Rhine v. Buttigieg

• Decision Date: 22 November 2022
• Docket Number: 2:20-cv-01761-RAJ-BAT
• Parties: DANIEL RHINE, Plaintiff, v. PETE BUTTIGIEG, in his official capacity as Secretary of the United States Department of Transportation, Defendant.
• Court: U.S. District Court — Western District of Washington

DANIEL RHINE, Plaintiff, v. PETE BUTTIGIEG, in his official capacity as Secretary of the United States Department of Transportation, Defendant.

No. 2:20-cv-01761-RAJ-BAT

United States District Court, W.D. Washington, Seattle

November 22, 2022

REPORT AND RECOMMENDATION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

BRIAN A. TSUCHIDA UNITED STATES MAGISTRATE JUDGE

Defendant Pete Buttigieg, Secretary of the United States Department of Transportation (“DOT”) moves for summary judgment dismissal of Plaintiff Daniel Rhine's claims that the DOT's Federal Aviation Administration (“FAA”) violated Title VII of Civil Rights Act of 1964 (asserting claims of disparate treatment, hostile work environment, and retaliation). Dkt. 22. Rhine opposes the motion (Dkt. 66-1 (Corrected Response)), and Defendant replied (Dkt. 68). Based on the parties' briefs, summary judgment evidence, and balance of the record, the undersigned recommends that the motion be granted.

PROCEDURAL HISTORY AND SCOPE OF REVIEW

Rhine worked for the FAA from 2010 until 2019, when the FAA removed him from federal service after an investigation revealed Rhine had misused government equipment and time on a personal house-flipping business, gambling pools, and graduate coursework, misrepresented his time and attendance, taken food that was not his out of common-area refrigerators, and then failed to show candor when confronted with that misconduct. Dkt. 23-24 Strong Decl., Ex. N. Rhine admitted and apologized for committing the infractions. MSPB Tr. Vol. V., p. 15 (Holguin); Ex. AA to Strong Decl. (10/30/19 Rhine response to proposed removal).

After his removal from federal service on November 22, 2019, Rhine challenged his removal in a “mixed-case” appeal with the Merit Systems Protection Board (“MSPB”) on December 26, 2019. Rhine also claimed the FAA had discriminated and retaliated against him. Dkt. 1 at 10. After a hearing, the administrative law judge (“ALJ”) found the FAA had proven all misconduct charged and Rhine's “penalty of removal was not arbitrary and was within the bounds of reasonableness under the circumstances.” The ALJ also found Rhine failed to prove his affirmative defenses of discrimination and retaliation. Rhine v. Dep't of Transp., Case No SF-0752-20-0174-I-1, 2020 WL 5879750 (MSPB Sept. 29, 2020). The MSPB affirmed on November 3, 2020, and Rhine filed his Complaint herein on November 30, 2020. Dkt. 1.

In his Complaint, Rhine alleges the FAA engaged in disparate treatment when it failed to address his complaints of sex-based harassment by Gina Perez (another FAA employee and former girlfriend) and instead, addressed Perez's complaint of harassment by him. Rhine also alleges the FAA sexually discriminated against him by targeting his workplace behavior while ignoring his allegations of Perez's workplace violations. Dkt. 1 at 11. Rhine contends he was engaged in a protected activity (i.e., making complaints of discrimination and harassment from January 2019 through August 2019) when the FAA took retaliatory steps to scrutinize his work and ultimately terminate his employment. Id. at 11-1.^[1] Rhine “is not challenging any actions by the MSPB here”, but “filed this case for a de novo hearing on his EEO claims as authorized by law.” Dkt. 66-1, p. 15. Rhine correctly states the standard of review but devotes much of his opposition and evidence to a 2015 EEO Complaint and the FAA's investigation of that Complaint. Defendant argues Rhine cannot revive long-resolved claims outside of this Court's jurisdiction. The Court agrees as Rhine did not exhaust his administrative remedies relating to the earlier settled EEO Complaint.

Rhine filed an EEO Complaint in 2015, alleging Perez made harassing statements about him. Dkt. 1, ¶ 4.8; Dkt. 4, Answer ¶ 4.8 (admitting Rhine made an informal complaint to the EEOC in 2015 against Perez claiming a hostile work environment). Perez had applied for an anti-harassment order against Rhine in state court, which the court denied. MSPB Tr. Vol. II, p. 202 (Perez). Also, in 2016, Rhine received a management instruction that he was not to visit the third floor of the FAA building and that he should coordinate meetings with Engineering Services in advance so that he could be escorted to such meetings. Ex. E to Strong Decl. (Poole Dep.), 77:6-78:22; Ex. FF (6/30/16, 7/21/17 emails regarding restrictions). The FAA later relaxed these restrictions in 2017. Id.

The FAA and Rhine agreed to settle the EEO Complaint in January 2016. As part of the settlement, the FAA agreed to investigate whether Perez spoke negatively of Rhine and if she had subordinates who felt bullied or reprised against because of her past relationship with Rhine. MSPB Tr. Vol. I, p. 206 (Rhine); Ex. BB to Strong Decl. (1/19/16 Resolution Agreement).

