# Petition for Writ of Certiorari — Nakamura v. Babbitt

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 1004

## Text

Supreme Court, U.S.
FiILkD

99 865 JUN8 1999

No.

OFFICE OF JHE 7,

IN THE

Supreme Court of the Anited States

October Term, 1999

ERIC K. NAKAMURA and RONALD N. SATO
Petitioners,
v.

BRUCE BABBITT, in his official capacity as
Secretary of the United States Department of the Interior,

Respondent.

On Petition for Writ of Certiorari
To the United States Court of Appeals
for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

CLAYTON C. IKEI
Counsel of Record
1100 Ward Avenue, Suite 1065
Honolulu, Hawaii 96814
(808) 533-3777-1617

Attorney for Petitioners

—ooEEEEEE=S=aBDh"SEp]llSESlEaEaEa=SEeEeEE™l_leleee_e_e___eeeeeeeeeeeee

to

QUESTIONS PRESENTED

Whether the Ninth Circuit erred in affirming the trial court’s
dismissal of Plaintiff Sato’s claim of discrimination following
a Fed. R. Civ. Pro. Rule 43(e) evidentiary hearing.

Whether the Ninth Circuit erred in affirming the trial court’s
dismissal of Petitioner Nakamura’s discrimination and
retaliation claim filed in December 1993.

Whether the Ninth Circuit erred in affirming the trial court’s
decision to grant Defendant’s Fed. R. Civ. Pro. Rule 50
Renewed Motion for Judgment as a Matter of Law.

TABLE OF CONTENTS

Questions Presented for Review ..........cccecsceecvceeses 1
‘Table Of AmB ONe occ co ca Feu ccc e eae tee eve exes Vv

Citations of the Official Reports of the Opinions Entered in the Case
WY COM occ dcccrecsaces eee Hi ian eeee eer ewe ss s4 l

FOUPUOGICUIOR «oc ov ocean USO Eee eee es es ae ow ce os ]

Constitutional Provisions, Treaties, Statutes, Ordinances, and

Regulations Involved i the Case... cc cccccsvsceccusveves l
Statement of Che CAR oc ccvcnecU¥o net eee eerie 2
Reasons Relied on for Allowance of the Writ ........... 14
CONCLAIGIOIN . cccccsikinnckeegeees lees 23
APPENDIX

Memorandum of Law Denying Appeal ............. A-1

Order of the United States District Court for the District of
Hawaii Denying Defendant’s Motion for Summary
FUGGMIONE ook one 04nek 0k eee ea A-6

ll

Order of the United States District Court for the District of

Hawaii Denying Defendant’s Motion to Dismiss Regarding
Exhaustion of Administrative Remedies, Granting in Part
Defendant's Motion for Rule 43(e) Hearing, Granting in
Part Defendant’s Motion for summary Judgment Regarding
Informal Resolution Agreement, Denying Defendant’s
Motion for summary Judgment Regarding Plaintiff
Nakamura’s Retaliation Claim, Denying Defendant’ s
Motion for Partial Summary Judgment Based on
Appropriate Employer Remedial Measures, and Granting
Defendant’s Motion for Partial Summary Judgment
Regarding Limitations as to a Jury Trial ........... A-20

Order of the United States District Court for the District of
Hawaii Granting Defendant's Rule 12 (h) (3) Motion to
Dismiss, Granting Defendant’s Renewed Rule 50 Motion
for Judgment as a Matter of Law, Denying Plaintiffs
Motion for Judgment as a Matter of Law as to Claims One
and Three, Denying Plaintiff's Motion for Order Granting
Back Pay, Reinstatement or, Alternatively, Front Pay, and
Denying Plaintiff's Motion for Order Granting an Award of
Attorney’s Fees and Costs of Litigation ........... A-49

Order Appeal from the United States District Court for the
District of Hawaii Denying Appellants’ Petition for
ts FECL soe Vb Sew pon oe veek ealeb ses A-117

Judgment of the United States Court of Appeals for the

Ninth Circuit Affirming Judgment of the United States District
Court for the District of Hawaii ........................ A-118

ill

TABLE OF CONTENTS — Continued

ry See Ee. | re rr ee A-119
ee Pe ere ry Se eee A-120
eget pet ee Pr nt ne A-125
a Oe ET, hbk ad Keone ek PAR eee ee, A-128
yg a ee Rr Tae A-130
ee re DOE: 0a vee chee O0GS Cha wee ee A-131
Federal Rules of Civil Procedure Rule 43 ......... A-133

Full text of Federal Rules of Civil Procedure
SE <5 gaa eos eee hh n babi wb Pee & A-135

Order of the United States District Court for the District of
Hawaii Denying Defendant’s Motion for Summary
PE ede cdi we cba cod bere od Ce eee A-138

Order of the United States District Court for the District of
Hawaii Dismissing Plaintiff Sato’s Claims for Failure to
Exhaust Administrative Remedies in a Timely

PD hdc kd Vecvkte ebe be di euoeerdereenio wns A-152

iV

TABLE OF AUTHORITIES

Cases

Bayer v. United States Department of Treasury, 956 F.2d 330

i lay SUE 4.0 04 WES be Vuk aee KEG These eee tee 13,15
Cockrum v. Whitney, 479 F.2d 84 (9th Cir., 1973) ............ 18
Fisher v. Vassar College, 114 F.3d 1332 (2nd Cir., 1997) ...... 20
Kline v. Tennessee Valley Authority, 128 F.3d 337
Gig CEN chives 6 00845 0iek 1 0d04es eek cae 21
Ritza v. International Longshoreman’s and Warehouseman's Union,
SOT Oe Oe Cr Gilg SIO vv ko va ace enenwees woke 13, 15
Saksenasingh v. Secretary of Educ., 126 F.3d 347 (C.A.D.C.,

Os ee eee ret in Se ere Hae Simon being Oh 15, 16
Sheridan v. E.J.duPont de Nemours and Co., 100 F.3d 1061
CE Cari, Fre Oe UNE occ vcceccunvbossebe ene cua 21
Sosa v. Hiraoka, 920 F.2d 1451 (9th Cir., 1990) ........... 16, 18
Spivey v. U.S., 912 F.2d 80 (4th Cir., 1990) .............. 13, 15
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742,
Soe hats Be GET CONGO oo 66d iv eaisdiaa neice 20, 21
Stewart v. RCA Corp., 790 F.2d 624 (7th Cir., 1986) .... 13, 14, 15
Williams v. Runyon, 130 F.3d 568 (3rd Cir., 1997) ......... 16, 18

TABLE OF AUTHORITIES — Continued

Statutes and Regulations

BP CH ie G OPED 86 60h 6 been eos ere eee it
yore BS ere rere arr ee re 9
Se Cs G PONE v5 shack ar erwheee bes tdavenseen kena ae
WCER. CMI inci cseee 1, 15, 16
ae VBA, § TGR) oon cecatsicvasnseusacneeeseetere l
G3 UBA.A, Ba iin csi eee eee eee l
45 USA.A. § FROe . 6 xs ceveckwhevevss viene 15
Court Rules

Foe. R. Civ. Pee. Rate Ge) os iciices seewetewseeve 1,3, 13,14
FOG. R. Cow. Feb. ROOD iis ihc nine nth pea weeeseaeeee 18

Vi

CITATIONS OF THE OFFICIAL REPORTS OF THE
OPINIONS ENTERED IN THE CASE BY COURTS

The official citation of the Memorandum Opinion entered
by the Ninth Circuit Court of Appeals of the instant case is 165 F.3d
916 (9th Cir., 1998)

CONCISE STATEMENT OF THE BASIS
OF JURISDICTION IN THIS COURT

This Court has jurisdiction to hear this case pursuant to 28
U.S.C.A. § 1254(1). The Order of the Ninth Circuit Denying
Appellant’s Petition for Rehearing and Suggestion for Rehearing En
Banc was filed on March 11, 1999. The Memorandum of the Ninth
Circuit No. 97-17288; D.C. No. CV 95-00243-HG was filed on
December 23, 1998. Notifications required by Rule 29.4(b) have been
made.

CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES,
ORDINANCES, AND REGULATIONS
INVOLVED IN THE CASE

The statutes, regulatory and court rules pertinent to this appeal
are: 42 U.S.C.A. § 2000e-16, 29 C.F.R. § 1614.105, 29 C.F.R. §
1614.504 and Rule 43(e) of the Federal Rules of Civil Procedure.

STATEMENT OF THE CASE

1. Petitioner Sato’s Failure to Exhaust Administrative
Remedies.

Ronald N. Sato [“Sato”], an American of Japanese ancestry,
began employment in the Maintenance Division of Haleakala National
Park [*Park’’] in January 1978. His immediate supervisor was David
Puu. Within a week after he became employed, Sato was the recipient
of racial slurs from David Puu being called “fucking Jap, stupid Jap”
at least three times a week during his employment, until he resigned in
January 1992.

Sato reported these racial slurs to the Chief of Maintenance,
Cliff McCall, and the Park Superintendent, Hugo Huntzinger. After he
reported the racial harassment, it continued. In August 1982, Sato
attended a National Park Service [“NPS”’] conference in San Francisco.
At the conference, he learned that Becky Mills was an EEO counselor,
approached her and reported to her the raciai slurs to which he was
subjected- He was advised by Ms. Mills that “it was personal.”
Subsequently, in 1985, he attended an NPS conference at Hawaii
Volcanoes National Park and complained
to Ms. Mills about his inability to secure a promotion or transfer as a
result of Mr. Puu.

Ronald Sato, during the term of his employment with the NPS
was not advised that the racial slurs of which he was the victim was
racial discrimination, nor was he told that he could file a
discrimination complaint as a result of the racial slurs. Lastly, Sato
looked at the bulletin boards at the headquarters building at Haleakala

National Park for job and training postings. He did not observe any
EEO posters on the bulletin boards. Sato sustained a back injury on
the job in October 1991 which required him to remain home. On
October 31, 1991; November 29, 1991; December 11, 1991 and
December 27, 1991, he received telephone calls from David Puu and
was again subjected to racial slurs. When Sato sought to present these
facts at the Rule 43(e) hearing, the Court prohibited the testimony.
Sato did not learn that he could file a discrimination complaint against
David Puu until December 1993.

At the Rule 43(e) hearing conducted by the Court, Ms. Mills,
when shown Mr. Sato’s affidavit of April 5, 1996, testified that it was
not possible for her to make such a statement. On cross-examination,
Ms. Mills testified that she did not have a specific recollection of
attending a conference in August 1982 or of what she told Sato at that
conference.

As aresult of the Rule 43(e) hearing, the trial court found Ms.
Mills’s testimony “to be highly credible and sincere” and found that
“Sato was not correct in his recollection of his conversation with Ms.
Mills as reflected in his affidavit and his testimony. . . .”

ae Dismissal of Nakamura’s December 1993 Discrimination
and Retaliation Complaint.

On November 18, 1993, Eric K. Nakamura [“Nakamura”]
submitted a written informal complaint and sought counseling with a
Park EEO Counselor concerning racial and sexual harassment of Park
employees by David Puu and concerning the harassment he had

i

suffered in his efforts to raise his discrimination complaints against
Mr. Puu and the Park management. Subsequently, on December 2,
1993, Nakamura filed another written informal complaint.

On February 14, 1994, Nakamura and Don Reeser. [“Reeser”]
the Park Superintendent, entered into an Informal Resolution
Agreement of Informal Discrimination by Eric K. Nakamura. The
agreement required the Agency to reinstate Nakamura to 153 hours of
annual leave; required Reeser to ensure that the 153 hours of annual
leave be restored on or before March 20, 1994: provided that
Nakamura would be returned to work on March 20, 1994, and finally,
the Agency agreed that it would not take reprisal against Nakamura for
the filing of his discrimination complaint.

On April 9, 1994, when he received his pay stub for the
previous period, Nakamura received a pay statement that showed that
his annual leave had not been restored. He notified Ron Nagata, the
EEO counselor, who advised Nakamura that he would immediately
check into it. In April 1994, Nakamura took sick and annual leave
from work. On or about May 10, 1994, Nakamura received his leave
and earnings statements and realized that he was being charged with
10 hours without pay, instead of the time being charged to annual
leave. On May 22, 1994, he submitted a written statement to the
National Park Service, through Melia Lane-Hamasaki, EEO Counselor,
requesting that his informal complaint be reinstated on the basis that
the NPS had not reinstated his 153 hours of annual leave, and that he
was subjected to co-worker hostility which was known by Ron Nagata
and Park Superintendent Reeser.

a ii ees

On May 31, 1994, Nakamura’s counsel wrote a letter to Melia
Lane-Hamasaki re-stating Nakamura’s request that Nakamura’s
informal complaint be re-instated and amended to include co-worker
retaliation. Nakamura’s counsel requested that Lane- Hamasaki advise
him as to Nakamura’s attempt to reinstate his informal complaint. On
June 4, 1994, Nakamura filed a formal complaint with the Agency,
complaining of “Breachment of EEO Agreement,” also of being a
victim of retaliation because he was a whistleblower and because he
exercised his First Amendment right to free speech. On June 6, 1994,
Lane-Hamasaki acknowledged receipt of Nakamura’s counsel's letter
and advised that it had been forwarded via the Western Regional EEO
Office in San Francisco to the NPS’s Washington EEO office. Finally
on June 6, 1994, Mary E. Kline, Lead EEO Counselor, Western
Region, forwarded a letter to Nakamura acknowledging receipt of his
request to Lane-Hamasaki that Nakamura’s informal complaint be
reinstated.

Ms. Kline acknowledged that Nakamura’s annual leave had not been
previously restored and that on June 3, 1994, she had been advised that
it had been restored. Regarding Nakamura’s claim of retaliation,
Ms. Kline advised Nakamura that he needed to contact an EEO
counselor and begin the informal complaint process. Ms. Kline did not
address Nakamura’s formal complaint filed on June 4, 1994, nor did

she dismiss or otherwise act upon it.

