Appendix — Hashimoto v. Dalton
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No. 97164406 56197
OFFICE OF THE CLERK
In The
Supreme Court of the United States
OCTOBER TERM, 1997
Barbara Mutsuko HASHIMOTO
Petitioner
vs.
John DALTON, Secretary of the Navy
Respondent
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Ninth Circuit
APPENDIX
Barbara Mutsuko Hashimoto
Pro Se
1538 Ala Amoamo
Honolulu, Hawaii 96819
Telephone No.: (808) 839-1507
APPENDIX
Appendix A - ORDER RE DEFENDANT'S MOTION FILED 1/21/92 TO
DISMIS OR IN THE ALTERNATIVE FOR SUMMARY JUDGEMENT
PAIN BASIE RE ARO RT CRIES SIRS a EP Oe IT SOE SAR TES MEDS ANNE DEON TOO la
Appendix B - GRANTING AND DENIAL OF REQUEST TO REOPEN BY
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
WASH., D.C. 20507
eee eee eee eee EOE E SEES SESE SES ESE SEES S SESS SESS ESES SESE SESESESESESEESESO ESSE SES ESESSS SESS ESESEESSEH OSES ESSE SEES ESET EES
Appendix C - DISTRICT COURT ORDER VACATING JURY VERDICTS
AND DECISION AND FINDINGS OF FACT AND CONCLUSIONS
OF LAW
Appendix D - JUDGEMENT ORDER OF THE UNITED STATES COURT
OF APPEALS FOR THE NINTH CIRCUIT DATED JULY 3, 1997
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Appendix E - UNITED STATES NINTH CIRCUIT COURT OF APPEALS
DENIAL OF SECRETARY OF NAVY’S PETITION FOR REHEAR-
ING
Appendix F - REVOCATION OF AUTHORITY TO SIGN CORRESPON-
DENCE DATED 30 NOV 84
Appendix G - ESTABLISHMENT OF COMPUTER SUPPORTED MAN-
AGEMENT INFORMATION SYSTEM (MIS) FOR MARINE CORPS
CLUB AND RECREATION PROGRAMS
POPES SSCS ESSERE SSESCOEEESSOOSSOSSESSEEESESESSEHSES SHEESH SOSSSOSESOSOSSESSSSSESSHSOSSSHSSOSSSOSSSSOSODSOSOG OS OOSOS
29, 1985
PTTTerTeTTTT TTITTITIITTTiTiriiriiiiitt de
Appendix I - WITHHOLDING OF WITHIN GRADE INCREASE
DATED APR 23, 1986
Appendix J - IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF HAWAII; TRANSCRIPT OF PROCEEDINGS; OCTO-
BER 20, 1993, pp. 109-110; PARTIAL TRANSCRIPT OF RUTH
CHRISTENSEN.
Appendix K - CAPT. LOWERY’S INSTRUCTION ASSUMING RESPON-
SIBILITIES FOR APPROPRIATED FUNDS FOR MWR.
Appendix L - MEMO FROM BARBARA HASHIMOTO TO CAPT.
HINMAN REGARDING NON-APPROPRIATED FUNDS DISCREP-
ANCIES IN FINANCIAL STATEMENTS COMPLETED BY RUTH
CHRISTENSEN UA-1I1
Appendix M - COMMANDING OFFICER RELIEVING BARBARA
HASHIMOTO GS-7 OF ALL INVENTORY AND PLANT ACCOUNT
EQUIPMENT AND APPOINTING CHARLES LEVESQUE UA-9.
DATED 12 NOV. 1985
Appendix N - IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF HAWAII; TRANSCRIPT OF PROCEEDINGS; OCTO-
BER 20, 1993, pp. 55-57 PARTIAL TRANSCRIPT OF HAROLD
NAKABAYASHI. CROSS EXAMINATION SHOWING HE DID TAKE
COMPENSATORY TIME.
Appendix O - PARTIAL HEARING TRANSCRIPT OF CAPT. LOWERY
FROM EEOC-SFDO ON WED JULY 12, 1989, PP 537-539. DURING
CROSS-EXAMINATION, LOWERY RESPONDS THAT A TURN-
OVER FOLDER IN THE FORM OF A LETTER OF INSTRUCTION
IS CONFUSING TWO TERMS, EXACTLY WHAT PLAINTIFF HAD
QUERIED CAPT. HINMAN ABOUT.
Appendix P - DAILY ROUTINE MEMO FROM HINMAN TO B.
HASHIMOTO
Appendix R - MERIT SYSTEM PROTECTION BOARD APPEAL. ITEM
25. “HAVE YOU FILED A DISCRIMINATION COMPLAINT WITH
YOUR AGENCY OR ANY OTHER AGENCY? YES (ATACH COPY)”
eee ei eee eT a 7 2 saceck denniabiuposnupiobinnannbiacaperaeebnenmievesatas 92a
Appendix S - REQUEST FOR TURNOVER FILE AS A “LETTER OF IN-
STRUCTION” (FORMERLY HANDWRITTEN)
Appendix T - DEPARTMENT OF THE NAVY PERFORMANCE AP-
PRAISAL (BPAP) ELEMENT NUMBER AND COLUMN A
NAVY
Appendix V - MEMO FROM CAPT. HINMAN STATING PLAINTIFF
AWAY FROM WORK FOR 3 WEEKS AND THEN REFERRING TO
A 10 FEB DISCUSSION WITH HER THAT WAS WITHIN THE 3
WEEKS
la
Appendix A
ORDER RE DEFENDANT’S MOTION FILED 1/21/92 TO DISMISS
OR IN THE ALTERNATIVE FOR SUMMARY JUDGEMENT
FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
AUG 17, 1992
at 2 o'clock and _Q min. S/W.CHIN M.
WALTER A. V.H. CHINN, CLERK
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT LAW OF HAWAII
BARBARA MUTSUKO HASHIMOTO
Plaintiff
V.
