Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona JAMES C. HAIR, JR. AZ Bar No. 6692 Assistant U.S. Attorney Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Jose Castillo, CIV 02-2043-PHX-DKD Plaintiff, v. Gale A. Norton, Secretary, United States Department of the Interior, Defendant. DEFENDANT'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFF'S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant hereby replies to Plaintiff's Response To Defendant's Motion For Partial Summary Judgment and responds to Plaintiff's Cross-Motion For Partial Summary Judgment. This Reply/Response is supported by Defendant's Motion For Partial Summary Judgment (Def. MoPSJ), supporting Statement Of Facts (Def. SOF), and five volumes of Exhibits 1-107, all filed June 9, 2005, and Defendant's Reply To Plaintiff's Controversion Of Her Statement Of Facts And Response To Plaintiff's Statement Of Facts filed herewith. 1. According to plaintiff Castillo, defendant asserts that he has filed six formal complaints of discrimination, whereas he listed ten formal EEO complaints, and that defendant "includes more dates than Complaints." (Pl. Resp/XMo p.2.) A careful review of the administrative record discloses that defendant has accurately listed the formal complaints of discrimination that were filed by Castillo with the NPS and are involved in this action­i.e., eleven formal complaints of discrimination that were adjudicated or partially adjudicated in six separate administrative proceedings, in three of which two or more formal complaints of discrimination were consolidated. See Def. SOF ¶¶ 8-78 and Def. MoPSJ pp. 1-2, 6-16. 2. In its MoPSJ, defendant argues that all claims of discrimination asserted by Castillo but claims 1-6 of his third NPS/EEOC case of discrimination, claims 4a, 6, 8, 9 and 10 of his