On November 22, 1994, Nakamura’s counsel wrote to the

Director, Equal Employment Program, National Park Service and

requested that the Agency issue an Immediate Agency Decision
pursuant to 29 C.F.R. § 1614.110. On March 28, 1995, Nakamura’s
civil complaint was filed. On August 27, 1996, the Director of the

EEO Program of the Department of the Interior acknowledged receipt
of Nakamura’s June 4, 1994 formal complaint and dismissed it on the
basis that a civil action had been filed.

} 4 Reconsideration and Dismissal as a Matter of Law of
Nakamura’s Wrongful Termination Claim.

Nakamura began his employment at Haleakala National Park
as a seasonal employee in February 1989. For the years from 1989 to
1992, Nakamura worked as a seasonal employee receiving
performance evaluations ranging from “satisfactory” to “exceeds fully
successful.” Finally, Nakamura received specialized training as a
firefighter, helicopter safety employee, asbestos worker, and safe

drinking water worker.

During the course of his employment, Nakamura became
aware that the maintenance foreman, David Puu, was subjecting his
subordinate employees to racial and sexual harassment. In early 1993,
Nakamura informed Park Superintendent Reeser of the racial
harassment that he had witnessed. When informed of this racial
harassment committed by David Puu, Reeser laughed at Nakamura’s
complaint as unlikely, and said that he would check on the complaint
and get back to Nakamura. After the initial complaint, when
Nakamura brought further complaints to Reeser, Reeser would laugh

at or criticize Nakamura’s complaints.

On April 7, 1993, ata meeting arranged by his grandfather and
aunt, Nakamura and 14 other maintenance workers met with Bryan
Harry, Pacific Area Director of the National Park Service, and U.S.

Representative Patsy Mink and voiced their complaints. As a result of

the meeting, an investigation team of NPS managers was established
and conducted an investigation at Haleakala National Park from April
27 to April 30, 1993. As aresult of the investigation, the National Park
Service issued a report dated May 18, 1993; it recommended that
David Puu be removed as a supervisor.

Eric Nakamura, both as a result of the investigation and the
removal of David Puu as maintenance foreman, was retaliated against
by David Puu and his supporters within the Maintenance Division.
Such retaliation included refusals to provide Nakamura assistance to
perform his maintenance duties, not doing Nakamura’s assigned work
on his days off, and the removal of necessary tools, keys and test kits
from their usual storage places. On September 29, 1993, Nakamura
applied for and received intermittent status owing to his becoming
stressed because of his friction with his co-workers.

From September 1993 to March 1994, Nakamura was on
intermittent status, leave without pay. On November 18, 1993,
Nakamura submitted a written informal complaint and sought
counseling with a Park EEO counselor concerning racial and sexual
harassment of park empioyees by David Puu and the harassment he
had suffered in his efforts to raise his discrimination complaints
against Mr. Puu and the Park management. On December 2, 1993,
Nakamura filed his written informal complaint. Pursuant to 29 C-F.R.
§ 1614.105, the Agency had 90 days from November 18, 1994 to
resolve Nakamura’s informal complaint. On February 14, 1994,
Nakamura agreed to an Informal Resolution Agreement of Informal

Discrimination Complaint.

On May 23, 1994, Nakamura, upon concluding that the
National Park Service had not complied in terms of restoring 153 hours

of annual leave and refraining from retaliating against him, requested
that his Informal Complaint be reinstated and amended to include the
charge that he had been subjected to co-worker retaliation since April,
1993. On May 26, 1994, as a result of an argument with Pete Lucero,
Maintenance Division Supervisor, Nakamura requested leave, which
was denied.

Nakamura sought and obtained psychological treatment from
Dr. Richard Sword who recommended that Nakamura remain out of
work for an undetermined period.

On September 9, 1994, Pete Lucero, forwarded a letter
advising Nakamura, that owing to a lack of funding, he was being
terminated. No attempt was made by Lucero to contact Nakamura
prior to September 1994 to ascertain his ability and willingness to
return to work.

On June 4, 1994, Nakamura filed a formal discrimination
complaint. The basis of his complaint was breach of the informal
resolution agreement of his informal discrimination complaint and
retaliation as a result of his whistleblowing activities and exercise of
his First Amendment rights to free speech. The Agency did not
investigate Nakamura’s formal complaint filed on June 4, 1994.

On November 22, 1994, Nakamura’s counsel sent a letter to
Sandra McCrary regarding the Nakamura’s discrimination and
retaliation complaint first initiated on November 18, 1993, detailing
the procedural history of the complaint and referring to Mr.

Nakamura’s subsequent formal discrimination and _ retaliation
complaint filed on July 26, 1994. Nakamura’s counsel requested that
the two formal complaints be consolidated and that an Immediate
Agency Decision be made pursuant to 29 C.F.R. § 1614.110. The
Agency did not respond to Nakamura’s counsel's request. The District
Court Complaint was filed on March 28, 1995. On August 27, 1996,
the Director of the Office of Equal Opportunity of the Department of
Interior, wrote to Nakamura’s counsel and referred to Nakamura’s
formal complaint filed on June 4, 1994. Noting that a civil action had
been filed, the Director of the Office of Equal Opportunity of the
Department of the Interior dismissed Nakamura’s formal complaint on
the basis that a court action had been filed, pursuant to 29 C.F.R. §
1614.107(c).

On February 12, 1996, the Defendant filed a Motion for
Summary Judgment seeking to dismiss Nakamura's complaint. On
September 10, 1996, the trial court denied the Motion; the court's
order did not address the issue of Petitioner Nakamura’s wrongful
termination claim. On December 12, 1996, the Defendant filed a
further motion raising the issue of Petitioner Nakamura’s wrongful
termination claim. On February 20, 1997, the trial court denied the

Defendant’s motion to dismiss Nakamura’s wrongful termination
claim on failure to exhaust administrative remedies.

At tnal, the Petitioner presented evidence establishing the
retaliatory motives of both Don Reeser and Pete Lucero. A three-page
stipulation, prepared by Defendant's counsel, and approved by the
Court, was submitted in lieu of testimony relating to testimony
detailing the substance of the EEO complaints first made by the

Petitioner in April 1993 and contained in his subsequent informal EEO

complaint. The stipulation provided that the findings of the National
Park Service was critical of Haleakala National Park's management,
headed by Superintendent Reeser, and recommended that personnel
changes be made by Don Reeser. Don Reeser himself testified that he
was embarrassed by the findings of the fact- finding team in that it
recommended the removal of his maintenance foreman, upon whom he
had depended heavily and who he had defended before the fact-finding
committee. Don Reeser further testified he was stressed by the
investigation and findings of the fact-finding team. When queried as
to whether he believed that Nakamura was directly responsible for the
fact-finding committee being established and tasked to inspect the
Park, Don Reeser stated an unequivocal yes response and volunteered
that it was Nakamura, and “his political contacts” which caused the
inspection.

Pete Lucero further testified that he became aware of the NPS
inspection of April 1993, when he read the findings in October 1993.
The findings had been collected and placed in a notebook in his desk.
Testimony was presented that Pete Lucero had terminated a
maintenance employee named Billy Han, after Mr. Han had filed an
EEO complaint against Lucero, that Lucerno had verbally abused a
secretary after the secretary advised Billy Han of his right to file an
EEO complaint, that Lucero had reprimanded Wendall Sagon, when
Mr. Sagon reported that another maintenance worker and a foreman
were engaged in smoking marijuana while working, and had warned
Wendall Sagon that if he spoke on a radio show about the problems at
Haleakala Park, he would be a “labeled” man and would not get ahead
in the park service.

10

Reeser testified that he reviewed closely the February 1994
settlement agreement into which he entered with Nakamura and he
testified that he noted that Nakamura’s continued employment with the
National Park Service after September 1994 was dependent on
sufficient funding being available to offer Nakamura employment after
that date. Reeser further testified that he reduced the budget of the
Maintenance Division by $50,000 as a result of the retirement of David
Puu despite his admission that he had not received any written
verification from his superiors that his overall funding would be
reduced by $50,000. Mr. Reeser further testified that he permitted
Lucero to keep two temporary maintenance workers on the job, after
their proposed termination dates. Mr. Reeser did not receive written
verification that their funding was not taken away by his superiors until
December 1994, months after their funding was expected to cease.

Pete Lucero testified that James Korn, a_ temporary
maintenance employee, who was continued in his employment with the
National Park Service, had been suspended in July 1994 for drug use
while at the Park. Mr. Korn was one of the temporary employees
retained. Elizabeth Havelin, the second employee retained by the
National Park Service, did not have the specialized training in welding,
sign making, or power tools as did Eric Nakamura and further, had
never received a performance rating of “exceeds fully successful.”
Pete Lucero testified that Eric Nakamura’s work performance was
satisfactory during the period of his employment.

In rebuttal, Nakamura presented the testimony of Audrey
Cordeiro who testified that she has been employed at the Park for 23
years and that in 1993-1994, she worked as the Administrative
Assistant with duties of “taking care” of the budget, finances,

ll

personnel, property — all the administrative functions at Haleakala
Park. Regarding her work on the budget, Ms. Cordeiro further testified
that each division within the Park had control of its allocated budget,
with overall control exercised by Don Reeser. Further, Ms. Cordeiro
testified that at times, monies were shifted from one division’s budget
to another division’s budget. Lastly, Ms. Cordeiro testified that the
manpower level within the Maintenance Division was presently the
same as it was in 1994.

In its verdict, the jury found that the Defendant terminated

Nakamura because he complained about alleged discrimination and
awarded Nakamura compensatory damages in the amount of $30,000.

12

REASONS RELIED ON
FOR ALLOWANCE OF THE WRIT

1. Validity of Rule 43(e) Hearing to Dismiss Sato’s Claim

The court of appeals and the trial court relied upon the case of
Ritza v. International Longshoremen's andWarehousemen's Union,
837 F.2d 365 (9th Cir., 1988) to sustain the dismissal of Sato’s claim.
However, the Ritza holding is clearly distinguished from the instant
case. The Ritza plaintiffs’ claims were dismissed without prejudice
based on their failure to utilize the union’s grievance procedure before
filing their court action. The Ritza plaintiffs did not deny that they
were aware of the union’s grievance procedure; they argued that they
did not proceed in the grievance procedure because the decision
makers were hostile, that there was unreasonable delay in processing
the grievance and that the remedy was inadequate.

However, Petitioner’s cited cases held that the Rule 43(e)
hearing was improper to resolve disputed issues of facts as to the
timeliness of a discrimination complaint. Spivey v. U.S., 912 F.2d 80
(4th Cir., 1990) and Stewart v. RCA Corp., 790 F.2d 624 (7th Cir.,
1986). That summary judgment on the issue of exhaustion of
administrative remedies is reversible error in a case in which there are
disputed issues of fact relative to the Petitioner’s knowledge of his
right to file a discrimination complaint and the applicable time limits
prior to December 1993, was aptly illustrated by the holding in Bayer
v. United States Department of Treasury, 956 F.2d 330 (D.C. Cir.,
1992).

13

Further, in Stewart the Seventh Circuit Court of Appeals held
that the trial court committed error by conducting a pre-trial hearing at
which the trial court received oral testimony and ruled that the
Plaintiff's discrimination cornplaint was not timely filed. The Rule
43(e) hearing was preceded by a written order by the trial court stating
that a Rule 43(e) hearing would be held at which the Plaintiff’ s counsel
appeared and participated. Nevertheless, the Appeals Court stated:

The district judge stated that under Rule 43(e) the
court may “receive and weigh” oral and written
evidence, quoting and adding emphasis to Shaffer v.
Coty, Inc., 183 F. Supp. 662, 665 (S. D. Cal. 1960). If
this were right, it would be the end of the difference
between summary judgment and trial; indeed it would
be the end of the jury trial. All a judge would have to
do is identify a dispositive issue, set a hearing under
Rule 43(e), and resolve all factual disputes. This is
not right. Rule 43(e) has more limited roles, which do

not include hearings of the sort held in this case.

A court may choose among methods for gathering the
evidence, when it will resolve all factual disputes.
Rule 43(e) gives the judge the full menu — oral
testimony, depositions, affidavits, and documents...
The power to select among kinds of evidence does not

14

a

imply a power to resolve disputed questions of fact.
That power must be found outside Rule 43(e).

790 F.2d 624 at 628.

Thus, Ninth Circuit’s reliance on Ritza conflicts with the
holdings of Spivey, Bayer and Stewart.

2. Dismissal of Nakamura 1993 Claim of Unlawful
Retaliation.

The Ninth Circuit affirmed the trial court’s holding that

Nakamura failed to exhaust his administrative remedies by failing to
comply with 29 C.F.R. §1614.504.

However in Saksenasingh v. Secretary of Educ., 126 F.3d 347
(C.A.D.C., 1997), the D.C. Circuit held:

The judgment of the District Court on exhaustion was
in error. The statute which these regulations interpret,
42 U.S.C. § 2000e-16(c), permits, but does not
require, appeal to the EEOC, and has been so
understood by this court. We have held that under 42
U.S.C. § 2000e-16(c), a complainant may either file
suit after the appropriate number of days has elapsed
since complaining to the agency, or “elect[ |] instead
to appeal the agency’s decision to the EEOC.”
Likewise, the court has explained that Title VII

requires a complainant to file “an initial charge with

15

the employing agency. Upon exhaustion of the
administrative proceedings, a complainant is entitled
to trial de novo.” This description neither mentions
nor envisions required appeal to the EEOC.

126 F.3d 347 at 350 to 351.

Therefore, there is a conflict between the Ninth Circuit’s
decision and Saksenasingh and 29 C.F.R. § 1614.504.