H. LAWRENCE GARRETT III
SECRETARY OF THE NAVY
Defendant
CIVIL NO. 91-00081 ACK
2a
Appendix A
ORDER RE DEFENDANT'S MOTION FILED 1/21/92 TO DISMISS
OR IN THE ALTERNATIVE FOR SUMMARY JUDGEMENT
This matter having come on for hearing on July 13, 1992, at 9:00 am
before the Honorable Alan C. Kay, United States District Judge, on defendant's
motion filed 1/21/92 to dismiss or in the alternative for summary judgment,
and Robert A. Smith appearing for plaintiff and Theodore G. Meeker, Assistant
U.S. Attorney, appearing for defendant, and the Court having considered the
written and oral arguments of the parties and being fully advised in the
premises,
NOW, THEREFORE, it is hereby ORDERED as follows:
A. THE MOTION TO DISMISS.
Defendant’s motion alleges that plaintiff failed to raise the following
claims administratively: (1) denial of overtime, (2) denial of leave
compensation, (3) false performance evaluations, and (4) improper position
description. In evaluating whether or not a claim was raised administratively,
the Court must examine whether the administrative process was bypassed.
Ong v. Cleland. 642 F.2d 316, 319 (9th Cir. 1981). In the present case, the
administrative record reveals the plaintiff did raise these claims at the
administrative level. See R. 120 plaintiff's 4/3/86 written EEO Complaint in
Case | (EEO Case | Ex 13). The Court finds that plaintiff presented the
particular claims in question to the administrative agency, and therefore the
Court DENIES defendant's motion in this respect.
2.
Defendant argues that plaintiff's claims based on Major Lowery’s
disclosure to Mr. Satake of plaintiff's EEO activity should be dismissed for
several reasons. First, defendant argues that plaintiff has not established a
causal connection between the Army's decision not to hire her and Major
Lowery’s unlawful disclosure. Considering all of plaintiff's allegations as
true, as the Court must on a motion to dismiss, plaintiff has sufficiently alleged
a causal connection between Major Lowery’s statements about her EEO
activity and the Army’s decision not to hire her. The government noted
testimony of Mr. Satake where he stated that the EEO information was not a
3a
Appendix A
cause; and if that is the case, perhaps on summary judgment or at trial the
government will prevail on the issue of causation in Case 2.
Defendant also argues that plaintiff's claims are moot. However, in order for
a claims to be moot, plaintiff must be afforded compiete relief. Although the
ORA’s decision was favorable to plaintiff, it did not award plaintiff back pay
or order the Navy to provide her a comparable job; and this Court reviews de
novo on appeal. Because plaintiff might be entitled to further relief, the Court
finds that plaintiff's claims are not moot.
Therefore the Court DENIES defendant's motion as to plaintiff's
Case 2 claims.
Plaintiff argues that this Court has jurisdiction over her reduction in
force claims because plaintiff did not pursue those claims before the MSPB
but instead chose to pursue them with the EEOC. However, in Hays v
Postmaster General, 868 F.2d 328 (9th Cir. 1989), the Ninth Circuit held that
a plaintiff may choose to bring a mixed case either before the MSPB or the
EEOC, but not both. When a plaintiff institutes an action before the MSPB
but fails to raise a discrimination claim there, a district court lacks jurisdiction
to hear the claim.
In this case, as in Hays, plaintiff attempted to bifurcate her
discrimination and nondiscrimination claims before the EEOC and the MSPB,
respectively. In such circumstances, all claims must be raised before the
MSPB or are jurisdictionally barred. Under the authority of Hays, the Court
must dismiss plaintiff’s reduction in force claims from the complaint. And,
of course, the plaintiff had failed to appeal from the MSPB ruling
Therefore, as to plaintiffs reduction in force claims, defendant's
motion to dismiss is GRANTED.
B. The MOTION FOR SUMMARY JUDGMENT.
Defendant argues that there is no genuine issue of material fact
regarding the legitimacy of the Navy’s employment actions against plainuff.
Because an employer's true motives are difficult to discern, courts generally
disfavor summary judgment in Title VII cases. In order to establish an issue
of material fact in a Title VII case, a plaintiff may present actual evidence of
the employer's discriminatory motive. When a plaintiff chooses this method
of establishing a prima facie case, very little evidence is necessary to withstand
a motion for summary judgment. Lowe vs, City of Monrovia, 775 F.2d 998
4a
Appendix A
(9th Cir. 1986). The Ninth Circuit has stated that any indication of
discriminatory motive, including an employer's reaction to an employee's
protected activity, is sufficient to preclude summary judgment.
In this case, plaintiff has alluded to the ORA’s finding of reprisal by
the Navy, through the actions of Major Lowery. Additionally, the ORA found
Major Lowery’s testimony unworthy of credence on the reprisal issue. These
facts are sufficient to raise a genuine issue of material fact regarding the
legitimacy of the Navy’s employment actions against plaintiff.
Therefore the Court DENIES defendant's motion for summary judgment.
DATED: Honolulu, Hawaii this AUG 17 1992
s/ Alan C. Kay
United States District Judge
APPROVED AS TO FORM:
s/ Theodore G. Meeker
‘Theodore G. Meeker
Assistant U.S. Attorney
Sa
Appendix B
GRANTING AND DENIAL OF REQUEST TO REOPEN
BY U.S. EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION, WASH., D.C. 20507
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Washington, D.C. 20507
Barbara M. Hashimoto, ) ) Request No. 05900823
Appellant, ) ) Appeal, No. 01900697
GRANTING AND DENIAL OF REQUEST TO REOPEN
INTRODUCTION
On June 6, 1990, Barbara M. Hashimoto (hereinafter referred to as the
appellant), through her Representative, timely initiated a request to the Equal
Employment Sen Commission (EEOC) to reopen and —— the
decision in é Vv aw
Department of the Navy, EOCC Appeal No. 01900697 (May 8, 1990). EEOC
Regulations provide that the Commissioners may, in their discretion, reopen
and reconsider any previous decision when the party requesting reopening
submits written argument or evidence which tends to establish one or more
of the three criteria prescribed by 29 C. F . R. §1613.235(b) .' The appellant
bases her request on 29 C.F.R. §1613.235(b)(2) (the previous decision involved
an erroneous interpretation of law or regulation or misapplication of established
policy), and 29 C.F.R.§1613.235(b)(3) (the decision is of such exceptional
nature as to have effects beyond the actual case at hand). For the reasons set
forth herein, the appellant’s request is granted in part and denied in part.
