Free Motion for Summary Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9
CHERI L. McCRACKEN

Cheri L. McCracken, Esq.
State Bar # 006111 2402 North 24th Street Phoenix AZ 85008-1804 (602) 231-0595 Attorney for Plaintiff

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Jose Castillo, Plaintiff, v. Gale A. Norton, Secretary, United States Department of the Interior, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) No. CIV'02 2043 PHX ROS PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION FOR PARTIAL SUMMARY JUDGMENT and PLAINTIFF'S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT

10
2402 NORTH 24TH STREET PHOENIX, AZ 85008-1804 (602) 231-0595 (PHONE) (602) 231-0841 (FAX)

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

COMES NOW the undersigned attorney for Plaintiff Jose Castillo ("Castillo"), and responds to Defendant's Motion for Partial Summary Judgment. It is

respectfully requested that Defendant's Motion for Partial Summary Judgment be denied and that Plaintiff's Cross-Motion be granted. As the Defendant points out, review in this Court, all on the complaints of a Federal employee in Title VII matters, is de novo. Also, review in this Court is not separated by individual EEO

complaints. In this matter, Plaintiff has filed a series of EEO complaints which constitute a continuing practice of discrimination, retaliation, and are "like and related". Because review is de novo, it is immaterial what the findings of the Agency were or were not or what the findings of the Administrative Law Judges were or were not. This request is supported by a the following Memoranda of Points and

Authorities; Plaintiff's Controversion of Defendant's Statement of Facts; and related exhibits.

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 1 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Respectfully submitted this _____day of October, 2005

________________________________ Cheri L. McCracken Attorney for Plaintiff MEMORANDUM OF POINTS AND AUTHORITIES I. NATURE OF THE ACTION Defendant asserts that Plaintiff has filed six (6) formal complaints of discrimination. Plaintiff in his Complaint has listed ten (10) formal EEO complaints. May 3, 1996 Agency case number FNP­96­064; December 10th, 1997 Agency case number FNP­98­ 029; November 9, 1998 Agency case number FNP­99­020; March 19, 1999, Agency case number FNP­99­060; June 4, 1999, Agency case number FNP­99­078; July 23, 1999, Agency case number FNP­99­107; February 23, 2000, Agency case number FNP­00­045 June 26, 2000, Agency case number FNP­00­090; December 18, 2000, Agency case number FNP­01­026; May 18, 2000, Agency case number FNP­01­074. The Defendant includes more dates than EEO Complaints. Those dates include May 3, 1996; December 10, 1997; December 9, 1998; March 18, 1999; July 23, 1999; June 21 and 22nd 2000; December 18, 2000; and May 17, 2001. The Defendant has outlined the Federal regulations concerning EEO complaints of Federal employees. The basis of the Motion for Partial Summary Judgment if seen in is simplest form appears to be based on 1) that certain claims should be dismissed because they are redundant with other individual items
2

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 2 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

contained in other complaints. That appears to simply be a redundancy. It should not take the time of this court to simply declare them redundant as each is obviously only actionable once; 2) although the Defendant admits that review in this court is de novo it still assert that findings by the administrative law judges in administrative proceedings and decisions by the Agency itself require the dismissal of claims; and 3) and thirdly because the Agency complied with the order of the EEO Office of Federal Operations ("OFO"), that the Plaintiff is bound by that as a final resolution in this matter. II. SUMMARY JUDGMENT Summary 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. Plaintiff's claim is for a hostile work environment and an ongoing pattern and practice of retaliation. This Court is aware that Plaintiff has filed numerous EEO Complaints alleging discrimination. Plaintiff relies on the continuing pattern and practice facts to support his claims of a hostile work environment and pattern and practice of retaliation. Even if, arguendo, these were not actionable, these are admissible as long as an act contributing to the claim occurs within the filing period. National Railroad Passenger Corp. v. Morgan, 536 US 101, 113-117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). What Defendant has asked for here is more properly characterized as an evidentiary motion. Even if they were not actionable, all serve as relevant background evidence to the timely claims and provide context. Anderson v. Reno, 193 F.3d 930, 936 (9th Cir. 1999) (overruled on other grounds by Morgan supra); Lyons v. England, 307 F.3d 1092 (9th Cir. 2002). Pursuant to the Federal Regulations, a Federal employee must seek informal EEO counseling within forty-five days of an occurrence. 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
3