3. Dismissal of Nakamura’s Claim of Retaliatory
Termination.

The court of appeals’ affirmation of the trial court’s dismissal
of Nakamura’s retaliatory termination claim not only reversed its own
prior order denying dismissal of the retaliatory termination claim, but
also was contrary to the Ninth Circuit’s holding in Sosa v. Hiraoka,
920 F.2d 1451 (9th Cir., 1990). The Appellant Panel also did not
address Nakamura’s argument that the trial court’s prior ruling was
“law of the case” which barred the district court from reconsidering
ruling for defendant on the same issue, post trial.

In addition, under Williams v. Runyon, 130 F.3d 568 (3rd Cir.,
1997) the Third Circuit held that if it construed a pre-trial order as a
judgment as a matter of law as opposed to a ruling that material facts
were still in dispute, the district court’s post-trial reconsideration of
that decision is barred by the “law of the case” doctrine.

16

Acknowledging that the application of the doctrine of “law of
the case” is discretionary, the Third Circuit stated:

Although it is often said that the law of the case
doctrine does not limit the power of trial judges to
reconsider their prior decisions, this court has
identified two prudential considerations that limit a
court’s authority to do so.

Although the district court satisfied the first element
of this test, we hold that the court did not satisfy the
second element. Williams was clearly prejudiced by
her reliance on the prior ruling: she put on her case at
trial, and was awarded a favorable verdict, without
presenting any evidence that she had in fact exhausted
her administrative remedies. Had the court expressed
its second thoughts about its earlier ruling prior to the
end of Williams’ case, Williams would have had the
opportunity to present appropriate evidence to the
jury. By revisiting the issue after trial on the same
record that was before it earlier, however, the court
denied Williams this opportunity. Because the district
court, by its earlier ruling and expression, did not alert
Williams to its concern about exhaustion, Williams
was undeniably prejudiced. Recognizing the district
court’s earlier ruling and its reasoning in reaching the
conclusion that it would forego reliance on exhaustion
and reach the merits of Williams’ claims, it was error

17

iii i.

to have reconsidered the issue after the jury verdict
was returned. See United States v. Mendel, 746 F.2d
155, 161 (2d Cir.1984) (holding that prejudice would
result if counsel were not given the opportunity to
offer new evidence at trial following a reconsideration
; by the court of an earlier ruling).

130 F.3d 568 at 573

Therefore, the Ninth Circuit erred by not adhering to its own
opinion under Sosa, and is in conflict with Williams.

Ce eee ek. Sea

4. Trial Court Vacating the Jury Verdict and Entering
Judgment as a Matter of Law.

In Cockrum vy. Whitney, 479 F.2d 84 (9th Cir., 1973), the Ninth
Circuit held that it was improper for a trial court to reweigh the
evidence and set aside the jury verdict merely because the jury could
have drawn different inferences or conclusions or because the judge
felt that other results are more reasonable. In its Order Granting
Defendant’s Renewed Rule 50 Motion for Judgment as a Matter of
Law, the trial court pointed to Nakamura’s reference to Don Reeser’s
testimony that it was Nakamura’s political “connections” (instead of
“contacts” as referenced in the trial transcript) and Don Reeser’s
demeanor at trial, stating that Reeser “was not equivocal” answered in
a “straightforward and consistent manner,” and that:

Reeser’s testimony regarding the fact that the NPS
investigation caused him stress and his
acknowledgment that Petitioner played a key role in

18

initiating that investigation are insufficient, without
more, to support a reasonable finding of retaliatory
intent in Plaintiff's termination by a separate
individual approximately a year and a half later.

Nakamura would submit that a reasonable juror can infer a
retaliatory intent when Nakamura proved the first two elements of
unlawful retaliation, in that he not only played a key role in initiating
an NPS investigation in April 1993, but moreover proved that:

l. He filed a discrimination complaint against Donald Reeser in
November 1993;

2. That Donald Reeser entered into a settlement agreement with
Nakamura in February 1994;

5 That Donald Reeser did not comply with the terms of the
settlement agreement of restoring his annual leave before the
agreed-upon date of March 20, 1994.

In addition to presenting evidence of other acts of retaliatory
conduct by Pete Lucero against other employees who filed EEO
complaints, Nakamura further proved that the articulated reasons for
Nakamura’s termination were pretextual — that the justification for
Nakamura’s termination in September 1994 was that Haleakala Park’s
budget was reduced by $50,000 as a result of the retirement of David
Puu. However, the Defendant failed to produce any documentary
evidence that established that Haleakala Park’s budget was, in fact,
reduced by $50,000.

19

Further, the sequence of events as presented by the Defendant
could reasonably cause a reasonable juror to reject the articulated
reason for Nakamura’s termination, and find that the termination was
based on retaliatory animus. The events were as follows:

l. Pre-September 1994 — no verification that Haleakala’s Park
budget was reduced by $50,000;

ra September 1994 — Nakamura terminated; the stated reason
for the termination being a lack of funding;

zm October 1994 — no verification that budget was reduced or
affected by Puu’s retirement;

4. October 17, 1994 — James Korn and Elizabeth Havelin given
termination notices, effective date, November 12, 1994:

$. November 1994 — No verification that Haleakala’s Park
budget was reduced or affected by Puu’s retirement:

6. November 13, 1994 — James Korn and Elizabeth Havelin
remain on the job despite the termination notices of October
17, 1994;

7. December 23, 1994 — e-mail to Haleakala Park that its budget
was not affected by Puu’s retirement.

The trial court relied on Fisher v. Vassar College, 114 F.3d
1332 (2nd Cir. 1997) and St. Mary’s Honor Center v. Hicks, 509 U.S.

20

502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) when it determined that
Nakamura failed to present specific, substantial evidence that
Defendant did not terminate him because of budgetary reasons, and
that Defendant terminated Nakamura in retaliation for his EEO

activities.

However, the Sixth Circuit has interpreted the Hicks decision
such that once a plaintiff has disproved the reasons offered by the
defendant, the factfinder is permitted to infer discrimination. The
plaintiff's prima facie case, along with disbelief of the employer’s
proffered reasons permits finding of discrimination. (Kline v.
Tennessee Valley Authority, 128 F.3d 337 (6th Cir. 1997); Hicks, 509
U.S. at 511.

Similarly in Sheridan v. E.I. duPont de Nemours and Co., 100
F.3d 1061 (3rd Cir. 1996)(en banc), the Third Circuit held that plaintiff
may survive summary judgment or judgment as a matter of law
(“JAML”) in an employment discrimination complaint if plaintiff
produces sufficient evidence to raise genuine issue of fact as to
whether employer’s proffered reason were not the true reasons for the
challenged action. The court in Sheridan interpreted Hicks to hold that
once a plaintiff establishes a prima facie case, disbelief of the
defendant’s proffered reasons creates a situation where the fact-finder
is permitted to infer intentional discrimination. /d. at 1066-1067.

Moreover, the court in Sheridan expressly rejected the
requirement of the introduction of additional evidence following a
rejection of the defendant's alleged reasons for the adverse action. Jd.

21

Pe ee eT ee ae

Therefore, there is a conflict among the Circuits as to the

proper standard in finding of pretext in a JAML situation that this
Court should resolve.

22

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari
should be granted.

Respectfully submitted,

CLAYTON C. IKEI

Hawaii Bar No. 1260-0
Counsel of Record
Attorney for Petitioners

23

APPENDIX

ERIC K. NAKAMURA, et al., Plaintiff.

BRUCE BABBITT, in his official capacity as Secretary of the
United States Department of the Interior, Defendant.

Civ. No. 95-00243 HG

Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding

Argued and Submitted, November 6, 1998
Honolulu, Hawaii

Before: GOODWIN, BEEZER and T.G. NELSON, Circuit Judges.
MEMORANDUM*
Ronald Sato and Eric Nakamura appeal the dismissal of their
complaint alleging racial discrimination and retaliation. Sato appeals

the dismissal of his complaint for failure to exhaust administrative
remedies. Nakamura appeals the dismissal of his 1993 retaliation

*This disposition is not appropriate for publication and may not be cited to or used by
the courts of the circuit except as provided by Ninth Circuit Rule 36-3.

A-1l

claims and his wrongful termination claim for failure to exhaust
administrative remedies, the grant of judgment as a matter of law as
to his wrongful termination claim, and the exclusion of evidence
regarding his protected activities. We have jurisdiction and we affirm.

We review a dismissal for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b) (6) de novo. See Steckman v. Hart Brewing, Inc.,
143 F.3d 1293, 1295 (9th Cir. 1998). The district court properly
held a Rule 43(e) evidentiary hearing to determine whether the time
limit on Sato’s administrative discrimination complaint should be
equitably tolled.

Nonenumerated Rule 12(b) motions are governed

by the general motion provisions in the federal

rules, including Rule 43(e), which permits the hearing of
motions based on facts outside the record...

Ritza v. International Longshoremen’s and Warehousemen’s Union,
837 F.2d 365, 369 (9th Cir. 1998) (citations and internal quotation
marks omitted). Sato was not automatically entitled to a jury trial on
this issue. See Jd. at 369 (no right of jury trial for a jurisdictional or
related type of motion). We agree with the district court that Sato’s
claim should not be tolled because he had not been misled by EEO
officals and had been given official notice of the time limit. We affirm
the district court’s dismissal of Sato’s claim for failure to exhaust

administrative remedies in a timely manner.

I]

The district court correctly found that the Informal Resolution
Agreement between Nakamura and the Park Service barred
Nakamura’s pursuit of his 1993 informal discrimination and retaliation
claims. We review a grant of summary judgment de novo. See
Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998). Although
Nakamura is correct that under the Agreement he was entitled to have
his complaint reinstated, he did not comply with the terms of the
agreement and provide notice of noncompliance within 30 days.
Additionally, the Park Service’s breach was not material because the
Park Service corrected its error within a short time of notification. We
affirm the district court’s grant of summary judgment.

il

The district court granted the government’s Rule 12(h) (3)
post-judgment motion dismissing Nakamura’s 1993 retaliatory
termination claims for lack of subject matter jurisdiction because
Nakamura filed to present this claim to the National Park Service. The
existence of subject matter jurisdiction is a question of law that we
review de novo. See Galt G/S v. JSS Scandinavia, 142 F.3d 1150,
1153 (9th Cir. 1998). The district court denied summary judgment on
Nakamura’s retaliatory termination claims prior to trial due to the
complex factual situation. By the conclusion of the trial, it was
apparent that Nakamura had failed to claim retaliatory termination
despite filing an EEO complaint after his termination and that an EEO
investigation would not have reasonably included termination within

A-3

its scope. We affirm the district court’s dismissal for lack of subject
matter jurisdiction.

IV

We review a judgment as a matter of law de novo. See
Lawason v. Umatilla County, 139 F.3d 690, 692 (9th Cir. 1998). Such
a judgment is proper when the evidence, construed in a light most
favorable to the nonmoving party, permits only one reasonable
conclusion, and that conclusion is contrary to that reached by the jury.
See Id.; Forrett v. Richardson, 112 F.3d 416, 419 (9th Cir. 1997), cert.
denied, 118 S. Ct. 1366 (1998). At trial Nakamura established a prima
facie case of retaliation. The government presented evidence that
Nakamura was terminated for budgetary reasons — a legitimate,
nondiscriminatory reason. Nakamura did not meet his burden of
producing specific evidence of pretext to prove that the government’s
budgetary reason for the termination was false. We affirm the
judgment as a matter of law.

V

Nakamura sought to introduce testimony that would describe
other employees’ personal knowledge of discrimination and retaliation
by co-workers. We review a trial court’s decision to exclude evidence
for abuse of discretion. See United States v. Hernandez, 109 F.3d
1450, 1452 (9th Cir. 1997). The district court ordered the parties to
produce a stipulation that provided the jury with conclusive evidence
that Nakamura had been previously involved in Title VII protected
activity and that laid a sufficient basis for Nakamura’s retaliation

A-4

claims. Additionally, the court considered the testimony of each
potential witness with counsel to determine the relevancy of the

testimony to Nakamura’s present allegations. The district court did not
abuse its discretion by ordering the stipulation.

AFFIRMED.

A-5

ERIC K. NAKAMURA, et al., Plaintiff,

BRUCE BABBITT, in his official capacity as Secretary
of the United States Department of the Interior, Defendant.

Civ. No. 95-00243-HG

United States District Court,
District of Hawaii

September 19, 1996

ORDER DENYING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT

GILMOR, District Judge.

On March 28, 1995, Plaintiffs Eric K. Nakamura
(“Nakamura”), Ronald N. Sato (“Sato”), and David A. Texeira
(“Texeira’’) filed a complaint against Defendant Bruce Babbitt, in his
official capacity as Secretary of the United States Department of the
Interior (“Defendant”). Plaintiffs are former employees of the
Maintenance Division of Haleakala National Park (the “Park”’), and
allege that various Park employees discriminated against them in
violation of Title VII, 42 U.S.C. § 2000e, et seq.

A-6

oo tie

ee ee ee

a

On February 12, 1996, Defendant filed a motion for summary
judgment dismissing the Tile VII claims asserted by Plaintiffs
Nakamura, Sato and Texeira. This motion came on for hearing on
May 6, 1996, with Clayton C. Ikei and Sherell N. McFarlane appearing
on behalf of Plaintiffs Nakamura, Sato and Texeira, and Assistant U.S.
Attorney R. Michael Burke appearing on behalf of Defendant.
Plaintiff Texeira has since stipulated to a dismissal of his claims
against Defendant. See Stipulation for Dismissal with Prejudice Claim
of David A. Texeira, filed July 8, 1996. Accordingly, this order only
addresses Defendant's motion for summary judgmentas it relates to the
outstanding Title VII claims asserted by Plaintiffs Nakamura and Sato
(collectively referred to as “Plaintiffs”). For the reasons set forth
below, the Court DENIES the motion of Defendant for summary
judgment dismissing Plaintiffs, claims.