ISSUE PRESENTED
The issue presented herein is whether the Commission's previous decision
correctly determined that appellant was not subjected to discriminatory and
retaliatory treatment in connection with the allegations raised in her complaints
dated April 3, 1986 and October 4, 1988.
'The Vice-Chairman of the Commission has recused herself from deciding
this matter.
6a
Appendix B
BACKGROUND
Appellant filed two formal EEO complaints with the agency: In the first
complaint dated April 3, 1986, appellant alleged that she had been
subjected to race (Japanese), and sex (female) discrimination and reprisal
(prior EEO activity) when she was:
(a) suspended for five days on January 27, 1986, due to her purported
refusal to obey her supervisor's written and verbal orders;
(b) notified on February 18, 1986, that her within grade increase
(WGI) would be withheld due to her alleged unsatisfactory
performance;
(c) issued a notice of suspension for 14 calendar days on February
18, 1986, for failing to obey orders; and
(d) notified on February 18, 1986, that her position would be
abolished.’
In her second complaint dated October 21, 1988, appellant alleged that she
was subjected to reprisal (prior EEO activity) when the Morale Welfare and
Recreation Director (hereinafter MWR Director), gave her a negative character
reference and divulged that she had engaged in EEO activity to a prospective
employer from the Department of the Army (hereinafter Army), in an attempt
to blackball her from obtaining gainful employment. In response to appellant's
complaints, the agency issued proposed agency decisions in July of 1988 and
February of 1989, proposing findings of no discrimination or reprisal.
Appellant was dissatisfied with these proposed agency decisions and at her
request, her complaints were forwarded to an Administrative Judge (AJ) of
the EEOC for a hearing.
At the hearing stage, appellant’s complaints were consolidated and the (AJ)
rendered a recommended decision (RD) finding no discrimination or reprisal.
Specifically, the AJ found that appellant had failed to show by a preponderance
of the evidence
?As noted in our previous decision, since the abolishment of appellant’s
position was due to a reduction in force (RIF) action, allegation (d) supra fell
Ta
Appendix B
within the jurisdiction of the Merit Systems Protection Board (MSPB).
Consequently, the Commission will not render a decision on allegation (d).
Further, we note that the MSPB has already rendered a decision on this
allegation that her five day suspension was taken for unlawful reasons.
Similarly, the AJ found that appellant's 14 day suspension was proper. In
connection with this allegation, the AJ also found that the testimony of
appellant’s first line supervisor (the Special Service Officer or SSO) was more
credible than her testimony. Further, the AJ found that appellant experienced
performance problems which justified the denial of her WGI. Additionally,
the AJ found that although it was unfortunate that the MWR Director
mentioned appellant’s EEO activity in his contacts with the Army,
his mentioning of this fact was not retaliatory in nature. Moreover, the AJ
found that the Supervisory Budget Analyst, Army selecting official, credibly
testified that his non-selection of appellant was based solely on her past
disciplinary record. In its final agency decision (FAD) dated October 23, 1989,
the agency adopted the RD of the AJ.
In its previous decision, the Commission affirmed the FAD. With respect to
her first complaint, the Commission found that appellant failed to establish a
prima facie case of discrimination in connection with her suspension or denial
of her GI. Further, the Commission found that appellant did not establish a
prima facie case of reprise, in connection with any of the allegations she
raised in her first complaint because she had not filed any prior EEO
complaints. With respect to appellant's second complaint, the Commission
found that appellant established a prima facie case of reprisal, but had failed
to show that the reasons articulated by the agency for its actions were
pretextual. Consequently, the Commission did not ascribe any unlawful
motives to the actions of the MWR Director.
Appellant began her tenure with the agency on April 2, 1984, as a Budget
Assistant GS-07. As a result of RIF procedures, appellant was separated from
the agency on June 2, 1986. From all indications, appellant’s brief tenure
with the agency was a turbulent one. Besides her suspension, appellant was
counseled, given a letter of caution and formally reprimanded for her conduct.
The letter of caution was issued to appellant on February 5, 1985, due to her
refusal tc carry out the verbal and written instructions of the SSO’. On May
21, 1985, appellant contacted an EEO Counselor regarding
‘The letter of caution noted that appellant was insubordinate because she had
failed to comply with the SSO’s written and verbal order to meet with him
daily and to respond to an auditor’s Report. Ex. 19.
8a
Appendix B
her title, her position description, and he, performance appraisal. Although
appellant indicated that her problems in these areas were not really an EEO
matter, the EEO Counselor characterized her contact as a “Potential EEO
Complaint.” Both the MWR Director and the SSO were made aware of
appellants contact with the EEO office.
According to appellant, she worked on July 28, 1984, which was a Saturday.
Although she was told that she could not earn overtime for that day, appellant
averred that she was told that she was entitled to compensatory time. It was
not until over a year later, in November of 1985, that appellant claimed credit
for that day on her timecard. Appellant was told by the SSO to remove the
time from her timecard and she refused. Appellant stated that she would not
have attempted to recoup this time except that she was being treated badly
and she wanted to express her discontent. It is also established that in
November of 1985, appellant was directed by the SSO to deliver paychecks
to the library and she refused. Appellant averred that she inquired why she
had to deliver paychecks to the library when there as a driver who could do it
faster. Appellant also averred that there were no paychecks to be delivered on
the d ay in question.
By memorandum dated December 3, 1984, the SSO directed appellant to
provide him with daily briefings in order to provide adequate supervision of
funds. Appellant refused to attend these meetings, describing them, inter alia,
as daily combat between her and the SSO. Appellant also testified that no
other employee was required to brief the SSO on a daily basis. (Hearing
Transcript [H.T.] p. 298). On cross-examination, however, appellant conceded
that two other employees under the direct supervision of the SSO (a military
staff person and the civilian Recreation Director), gave daily briefings to the
SSO. (H.. pp. 299-300).