Rhine filed two appeals claiming the FAA breached the settlement by not properly performing its investigation. MSPB Tr. Vol. I, pp. 207-09 (Rhine). The DOT found no breach and the Office of Federal Operations affirmed. Dkt. 23, Strong Decl., Ex. CC (7/22/16 first breach decision); Ex. DD (8/24/16 second breach decision); Ex. EE (12/2/16 Ltr. from OFO affirming no breaches). Rhine was advised of his right to appeal these decisions (i.e., within 30 days to the Office of Federal Operations or within 90 days in a civil suit in the appropriate U.S. District Court). See, e.g., id., Ex. DD, pp. 3-4.

Rhine did not appeal and did not pursue his administrative remedies as to any aspect of his 2015 EEO Complaint or the FAA's 2016 investigation. Because he failed to exhaust his administrative remedies, the district court cannot adjudicate it now. Brown v. Gen. Servs. Admin., 425 U.S. 820, 832, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976) (Title VII grants an aggrieved federal employee the right to file suit in federal district court, see 42 U.S.C. § 2000e-16(c), but before doing so the employee must exhaust his administrative remedies against his federal employer); see also, Fitzgerald v. U.S. Dep't of Veterans Affairs, 121 F.3d 203, 206 (5th Cir. 1997) (“Thus, if a federal employee fails to exhaust his administrative remedies, the district court cannot adjudicate the claim.”)

Additionally, Rhine did not exhaust his administrative remedies on this claim by filing his MSPB appeal. When a federal employee claims he has been affected by both an “adverse employment action” and a related Title VII violation, administrative remedies may be exhausted for Title VII purposes by asserting both claims before the MSPB. McAdams v. Reno, 64 F.3d 1137, 1141 (8th Cir.1995); 29 C.F.R. § 1614.302 (1997). When he challenged his removal before the MSPB, Rhine asserted affirmative defenses of due process violation; harmful procedural error; EEO retaliation; discrimination based on race (Caucasian), sex (male), and disability; whistleblower retaliation; and violation of merit system principles. During the MSPB proceeding, Rhine unsuccessfully argued that his “previous history of filing an EEO complaint” was a motivating factor in the FAA's retaliation against him. However, his claim that the FAA failed to properly investigate his 2015 EEO complaint was not raised as a separate Title VII claim. Thus, the Court's de novo review is limited to the exhausted Title VII claims asserted in Rhine's Complaint, which he alleges occurred because he made complaints of discrimination and harassment from January 2019 through August 2019. Id. at 11-1.

FACTS

Rhine worked as an aviation technical systems specialist (or program implementation manager (“PIM”)) for the FAA until his removal from federal service in 2019. Dkt. 23 Ex. A to Strong Decl. (Pl. Dep.), 26:15-27:10. Monica Holguin was Rhine's immediate supervisor (since December 2018) and she was the official who first proposed and then decided to remove him. Id., Strong Decl., Ex. B (Holguin Dep.) at 21:9-17; Ex. M (10/15/19 notice of proposed removal); Ex. N (11/22/19 removal ltr.). Richard Van Allman served as Rhine's second-line supervisor (since 2018) and had a role in the decision to begin the investigation that led to Rhine's removal. Id., Ex. J to Strong Decl. (MSPB Tr. Vol. III), p. 92 (Van Allman testimony).

A. FAA Investigation and Removal of Rhine

1. Late Night Email

In February 2019 Rhine exchanged emails with some other FAA employees from the Real Estate Branch (who were outside his working group) about a work project in California. Dkt. 23, Strong Decl., Ex. C (Van Allman Dep.) at 67:6-68:8; Ex. P (2/20/19 Rhine, Van Allman emails). Twenty-four hours after he last received a response in this string, Rhine sent an email to the Real Estate manager, copying Van Allman and Thomas Poole.^[2]Id., Ex. P. Rhine's email to the Real Estate manager opened with “I'm fatigued of your team's 4 year history of false claims that stem from continued sexual harassment.” Id. Rhine went on to tell the manager that “my long term request of you is to [sic] you rectify both the performance and conduct issues within your team before you allow staff to continue suggesting that my requests aren't made in a timely fashion.” Id. No prior messages in the email string referenced false claims or sexual harassment. Id. Later the same day Rhine sent his email, Van Allman responded. Id. Van Allman noted that he had spoken with both the Real Estate manager and Poole, and neither had “any knowledge of specific allegations of false claims, sexual harassment, performance or conduct issues” referred to in Rhine's email. Id. Van Allman admonished Rhine that his statements were inappropriate for this email string and directed Rhine on where he could report any sexual harassment claims. Id.

Later that night, at 11:16 P.M., Rhine sent an email apologizing for his previous statements. Dkt. 23, Ex. C, Van Allman Dep.,...