SUMMARY JUDGMENT STANDARD

Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment shall be entered when

the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.

The moving party has the initial burden of “identifying for the

court those portions of the materials on file that it believes demonstrate
the absence of any genuine issue of material fact.” 7.W. Elec. Serv.,

A-7

Inc. v. Pacific Elec.Contractors Ass'n, 809 F.2d 626, 630 (9th Cir.
1987) (citing Celotex Corp. v. Catrett,477 U.S. 317, 323 (1986) ). The
movant need not advance affidavits or similar materials to negate the

existence of an issue on which the opposing party will bear the burden
of proof at trial. Celotex, 477 U.S. at 323.

If the moving party meets its burden, then the opposing party
must come forward with “specific facts showing that there is a genuine
issue for trial” in order to defeat the motion. Fed. R. Civ. P. 56(e); T.
W. Elec., 809 F.2d at 630. The opposing party cannot stand on the
pleadings nor simply assert that it will discredit the movant’s evidence
at trial. /d. “If the factual context makes the [opposing] 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. Bldg. Prods. v. Franciscan
Ceramics, 818 F.2d 1466, 1468 (Sth Cir. 1987) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)),
cert. denied 484 U.S. 1006 (1988).

The standard for summary judgment reflects the standard
governing a directed verdict. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). When there is a genuine issue of material fact,
“the judge must assume the truth of the evidence set forth by the
[opposing] party with respect to that fact.” 7. W. Elec., 809 F.2d at 631.
Inferences from the facts must be drawn in the light most favorable to
the non moving party. Jd.

A-8

Ws ae eaten AA eet ae

en net

te Cle nian NE a al tte Mn.

., ——— —

DISCUSSION

Defendant moves for summary judgment dismissing the Title
VII claims of Plaintiffs Nakamura and Sato. Defendant contends that
Plaintiffs’ suit is subject to summary judgment because their Title VII
discrimination claims: (1) were untimely, having not been brought to
the Park’s attention as required by law; and/or (2) have been fully
compromised; and/or (3) state a claim for which no relief can be
granted. Defendant’s Memorandum in Support at 1. The Court
disagrees.

I. Plaintiff Nakamura’s Title VII Retaliation Claims
A. Background

Plaintiff Nakamura’s Title VII claim is premised on a
chronology of events which date back to April 1993. The Complaint
asserts that Plaintiff Nakamura was subjected to a hostile work
environment from May 1993 until September 30, 1993, when he took
a temporary leave of absence from his seasonal maintenance
employment, in retaliation for instigating an April 1993 NPS
investigation into allegations of racial harassment and

discrimination by Park Supervisor David Puu. Plaintiff Nakamura and
the Park eventually resolved this matter by way of Informal Resolution
Agreements dated February 14, 1994 and April 11, 1994.

Plaintiff Nakamura also asserts that he endured retaliation

upon his return to work on March 20, 1994, which culminated in his
termination on September 30, 1994. In one instance, this alleged

A-9

retaliation surfaced in connection with Plaintiff Nakamura’s leave
during the May 22-26, 1994 period. In a letter to Equal Employment
Opportunity (“EEO”) Counselor Ronald Nagata dated June 27, 1994,
Plaintiff Nakamura recounted that, on May 22, 1994, his immediate
supervisor Doug Buttery granted his request to take “stress leave” for
the remainder of the day, and through May 25, 1994, but on May 23,
1994, Maintenance Supervisor Peter Lucero informed him that any
“annual leave” would not be approved. Exhibit E to Declaration of
Donald W. Reeser in support of Defendant’s Motion for Summary
Judgment, filed February 12, 1996 (“Reeser Decl.”) at 67-69. With
respect to May 26, 1994, Plaintiff Nakamura recounted that he had
submitted a leave slip for leave without pay to Acting Superintendent
Bob Butterfield, and that Butterfield verbally authorized him to leave,
but that Lucero later charged him with being absent without leave
(“AWOL”). Jd. Plaintiff Nakamura explained in the letter that his
leave was necessitated by stress linked to “the hardship” created by the
Park Service, and specifically referenced the Park’s “breachment of my
agreement.”

B. Analysis: Title VII Retaliation Claim Regarding May
22-26, 1994 Leave

1. No Issue of Settlement Bar or Administrative
Exhaustion

On Defendant’ s motion for summary judgment, the Court
need not address (1) whether, and to what extent, the administrative
exhaustion requirements set forth in 29 C.F.R. § 1614, et seq., preclude
adjudication of Plaintiff Nakamura’s Title VII claims, nor (2) whether,
and to what extent, the Informal Resolution Agreements dated

A-10

February 14, 1994 and April 11, 1994 bar Plaintiff Nakamura from
recovering for allegations of pre-April 11, 1994 retaliatory acts. At

least one element of Plaintiff's Title VII claim was administratively
exhausted in a timely manner and was not resolved by any agreement.

Plaintiff Nakamura’s Title VII claim includes an allegation of
post-April 11, 1994 retaliation in connection with his May 22-26, 1994
leave (the “Leave Incident”). Defendant does not dispute that Plaintiff
Nakamura timely exhausted his administrative remedies with respect
to the Leave Incident. See Defendant’s Memorandum in Support at 1,
18. Indeed, through his June 27, 1993 letter to EEO Counselor Ron
Nagata, Plaintiff Nakamura clearly initiated contact with an EEO
counselor regarding the Leave Incident within 45 days of its May 22-
26, 1994 occurrence, as required by 29 C.F.R. § 1614. 105(a) . Plaintiff
Nakamura also participated in EEO Counseling with respect to the
alleged retaliatory Leave Incident. See Exhibit E to Reeser Decl. at 31-
48. On July 20, 1994, EEO Counselor Ron Nagata issued a Notice of
Final Interview and Right to File a Discrimination Complaint

regarding the Leave Incident.
2. Prima Facie Elements of Retaliation Claim
Satisfied

Defendant contends that the Title VII claim regarding the
Leave Incident is subject to dismissal because Plaintiff Nakamura has
failed to establish his prima facie case for a retaliation claim.

A showing of three elements is required in order to make out

a prima facie case of retaliation: (1) the plaintiff engaged in activity
protected by Title VII; (2) an adverse employment action occurred; and

A-11

(3) there was a causal connection between the participation in the
protected activity and the adverse employment action. See Wallis v.
Simplot, 26 F.3d 885, 891 (9th Cir. 1994).

Defendant does not dispute here that Plaintiff Nakamura
engaged in “protected activity” within the meaning of Title VII. To be
sure, such activity can be found in Plaintiff Nakamura’s participation
in the NPS Investigation and his prior filing of a informal EEO
complaint which was settled by the Informal Resolution Agreements.
Defendant, however, takes issue with the second and third
requirements as they relate to Plaintiff Nakamura’s Leave Incident
claim. Defendant’s Memorandum in Support at 20 and n.7. The Court
finds that such requirements have been fulfilled.

a. Adverse Employment Action

Defendant asserts that the Leave Incident did not involve an
“adverse employment action” within the meaning of Title VII because
the Park eventually granted Plaintiff Nakamura “sick leave” for his
May 22-25, 1994 absence, as he originally requested. Plaintiff
Nakamura, however, is not limited to complaining about the type of
leave that was eventually granted for his May 22-25, 1994 absence.
Defendant may be liable for Plaintiff Nakamura’s need to take leave
itself, if the leave was in fact necessitated by a retaliatory hostile work
environment, as Plaintiff Nakamura asserts. A hostile work
environment, as opposed to mere ostracism, may constitute an
“adverse employment action.” See Strother v. Southern California
Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996) (citing
Fisher v. San Pedro Peninsula Hosp. , 262 Cal. Rptr. 842, 856 (1989)).

A-12

Additionally, the issue of Plaintiff Nakamura’s AWOL status
on May 26, 1994 remains unresolved. A decision to deny an employee
leave is an “adverse employment action,” regardless of the length of
requested leave. See Page v. Volger, 645 F.2d 227, 233 (4th Cir.) (en
banc), cert. denied, 454 U.S. 892 (1981). Equally significant, if
Plaintiff Nakamura is correct that he was actually granted leave
without pay on May 26, 1994, the AWOL mark on his employment
record alone rises to the leave of an “adverse employment action”
within the meaning of Title VII. See Jd.

b. Causal Connection

Defendant also contends that there can be no factual basis for
Mr. Nakamura’s allegation in the pleadings that the work absence
dispute was causally connected to the protected activity. Defendant’s
Memorandum in Support at 20. The Court finds that Plaintiff
Nakamura has proffered sufficient evidence of a causal connection to
satisfy his prima facie burden. A causal connection may be
demonstrated by evidence of circumstances that justify an inference of
retaliatory motive, such as protected conduct closely followed by
adverse action. Burrus v. United Tel. Co. of Kansas, Inc., 683 F.2d
339, 343 (10th Cir.), cert. denied, 459 U.S. 1071 (1982); see also
Knickerbocker v. City of Stockton, 81 F.3d 907, 912 (9th Cir. 1996)
(citing Burrus). In the instant case, the events surrounding the Leave
Incident occurred within one year of Plaintiff's protected activities. In
addition, Plaintiff Nakamura stated in his affidavit that, after the NPS
Investigation, there was ongoing friction between himself and many of
his Park coworkers, who were friends with Puu. Nakamura Aff. at 918.
Defendant has not proffered any evidence suggesting that Plaintiff
Nakamura’s May 22-25, 1994 sick leave was wholly unrelated to the

A-13

alleged hostile work environment, and has not provided a legitimate,
non-retaliatory reason for Plaintiff's AWOL status on May 26, 1994.

The Court concludes that Plaintiff Nakamura has presented
sufficient evidence to support a finding that the alleged retaliatory
Leave Incident was causally connected to his protected activities.
Plaintiff Nakamura has satisfied his prima facie burden for his Title
VII retaliation claim, insofar as it relates to the Leave Incident.
Accordingly, the Court DENIES the motion of Defendant for summary
judgment dismissing Plaintiff Nakamura’s Title VII claim in the
entirety.

Il. Plaintiff Sato
A. Background

Plaintiff Sato asserts Title VII claims against Defendant for
racial harassment and racial discrimination by Park Supervisor Puu.
During the thirteen-year period between January 1978 and January
1992, Plaintiff Sato was employed as a full-time, permanent
maintenance worker in the Park Maintenance Division under the
supervision of Park Supervisor Puu. Affidavit of Ronald Sato in
support of Plaintiffs’ Concise Statement filed April 18, 1996 (“Sato
Aff.”) at § 2. Plaintiff Sato asserts that, throughout this period, Park
Supervisor Puu racially harassed him at least three times a week by
referring to him in a racially derogatory manner. Jd. at §§] 3, 4. Plaintiff
Sato further contends that Puu assigned him to permanent sanitation
duties — cleaning toilets, working with raw sewage, cleaning windows
and waxing floors — on account of his Japanese ancestry, and that Puu

A-14

gave him negative job referrals when he sought transfers to other
departments within the Park, or to other national parks. Jd. at § 6.

B. Analysis

Defendant contends that Plaintiff Sato's Title VII claim for
racial] harassment and discrimination should be dismissed in their
entirety because (1) he failed to satisfy the administrative exhaustion
requirement set forth at 29 C.F.R. § 1613.214(a)(1)(i) (“Section
1613.214 (a) (1) (i)”) , Defendant’s Memorandum in Support at 13-14,
and (2) Defendant took appropriate remedial measures after learning
of Plaintiff Sato’s allegations. /d. at 22-25. The Court disagrees.

1. Section 1613.214(a)(1)(i)

Where, as here, the alleged discriminatory events occurred
prior to October 1, 1992, Section 1613.214 (a) (1) (i) required Plaintiff
Sato to bring the alleged discriminatory matter to the attention of an
EEO counselor within 30 days of its event. 29 C.F.R. §
1613.214(a)(1)(i). Contrary to Defendant’s assertions, this regulation
did not require Plaintiff Sato to file a written and signed informal EEO
complaint with the EEO office within the 30 days, but only to bring the
matter “to the attention” of an EEO counselor within the time
limitation. Richardson v. Frank, 975 F.2d 1433, 1436 (10th Cir. 1992).

Plaintiff Sato states in his affidavit that:
In the mid to late 1980s, I met Becky Mills at two

orientations in . . . California and found that she was
an Equal Employment Officer for the western Region

A-15

office. I told her that my supervisor, Mr. Puu, was
calling me “one stupid Jap” and “fucking Jap’ [sic] on
a regular basis. I also told her that since I had started
at Haleakala in 1978 I have only been assigned to
sanitation duties despite the fact that I am qualified to
do other work such as carpentry and masonry. Ms.
Mills responded that my situation was personal. She
did not inform me that I had the right to file an equal
employment opportunity complaint or any other
complaint for that matter... .

On October 22, 1985 I spoke to Ms. Mills while
attending a women’s conference on the Island of
Hawaii. I informed her that Mr. Puu was hindering
my transfer to other departments or national parks by
putting “I cannot judge” in the supervisor’s section of
my application, and would just assign me sanitation
duties. She simply replied that it was “up to my
supervisor, that he has to rate how good you are;” she
did not inform me that I could file any complaints.

Sato Aff. at 11 9-10. There are genuine issues of material fact as to
whether these contacts with EEO Officer Mills were notification of the
kind intended to satisfy Section 1613.214(a)(1)(i).