It is also established that appellant was ordered on December 1, 1985, to
prepare a turnover file for the Fiscal Clerk position and she failed to carry out
this order. In response to this charge, appellant averred that she was never
instructed to prepare a turnover file, but rather a Letter of Instruction*: With
respect to her failure to prepare the Letter of Instruction, appellant argued
that she needed, but did not receive more time, clarity,
‘The memorandum directing appellant to prepare the turnover file indicated that
it should be prepared as a “Letter of Instruction.” (Ex. 1, File 1).
9a
Appendix B
and guidance from the SSO.* After appellant was separated from the agency,
she submitted an application for a Budget Clerk position with the Army.
According to the Supervisory Budget Analyst (SBA) of the Army, based on a
negative character reference he received from the MWR Director, he decided
not to hire appellant. However, the SBA indicated that appellant's EEO activity
was not a factor in his decision not to hire her. (H.T. p. 386).
The MWP Director conceded in his testimony that he told the SBA of
appellant’s EEO activity while she was employed at Camp Smith. However,
the Director testified that he made mention of appellant’s EEO activity because
appellant had challenged her suspension on EEO grounds and an Investigator
had found that her allegations of discriminatory treatment were unfounded.
(H.T. pp. 510- 511). Additionally, the MWR Director testified that he informed
the SBA that appellant had another complaint pending investigation. Id. Itis
also established that based on a recommendation of the MWR Director, the
SBA sent him a notice of employment inquiry so that he (the MWR Director)
could cut his negative character reference of appellant in writing. (H.T. p.
512).° Nevertheless, the Director testified that appellant's prior EEO activity
did not play a role in the type of reference that he provided to the Army. (H.T.
p. 515).
Contrary to his testimony at the hearing, in his affidavit to the EEO Investigator,
the MWR Director averred that he had not discussed appellant's EEO activity
with the SBA. (Ex. 7 p. 2, file 2). When this inconsistency in his testimony
was brought to his attention, the MWR Director indicated that the affidavit,
was written by the EEO Investigator and not by him. (H.T. p. 509-10).
Although he signed and made several corrections of his affidavit, the MWR
Director averred that he simply overlooked this portion of the document. (H.T.
p. 510). At the hearing a Personne! Staffing Specialist (PSS) of the Army
testified that the MWR Director called her office and
‘The memorandum directing appellant to prepare the turnover file also
identified two coworkers who could assist her in completing this task. The
memorandum also gave appellant a month to complete the tumover file. (Ex.1,
File 1).
° As it turned out, the MWR Director was mistaken in his belief that appellant's
first complaint had been fully adjudicated. When the MWR Director spoke to
the SBA in August of 1988, appellant's first complaint was still in the
investigatory stage.
10a
Appendix B
recommended that the Army not hire appellant. (H.T. p. 53-4). The PSS
indicated that she found the MWR Director’s message to be unusual because
it was unsolicited. In his testimony, the MWR Director admits that he called
the Army’s civilian personnel office in an attempt to locate the SBA. (H.T. p.
513). However, he denied that he told the PSS that the Army should not hire
appellant. (H.T. p. 530). Rather, the MWP Director averred that he told the
PSS that he had negative information regarding the appellant which he wanted
to put in writing. (H.T. pp. 530-1).
In an affidavit associated with appellants first complaint (designated as Agency
No. 89-239), the MWR Director was asked by the EEO Investigator to
“[p]lease give the appropriate date and circumstances by which [he] became
aware of [appellant’s] participation in protected EEO activity.” In response
to this question, the MWR Director responded that he did not “know what
EEO protected activities’ are ...” (Ex. 12 p. ,0 File 1). At the hearing, the
MWR Director was asked by the AJ if he now knew what protected EEO
activities were and the MWR Director indicated that he did not. (H.T. p.
543). In an earlier affidavit associated with appellant’s second complaint
(designated as Agency No. 89-240), however, the MWR Director averred
that he “believed in the EEO process,” which he equated with the military
MASO process. According to the MWR Director, the MASO process, was a
mechanism which he himself had used in the past. (Ex. 7 File 2).
In her request to reopen (RTR), appellant argues that the Commission’s
previous decision is flawed because it relied solely on the tripartite analytical
scheme established in McDonnell Douglas Corporation v. Green, 411 U.S.
792 (1973) and its progeny, while it ignored the analytical framework and
standards established in more recent Supreme Court cases such as Price
Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989). In this respect appellant
argues that she was entitled to bypass the McDonnell Douglas analytical
framework with respect to her first complaint because there was direct
evidence. Of discrimination. The direct evidence of discrimination, according
to appellant, lies in the fact that both the SSO and the MWR Director allegedly
submitted perjured testimony.
According to appellant, the Commission’s previous decision failed to take
cognizance of this perjured testimony because it engaged in a “slavish
adherence’ to the testimony of the agency’s officials. Further, appellant argues
the Commission’s previous decision erroneously assumes that perjury can
only be shown through documentary evidence or testimony from other
lla
Appendix B
witnesses, instead of through the internal inconsistencies and contradictions
of the agency officials’ testimony. In the alternative, appellant argues that if
the McDonnell Douglas analytical framework was to be employed, she met
her burden of showing pretext because she succeeded in showing that the
testimony of the SSO and the MWR Director was unworthy of credence.
Similarly, with respect to her second complaint, appellant argues that the
Commission failed to find that the reasons articulated by the agency were
pretextual because it ignored the contradictions and inconsistencies in the
testimony of the agency’s witnesses. Appellant also characterizes her second
complaint as a mixed motives case and objects that the Commission did not
rely on the analytical framework established in Price Waterhouse in discussing
this portion of her consolidated complaint.
In response to appellant’s RTR, the agency argues that appellant fails to raise
any issues of fact or law which are deserving of the Commissioners’ attention.
The agency also argues that appellant’s RTR is a mere reiteration of the
arguments previously rejected by the Commission. Accordingly, the agency
urges the Commission to deny appellant's RTR.