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fifth NPS/EEOC case, and claims 1 and 3 of his sixth NPS/EEOC case should be dismissed for lack of subject matter jurisdiction or failure to state a claim upon which relief can be granted because: they are the claims he asserted in his first NPS/EEOC case, in which he was awarded all the relief to which he is entitled; they are the same as claims pending before or decided by the agency or EEOC; they were untimely presented, or raise a matter that has not been brought, or is not like or related to a matter that has been brought, to the attention of an EEO counselor; or they allege dissatisfaction with the processing of a previously filed complaint. More specifically, defendant argues the following. All claims (1, 2 and 3a-e) asserted by Castillo in his first NPS/EEOC case of discrimination were fully resolved before the agency and EEOC OFO and he received all the relief to which he is entitled (Def. MoPSJ pp. 6-7). These claims should therefore be dismissed for failure to state claims upon which relief can be granted. Castillo is precluded by 29 C.F.R. § 1614.107(a) from reasserting the claims asserted in an NPS/EEOC case in any subsequent NPS/EEOC case (Def. MoPSJ p.4). Nonetheless, claims 1-2 of his second NPS/EEOC case are the same as claim 3a of his first NPS/EEOC case (Def. MoSJ pp. 7-9), claim 1 of his fifth NPS/EEOC case is the same as claim 3b of his first NPS/ EEOC case and claim 1 of his second and third NPS/EEOC cases, and claim 2 of his fifth NPS/ EEOC case is the same as claim 1 of his first NPS/EEOC case and claims 3 and 7 of his third NPS/EEOC case (Def. MoPSJ pp. 12-15). All of these reasserted claims should therefore be dismissed for failure to state claims upon which relief can be granted. Claims 3-11 of Castillo's second NPS/EEOC case and claims 3a-d of his fifth NPS/EEOC case were untimely presented to an EEO counselor in violation of 29 C.F.R. § 1614.107(b) (Def. MoPSJ pp. 4, 7-9, 12-15). Of the claims he asserted in his third NPS/EEOC case, claim 7 is the same as claim 5, claim 8 is the same as claim 10, and claim 9 is the same as claim 11 of his second NPS/EEOC case (Def. MoPSJ pp. 4, 9-10). Claims 4b and 7 of his fifth NPS/EEOC case and claim 2 of his sixth NPS/EEOC case are the same as claim 10 of his second NPS/EEOC case and claims 3 and 8 of his third NPS/EEOC case (Def. MoPSJ pp. 12-16). All of these claims should therefore be dismissed for lack of subject matter jurisdiction.
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All claims (1-3) asserted by Castillo in his fourth NPS/EEOC case were dismissed by AJ Toole in a decision which was implemented by the NPS and affirmed by the EEOC OFO (MoPSJ pp. 10-12). Based on the reasoning of AJ Tool, the Court should dismiss these claims for failure to state claims upon which relief can be granted. Claim 5 of Castillo's fifth NPS/EEOC case should be dismissed for failure to state a claim upon which relief can be granted because, as explained by the NPS, it alleges dissatisfaction with the processing of a previously filed complaint, in violation of 29 C.F.R. § 1614.107(a)(8) and was promptly remedied (Def. MoPSJ pp. 12-15). Claim 4 of Castillo's sixth NPS/EEOC case should be dismissed on the same grounds (Def. MoPSJ pp. 15-16). Finally, claim 5 of Castillo's sixth NPS/EEOC case should be dismissed for failure to state a claim upon which relief can be granted based on the reasoning of the EEOC OFO in its February 13, 2002 decision­i.e., that the conduct alleged by Castillo to have been in breach of the Agreement occurred before it was entered into and he failed to establish that the terms of the Agreement were breached (Def. MoPSJ pp. 15-16; Exh. 103). In response, regarding the propriety of summary judgment on these issues, Castillo first contends that "[s]ummary judgment is usually not appropriate in Title VII cases because the nature of intentional discrimination is an elusive factual question. Yartzoff v. Thomas, 809 F.2d 1371 (9th Cir. 1987) at 1377." (Pl. Resp/XMo p.3.) In that case, which involved six formal complaints of discrimination Yartzoff filed with his the EPA, his employer, the Ninth Circuit affirmed the district court's grant of summary judgment on all five of his claims of national origin discrimination and three of his retaliation claims, but reversed the grant of summary judgment on his remaining three retaliation claims. On these claims, the Ninth Circuit found that Yartzoff set forth sufficient facts to establish a prima facie case and the EPA had articulated legitimate, nonretaliatory reasons for its employment decisions regarding him, but "other evidence tends to show the existence of a genuine issue as to whether the proffered explanations were pretextual." It was in this context that the Ninth Circuit made the statement relied on by Castillo, which in full is: "[T]his court has observed that a grant of summary judgment, though appropriate when evidence of discriminatory intent is totally lacking, is generally unsuitable in
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Title VII cases in which the plaintiff has established a prima facie case because of the `elusive factual question' of intentional discrimination." 809 F.2d at 1377 (internal quotation marks and citations omitted). Because it applies to resolution of the merits of a discrimination claim, Yartzoff provides no authority applicable to the issues presented by defendant's MoPSJ. Castillo further contends that his "claim is for a hostile work environment and an ongoing pattern and practice of retaliation" and, even if certain of his claims are "not actionable, [they] are admissible as long as an act contributing to the claim occurs within the filing period. National Rail Passenger Corp. V. Morgan, 536 U.S. 101, 113-17 . . . (2002)." His claims that are not actionable are admissible, he contends, also because "all serve as relevant background evidence to the timely claims and provide context. Anderson v. Reno, 190 F.3d 930, 936 (9th Cir. 1999) (overruled on other grounds by Morgan supra); Lyons v. England, 307 F.3d 1092 (9th Cir. 2002)." Lastly, he contends that "Anderson v. Reno, supra, dealing with the federal administrative process, states it would erect a needless procedural barrier to have an employee begin the administrative process anew after each occurrence of discrimination. In the present case, Plaintiff has filed numerous EEO complaints. The Federal EEO process, both administrative and in the Courts is a continuing one." (Pl. Resp/XMo pp.3-4.) Careful scrutiny of the cases Castillo cites demonstrates that they also provide no authority applicable to resolution of the issues presented by defendant's MoPSJ. Anderson involved hostile environment, disparate treatment in the workplace and retaliation claims by a female FBI agent. With respect to her hostile environment claim, the Ninth Circuit held that: We have recognized that events occurring outside the limitations period can form the basis of a Title VII claim as long as the untimely incidents represent an ongoing unlawful employment practice. Draper v. Couer Rochester, Inc., 147 F.3d 1104, 1107 (9th Cir. 1998). Moreover, even if not actionable in and of themselves, untimely claims serve as relevant background evidence to put timely claims in context. See United Air Lines, Inc. V. Evans, 431 U.S. 553, 558 . . . (1977). 190 F.3d at 936. Concerning Anderson's retaliation claim, which was based on an employment action that occurred in 1997, after she had filed her lawsuit, the Ninth Circuit stated (190 F.3d at 938 (citations omitted)):
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With regard to the retaliation supposedly occurring in 1997, we disagree with the district court that Anderson had to separately exhaust her administrative remedies as to that claim in order to include it in the then-existing lawsuit. Although administrative exhaustion is generally a prerequisite to obtaining judicial review, we have recognized that forcing an employee to begin the administrative process anew after additional occurrences of discrimination in order to have them considered by the agency and the courts "would erect a needless procedural barrier." In Morgan, a private sector employment discrimination action which also involved claims