If Plaintiff Sato’s discussions with EEO Officer Mills served
to bring at least one incident of alleged racial harassment “to her
attention” within the 30-day deadline imposed by Section 1613.214 (a)
(1) (i) , the continuing violations doctrine may apply to bring all
incidents of alleged racial harassment, reaching back to January 1978,

A-16

within this regulation. In the instant case, the frequency of racial
harassment alleged by Plaintiff Sato certainly suggests a continuing
violation, that is, a series of separate acts of racial harassment
emanating from the same animus and amounting to a hostile work
environment. See Waltman v. International Paper Co., 875 F.2d 468,
476 (Sth Cir. 1989) . Under the “continuing violations” doctrine, if one
or more of the acts constituting the continuing violation is “brought to
the attention” of an EEO counselor within the 30-day statutory
deadline set by Section 1613.214 (a) (1) (i) , all acts constituting the
“continuing violation” are brought within this administrative
regulation, and may be considered. Jd. ; see also Green v. Los Angeles
County Superintendent of Sch., 883 F.2d 1472, 1480 (9th Cir. 1989).

Accordingly, the Court finds that there are genuine issues as
to whether Plaintiff Sato has satisfied the administrative requirement
set forth in Section 1613.214 (a) (1) (i) with respect to his Title VII
claim of racial harassment and discrimination. While Defendant
makes much of the fact Plaintiff Sato was a member of the Park’s
informal EEO committee in 1988, Defendant’s Mem. Supp. 13, such
participation did not heighten Section 1613.214 (a) (1) (i) , s notice
requirements as to Plaintiff Sato, nor did it strip him of the continuing
violations doctrine.

2. Remedial Obligations

Under Title VII, an employer is liable for a hostile work
environment only if the employer failed to take adequate remedial or
disciplinary action after the employer knew or should have known of

A-17

oe

the conduct generating the hostile work environment. Fuller v. City of
Oakland, 47 F.3d 1522, 1528 (9th Cir. 1995). Defendant contends that
Plaintiff Sato’s racial harassment and discrimination claim should be
dismissed because the Park promptly took remedial action after
learning of such allegations. Defendant relies on the remedial steps
taken by Park Superintendent Donald Reeser during and after April |
1993. Defendant’s Memorandum in Support at 22-25. That is,
Defendant proceeds on the basis that his remedial obligation did not
commence until April 1993.

There is evidence suggesting that Plaintiff Sato informed the
Park management in the mid to late 1980’s [sic], if not earlier, that
Park Supervisor Puu was racially harassing and discriminating against
him. See Sato Aff. at 9§ 7-10. Such evidence therefore raises
questions as to whether the Park's remedial obligations commenced
well before April 1993, and if so, whether Reeser’s remedial action in
April 1993 absolves Defendant from Title VII liability.

In light of the above, the Court DENIES the motion of
Defendant for summary judgment dismissing Plaintiff Sato’s Title VII
claim for racial harassment and discrimination.

CONCLUSION
In accordance with the foregoing, it is HEREBY ORDERED

1 . The motion of Defendant Babbitt for summary judgment
dismissing Plaintiff Nakamura’s Title VII claim is DENIED.

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2. The motion of Defendant Babbitt for summary judgment
dismissing Plaintiff Sato’s Title VII Claim is DENIED.

IT IS SO ORDERED.

ERIC K. NAKAMURA, et al., Plaintiff, H

BRUCE BABBITT, in his official capacity as Secretary of the
United States Department of the Interior, Defendant.

Civ. No. 95-00243 HG

United States District Court
District of Hawaii |

February 20, 1997

ORDER DENYING DEFENDANT’S MOTION TO DISMISS
REGARDING EXHAUSTION OF ADMINISTRATIVE
REMEDIES, GRANTING IN PART DEFENDANT’S MOTION
FOR RULE 43(e) HEARING, GRANTING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
REGARDING INFORMAL RESOLUTION AGREEMENT,
DENYING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT REGARDING PLAINTIFF NAKAMURA’S |
RETALIATION CLAIM, DENYING DEFENDANT’S |
MOTION FOR PARTIAL SUMMARY JUDGMENT BASED ;
UPON APPROPRIATE EMPLOYER REMEDIAL
MEASURES, AND GRANTING DEFENDANT’S MOTION
FOR PARTIAL SUMMARY JUDGMENT REGARDING
LIMITATION AS TO A JURY TRIAL |

GILLMOR, District Judge.

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On March 28, 1995, plaintiffs Eric K. Nakamura
(“Nakamura”) and Ronald N. Sato (“Sato’’) (collectively, “Plaintiffs”’)
filed a complaint against Defendant Bruce Babbitt, in his official
capacity as Secretary of the United States Department of the Interior
(“Defendant”).' Plaintiffs are former employees of the maintenance
Division of Haleakala National Park (the “Park”), and allege that
various Park employees discriminated against them in violation of
Title VII, 42 U.S.C. § 2000e, et seq.

On February 12, 1996, Defendant filed a motion for summary
judgment with respect to all of the Title VII claims asserted by
Plaintiffs. On May 6, 1996, the Court heard arguments on the motion
and issued an oral ruling denying it. Prior to the issuance of the
Court’s September 10, 1996 written Order Denying Defendant’s
Motion for Summary Judgment, Defendant filed a motion to Dismiss,
or in the Alternative, to Reconsider Order Denying Summary
Judgment, or in the Alternative Motion for a Rule 43 (e) Evidentiary
Hearing (the “Second Motion”).

On October 4, 1996, the Court denied Plaintiffs’ Ex Parte
Motion to Strike Defendant’s Second Motion, and granted Plaintiff s
alternative Ex Parte Motion to Extend the Time to File a Memorandum
in Opposition to such motion. On October 16, 1996, the Court
informed Defendant that the Second Motion failed to comply with
Local Rule 220-10 regarding concise statements of fact, and granted
Defendant leave to withdraw this motion and instead file multiple
motions, each focusing on a particular issue.

' A third plaintiff, David A. Texeira, stipulated to a dismissal of all of his claims
against Defendant on July 8, 1996.

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Defendant filed a new set of seven pre-trial motions dated
December 12, 13 and 27, 1996 (the “Third Set of Motions”). This
Third Set of Motions consists of a motion to dismiss, a motion for a
Rule 43(e) evidentiary hearing, and five motions for summary
judgment. These motions came on for hearing before the Court on
January 27, 1997.

STATEMENT OF FACTS

This case arises out of incidents alleged to have occurred atthe
Park between January 1978, when Sato began his employment with the
Park, and September 1994, when Nakamura was terminated. On April
7, 1993, Nakamura and a number of his Park co-workers met with
United States Congresswoman Patsy Mink and Bryan Harry, the
National Park Service’s Pacific Area Director. Defendant’s Concise
Statement in Support of Motion for Summary Judgment re: Remedial
Measures at § 2, and Plaintiff's Response thereto at § 2. At this
meeting, Nakamura lodged numerous complaints, including claims of
racial and sexual harassment of employees by the Supervisor of the
Park’s Maintenance Division, David Puu (“Puu”). J/d.; Nakamura
Affidavit, attached as Exhibit A to Plaintiff's Opposition to Motion to
Dismiss (“Nakamura Aff.”), at 9] 7-11.

This led to a National Park Service (“NPS”) investigation of
these and other claims of wrongdoing at the Park, conducted by high-
ranking NPS officials between April 27 and April 30, 1993 (“NPS
Investigation”). Defendant’s Concise Statement in Support of Motion
for Summary Judgment re: Remedial Measures at § 4, and Plaintiff's
Response thereto at § 4. The report issued following the NPS

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Investigation (“NPS Report”) concluded that Puu had exhibited
abusive conduct toward Park employees, including incidents of abusive
language, racist remarks, and insulting demeanor, but that there was no
evidence of such behavior by other Park supervisors. NPS Report,
attached to Plaintiffs’ March 28, 1995 Complaint, at 2.

The NPS Report contained a number of recommendations,
leading to an effort by Park management to implement many of these
recommendations and improve Equal Employment Opportunity
(“EEO”) measures. NPS Report; Defendant’s Concise Statement in
Support of Motion for Summary Judgment re: Remedial Measures at
{{ 6-16, and Plaintiff's Response thereto at 4 6-16.

Sato had already resigned from the Park in January 1992, prior
to the NPS investigation. Sato Affidavit, attached as Exhibit B to
Plaintiff's Opposition to Motion to Dismiss (“Sato Aff.”), at § 2.
Nakamura was terminated from his temporary employment position
with the Park on September 30, 1994. Defendant’s Concise Statement
in Support of Motion for Summary Judgment re: Resolution
Agreement at 18, and Plaintiff's Response thereto at § 18; Informal
Resolution Agreement, attached as Exhibit A to Defendant's Motion
for Summary Judgment re: Resolution Agreement at 4.

ANALYSIS

I. Defendant’s Motion to Dismiss Regarding Failure to Exhaust
Administrative Remedies

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The Court first addresses Defendant’s Motion to Dismiss
Regarding Failure to Exhaust Administrative Remedies (“Defendant’s
Motion to Dismiss”). Defendant filed this motion on December 27,
1996, although he had already filed a nearly identical motion for
summary judgment on these same grounds on December 12, 1996.
Defendant contends that a motion to dismiss is the proper form in
which to bring this claim and that the Court, rather than a jury, should
determine whether Plaintiffs properly exhausted their administrative
remedies because it is a jurisdictional or jurisdictionally-related issue.

The Ninth Circuit has held that{[:]

({Ijack of jurisdiction and failure to exhaust
administrative remedies are matters in abatement, and
ordinarily do not deal with the merits . . . . Therefore,
they should be raised by a motion to dismiss.

Studio Elec. Technicians Local 728 v. International Photographers of
the Motion Picture Indus., Local 659, 598 F.2d 551, 552 n.2 (9th Cir.
1979). In the context of a Title VII action, however, the Supreme
Court has explicitly held[:]

that filing a timely charge of discrimination with the

° EEOC is not a jurisdictional prerequisite to suit in
federal court, but a requirement that, like a statute of
limitations, is subject to waiver, estoppel, and
equitable tolling.

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

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The Supreme Court subsequently eliminated any potential

mischaracterization of Zipes as standing for the proposition that the
timely filing requirement need not be met or that it should be lightly
excused:

Procedural requirements established by Congress for
gaining access to the federal courts are not to be
disregarded by courts out of a vague sympathy for
particular litigants. As we stated in Mohasco Corp. v.
Silver, 447 U.S. 807, 826. ... (1980), “[iJn the long
run, experience teaches that strict adherence to the
procedural requirements specified by the legislature is
the best guarantee of evenhanded administration of
the law.”

Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984). In
Vinieratos v. United States Dep't of Air Force, 939 F.2d 762, 768 n.5
(9th Cir. 1991), the Ninth Circuit indicated that it does not{[:]

recognize administrative exhaustion under Title VII as
a jurisdictional requirement per se; [but] as a legal
question under the de novo standard because the issue
is whether the plaintiff has satisfied a statutory
precondition to suit.

Accordingly, Defendant's motion to dismiss regarding
Plaintiffs’ alleged failure to exhaust their administrative remedies is
not analyzed pursuant to Fed. R. Civ. P. 12 (b) (1) (“lack of junsdiction
over the subject matter’’), but Fed. R. Civ.P.12 (b) (6) (“failure to state
a claim upon which relief can be granted”). Whether Plaintiffs did

A-25

adequately exhaust their administrative remedies is a question of law
for the Court to decide. These issues are not, as Plaintiffs contend, so
intertwined with the merits of Plaintiffs’ Title VII claims that they
must be resolved at trial. They involve whether Plaintiffs are entitled
to relief for their claims in this forum by having fulfilled all of the
statutory and regulatory preconditions to filing suit. These procedural
matters are properly resolved by the Court and in no way go to the
merits of Plaintiffs’ substantive claims.

The Court already has held that Nakamura did adequately
exhaust his administrative remedies with respect to his “Leave
Incident” retaliation claim. September 10, 1996 Order Denying
Defendant's Motion for Summary Judgment (“September 10, 1996
Order”) at 5-6. The Court further found that there were genuine issues
as to whether Sato had satisfied this requirement or is entitled to
equitable estoppel with respect to his claim as well. /d. at 11-12.

Defendant urges the Court to hold a Rule 43 (e) evidentiary
hearing, which Defendant contends will provide the Court with
sufficient evidence to make all necessary factual findings to decide the
exhaustion issue. The consequence of holding such a hearing,
however, is to take the matter outside the bounds of a Fed. R.Civ. P. 12
(b) (6) motion and to convert it into a motion for surmmary judgment
governed by Fed. R. Civ. P. 56.” Accordingly, the Court DENIES
Defendant’s Motion to Dismiss and will consider it instead pursuant

? Fed. R. Civ. P. 12 (b) provides in pertinent part: If, on a motion asserting a
defense numbered (6) to dismiss for failure to state a claim upon which relief can be
granted, matters outside the pleadings are presented to and not excluded by the
court, the motion shall be treated as one for summary judgment and disposed of as
provided in rule 56 ....

A-26

to Rule 56 along with Defendant’s motion for summary judgment on
the same grounds.

Il. Defendant's Motion for Rule 43(e) Hearing

Defendant moves for the Court to hold a Rule 43 (e)
evidentiary hearing regarding several issues he contends that the Court
should consider prior to trial. These issues include whether Plaintiffs
are entitled to equitable estoppel to excuse their untimely filing of EEO
complaints, whether the Informal Resolution Agreement is applicable
and bars Nakamura’s claims, whether Nakamura is entitled to a trial
on the merits of his claims of wrongful termination and retaliation, and
whether Defendant took appropriate remedial measures and
disciplinary action thereby relieving it from liability. Plaintiffs
contend that such a hearing is not appropriate because these issues are
completely intermeshed with the facts going to the merits of the case
and should be left for the jury to decide.