ANALYSIS AND FINDINGS
Upon reviewing appellant’s RTR, as well as the remainder of the record, the
Commission finds that there is insufficient evidence for us to disturb our
previous finding that appellant was not subjected to retaliatory or
discriminatory treatment in connection with the personnel actions challenged
in her first complaint. With-h respect to her second complain-, however, the
Commission finds that there is sufficient evidence on record showing that
appellasit was subjected to retaliatory treatment. It is for these reasons, as
well as for the reasons discussed below that we grant appellant’s RTR in
connection with her second complaint and deny her RTR in connection with
her first complaint.
FIRST COMPLAINT
Although we affirm the results in our previous decision, we disagree with the
finding therein that appellant did not establish a prima facie case of reprisal
with respect to the allegations raised in her first complaint. The Commission
has interpreted §704 (a) of Title VII-in a very broad manner to provide
protection for employees who engaged in oppositional or participatory Title
lanl
12a
Appendix B
Vil activity. See EEOC Compliance Manual §614.1 (a). Among other things,
the Commission considers the filing or threatening to file an EEO complaint
to be oppositional activity,. See EEOC Compliance Manual §614.5 (b) (1):
Gifford v. Atchinson, Topeka and Santa Fe Railway Co., 685 F.2d 1149, 1156
n. 3 (9th Cir. 1982).
Despite appellant's failure to file an EEO complaint, when she contacted the
EEO Counselor in May of 1985, she clearly meant for her contact to put the
SSO on notice that she would file an EEO complaint if he did not redress
what she perceived to be deficiencies in her working conditions. This is
evidenced by the fact that she promptly notified the SSO of her contact with
the EEO Counselor. Moreover, appellant’s contact with the EEO Counselor
in May of 1985 was brought to the attention of the MWR Director who was
given a copy of the report written by the EEO Counselor following his meeting
with appellant. The EEO Counselor identified this report as appellant's
“Potential EEO Complaint.” Given these facts, as well as the close proximity
of time between appellant’s EEO activity and the issuance of her suspension
notice in December of 1988, the Commission finds that appellant established
an initial crime pnma case of reprisal in connection with the allegations raised
in her first complaint. See Mitchell v. Baldrice, 759 F. 2d 80 (D.C. Cir. 1985).
With respect to the remaining bases of the first complaint, we_concur with
our previous finding that there is very little evidence that would support a
finding that appellant established an initial prima facie case of discrimination.
Also, or the reasons discussed infra, we disagree with appellant that there is
direct evidence of discrimination in her first complaint. However, in light of
the fact that this first complaint was subjected to an EEO hearing, and the
agency articulated reasons for its challenged actions, we find that, rather than
dispose of this complaint on the grounds that appellant failed to establish a
crime facie case of discrimination, the Commission should have proceeded
to determine whether the reasons articulated by the agency were legitimate
Or a mere pretext or discrimination. See United States Postal Service Board
of Governors v. Aikens, 460 U.S. 711 (1983).
With respect to the allegations raised in her first complaint, the agency fully
established that appellant's five day suspension was proper because: (1) she
disobeyed the SSO and refused to deliver paychecks to the library, (2) she
refused to provide daily briefings to the SSO; and (3) she refused to amend
her timecard. Similarly, the agency argued that appellant’s 14 day suspension
was proper because she refused to comply with the SSO’s order to prepare a
turnover file. Further,: the agency presented evidence to show that the denial
vee
13a
Appendix B
of appellant’s WGI was proper because appellant's performance was deficient
in that she failed to (1) submit her reports in a timely manner; (2) conduct
quarterly inventories; and (3) effectively train managers.
Appellant attempted to show the reasons articulated by the agency for its
actions to be pretextual by, inter alia, challenging the need, usefulness, or
legality of the SSO’s action. The AJ found, however, that most of appellant's
testimony in this regard was not credible and found the opposing testimony
of the SSO to be more worthy of credence. Although appellant argued on
appeal that the AJ's findings are not deserving of deferential treatment on
review, we note that it is the Commission’s policy to defer to the credibility
findings of the AJ absent evidence of clear error. See Ronald F. Kina v.
Department of Justice, EEOC Request No. 05900198 (August 20, 1990). We
find no evidence of record that would cause us to reverse the credibility findings
made by the AJ with respect to appellant's first complaint. Consequently, we
find that appellant failed to show by a preponderance of the evidence that the
reasons articulated by the agency for the challenged actions in her first
complaint were pretextual.
SECOND COMPLAINT
As in her first complaint, appellant argued that there was direct evidence of
discrimination in her second complaint which triggered the burdens of proof
established in Price Waterhouse. In making this argument, appellant appears
to equate untruthfulness with direct evidence of discrimination. However the
Commission does not consider untruthfulness, even of a repeated nature, to
be tantamount to direct evidence of discrimination. Untruthfulness goes to
the question of credibility and the showing of pretext. See Texas Department
of Community Affairs v. Burdine, 450 U.S. 248 (1981). Although we find
that the analytical scheme articulated in ?rice Waterhouse is not an appropriate
paradigm to analyze appellant’s second complaint, we find that under the
traditional tripartite test established by McDonnell Douglas and its progeny,
appellant has succeeded in showing that the negative character reference given
by the MWR Director to the Army was retaliatory in nature. In the discussion
that follows, we will examine the evidence on record which supports our
finding of reprisal.
In keeping with the ruling in Aikens, as well as our previous findings that
appellant established prima facie case of reprisal in connection with her second
complaint, we will focus our discussion on whether the reasons articulated
by the MWR Director for his action are legitimate, or merely a pretext for
14a
Appendix B
reprisal. There is some inconsistency in the MWR Director’s testimony
regarding his reference to appellant’s EEO activity in his communications
with the SBA. In his affidavit, the MWR Director indicated that he made no
mention of appellant’s EEO activity to the SBA. At the EEO hearing, however,
the MWR Director concedes that he did discuss appellant’s EEO activity
with the SBA.
Although he did not give an express reason as to why he made mention of
this fact to the SBA, his response suggests that he discussed this matter because
appellant had challenged the agency’s disciplinary actions in the EEO forum,
but an investigation had purportedly found that her allegations of
discriminatory treatment were unfounded. (H.T. p. 511). With respect to his
written character reference, in which mention was also made of appellant’s
EEO activity, the MWR Director indicated that his aim was to be as accurate
and thorough as he possibly could. (Ex. 7 p.2 File 2).