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of racial discrimination, hostile work environment and retaliation, the Supreme Court reversed
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in part Morgan v. National Railroad Passenger Corp., 232 F.3d 1008 (9th Cir. 2000), in which the Ninth Circuit applied its continuing violation doctrine, citing Anderson and Draper, to all

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three types of claims. In doing so, the Supreme Court stated:
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[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period [45 day time period if a federal employee] after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim. 536 U.S. at 113.1 With regard to hostile environment claims, the Supreme Court stated: Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. . . . . . . In determining whether an actionable hostile work environment claim exists, we look to "all the circumstances," including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating; or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." [Citation omitted.] To assess whether a court may, for the purposes of determining liability, review all such conduct, including those acts that occur outside the filing period, we again look to the statute. . . . The timely filing provision [of 42 U.S.C. § 2000e-5(e)(1)] only requires that a Title VII plaintiff file a charge within a certain number of days after the unlawful practice happened. It does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time
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The Supreme Court went on to state: "As we have held, however, this time period for filing a charge is subject to equitable doctrines such as tolling or estoppel. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 . . . (1982) . . . . Courts may evaluate whether it would 27 be appropriate to apply such doctrines, although they are to be applied sparingly. . . ." 536 U.S. at 113. But see Sommatino v. United States, 255 F.3d 704, 707-09 (9th Cir. 2001), quoted in Def. 28 MoPSJ pp. 5-6.
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period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability. 536 U.S. at 115-17 (footnotes omitted). In Lyons, 307 F.3d 1092, the Ninth Circuit applied the rulings of the Supreme Court in Morgan in determining that the federal employer was not liable for time-barred acts and the relevance of evidence of such acts to plaintiff's timely-filed claims. See 307 F.3d at 1105-12. Regarding the latter, the Ninth Circuit decided, in the wake of Morgan, "how courts should determine what particular evidence of time-barred acts may be taken into account as `background' evidence of present, actionable discrimination." Id. at 1109. It is clear that none of these cases provide authority applicable to the Court's decision of whether to dismiss those of Castillo's claims which: (a) were finally resolved in his favor below and on which he was awarded, and received, all the relief to which he is entitled; (b) were untimely presented, or raise a matter not brought, or is not like or related to a matter brought, to the attention of an EEO counselor; (c) reiterate such claims; or (d) allege dissatisfaction with the processing of a previously filed complaint. 3. Regarding the scope of this action, Castillo contends that the July 16, 2002 EEOC OFO decision in his first NPS/EEOC case, from which he quotes, gave him the "right to file a civil action." (Pl. Resp/XMo p.4.) Castillo filed this action October 15, 2002, within 90 days after he had received the EEOC OFO decision and before, as he points out, issuance by the NPS of its December 12, 2002 FAD, which also stated that he may file a civil action within 90 days (Pl. Resp/XMo p.4). Boilerplate in EEOC and agency decisions does not necessarily give a com-plainant the right to file a civil action or avoid dismissal of a civil action or claims asserted in a civil action, if legally warranted. Indeed, before he filed this action and before the NPS issued its FAD, Castillo accepted from the NPS, as a result of its implementation of the EEOC OFO decision, $30,893.35 in previously-unpaid compensatory damages for emotional distress and mental anguish plus interest and signed a memorandum acknowledging his receipt of NPS documents showing that he was not entitled to any back pay for fire fighting duty. See Def. SOF ¶¶ 18-20; Def. Exhs. 15 and 16.