For the reasons set forth below in the analysis of Defendant’s
motions for summary judgment, the Court agrees with Defendant that
a pretrial evidentiary hearing would be appropriate and useful to assist
the Court in determining whether Plaintiff Sato has fulfilled his
statutory preconditions to filing suit. A Rule 43 (e) evidentiary hearing
would be either unnecessary or inappropriate, however, in deciding the
other issues proposed by Defendant. The Court GRANTS IN PART
Defendant's Motion for a Rule 43(e) Hearing.

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Il. Defendant’s Motions for Summary Judgment

Defendant has filed five separate motions for summary
judgment covering the issues of Plaintiffs, failure to exhaust
administrative remedies, Nakamura’s informal resolution agreement,
Nakamura’s retaliation claim, Defendant's implementation of
appropriate remedial measures, and the limitation on Plaintiffs, right
to a jury trial.

A. Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides
that summary judgment shall be entered when:

the pleadings, depositions, answers to
interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.

The moving party has the initial burden of “identifying for the court
those portions of the materials on file that it believes demonstrate the
absence of any genuine issue of material fact.” 7.W. Elec. Serv., Inc.
v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987)
(citing Celotex Corp. v. Catrett, 477 U.S.317, 323 (1986)). The
movant need not advance affidavits or similar materials to negate the
existence of an issue on which the opposing party will bear the burden
of proof at trial. Celotex, 477 U.S. at 323.

A-28

If the moving party meets its burden, then the opposing party
must come forward with “specific facts showing that there is a genuine
issue for trial” in order to defeat the motion. Fed. R. Civ. P. 56(e),
T.W. Elec., 809 F.2d at 630. The opposing party cannot stand on the
pleadings nor simply assert that it will discredit the movant’s evidence
at trial. Jd. “If the factual context makes the [opposing] 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. Bldg. Prods. v. Franciscan
Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987) (emphasis added)
(citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)), cert. denied 484 U.S. 1006 (1988).

The standard for summary judgment reflects the standard
governing a directed verdict. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250 (1986). When there is a genuine issue of material fact,
“the judge must assume the truth of the evidence set forth by the
[opposing] party with respect to that fact.” 7. W. Elec., 809 F.2d at 631.
Inferences from the facts must be drawn in the light most favorable to
the non-moving party. Jd.

B. Sato

Sato claims that his supervisor at the Park, Puu, subjected him
to a persistent barrage of ethnic slurs and discriminated against him on
the basis of his Japanese ancestry in violation of Title VII.
Defendant’s primary argument with respect to Sato is that his suit is
barred because he failed to exhaust his administrative remedies. “Title
VII specifically requires a federal employee to exhaust his
administrative remedies as a precondition to filing suit.” Vinieratos,

A-29

939 F.2d at 767-768 (citing Brown v. General Servs. Admin., 425 U.S.
820, 832 (1976)). Defendant argues that Sato failed to exhaust his
administrative remedies because he filed his first informal EEO
complaint over two years after he had resigned from the Park Service,
and thereby failed to comply with the statutory requirements.

Sato contends that he did exhaust his administrative remedies
or, in the alternative, that he is entitled to equitable estoppel. The
Ninth Circuit has “recognized that strict compliance with the filing
period may be excused ‘if the plaintiff had neither official notice nor
actual knowledge of the filing period.’” Thornhill v. Marsh, 866 F.2d
1182, 1184 (9th Cir. 1989).

Sato claims that during the period he was employed by the
Park from January 1978 to January 1992, he was racially harassed at
least three times a week by Puu. Sato Aff. at § 3. As these incidents
occurred prior to October 1, 1992, 29 C.F.R. Part 1613 governs the
question of whether Sato properly exhausted his administrative
remedies.’ Section 1613.214(a) provides, in pertinent part:

(1) Am agency shall require that a complaint be
submitted in writing by the complainant or
representative and be signed by the complainant...
The agency may accept the complaint for processing
in accordance with this subpart only if:

(i)The complainant brought to the attention of the
Equal Employment Opportunity Counselor the matter

* The current regulatory provision governing Title VII complaints, 29 C.F.R. Part
1614, did not go into effect until October 1, 1992. 57 Fed. Reg. 12634 (1992).

A-30

causing him/her to believe that he/she had been
discriminated against within 30 calendar days of the
date of the alleged discriminatory event, the effective
date of an alleged discriminatory personnel action, or
the date that the aggrieved person knew or reasonably
should have known of the discriminatory event or
personnel action; and

(ii) The complainant or representative submitted the
written complaint to an appropriate official within 15

calendar days after the receipt of the notice of the
right to file a complaint....

(4) The agency shall extend the time limits in this
section when the complainant shows that he/she was

Se ee eed

not notified of the time limits and was not otherwise

SN eel nee

- aware of them, was prevented by circumstances
beyond the complainant’s control from submitting the
matter within the time limits; or for other reasons
considered sufficient by the agency.

29 C.F.R. § 1613.214(a) (1991) (emphasis added).

The Department of the Interior dismissed Sato’s complaint for
failure to comply with the statutory time limits because he did not
initiate contact with an EEO counselor until February 4, 1994, over
two years after he had resigned in January 1992. September 19, 1996
letter from Melodee Stith, EEO Director for the Department of the
Interior (“Stith Letter”), attached as Exhibit Y to Plaintiffs’ Opposition
to Motion to Dismiss, at 2. Sato claims in affidavit, however, that:

A-31

[in] the mid to late 1980s, I met Becky Mills at two
orientations in ... California and found out that she
was an Equal Employment Officer for the Western
Region office. I told her that my supervisor, Mr. Puu,
was Calling me “one stupid Jap” and “fucking Jap” on
a regular basis. I also told her that since I had started
at Haleakala in 1978 I have only been assigned to
sanitation duties despite the fact that I am qualified to
do other work such as carpentry and masonry. Ms.
Mills responded that my situation was personal. She
did not inform me that I had the right to file an equal
employment opportunity complaint or any other
complaint for that matter.

Sato Aff. at§ 9.

If these allegations are true, Sato may have satisfied the first
requirement of reporting the discriminatory matter to an EEO officer
within 30 days. The second requirement, however, is that a written
complaint be submitted within 15 calendar days after the date of
receipt of the notice of the right to file a complaint. it is undisputed that
Sato never filed a written complaint until over two years after he had
resigned from the Park and the alleged incidents of discrimination
against him had ended.

Sato alleges in his affidavit that he was not aware of his right
to file an EEO complaint of discrimination until late December 1993,
when Nakamura informed him that he had such a right. Sato Aff. at
§ 12. If Sato’s allegations are true, the fifteen-day time limit for filing
a written EEO complaint would have begun to run on that date. Sato

A-32

did not approach an EEO counselor until February 4, 1994, after this
fifteen-day period had run. Stith Letter at 2. His formal EEO
complaint was filed on May 13, 1994. Jd. at 1.

Sato would have been entitled to have the NPS excuse him
from the mandated time limits, if he could show that there was no
official notice of the time limits or that he was not otherwise aware of
them. 29 C.F.R. § 1613.214 (a) (4) (1991) ; Thornhill, 866 F.2d at
1184. If Sato received actual or official notice of the applicable time
limits at any time prior to filing his written complaint, the 15-day time
limit for filing the complaint would have been triggered at the time he
received such notice.

In July 1988, the Park superintendent issued a memorandum
addressed to all employees that two new EEO counselors were being
appointed and that they would be available to serve the needs of the
employees. Defendant’s Motion to Dismiss at Exhibit A. Plaintiffs
maintain that the Park’s system of distributing memoranda to
employees was grossly inadequate and that they never received any
such memoranda. Nakamura Aff. at § 13. Defendant has provided
declarations of numerous park employees claiming that EEO posters
were put up on Park bulletin boards with pictures of the EEO
counselors and directing employees to approach them with any
questions or complaints. An October 25, 1988 memorandum from the
NPS Western Region office, relaying the results of an EEO
performance evaluation conducted in September 1988, states that,
“(t]he right to complain and the steps in preparing and submitting
complaints are explained in writing to employees via posting on

A-33

employee bulletin boards.” Defendant’s Motion to Dismiss at Exhibit
A. ;

Defendant also has provided evidence that Sato served as the
maintenance representative on the Park’s EEO committee from 1988
through 1990, and that memoranda addressed to all employees were
issued instructing employees to discuss questions or relevant problems
with such representatives. Jd. Sato claims in his affidavit that Puu told
him that he was on the committee because they needed a “body” from
the maintenance division, and that he only attended one meeting of the
committee, in which the members merely “s{a]t around and talk[ed]
story.” Sato Aff . at] 11. One of Defendant’s own declarants, Susan
Nikaido, admits that the committee was not very active, but adds that
the few times they did meet Sato usually attended. Defendant’s
Motion to Dismiss at Exhibit A. .

Sato alleges that although he realized the purpose of the
committee was to discuss the Park’s hiring and firing practices with
respect to minorities, the topic of employees, rights to be free from
racial discrimination and ethnic slurs was never mentioned. Sato Aff.
at 4 11-12. Sato claims that it was not until December 1993, after
speaking with Nakamura, that he became aware that Puu’s conduct
towards him had constituted discrimination and entitled him to file an
EEO complaint. Jd. Sato also relies on the findings of the NPS Report,
that “[mJany employees appeared to have little knowledge of their
rights,” and which recommends that the Park “[u}pdate and
prominently post grievance procedures and equal opportunity
counselors.” NPS Report at §j 2.

A-34

The Court held in its September 10, 1996 Order that, based on
the evidence presented to it at that time, a genuine issue existed as to
Sato’s alleged failure to exhaust his administrative remedies.
September 10, 1996 Order at 11-12. As stated in the preceding section,
the Court will hold an evidentiary hearing to determine this issue given
the conflicting evidence presented. If Sato did approach Ms. Mills
back in the mid-1980s with actionable complaints of racial
discrimination, and he was not informed of his right to be free from
discrimination and his ability to file a complaint concerning that right,
he would be entitled to equitable tolling of the time requirement for
filing such a complaint. This tolling would last, however, only until
the point when he was provided with actual or official notice of his
right to file a complaint. As the Supreme Court has stated in another
Title VII case, “[o]ne who fails to act diligently cannot invoke
equitable principles to excuse that lack of diligence,” Baldwin County
Welcome Ctr., 466 U.S. at 151 (1984).

At the Rule 43 (e) evidentiary hearing, the parties may present
all admissible evidence regarding Sato’s alleged failure to exhaust his
administrative remedies as well as evidence pertaining to Sato’s
request for equitable relief excusing him from any such failure that the
Court may find. If the Court determines on the basis of the evidence
presented that Sato did fail to properly exhaust his administrative
remedies and that he is not entitled to equitable relief therefrom, Sato’s
claims would be dismissed accordingly. If, however, the Court does
not so determine and Sato is allowed to pursue his claims against
Defendant, Defendant requests that the subsequent jury trial be limited
to conduct which occurred on or after November 21, 1991.

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The Civil Rights Act of 1991 (the “Act”) went into effect on
November 21, 1991. In Landgraf v. USI Film Products, 511 U.S. 244,
114S.Ct. 1483, 1508 (1994), the Supreme Court held that Section 102
of the Act, which allows Title VII plaintiffs to seek compensatory and
punitive damages and provides them with the nght to a jury trial when
they seek such damages, does not have retroactive effect. Prior to the
enactment of the Act, “Title VII afforded only ‘equitable’ remedies[,”]
primarily in the form of backpay, and no right to a jury trial existed.
Id. at 1490.

Accordingly, Defendant's Motion for Partial Summary
Judgment Regarding Limitation as to a Jury Trial is GRANTED to the
extent that Plaintiffs are entitled to a jury trial only with respect to
claims of discrimination arising out of conduct that occurred on or
after November 21, 1991.

C. Nakamura

Due to the vague nature of the complaint filed with the Court,
Plaintiffs’ counsel was asked at the January 27, 1997 hearing to specify
the nature and extent of Nakamura’s claims. Plaintiffs’ counsel
indicated that Nakamura has three claims: (1) discrimination based on
his Japanese ancestry for events that occurred prior to April 1993; (2)
a retaliation complaint for events occurring between April and
September 1993 stemméng from his involvement in instigating the
National Park Service’s investigation of possible Title VII violations
at the Park by Puu; and (3) a second retaliation complaint for incidents
that took place after his return to the Park in March 1994 up through
and including his termination in September 1994.

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7 Racial Discrimination Clai

Plaintiffs have not identified for the Court any evidence of
incidents occurring prior to April 1993 that indicate that Nakamura
was discriminated against on the grounds of race. Mr. Nakamura’s
pleadings all appear to center around his belief that he was retaliated
against by his co-workers and supervisors as a result of exposing Puu’s
alleged racial and sexual harassment of others.

In his Informal Complaint Regarding Sexual/Racial
Harassment dated December 2, 1993, he states that he is a “third party
complainant on a racial discrimination and harassment charges
against Mr. David Puu.” December 2, 1993 Complaint, attached as
Exhibit M to Plaintiff's Opposition to Motion to Dismiss. Nakamura
brought the informal complaint on behalf of Sato and Francis Silva,
neither of whom signed the complaint. He further states in the
complaint that “[t}here are other employees (former and current) that
have informed me that Mr. Puu had been racially abusive or otherwise
very insulting to their sex, work efforts, or intelligence.” Jd.

Although Nakamura’s informal complaint contains several
allegations that Puu racially and sexually harassed a number of other
employees, not once does Nakamura claim in his complaint that he was
subjected to racial discrimination himself during this period. The sole
item in the record that the Court has been able to find with respect to
a racial harassment claim by Nakamura, is an incomplete and vague
allegation contained in a written statement of Nakamura dated
November 26, 1993 (“Nakamura Statement”), that “Mr. Puu has
racially harassed me by calling one of my family member a
(Blank appears in original). Plaintiff's Opposition to Motion to

A-37

Dismiss at Exhibit L. The record is unclear as to whether the
Nakamura Statement was ever submitted as a complaint, but it appears
to be a prior version of the December 2, 1993 Complaint filed the
following week.