As found by the AJ, the mere act of the MWR Director mentioning appellant’s
EEO activity to the SBA may not have been sufficient to support a finding of
reprisal. Given the MWR Director’s active role in reporting appellant's EEO
activity and in recommending that he be given the opportunity to put his
negative character reference of appellant in writing, however, we find that he
went beyond what was required of him as a recommending official. Further
evidence of the activist role taken by the MWR Director in this matter is his
call to the Army’s civilian personnel office volunteering to give negative
information about appellant.
Added to the activist role taken by the MWA Director in his efforts to prevent
appellant from being hired by the Army, are the numerous inconsistencies in
his testimony. As aforementioned, the MWR Director had previously testified
that he did not discuss appellant’s EEO activity with the SBA. However, at
the hearing he denied making this statement and indicated that it was made
instead by the EEO Investigator. Given that the MWR Director signed and
made several corrections to the affidavit that contained this inaccurate
statement, we do not accept his disavowal of having made it as being credible.
We also find inconsistent the fact that the MWR Director indicated that his
written character reference of appellant was well thought out and that he was
concerned with accuracy and thoroughness when he wrote this document. In
addition, he erroneously reported therein that appellant’s allegations of
discriminatory treatment were found to be unfounded. At the time that the
MWR Director completed the letter of inquiry from the Army, appellant’s
15a
Appendix B
complaint was still at the investigatory stage. Another glaring inconsistency
on record is the fact” that the MWR Director went back and forth on whether’
he understood .ne meaning of the term protected EEO activity.
In light of the inconsistencies in the MWR Director’s testimony, we find that
he was not a credible witness and that his articulated reasons for discussing
appellant’s EEO activity with the SBA are unworthy of credence.
Supra. Therefore, we find that the MWR Director’s character reference of
appellant to the Army was tainted with retaliatory animus. In further support
of this finding, we note that the MWR Director was overly zealous in his
efforts to prevent the Army from hiring appellant. In reaching this finding,
we recognize that we are reversing the findings of our previous decision, as
well, as that of the AJ. However, we find that neither the recommended decision
of the AJ nor our previous decision went far enough in considering the
inconsistent testimony of the MWR Director.
As a final matter, the Commission notes that although we find the MWA
Director was not a credible witness, there is nothing on record which would
allow us to make a similar finding with respect to the SBA. The evidence
shows that even absent the retaliatory actions of the MWR Director, appellant
would not have been selected by the SBA due to her prior disciplinary record.
The AJ found the SBA’s testimony in this regard credible. (H.T. pp. 668-9).
The evidence on record firmly supports this credibility finding of the AJ.
Consequently, we will not disturb it.
In summary, the Commission finds that appellant’s RTR has failed to show
that the Commission erred in previously finding that she was not subjected to
discriminatory treatment in connection with her first complaint designated as
Agency No. 89-239. However, with respect to appellant’s second-complaint,
designated as Agency No. 89-240, the Commission finds that appellant has
succeeded, through her RTR, to show that she was subjected to reprisal.
Accordingly, that portion of appellant’s RTR dealing with her first complaint
is denied, while that portion of her request dealing with her second complaint
is granted.
CONCLUSION
After a review of appellant’s request to reopen, the agency’s response thereto,
the previous decision, and the entire record. the Commission finds the”
appellant’s request fails to meet the criteria of 29 C.F.R. §1613.235(b) with
16a
Appendix B
respect to her first complaint designated as Agency No. 89-239, but that it
meets the criteria of 29 C.F.R. §1613.235(b) with respect to her second
complaint, designated as Agency No. 89-240. Accordingly, it is the decision
of the Commission to grant appellant’s request with respect to her second
complaint, but to deny her request with respect to her first complaint. In
keeping wish’ this finding, the Commission also reverses those portions of
the previous decision and the FAD which are inconsistent with the findings
herein. This decision constitutes the final decision of the Commission in this
matter. There is no further right of administrative appeal from the decision of
the Commission on this request to reopen. In order to remedy its retaliatory
actions against appellant, the agency shall take the actions ordered below.
ORDER
1. Accordingly, that portion of the agency’s decision which found that
appellant was not subjected to reprisal in connection with her second
complaint designated as Agency No. 89-240, is hereby REVERSED.
Effective immediately, the agency shall cease and desist its practices
of notifying prospective employers of itsemployees’ or former
employees’ participation in protected EEO activity.
Moreover, the agency is ordered to remove from appellant’s personnel
files, the negative character reference given by the MWRDirector
to the Army, which is dated August 10, 1988.
Further, the agency is ordered to provide EEO training to the MWR
Director and to all of the Supervisory staff of the Morale Welfare and
Recreation Department of Camp Smith within 180 calendar days of
its receipt of this decision.
2. The agency is directed to post at its facility at Camp Smith copies of
the attached notice. Copies of the notice, after being signed by the
agency’s duly authorized representative, shall be posted by the agency
within thirty (30) cays of the date this decision becomes final, and
shall remain posted for sixty (60) consecutive days, in conspicuous
places, including all places where notices to employees and applicants
for employment are customarily posted. The agency shall take
reasonable steps to ensure that said notices are not altered, defaced,
or covered by any ether material. The original signed notice(s) is to
be submitted to the Compliance Officer at the address referred to in
ee
17a
Appendix B
the Implementation paragraph within ten (10) calendar days after the
expiration of the posting period.
3. If appellant has been represented by an attorney as defined by 29
C.F.R. §1613.271(d)(1)(iii), appellant shall be awarded attorney's fees
under 29 C.F.R. §1613.271(d). The attorney shall submit to the agency
not the Equal Employment Opportunity Commission, Office of
Review and Appeals, within twenty (20) days of the decision
becoming final, the documentation required by 29 C.F.R.
§1613.271(d)(2) only in relation to the services he rendered in
connection with appellant’s second complaint, designated by Agency
No. 89-240. The agency shall process this claim within-the time frames
set forth in §1613.271 (d) (2).