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 3 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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. III. SCOPE OF CIVIL ACTION The EEOC OFO issued a decision July 16, 2001 in Agency case number FNP­96­064. (Defendant's Exhibit 14). It is clear on the face of that document that the Plaintiff has a right to file a civil action. This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90)calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred eighty (180) calendar days of the date you filed the complaint with the Agency, or filed your appeal with the Commission. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. Filing a civil action will terminate the administrative processing of your complaint. (Defendant's Exhibit 14 at page 9 of 10). Defendant cites Defendant's Exhibit 15 and Defendant's Exhibit 16 as evidence that Plaintiff has received all of the relief to which he is entitled on that complaint and it should be dismissed for failure to state a claim. This is not true based on Defendant's own exhibits. Defendant's Exhibit 16 contains the final Agency decision. The final Agency decision at page 3, the last page of Defendant's Exhibit 16 makes clear that Plaintiff may file a civil action . In lieu of an appeal to the Commission, You may file a civil action in an appropriate United States District Court within 90 calendar days of receipt of this final order. Plaintiff had already filed the civil suit, prior to the final Agency decision pursuant to Defendant's Exhibit 14. There is nothing to suggest that Plaintiff cannot disagree with the decision of the OFO. Plaintiff disagrees with the AJ's conclusion that the Agency's articulated reasons for its actions were not pretextual. He feels that he has
4

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 4 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

established a continuing violation and that he should have been compensated for all of the non-selection for fire duty detail. He also believes that he can and has established a nexus between the harm that has befallen him and his treatment by coworkers in a discriminatory manner. Plaintiff agrees with the AJ's conclusion that he worked in a hostile work environment and that he continues to do so. Even after this decision and these initial actions that hostile work environment has continued. In Agency case number FNP­96­064, the Plaintiff requested $100,000 for emotional distress damages. He still contends that his compensatory and emotional distress damages are far in excess of what was awarded him by the Office of Federal Operations. Further, attorneys fees and costs were remanded to the Agency. The Agency's Exhibit 16 did not award any attorney's fees or costs. Plaintiff contends that he should be recompensed for his expenses in fighting this matter. discrepancies, Plaintiff filed suit in this matter. Plaintiff has stated a claim and exhausted his administrative remedies for the first complaint of discrimination. The argument by Defendant that the Plaintiff has received all remedies he is owed is simply a matter of opinion and is not based on law, regulation, or precedent. Defendant asserts the following at page 4 of their Motion: Before a request for hearing is made, the agency "shall dismiss" a complaint that, among other grounds: (a) "states the same claim that is pending before or has been decided by the agency or Commission;" (b) "fails to comply with the applicable time limits contained in §§1614.105 [and] 1614.106 . . . unless the agency extends the time limits in accordance with § 1614.604(c), or . . . raises a matter that has not been brought to the attention of a Counselor and is not like or related to a matter that has been brought to the attention of a Counselor;" or (c) "alleges dissatisfaction with the processing of a previously filed complaint[.]" Where the agency believes that some but not all of the claims in a complaint should be dismissed for the reasons contained in the regulation (including those quoted above), the agency must notify the complainant in writing of its determination, the rationale for that determination and that those claims will not be investigated and place a copy of the notice in the investigative file. This agency determination is reviewable by an AJ if a hearing is requested but is not
5

Based on these

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 5 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