There is ample evidence in the record indicating that Puu may
have racially harassed and discriminated against certain Park
employees, including Sato. With nothing more than an alleged
unspecified racial comment directed at a family member, however,
Nakamura has not presented the Court with enough evidence to sustain
an individual claim of racial discrimination. See Meritor Savings
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (“‘mere utterance of an
ethnic or racial epithet which engenders offensive feelings in an
employee would not affect the conditions of employment to
sufficiently significant degree to violate Title VIII’’) (citing Rocers v.
EEOC, 454 F.2d 234, 238 (Sth Cir. 1971), cert. denied, 406 U.S. 957
(1972)).

Even assuming there was sufficient evidence of racial
discrimination against Nakamura prior to April 1993, he would also be
barred from bringing this claim due to the Informal Resolution
Agreement he entered into with the Park on February 15, 1994 which
covered all of Nakamura’s previous complaints. Accordingly, the
Court GRANTS IN PART Defendant’s motions for summary judgment
with respect to Nakamura’s racial discrimination claim.

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> Retaliation Claim f 1s 99
Incidents

The second claim Nakamura brings is based on retaliation he
allegedly suffered during the period from April to September 1993
stemming from his involvement in triggering the aforementioned NPS
Investigation. Defendant contends that Nakamura is barred from
bringing this claim due to an Informal Resolution Agreement he
entered into with the NPS in February 1994. Nakamura asserts that
Defendant committed a material breach of that agreement, entitling
him to revive this claim.

On November 18, 1993, Nakamura submitted a written
informal complaint and sought counseling with a Park EEO Counselor
concerning racial and sexual harassment of Park employees by Puu and
apparently because of harassment he endured in attempting to expose
these alleged violations. Plaintiffs’ Opposition to Motion to Dismiss
at Exhibit K. This led to his filing, on December 2, 1993, an Informal
Complaint Regarding Sexual/Racial Harassment with the Park
Superintendent covering these same allegations. As a result of these
complaints, Nakamura and the NPS entered into an Informal
Resolution Agreement of Informal Discrimination Complaint by Enc
K. Nakamura dated February 14, 1994 (the “Resolution Agreement”).
Plaintiffs’ Opposition to Motion to Dismiss at Exhibit N.

The Resolution Agreement agreed to all of Nakamura’s
demands in his Informal Complaint and provided him with additional
consideration. Pursuant to the Resolution Agreement, the Park Service
agreed to counsel Puu regarding racial and sexual harassment, remove
him from the Maintenance Division and place him in a non-

A-39

supervisory position until his retirement, return Nakamura to his
previous temporary position for the duration of Fiscal Year 1994, pay
Nakamura a cash settlement of $4,000 and reinstate 153 hours of
annual leave, and to not retaliate against Nakamura for having filed

this complaint.

The agreement is authorized and governed by 29 C.F.R. Part
1614. Section 1614.603 provides that

“feJach agency shall make reasonable efforts to
voluntarily settle complaints of discrimination as
early as possible in, and throughout, the
administrative processing of complaints, including the
pre-complaint counseling stage. Any settlement
reached shall be in writing and signed by both parties
and shall identify the allegations resolved.”

Section 1614.504 governs compliance with the Resolution
Agreement and sets forth the proper procedures a complainant must
follow to allege breach on the part of the agency. Section 1614.504(a)

provides, in pertinent part:

If the complainant believes that the agency
has failed to comply with the terms of a
settlement agreement or final decision, the
complainant shall notify the EEO Director, in
writing, of the alleged noncompliance within
30 days of when the complainant knew or
should have known of the alleged
noncompliance. The complainant may

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|
:
:

request that the terms of settlement agreement
be specifically implemented or, alternatively,
that the complaint be reinstated for further
processing from the point processing ceased.

The Informal Agreement itself reiterates the need to file a written
notice of noncompliance within 30 calendar days of the date
Nakamura became aware of the noncompliance.

Nakamura claims that the Park’s failure to credit his 153 hours
of annual leave by March 20, 1994, the date by which all action in the
agreement was to occur, constitutes a breach of the agreement by the
Park and allows him to reinstate his original complaint. Defendant
asserts that the annual leave hours were simply not input into the NPS
computer by the deadline due to a clerical error in the Denver office
where such inputting takes place. Defendant claims that such a failure
to input these hours does not constitute a material breach of the
agreement as the hours were available to Nakamura if he had merely
gone to Superintendent Reeser, the individual specified in the
agreement as responsible for fulfilling the Park’s obligations
thereunder, and requested them. Once the Park became aware of the
oversight by way of Nakamura’s May 22, 1994 complaint on the
matter, it took prompt action and the hours were input into the system
by June 3, 1994.

The Court agrees with Defendant that given the circumstances
and the Park’s prompt remedial action once Nakamura notified it of the
problem, the mere failure to input these hours into the computer does
not appear to constitute a material breach of the agreement. Even
assuming there had been a material breach, however, Plaintiff would

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be barred from bringing his claim here because he failed to fully
exhaust his administrative remedies pursuant to 29 C.F.R. 1614.504.

Because Nakamura became aware of the Park’s failure to input
his leave into the payroll computer on April 9, 1994, his May 22, 1994
complaint regarding the alleged breach did not meet the
aforementioned 30-day deadline for filing a written complaint.
Plaintiff's Concise Statement in Opposition to Motion for Summary
Judgment re: Resolution Agreement at 4 12. Nakamura claims that he
orally notified EEO Counselor Nagata about the matter upon becoming
aware of it on April 9 and that Nagata promised to investigate. /d. It
was only upon Nakamurals return to work on May 16, 1994 that he
realized that Nagata had not resolved the matter and he filed a written
complaint six days later. Jd.

Even assuming Nakamura is entitled to have his failure to meet
the 30-day deadline for filing a wntten complaint equitably tolled
based on Nagata’s alleged promise to investigate, he still would not
have fully complied with the requirements of Section 1614.504. A June
6, 1994 letter to Nakamura from Mary Kline, the Park Service’s Lead
EEO Counselor for the Western Region, informed him that his leave
had been input into the system, but that if he still desired to pursue
reopening his case, he had to send the letter to the Park Service’s
Washington office and follow the rest of Section 1614.504’s
requirements, which she attached to the letter. Defendant’s Motion for
Summary Judgment re: Resolution Agreement at Exhibit C.

A June 6, 1994 letter from the Park’s EEO Counselor Melia
Lane-Hamasaki informed Nakamura’s counsel that a copy of counsel’s
May 31, 1994 letter regarding reinstatement of Nakamura’s informal

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complaint and alleging breach of the Resolution Agreement was being
forwarded to the NPS Washington office. Plaintiffs’ Opposition to
Motion to Dismiss at Exhibit T. Apparently, Nakamura also filed an
official informal complaint with NPS regarding retaliation and the
alleged breach of the agreement due to failure to credit him annual
leave on June 1, 1994, though the date of the complaint is illegible on
the copy submitted to the Court and it is unclear where this complaint
was sent. Plaintiffs’ Opposition to motion for Summary Judgement re:
Resolution Agreement at 8; Exhibit K to Concise Statement attached
thereto.

Again, even assuming that the above facts could establish that
Nakamura had met the appropriate 30-day deadline for filing his
complaint of breach with NPS, he failed to file the required written
appeal with the Equal Employment Opportunity Commission
(“EEOC”), and is therefore barred from bringing a claim of breach
before this Court for failure to exhaust his administrative remedies. If
Nakamura was not satisfied with the Park Service’s resolution of his
breach allegation, he needed to appeal that agency’s action to the
EEOC.

If the agency has not responded to the complainant, in
writing, or if the complainant is not satisfied with the
agency’s attempt to resolve the matter, the
complainant may appeal to the Commission for a
determination as to whether the agency has complied
with the terms of the settlement agreement or final
decision. The complainant may file such an appeal 35
days after he or she has served the agency with the
allegations of noncompliance, but must file an appeal

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within 30 days of his or her receipt of an agency’s
determination. The complainant must serve a copy of
the appeal on the agency and the agency may submit
a response to the Commission within 30 days of
receiving notice of the appeal.

29 C.F.R. 1614.504(b).

There is no evidence that Nakamura ever filed such an appeal
to the EEOC indicating that it was unhappy with the Park’s resolution
of the matter by finally crediting him with the additional hours on the
computer. A plaintiff may not cut short the administrative process
prior to its final disposition, “for upon abandonment a claimant fails to
exhaust administrative relief and may not thereafter seek redress from
the courts.” Greenlaw v. Garrett, 59 F.3d 994, 997 (9th Cir. 1995).
Nakamura did not exhaust his administrative remedies pursuant to
Section 1614.504, therefore he is not entitled to bring this claim before
the Court. See Lee v. United States, 33 Cl. Ct. 374, 380 (1995); Davis
v. Secretary of Treasury, Internal Revenue Serv. , 896 F. Supp. 978,
981 (N.D. Cal. 1995).

Defendant’s motions for summary judgment are GRANTED
IN PART with respect to Nakamura’s retaliation claim for incidents
occurring between April and September 1993.

A-44

ee i eae Mth tte en

hw i ing el

Incidents

Nakamura’s final claim is for alleged retaliatory events that
occurred following his return to work on March 20, 1994 up through
and including his termination on September 30, 1994. In its September
10, 1996 Order Denying Defendant’s Motion for Summary Judgment,
the Court held that Nakamura had established a prima facie case of
retaliation for incidents that occurred during this time period. The
Court also held that this claim was not barred by any resolution
agreements nor by any alleged failure by Nakamura to exhaust his
administrative remedies. Defendant has not presented any new
evidence or arguments that persuade the Court that its prior decision
was in error.

The Court also rejects Defendant’s request for a pre-trial
evidentiary hearing on the issues of retaliation by co-workers,
employment termination, and whether Defendant implemented
appropriate remedial measures. The Ninth Circuit has held that

“[o}nce a prima facie case is established. ..summary
judgment for the defendant will ordinarily not be
appropriate on any ground relating to the merits
because the crux of a Title VII dispute is the elusive
factual question of intentional discrimination.”
Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.
1995), cert. denied, ____ ==» U'S.__, 116 S.Ct. 1261
(1996) (citations omitted). Once a plaintiff has set
forth a prima facie case of retaliation as well as a

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genuine issue of fact as to pretext, which the Court
already has decided that Nakamura has done, the
district court does not hear and weigh the evidence to
decide whether a defendant violated Title VII. That
task is within the province of the jury.

The Court is also not persuaded by Defendant's argument that
Nakamura is precluded from bringing his employment termination
based on retaliation claim because he did not amend his EEO
complaint to include that claim. The Ninth Circuit has stated that
district courts may hear claims from events occurring after the filing
of an EEO charge, so long as they are “like or reasonably related to”
the conduct complained of in the charge. Sosa v. Hiraoka, 920 F.2d
1451, 1456 (9th Cir. 1990). Nakamura’s EEO complaints alleged that
he was being retaliated against by his supervisors and co-workers
because of his activity in exposing Puu’s conduct. The Court does not
agree with Defendant that Nakamura needed to file an additional EEO
complaint regarding his alleged retaliatory termination, when he had
already complained of adverse employment actions against him based
on retaliation.

Defendant has characterized Nakamura’ s retaliation complaint
as stemming from his mere receipt of the “cold-shoulder” from his co-
workers. Nakamura has offered evidence that the conduct of his co-
workers upon his return to work rose beyond a mere failure to extend
friendly overtures. He has alleged that his co-workers behaved
towards him in a manner that interfered with his ability to perform his
job. See January 7, 1997 Nakamura Affidavit (“Second Nakamura
Aff.”), attached as Exhibit E to Plaintiff's Concise Statement in

A-46

opposition to Defendant’s Motion for Summary Judgment Re:
Retaliation Claim, at ¥J 4-20.

As stated in the Court’s previous order, if Nakamura can prove
at trial that the conduct of his co-workers and supervisors created a
hostile work environment that led to his stress leave, that would
constitute an adverse employment action within the ambit of Title VII.
See Strother v. Southern California Permanente Medical Group, 79
F.3d 859, 869 (9th Cir. 1996). Although it is not disputed that
Defendant attempted remedial measures to stem any retaliation against
Nakamura by his co-workers, the Ninth Circuit has repeatedly held that
“an employer’s actions will not necessarily shield it from liability if
harassment continues.” Fuller v. City of Oakland, 47 F.3d 1522, 1529
(9th Cir. 1995) (citation omitted).

For the reasons set forth above and in the Court’s September
10, 1996 order, Defendant’s motions for summary judgment are

DENIED with respect to Nakamura’s retaliation claim following his
return to work in March 1994.

CONCLUSION

In accordance with the foregoing, it is HEREBY ORDERED that:

1. Defendant’s Motion to Dismiss Regarding Failure to
Exhaust Administrative Remedies is DENIED.

2. Defendant's Motion for Rule 43(e) Hearing Re:

A-47

Equitable Estoppel; the Informal Resolution Agreement; Employment
Termination 1s GRANTED IN PART. The Court will hold an
evidentiary hearing limited to Defendant's motion for summary
judgment as to Sato’s claims based on his alleged failure to exhaust
administrative remedies.

3. Defendant's Motion for Summary Judgment
Regarding Informal Resolution Agreement is GRANTED IN PART
with respect to Nakamura’s racial discrimination claim and his April
to September 1993 retaliation claim.

4. Defendant's Motion for Summary Judgment
Regarding Plaintiff Nakamura’s Retaliation Claim is DENIED.

5. Defendant's Motion for Partial Summary Judgment
Based Upon Appropriate Employer Remedial Measures is DENIED.

6. Defendant's Motion for Partial Summary Judgment
Regarding Limitation as to a Jury Trial is GRANTED to the extent that
Plaintiffs are entitled to a jury trial only with respect to claims of
discrimination arising out of conduct that occurred on or after
November 21, 1991.