4. The agency is further ORDERED to submit a report of compliance,
as provided below. The report shall include supporting documentation
that the corrective action has been implemented.
IMPLEMENTATION OF THE COMMISSION DECISION
Under EEOC Regulations, compliance” with the Commission’s corrective
action is mandatory. The agency must submit its final report of compliance to
this Commission within thirty (30) calendar days of completing the corrective
action required by this decision. See 29 C.E.R. §161 3.237(b), (c) (1989). The
agency's report must be forwarded to the Compliance Officer, Office of Review
and Appeals, P.O. Box 19848, Washington, D.C. 20036. A copy of the report
must be sent to the appellant.
18a
Appendix B
STATEMENT OF APPELLANT'S RIGHTS - ON REQUEST TO
REOPEN
RIGHT TO FILE A CIVIL ACTION
You are hereby notified that there is no further right of appeal from a decision
of the Commission on a Request to Reopen. You have the right to file a civil
action in an appropriate United States District Court WITHIN THIRTY (30)
DAYS of the date that you receive this decision. As to any claim based on the
Age Discrimination in Employment Act of 1967 (29 U.S.C. §633a), you MAY
have up to six years after the right of action first accrued in which to file a
civil action. See Lehman v. Nakshian, 453 U.S. 156 (1981); 29 U.S.C.
§633a(f); and 28 U.S.C. §2401(a). If you file a civil action, YOU MUST
THEAGENCY OR DEPARTMENT. You must also state the title of the official
agency head or department head. Failure to p-provide the NAME AND
OFFICIAL TITLE of the agency head or department head may result in the
dismissal of your case. Fed. R. Civ. P. 25(d)(2).
19a
Appendix B
RIGHT- TO REQUEST COUNSEL (R990)
If you decide to file a civil action, and if you do not have or cannot afford the
services of an attorney, you may request that the Court appoint an attorney to
represent you and that the Court permit you to file the action without payment
of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. § 2000e et sea.; the Rehabilitation Act of 1973. as
amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request in
within the sole discretion of the Court. Filing a request for an attorney does
not extend your time in which to file a civil action. Both the request and the
civil action MUST BE FILED WITHIN THIRTY (30) DAYS from the date
you receive the Commission’s decision.
FOR THE COMMISSION:
12-31-90
Date
s/ Frances M. Hart
Frances M. Hart
Executive Officer
Executive Secretariat
20a
Appendix B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
An Agency of the United States Government
This Notice is posted pursuant to an Order dated by the
United States Equal Employment Opportunity Commission which found that
a violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§2000e et sea. had occurred at this facility.
Federal law requires that there be no discrimination against any employee or
applicant for employment because of the person’s RACE, COLOR,
RELIGION, SEX, NATIONAL ORIGIN, AGE or PHYSICAL or MENTAL
HANDICAP with respect to hiring, firing, promotion, compensation, or other
terms, conditions or privileges of employment.
The Department of the Navy, will comply with such Federal law and will not
take action against individuals because they have exercised their rights under
the law.
The Department of the Navy will comply with the corrective action ordered
by the Commission. The Department of the Navy will ensure that officials
responsible for personnel decisions and terms and conditions of employment
will abide by the requirements of all Federal equal employment opportunity
laws.
The Department of the Navy, will not in any manner restrain, interfere, coerce,
or retaliate against any individual who exercises his or her right to oppose
practices made unlawful by, or who participates in proceedings pursuant to,
Federal equal employment opportunity law.
Date Posted:
Posting Expires:
29 C.F.R. Part 1613
2la
Appendix C
DISTRICT COURT ORDER VACATING JURY VERDICTS AND DECI-
SION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF-HAWAII
BARBARA MUTSURO HASHIMOTO. CIV. NO. 91-00081 ACK
Plaintiff, FILED IN THE
UNITED STATES DISTRICT COURT
VS . DISTRICT OF HAWAII
JOHN H. DALTON
DEC 01, 1
SECRETARY OF THE NAVY. we Ot, $008
Defendant. : ,
at 2 o'clock and 0 min. S/W.CHIN M.
WALTER A. V.H. CHINN, CLER
Two juries awarded Plaintiff $300,000 and $280,000, respectively, in
compensatory damages. However, the United States Supreme Court has
subsequently ruled that the 1991 amendments to the Civil Rights Act of
1964 do not apply retroactively (contrary to an earlier holding of the Ninth
Circuit); and therefore Plaintiff was entitled to neither a jury trial nor to any
compensatory damages. It remains for this Court, as the trier of fact, to
decide whether Plaintiff is entitled to any equitable relief including
attorneys’ fees and costs, backpay, reinstatement, and prejudgment interest.
Those are the only remedies available to Plaintiff.
This is a Title VII case brought by an Asian-American female against the
Department of the Navy. Plaintiff alleges disparate treatment on the basis
of race and/or gender because of adverse personnel actions taken against
her while employed as a budget assistant at Camp Smith. Plaintiff also _
alleges that Defendant subsequently retaliated against her for filing an EEO
complaint when Defendant gave a negative job reference and mentioned
her EEO activities to a prospective employer. The retaliation issue (Case 2)
was bifurcated from the disparate treatment issue (Case 1) for purposes of
trial.
22a
Appendix C
After a first jury trial on the Case | issue of disparate treatment, a Jury returned
a verdict for Plaintiff. The jury found that Plaintiff’s gender and or race was
a motivating factor in causing Plaintiff to be suspended for 14 days and in
being denied a Within Grade Increase in salary. The jury further concluded
that Plaintiff would not have suffered these adverse actions had not Defendant
- considered Plaintiff’s race and/or gender. The jury awarded Plaintiff $14,000
in compensatory damages for the 14 day suspension and $286,000 in
compensatory damages for the denial of the Within Grade Increase.
Defendant subsequently filed a motion for judgment as a matter of law, or in
the alternative, for new trial in Case 1. This Court denied Defendant’s motion
for judgment as a matter of law, but granted Defendant’s motion for new trial.
