that it was not "island style attire." [Mem. in Supp. of Motion at 8-9 (quoting Helper Decl., Exh. 6 (Aff. of Pltf. dated 10/19/11)).] Insofar as Plaintiff cannot produce either direct evidence or substantial and specific indirect evidence of discriminatory intent, Defendant urges this Court to grant summary judgment in Defendant's favor as to all of Plaintiff's discrimination claims. [Id. at 9.]
As to Plaintiff's retaliation claim, Defendant argues that Plaintiff cannot establish a prima facie case because Plaintiff cannot establish a causal link between the alleged protected activity and Plaintiff's non-selection for the position. First, Title VII's retaliation prohibition only protects a plaintiff's opposition to conduct addressed in Title VII, not opposition to general wrong-doing. Plaintiff's emails to Martin did not allege any discrimination in violation of Title VII. The January 21 Email stated that he would seek redress fromthe Office of Personal Management and the Veterans' Administration; he does not mention either the Equal Employment Opportunity Commission ("EEOC") or an internal EEO officer. Further, the January 21 Email alleged that Martin was rude, unprofessional, condescending, and mean to him, but he did not claim that Martin behaved that way because he belonged to any class protected by Title VII. Defendant also argues that the January 21 Email does not constitute protected activity because Plaintiff had no reasonable basis to assert that his non-selection was discriminatory. Defendant therefore argues that Plaintiff's retaliation claim fails because Plaintiff did not engage in protected activity. [Id. at 9-11.]
Even assuming, arguendo, that Plaintiff engaged in protected activity, Plaintiff cannot prove a causal connection between his protected activity and his non-selection. Hare's and Chong's recommendations to select Williams could not have been motivated by Plaintiff's January 21 Email because they did not know about it. Further, although Martin knew about the email, Plaintiff himself complained that the interview panelists had already made up their minds not to select him prior to that date. Plaintiff alleges that, prior to the interview, the Navy violated federal hiring procedures and gave him inaccurate directions to gain access to the base for his interview. He also claims that, during the interview, the panel gave him misleading informationabout the position's salary and tried to discourage his interest in the position. Specifically, Plaintiff claims that Martin attacked his character by being argumentative with him about his expertise in accounting procedures. [Id. at 11-13 (citing Helper Decl., Exh. 6 at 4-6).] Defendant emphasizes that the January 21 Email describes the interview process as "phony", indicating that Plaintiff believed that the selection decision had already been made prior to the email. [Id. at 13 (citing Martin Decl., Exh. 4).] Defendant therefore argues that, because Plaintiff cannot establish a causal link between the email and his non-selection, he cannot establish a prima facie case for his retaliation claim. [Id.]
Finally, Defendant argues that, even assuming arguendo that Plaintiff could prove a prima facie case, Defenda...
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