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Castillo nonetheless contends that defendant is incorrect in stating that he has received all the relief to which he is entitled because he "disagrees with the AJ's conclusion that the Agency's articulated reasons for its actions were not pretextual[,]" he demanded $100,000 for pain and suffering but was awarded less ($35,000 plus interest), he should have been compensated for his non-selection for fire fighting duty, and he should have been awarded attorney's fees and costs (Pl. Resp/XMo pp.4-5). Besides his accepting the $30,893.35 in compensatory damages plus interest, the evidence of record demonstrates that: from April 1996 through August 2002, he was selected for more fire fighting assignments than any other available employees in his division and thus was not entitled to any back-pay for non-selection for fire fighting duty; he did not timely raise with an EEOC counselor his claim that he was discriminated against when he was not selected for fire fighting duty during the 1993-95 fire fighting seasons; his attorney was paid her fees and costs for representation of him through the EEOC hearing; and he was not entitled to attorney's fees for his appeal to the EEOC OFO because he was not represented by an attorney at that stage, EEOC regulations provide for an award of attorney's fees if a complainant is represented by counsel who timely applies for them, and he failed timely to submit a request for attorney's fees. See Def. SOF ¶¶ 12-20 and cited exhibits. Notably, among all the claims of the Complaint, there is none asserting that Castillo is entitled to more than the $35,000 in compensatory damages awarded by the ALJ and EEOC OFO in his first NPS/EEOC case. Clearly, Castillo has received all the relief to which he is entitled in that case and he should be barred from relitigating the claims asserted in that action in this Court. Castillo further contends that he may, based on 29 C.F.R. § 1614.107 (quoted in Def. MoPSJ at p.4 and reiterated in Pl. Resp/ExMo at pp. 5-6), "continu[e] to raise issues so such can be reviewed by the ALJ[,]" that " `like or related' claims, even if not brought to the attention of a counselor, should not be dismissed[,]" and that the cases cited by defendant do not support her position (Pl. Resp/XMo p.6.) But for the reasons advanced in Def. MoPSJ and above, this is simply incorrect. Moreover, the cases cited by defendant, including Greenlaw, Sommatino and Jasch (Def. MoPSJ pp. 5-6), support the principle for which they are cited, namely, that a federal
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employee, before seeking judicial review of his employment discrimination claims, is generally required to satisfy and exhaust his administrative remedies and that the Ninth Circuit has held that failure to do so may require dismissal for lack of subject matter jurisdiction or failure to state a claim upon which relief can be granted. Contrary to Castillo's assertion, defendant does not argue that the scope of this action is or should be defined by what the agency accepts to investigate. 4. Regarding hostile work environment, Castillo contends that "the Agency erred in not accepting the claim that another Hispanic employee was discriminated against." In support of this contention he cites Rogers v. EEOC, 454 F.2d 234 (5th Cir. 1971). (Pl. Resp/XMo p.7.) While he does not so state, Castillo must be referring to claim 2 of his fourth NPS/EEOC case, which was dismissed by AJ Toole, pursuant to 29 C.F.R. § 1614.107(a)(1) and EEOC decisions, based on findings that Castillo had failed to show he was personally aggrieved by the alleged actions of the NPS against his co-worker or allege that he was filing the complaint on her behalf. See Def. Exh. 58 p.7; Def. MoPSJ pp. 10-12. Rogers provides no support for Castillo's contention. That case construed the scope of EEOC investigations pursuant to § 706 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, before its amendment in 1972. The decision of the Fifth Circuit in Rogers was disapproved by the Supreme Court in EEOC v. Shell Oil Co., 466 U.S. 54, 62 n. 11 and related text (1984). Furthermore, it is clear that 29 C.F.R. §