appealable until final action is taken on the remainder of the complaint. 29 C.F.R. § 1614. I07. Thus even the Defendant must admit that Plaintiff is best served by continuing to raise issues so such can be reviewed by the ALJ. Further, Defendant admits here that "like and related" claims, even if not brought to the attention of a counselor, should not be dismissed. Certainly the continuous nature of these claims are "like and related". The purpose of this rule is to protect "unlettered lay persons making complaints without legal training or the assistance of counsel". Fine v GAF Chemical Corp, 995 F2d 576 (5th Cir 1993). Plaintiff filed the complaints himself. Defendant's own caselaw does not support its position that claims or even a portion of claims should be dismissed for lack of subject matter jurisdiction. The Court may recall Defendant originally claimed that it was not put on notice by the Complaint. Now the Defendant, primarily based on the case numbers in the Complaint, has come forward with 107 Exhibits and 77 facts. Defendant cites Sommatino v. United States, 255 F.3d 704, 707-709 (9th Cir. 2001) for the proposition that there must be substantial compliance. Here, there has been, including at least ten (10) EEO complaints, two (2) hearings before ALJs, and appeals to the OFO. (DSOF 8-77). The Defendant's own citation at page 6, lines 3-5 the quote is "never presented a discrimination complaint". There is no basis here for asserting a lack of subject matter jurisdiction. Defendant's citations affirm that the scope of the Court action depends upon the scope of the EEOC charge and the EEOC investigation relying on Paige v. State of California 102 F3d 1035, (9th Cir. 1996). Also that there is jurisdiction over "like and related" matters. Deppe v. United Airlines 217 F3d. 1272 (9th Cir 2000). Not one of the cases Defendant relies on suggest that the scope of the Court action is or should be defined by what an Agency accepts to investigate. This would be counterproductive; encouraging Agencies to artificially limit claims accepted. ...
6

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 6 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IV. HOSTILE WORK ENVIRONMENT In looking at whether a hostile work environment is created, one must look at the totality of circumstances, the frequency of the conduct, and the severity of the conduct. Harris v. Forklift System, Inc., 510 U.S. 17(1993); Fuller v. City of Oakland, CA, 47 F.3d 1522 (9th Cir. 1995) also see Desert Palace, Inc. v. Costa, 539 US 90 (2003). It has long been established that a hostile environment based on race, gender or sexual harassment can consist of actions to others in the protected class. Rogers v. EEOC, 454 F2d 234 (5th Cir. 1971). Thus, the Agency erred in not accepting the claim that another Hispanic employee was discriminated against. Oncale V. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) was decided in the context of a hostile environment in male on male sexual discrimination. The Court in Gorski v. New Hampshire Dept. of Corrections,

2002 US App. Lexis 9828 (2002) noted that hostile environment cases first arose among other categories such as national origin, race or religion cases. In addition to citing Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986), the Court cited Rogers, supra (treatment of Hispanic clientele created a hostile work environment for Hispanic employee); Firefighters Inst. For Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir. 1977) (discrimination against Blacks in use of kitchens). V. RETALIATORY HOSTILE WORK ENVIRONMENT In what it characterized as a case of first impression, the U.S. Court of Appeals for the 9th Circuit recognized a claim under Title VII for retaliatory hostile work environment, stating: ... Harassment is obviously actionable when based on race and gender. Harassment as retaliation for engaging in protected activity should be no different ­ it is the paradigm of "adverse treatment that is based on retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual ¶8008. Ray v. Henderson (USPS), 217 F.3d 1234, 1245 (9th Cir. 2000). Ray went on to apply the well-established hostile environment proof model set out in Harris v.
7

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 7 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Forklift Systems, Inc., 510 U.S. 17 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993), and Faragher v. City of Boca Raton, 524 U.S. 775, 787, 188 S.Ct. 2275, 141 L.Ed.2d 662 (1998) to claims involving retaliation. Id. In looking to see if a hostile working environment is created, the totality of the circumstances, the frequency of the conduct and the severity must be viewed. Harris, supra; Fuller v. City of Oakland Ca., 47 F.3d 1522 (9th Cir. 1995) and Desert Palace v. Costa, 539 US 90 (2003). In Ray, the 9th Circuit also exhaustively discussed the type of conduct that constitutes "adverse action" for the purposes of a retaliation claim, affirming its prior holdings that the following conduct qualified: a "lateral transfer," citing St. John v. Employment Development Dept., 642 F.2d 273, 274 (9th Cir. 1981); "transfers of job duties and undeserved performance ratings," citing Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987); "dissemination of an unfavorable job reference," citing Hashimoto v. Dalton, 118 F.3d 671, 676 (9th Cir. 1997); and being "excluded from meetings, seminars and positions that would have made her eligible for salary increases, ... denied secretarial support, and ... given a more burdensome work schedule," citing Strother v. Southern California Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996). Ray v. Henderson, supra, at 1240-1241. After examining the standards applied within other circuits, the Ray Court held as follows: The EEOC has interpreted "adverse employment action" to mean "any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." [Citations omitted.] The EEOC test covers lateral transfers, unfavorable job references, and changes in work schedules. These actions are all reasonably likely to deter employees from engaging in protected activity. As we stated in Hashimoto, the severity of an action's ultimate impact (such as loss of pay or status) "goes to the issue of damages, not liability." 118 F.3d at 676. ... According to 42 U.S.C. § 2000e-3(a), it is unlawful "for an employer to discriminate" against an employee in retaliation for engaging in protected activity. This provision does not limit what type of
8