IT IS SO ORDERED.

A-48

ERIC K. NAKAMURA, et al., Plaintiff,

BRUCE BABBITT, in his official capacity as Secretary of the
United States Department of the Interior, Defendant.

Civ. No. 95-00243 HG

United States District Court
District of Hawaii

October 30, 1997

ORDER GRANTING DEFENDANT’S RULE 12(h)(3)
MOTION TO DISMISS, GRANTING DEFENDANT’S
RENEWED RULE 50 MOTION FOR JUDGMENT AS A
MATTER OF LAW, DENYING PLAINTIFF’S MOTION FOR
JUDGMENT AS A MATTER OF LAW AS TO CLAIMS ONE
AND THREE, DENYING PLAINTIFF’S MOTION FOR
ORDER GRANTING BACK PAY, REINSTATEMENT, OR,
ALTERNATIVELY, FRONT PAY, AND DENYING
PLAINTIFF’S MOTION FOR ORDER GRANTING AN
AWARD OF ATTORNEY’S FEES AND COSTS OF
LITIGATION

Plaintiff Eric K. Nakamura (“Plaintiff”) is a former temporary
maintenance employee at Haleakala National Park (the “Park”’), who
was terminated in September 1994. Plaintiff filed a Title VII
complaint against defendant Bruce Babbitt, in his official capacity as

A-49

Secretary of the United States Department of the Interior
(“Defendant”), alleging various claims of retaliatory treatment by Park
co-workers and supervisors stemming from Plaintiff s involvement in
certain protected equal employment opportunity (“EEO”) activities.
After the pre-trial dismissals of two co-plaintiffs and all but three of
Plaintiff's claims, Plaintiff's remaining claims of retaliation by
refusing to grant requested leave status for one-half day (“Claim
One”), terminating Plaintiff (“Claim Two”), and failure to stop
Plaintiff's co-workers from creating a hostile work environment
(“Claim Three”) were tried before a jury, commencing on June 3,
1997. On June 24, 1997, the jury returned a verdict in favor of
Defendant on Claims One and Three, and in favor of Plaintiff on Claim
Two. The jury awarded Plaintiff $30,000 in compensatory damages
with respect to Claim Two.

On June 24, 1997, the Court ordered the parties to submit all
post-trial motions within ten days. Presently before the Court are five
post-trial motions submitted by the parties on July 7, 1997 in
accordance with the Court's instruction.

STATEMENT OF FACTS*

In 1989, Plaintiff began working at the Park as a temporary
maintenance worker. In April 1993, Plaintiff and several of his
co-workers contacted a member of Congress and lodged numerous

‘For a more complete statement of the factual and procedural history
of this case, please see the Court’s orders of September 10, 1996,
February 20, 1997, and June 2, 1997.

A-50

complaints, including claims of racial and sexual harassment, against

a supervisor in the Park’s Maintenance Division, David Puu (“Puu”’).
At the Congress member’s request, the National Park Service (“NPS”)
sent a team of NPS officials to the Park to investigate Plaintiff's
complaints. The investigators issued a report concluding that Puu had
exhibited abusive behavior toward maintenance employees on many
occasions, including the use of racist remarks, but that there was no
evidence of such conduct on the part of other supervisors. The report
directed Park officials to make human resource management a top
priority, and steps were taken to improve EEO training and
communications at the Park.

At the end of September 1993, Plaintiff requested that he be
allowed to take time off from his temporary position due to stress, and
Park officials authorized Plaintiff to go on intermittent status. Plaintiff
remained off work until March 20, 1994. During this period that
Plaintiff was away from the Park on intermittent status, he filed two
EEO complaints with the NPS.

In November 1993, Plaintiff lodged an EEO complaint
alleging that Puu had engaged in sexual and racial harassment of some
of Plaintiff’ s co-workers, and claiming that Plaintiff had been harassed
for his involvement in generating the NPS investigation. Plaintiff's
EEO complaint was resolved via an informal resolution agreement
between Plaintif f and the Park. The Park agreed to transfer Puu out
of the maintenance division and place him in a non-supervisory
capacity until his upcoming retirement. The informal resolution
agreement also provided that Plaintiff was to return to work on March
20, 1994 to his previous temporary position for the duration of fiscal
year 1994.

A-51

Pnor to Plaintiff's return to work, the new chief of the
maintenance division, Pedro Lucero (“Lucero”), held a meeting to
ensure that Plaintiff's co-workers in the maintenance division
understood that management was welcoming Plaintiff's return to the
understaffed maintenance division. Lucero was a career NPS
employee who was transferred from another National Park into
Haleakala National Park during the time Plaintiff was on intermittent
status. Lucero informed the maintenance employees that they were to
put the past behind them and start a new beginning as a team. Some
of Plaintiff's fellow maintenance employees had worked with Puu for
many years and were upset about Puu’s removal from the maintenance
division. Plaintiff's fellow maintenance workers Elizabeth Havelin
(“Havelin”), Bob Kokubun, and Jesse Mercado (“Mercado”) testified
at trial that they did not agree with some of Plaintiff's allegations
against Puu and disapproved of Plaintiff's activities that led to Puu’s
removal. At the meeting held by Lucero prior to Plaintiff's return to
work, Mercado made comments regarding his concerns about the
possible ramifications of Plaintiff's return to work and stated that he
did not want to work with Plaintiff. Maintenance employees were
warned that acts of reprisal would not be tolerated and that appropriate
management actions would be taken if inappropriate behavior

occurred.

After Plaintiff was informed of Mercado’s comments at the
meeting, Plaintiff lodged an EEO complaint in response to Mercado’s
comments on approximately February 19, 1994. At Plaintiff's request,
Lucero held another meeting with both Mercado and Plaintiff, where
he allowed them to air any differences and Lucero reaffirmed
management’s expectations of professional attitudes and work
behavior. Lucero also issued two memoranda to all maintenance

A-52

employees reiterating that professionalism must be maintained at all
times and that reprisal actions would not be tolerated. Plaintiff and the
Park entered into a second informal resolution agreement documenting
the above actions in response to Plaintiff's second EEO complaint.

Plaintiff returned to his temporary maintenance position at the
Park on March 20, 1994. After two months back on the job, Plaintiff
requested and was granted leave for stress on May 19, 1994. Plaintiff
did not return to work until May 26, 1994. On the morning of May
26th, Plaintiff approached Lucero to complain that the Jet Johns were
not pumped out when Plaintiff was off on leave. Lucero told Plaintiff
not to worry about it and that Lucero would have it done the following
day, which was Plaintiff's day off. Plaintiff became upset because he
felt that his co-workers were deliberately refusing to cover for Plaintiff
while he was on leave. Plaintiff kicked a NPS vehicle, drove away,
and did not finish his shift. Lucero disapproved a leave slip submitted
by Plaintiff for the hours that he missed that day, and noted on the slip
that Plaintiff left without authority when he was needed at work.
Plaintiff claimed that the acting Park superintendent gave him
permission to leave work that day.

Plaintiff did not return to work at the Park after May 26, 1994
and requested leave from work due to occupational stress. All of
Plaintiff’ s subsequent requests for leave after May 26th were approved.
On August 2, 1994, Plaintiff completed an application for leave
requesting indefinite leave without pay until further notice by Plaintiff.
On September 9, 1994, Lucero notified Plaintiff that he would be
terminated effective September 30, 1994, due to the Park’s inability to
fund Plaintiff's temporary maintenance position for fiscal year 1995.

A-53

Defendant presented testimonial and documentary evidence
that, in preparing the proposed maintenance division budget for fiscal
year 1995 in September 1994, Lucero was operating under a number
of budgetary constraints. The Park was operating in anticipation that
a continuing resolution of Congress would go into effect on October
1, 1994 that would freeze federal agency expenditures at 1994 fiscal
year levels. Lucero testified that he was told to anticipate a further
reduction of $50,000 from the maintenance division budget due to the
early retirement buyout of Puu. The Park received memoranda from
NPS headquarters indicating that, for every employee that opted for
early retirement, the salary and benefits from that position would be
lost unless the position was filled by a transfer from a central NPS
office. These requirements were set forth in the buyout bill signed by
the President, the goal of which was to help the federal government
meet its goal of cutting approximately 252,000 federal employees.
Evidence was presented that Lucero had to operate under this reduced
budgetary figure despite the May 1994 transfer to the maintenance
division of a permanent sanitation employee from another National
Park, Donald Perkey (““Perkey”), and other cost increases.

Defendant presented testimonial and documentary evidence
that the budgetary figure Lucero was given to work with meant that a
total of three temporary employee positions would have to be
eliminated in fiscal year 1995. Bryan Harry (“Harry”), the NPS Pacific
Area Director in 1994, testified that when funds are short, temporary -
employees must be discharged prior to permanent employees pursuant
to federal civil service regulations, and that terminations of temporary
employees for lack of funds was not unusual. Park Superintendent
Donald Reeser (“Reeser”) testified that numerous temporary
employees were let go by the Park between 1988 and 1994 for

A-54

financial reasons. Lucero decided to terminate Plaintiff, Havelin, and
Jimmy Korn (“Korn”), and all three received termination letters.

Lucero testified that he used the little money he had in the
budget for temporary employees to keep Havelin and Kom on the
payroll for the first four pay periods in fiscal year 1995. He testified
that Plaintiff was not kept on the payroll at the beginning of fiscal year
1995 like Korn and Havelin, because Plaintiff was still out on
indefinite requested stress leave and had not indicated that he was able
to return to work. Plaintiff was terminated effective September 30,
1994. Lucero testified that the scheduled November 1994 terminations
of Korn and Havelin did not take place because the Park received
notice in November that the expected loss of $50,000 from Puu’s
buyout did not occur because NPS headquarters failed to record the
buyout. Lucero and Reeser both testified that the temporary
maintenance position held by Plaintiff has not been filled since his
termination because they have never had the funds to do so.

Plaintiff disputed Defendant’s budgetary explanation for
terminating Plaintiff through cross-examination of Defendant’s
witnesses, and by calling as a witness Audrey Cordeiro (“Cordeiro”’),
who was a Park administrative assistant during 1993 and 1994 whose
responsibilities included handling of budgetary and financial matters.
Cordeiro testified as a lay witness who was familiar with general Park
budgetary matters, but she was on maternity leave from approximately
October 1994 though June or July 1995 and-did not provide any
testimony specifically related to the 1995 fiscal year budget. Cordeiro
testified that she learned that, at times, monies had been shifted
between Park divisions, but that she could not recall any specific
instance of a shift of monies between divisions from 1990 to October

A-55

1994. Cordeiro also testified that she was not sure if Plaintiff was
replaced after he was terminated.

Between November 1993 and January 1995, Plaintiff filed
three formal and several informal EEO complaints with the NPS
involving claims of retaliatory treatment by Plaintiff's co-workers and
supervisors. After considering the evidence presented at trial, the jury
found that Plaintiff’ s co-workers did not subject Plaintiff to an abusive
or hostile work environment. The jury also found that Defendant’s
decision not to give Plaintiff requested leave status for a half day on
May 26, 1994, after Plaintiff left work without Lucero’s permission,
did not result from retaliation by Defendant for Plaintiff's EEO
activities. The jury did find, however, that Plaintiff was terminated by
the Park in retaliation for having engaged in protected activities. None
of the EEO complaints submitted by Plaintiff to the NPS contained an
allegation that he was terminated from his temporary position in
retaliation for having engaged in Protected activities. The sole EEO
complaint filed by Plaintiff after his termination, dated January 24,
1995, involved a yearly performance evaluation and was resolved by
Defendant’s withdrawal of the challenged evaluation.

ANALYSIS
1. DEFENDANT’S RULE 12(h)(3) MOTION TO DISMISS
On July 7, 1997, Defendant lodged a Rule 12(h)(3) Motion to
Dismiss (“Defendant’s Motion to Dismiss”) along with an Ex Parte
Motion to Shorten Time to Hear Defendant’s Rule 12 (h)(3) Motion to

Dismiss (“Defendant’s Ex Parte Motion’’). On July 17, 1997, Plaintiff
filed a Memorandum of Law in Opposition to Defendant’s Rule

A-56

12(h)(3) Motion to Dismiss (“Plaintiff's Opposition to Defendant's
Motion to Dismiss”) . On July 28, 1997, Defendant filed a Reply to
Plaintiff's Opposition to Rule 12(h)(3) Motion to Dismiss. On
September 10, 1997, the Court denied Defendant’s Ex Parte Motion
and indicated it would rule on Defendant’s Motion to Dismiss without
a hearing, pursuant to Local Rule 220-2(d). For the reasons set forth
below, Defendant’s Motion to Dismiss is GRANTED.

Defendant moves the Court for an order setting aside the jury’s
verdict on Plaintiff's claim of retaliatory employment termination, due
to the Court’s lack of subject matter jurisdiction over that claim
stemming from Plaintiff's failure to include that claim in his EEO
complaints filed with the NPS. Defendant’s Motion to Dismiss is
based on Fed. R. Civ. P. 12(h)(3) , which permits dismissal of an
action or claim at any time when it appears that the Court lacks
jurisdiction over the subject matter thereof. Defendant’s Motion is
properly before the Court because “[i]t is elementary that the subject
matter jurisdiction of the district court is not a waivable matter and
may be raised at anytime by one of the parties, by motion or in the
responsive pleadings, or sua sponte by the trial or reviewing court."
Emrich v. Touche Ross & Company 846 F.2d 1190, 1194 n.2 (9th Cir.
1988) (citations omitted); see also Carlislev. U.S.,__U.S.__, 116
S. Ct. 1460, 1470 (199

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1022%3A1. Public record. Not legal advice.