Silverstein v. Carter, CIV. NO. 15-00097 SOM/KJM

JAY SILVERSTEIN, Plaintiff, v. ASHTON B. CARTER, in his capacity as the Secretary of Defense, Defendant.

CIV. NO. 15-00097 SOM/KJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

August 11, 2016

ORDER (a) DISMISSING RETALIATION CLAIM ASSERTED IN PARAGRAPHS 14, 17, 22, 24, 25, AND 30 OF THE FIRST AMENDED COMPLAINT, AND (b) GRANTING IN PART AND DENYING IN PART SUMMARY JUDGMENT WITH RESPECT TO REMAINING CLAIMS

I. INTRODUCTION.

Plaintiff Jay Silverstein, a civilian employee with the Department of Defense, brings retaliation and hostile work environment claims under Title VII.

Defendant Ashton Carter, in his capacity as Secretary of Defense, moves for dismissal of Silverstein's First Amended Complaint, or alternatively for summary judgment on all claims.

Silverstein concedes that, because he either failed to administratively exhaust or was untimely in doing so, any retaliation claim asserted in paragraphs 14, 17, 22, 24, 25, and 30 of the First Amended Complaint should be dismissed, the sole exception being any retaliation claim relating to a trip to Laos. See ECF No. 50, PageID # 604. Relying on the failure to properly exhaust, the court therefore dismisses any retaliation claim in any of these paragraphs other than the retaliation claim relating to the Laos trip.

The court grants in substantial part and denies in part Defendant's motion for summary judgment on the remaining claims. With respect to Silverstein's retaliation claim, summary judgment is denied to the extent the claim relates to the selection of a Supervisory Historian. Summary judgment is granted in favor of Defendant on all other bases of his retaliation claim. With respect to Silverstein's hostile work environment claim, summary judgment is granted to Defendant.

II. SUMMARY JUDGMENT STANDARD.

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9^th Cir. 2000). The movants must support their position concerning whether a material fact is genuinely disputed by either "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing that thematerials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9^th Cir. 2000).

The burden initially falls on the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9^th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). "When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

The nonmoving party may not rely on the mere allegations in the pleadings and instead must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., 809 F.2d at 630. At least some "'significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact."). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9^th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").

In adjudicating summary judgment motions, the court must view all evidence and inferences in the light most favorable to the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When "direct evidence"produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." Id.

III. BACKGROUND.

Since July 2009, Jay Silverstein has been a Supervising Investigation Site Survey Manager for the Department of Defense, POW/MIA Accounting Agency. That agency, which acquired its present name in January 2015, was previously known as the Joint POW/MIA Accounting Command. The agency locates and returns the remains of American soldiers killed in the service of this country. For five years before becoming a Supervising Investigation Site Survey Manager, Silverstein was a Forensic Anthropologist with the agency's Central Identification Laboratory. First Amended Complaint ¶¶ 4, 6, 9, ECF No. 14, PageID #s 39, 41; Answer to Amended Complaint ¶¶ 4, 6, 9, ECF No. 24, PageID #s 84-85 (admitting same).

In 2012, the agency had about 400 employees. It now has more than 600 employees. See Declaration of Kelly Fletcher ¶ 1, ECF No. 42-4, PageID # 388.

Silverstein claims to have suffered retaliation and a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 based on a number of events. Title VII forbids employment discrimination based on "race, color,religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Title VII also has an anti-retaliation provision that forbids discrimination against an employee who has opposed any unlawful employment practice prohibited by Title VII or who has made a charge, testified, assisted, or participated in a Title VII proceeding or investigation. 42 U.S.C. § 2000e-3(a).

Silverstein brings his claims under Title VII, see First Amended Complaint ¶¶ 1, 2, 3, ECF No. 14, PageID #s 38-39, but the connection between Title VII and any alleged retaliation or hostile work environment is often unclear. In fact, Silverstein himself concedes that he cannot proceed under Title VII with respect to some of what he claims. The court has no duty to scour the record for facts not identified by a party in the party's concise statement. See Local Rule 56.1(f). Silverstein's concise statement includes speculation and conclusions, but lacks evidentiary support with respect to many of his claims. The court does its best in this order to examine whether there is evidence that there was arguably retaliation or a hostile work environment related to any matter covered by Title VII, as well as to determine whether Silverstein raises any genuine issues of fact that preclude summary judgment.

The court begins its analysis by examining Silverstein's Title VII retaliation claim, determining that the Government is entitled to dismissal of the parts of the claimthat were not properly exhausted and to summary judgment with respect to all but one basis of the remaining parts of the retaliation claim. The court then turns its attention to the Title VII hostile work environment claim, determining that the Government is entitled to summary judgment with respect to the hostile work environment claim.

IV. RETALIATION CLAIM.

A. Law Applicable to Title VII Retaliation Claims.

Title VII's anti-retaliation provision generally forbids retaliation against an employee who has exercised rights under Title VII. See 42 U.S.C. § 2000e-3(a). "Title VII retaliation claims must be proved according to traditional principles of but-for causation . . . . This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer." Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013).

For purposes of a summary judgment motion, a plaintiff may demonstrate a retaliation claim under Title VII by applying the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1064 (9^th Cir. 2002). Under the McDonnell Douglas framework, a plaintiff must establish a prima facie case of discrimination. 411 U.S. at 802. The degree ofproof required to establish a prima facie case for summary judgment is minimal. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9^th Cir. 2005).

To make out a prima facie retaliation claim under Title VII, a plaintiff must show that "(1) the employee engaged in a protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action." Davis v. Team Elec. Co., 520 F.3d 1080, 1093-94 (9^th Cir. 2008...