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 8 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

discrimination is covered, nor does it prescribe a minimum level of severity for actionable discrimination. ... We agree with the D.C. Circuit, which noted in Passer that: The statute itself proscribes "discriminat[ion]" against those who invoke the Act's protections; the statute does not limit its reach only to acts of retaliation that take the form of cognizable employment actions such as discharge, transfer or demotion. ... "[T]o establish a prima facie case under section 704(a) [42 U.S.C. § 2000e-3(a)], a plaintiff must show: 1) that he or she engaged in activity protected by the statute; 2) that the employer ... engaged in conduct having an adverse impact on the plaintiff; and 3) that the adverse action was causally related to the plaintiff's exercise of protected rights." 935 F.2d at 331 (emphasis in original) [Citations omitted.] Emphasis added. Ray v. Henderson, supra, at 1242 - 1243 (emphasis in bold type added). See also, Harris v. Potter (USPS), 2002 WL 31298852, p.5 (N.D.Cal. 2002) (failure to select USPS employee for promotion held adverse action); Bell v. Potter (USPS), 234 F.Supp.2d 91, 96-97 (D.Mass. 2002) (requiring fitness-for-duty evaluation held to be adverse action). Here, Plaintiff should be granted Summary Judgment on liability for retaliation. It is undisputed that he wrote to Mr. Sandell stating that many of the people he employed as a manager were racist. This is clearly a protected activity informing management of a discrimination problem. It is undisputed that Plaintiff was

disciplined for the letter by being reprimanded. (Defendant's Exhibit 38, Bates 108137-38). Further, he was warned that additional "false and malicious

statements" would subject him to further discipline. This reprimand was upheld by the Superintendent who as Sandell's superior received a copy. The Superintendent further retaliated when he concludes the reprimand was warranted and in

compliance with National Park Service's disciplinary procedures and not harassment. (Defendant's Exhibit 38, Bates 108101-102). Plaintiff had previously ... ...
9

Case 2:02-cv-02043-DKD

Document 63

Filed 10/31/2005

Page 9 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

filed an EEO Compliant naming the Supervisor and Superintendent. (Defendant's Exhibit 38, Bates 108095). This Court should find as a matter of law this was and is retaliation. CONCLUSION Unfortunately, the administrative system dealing with EEO regarding Federal employees is clumsy and results in numerous filings. The employee is literally forced to file often or be met with an argument for dismissal. Here, Plaintiff requests that this Court adopt the common sense approach in Anderson v. Reno, supra that it would be a barrier to require that each and every item be filed when there is an ongoing continual pattern. Here, there is no basis for Defendant to be granted Summary Judgment on any claim. However, Plaintiff should be granted Summary Judgment on retaliation. RESPECTFULLY SUBMITTED this 31st day of October, 2005. Cheri L. McCracken, Esq.

s/ Cheri L. McCracken Cheri L. McCracken 2402 N. 24th Street Phoenix AZ 85008-1804 Attorney for Plaintiff Electronically filed this 31st day of October, 2005 and a courtesy copy sent to: HONORABLE ROSLYN O. SILVER United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, AZ 85003-2158 s/ Fran Townsend

\\Server99\wordperf on server99\Castillo\Pleadings\Rsp MSJ and Cross MSJ.wpd

10 Case 2:02-cv-02043-DKD Document 63 Filed 10/31/2005 Page 10 of 10