1614.107(a)(1), which requires federal agencies to dismiss complaints which fail to allege that the complainant was discriminated against by the agency and was promulgated by the EEOC pursuant to 42 U.S.C. § 2000e-16(b), is entirely consistent that statute's language limiting civil actions to those by federal employees and applicants for federal employment who are aggrieved by final agency action. 42 U.S.C. § 2000e-16(c). 5. Finally, Castillo contends, based on Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000), cases cited therein, other Ninth Circuit cases addressing hostile work environment, and Def. Exh. 38, that he should be granted summary judgment on liability for retaliation for his reprimand by Chief Ranger Sandell, which was upheld by the Park Superintendent, after he had previously engaged in protected activity by filing an EEO complaint naming Sandell and the Superintendent
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and writing Sandell complaining that many people he employed were racists (Pl. Resp/XMo pp. 7-10). Plaintiff is clearly not entitled to summary judgment on his alleged retaliatory reprimand. To prevail on a claim of discriminatory retaliation, a plaintiff-employee must satisfy the burdens of proof established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1972). Miller v. Fairchild Industries, Inc., 797 F.2d 727, 730-31 (9th Cir. 1986); Ray, 217 F.3d at 1240. A plaintiff-employee may establish a prima facie case of retaliation by showing that: (1) he engaged in protected activity; (2) his employer subjected him to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action. Ray, 217 F.3d at 1240; Yartzoff, 809 F.2d at 1375. A plaintiff may also establish a prima facie case of retaliation directly by "provid[ing] evidence suggesting that the `employment decision was based on a discriminatory criterion illegal under the [Civil Rights] Act.' " Cordova v. State Farm Insurance Companies, 124 F.3d 1145, 1148-49 (9th Cir. 1997) (citing International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 (1977)); Lyons, 307 F.3d at 1112. If the plaintiff-employee establishes a prima facie case of retaliation, "[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Chuang v. University of California Davis, 225 F.3d 1115, 1123-24 (9th Cir. 2000); Ray, 217 F.3d at 1240. If the defendant-employer satisfies its burden, the following burden devolves on the plaintiff-employee: [S]hould the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. . . . The plaintiff retains the burden of persuasion. She now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.

26 Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); McDonnell 27 Douglas, 411 U.S. at 804-05; St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993); 28 Chuang, 225 F.3d at 1124, 1126-27. 9 Case 2:02-cv-02043-DKD Document 68 Filed 11/21/2005 Page 9 of 11

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Concerning whether summary judgment may be granted in a discrimination case, the Ninth

2 Circuit has stated that: "We are convinced that, as in any other summary judgment situation, the 3 question can only be answered in each case by a review of the actual evidence offered by each 4 party, to see whether a genuine issue of material fact has been presented for trial. . . ." Wallis v. 5 J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994); see also Coleman v. Quaker Oats Co., 232 6 F.3d 1271, 1280-82, 1295 (9th Cir. 2000); FDIC v. Henderson, 940 F.2d 465, 473 n.16, 474 (9th 7 Cir. 1991); Miller v. Fairchild Indus., 797 F.2d at 731; Foster v. Arcata Assoc., Inc., 772 F.2d 8 1453, 1458-59 (9th Cir. 1985). 9

In view of this mandatory process in which the parties must engage before summary

10 judgment may be granted, Castillo's request for summary judgment on the alleged retaliatory 11 reprimand must be denied. The only evidence he offers and is presently before the Court on this 12 matter is Def. Exh. 38, which does not provide a basis sufficient for him to establish a prima facie 13 case of retaliation. Assuming otherwise, this evidence also includes Sandell's and the Superin14 tendent's articulation of legitimate, non-discriminatory reasons for Castillo's reprimand (Def. 15 Exh. 38, 11/25/96 Sandell letter and 1/10/97 Henderson letter), which shift the burden of produc16 tion back to Castillo. This evidence is clearly insufficient to enable Castillo to show, by a prepon17 derance of the evidence, that the reasons offered by the NPS for his reprimand are unworthy of 18 credence or motivated by unlawful discrimination. At the very least, the actual evidence offered 19 by Castillo does not demonstrate that there is no genuine issue as to any material fact. See also 20 the discussion of Yartzoff and Castillo's contradictory contention, supra pp. 3-4. 21 22 23 24 25 26 27 28 10 Case 2:02-cv-02043-DKD Document 68 Filed 11/21/2005 Page 10 of 11

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CONCLUSION For the reasons stated above and in defendant's MoPSJ, defendant's Motion should be

3 granted and plaintiff's Cross-Motion should be denied. 4 5 6 7 8 9 10

Respectfully submitted this 21st day of November, 2005. PAUL K. CHARLTON United States Attorney District of Arizona s/James C. Hair, Jr. JAMES C. HAIR, JR. Assistant U.S. Attorney

CERTIFICATE OF SERVICE
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I hereby certify that, on November 21, 2005, I electronically transmitted this Reply/
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Response to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice
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Of Electronic Filing to the CM/ECF registrant listed below and had a paper copy delivered to the
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Clerk's Office for delivery to Judge Duncan's chambers.
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N:\JHair\_EMPLOYDISCRIM\Castillo\SummJudgReplyResp.wpd

Cheri L. McCracken 2402 North 24th Street Phoenix, Arizona 85008-1804 Attorney for Plaintiff s/James C. Hair, Jr.

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