In summary, in ordering a new trial the Court found that (1) the jury’s verdict
was against the clear weight of evidence; (2) Plaintiff lacked credibility, and
her testimony constituted virtually the only evidence tending to show racial
or gender discrimination on the part of Defendant; (3) Plaintiff's counsel
utilized improper jury argument; and (4) the jury’s damages award was
excessive. The evidence presented at the first trial was too vague to
establish $300,000 in compensatory damages, particularly when Plaintiff's
counsel only requested a figure of $200,000 and was admittedly surprised by
the size of the verdict.
A second Case | trial was held in October 1993. During this trial, Plaintiff's
counsel no longer utilized improper jury argument and when the Jury returned
its verdict, it found that the denial of Plaintiff's Within Grade Increase by
Defendant was not based on race and/or gender discrimination. The Jury found,
however, that Plaintiff was discriminated against when she was suspended
for fourteen days and awarded her $280,000.00 in compensatory damages.
The Court then proceeded to try Case 2 before the same Jury. Plaintiff was
allowed to accept as binding the finding of the Equal Employment
Opportunities Commission that Major Lowery had unlawfully retaliated
against Plaintiff by making a negative job reference, but she was allowed to
relitigate the issue of whether she would have been hired by the Army in the
absence of the negative Job recommendation. The Jury returned a verdict
which held that the negative reference was a motivating factor in the Army’s
decision not to hire her, but that Plaintiff would not have received the position
even in the absence of the negative reference.
After the second trial, Plaintiff moved this Court for equitable relief including
23a
Appendix C
attorneys’ fees and costs, backpay, reinstatement, and prejudgment interest.
Defendant again moved for Judgment as a matter of law, or, in the alternative,
for a new trial on the issue of the fourteen day suspension and damages.
Throughout the litigation of this case, the Court and parties have been aware
that the issue of the retroactivity of the 1991 amendments to the Civil Rights
Act of 1964 was argued before the United States Supreme Court in October
1993 and pending before the Supreme Court. The Ninth Circuit has held that
the amendments apply retroactively. See Estate of Reynolds v. Martin, 985
F.2d 470 (9th Cir. 1993). In anticipation that a finding by the Supreme Court
that the amendments were not retroactive would eliminate the nght of Plaintiff
to a Jury trial and compensatory damages, this Court deferred from ruling on
Defendant’s post-trial motion for judgment as a matter of law or new trial (as
well as on Plaintiff's motion for equitable relief). Additionally, in order to
avoid a third trial in the interests of justice and judicial economy, this Court
ordered the parties to submit proposed findings of fact and conclusions of
law based on the evidence admitted during the second trial.
Subsequent to this, the Supreme Court has muled that the 199] amendments
to the Civil Rights Act of 1964 are not retroactive. Vv
Products, No. 92-757, 1994 WL 144450 (U.S. April 26, 1994). Accordingly,
Plaintiff was not entitled to a jury tnal or compensatory damages and
Defendant's motions are moot. Hence. the Jury Verdicts in Case 1 and Case 2
are vacated, and this Court is now obligated to act as finder of
fact and rule in the form of the findings of fact and conclusions of law set out
below.
Before setting out the findings of fact and conclusions of law, however, it is
necessary to address the two jury verdicts that were returned in the two trials
of Case 1. This Court finds that the two verdicts were inconsistent, excessive,
and against the clear weight of the evidence.
As noted above, in the first trial the jury awarded Plaintiff $286,000.00 for
the denial of Within Grade Increase and only $14,000.00 for the fourteen day
suspension. The Court found that Plaintiff’s counsel’s improper jury argument
tainted the issue of the denial of Within Grade Increase. This is confirmed by
the second trial where there was no improper jury argument and the jury
retumed a verdict in favor of Defendant oa the issue of the Within Grade
Increase. The second jury, however, returned a verdict of $280,000.00 for the
fourteen day suspension after the first jury only awarded $14,000.00 for the
24a
- Appendix C
same adverse action. The two verdicts demonstrate that neither jury supported
the other on either issue. The inconsistent verdicts and awards indicate that
the juries sympathized with Plaintiff but that neither jury supported the other
as to the merits of either cause of action.
Additionally, the Court notes that during the second trial, Plaintiff's counsel
referred to an alleged reference to Plaintiff as a “slant-eyed Jap”, although
counsel admitted in open court that he did not have a good faith basis for
making the reference. This is the only purported evidence of a derogatory
racial slur that Plaintiff attempted to produce in two trials.
While it might be more popular for the Court to issue a decision awarding a
sizable sum to Plaintiff as did the two Jury verdicts, although they contradicted
one another (and this Court has no authority to award compensatory damages
in any event); this Court is compelled in the interests of justice and fairness to
render a decision based upon the evidence as it finds it, rather than upon
sympathy. The Court came very close to granting summary judgment in favor
of Defendant on all of Plaintiff's claims but in an abundance of caution and in
an effort to afford Plaintiff every opportunity to prove her case, this Court
allowed Plaintiff to proceed to trial on the claims related to her 14 day
suspension and the denial of her Within Grade Increase despite finding her
evidence to be “sketchy at best’. Additionally, the Court allowed Plaintiff to
amend her complaint to seek enforcement. of the EEOC’s finding on her
Case 2 claim which was favorable to her while enjoying a trial de novo on the
remaining issues. Moreover, the Court refused to follow the recommendation
of the Magistrate Judge to disallow the amended complaint because Plaintiff's
counsel failed to file it within the allotted time.
This Court concludes that the adverse personnel actions taken against Plaintiff
were not the result of any discriminatory animus but rather because of her
repeated refusal or failure to follow instructions, her refusal to perform
assigned tasks, her obstinate manner of dealing with her superiors, and her
inability to work under the supervision of military officers. Likewise, this
Court finds that Plaintiff’s Case 2 claim is meritless because the Army would
not have hired Plaintiff even if a negative job reference had not been made.
It is the finding of this Court that Plaintiff is not entitled to any equitable
relief in Case 1 and Case 2, with the exception of reimbursement for the
attorneys’ fees and costs expended on her Case 2 retaliation claim to the
extent the expenditures relate to enforcement of the EEOC’s award of her
25a
Appendix C
attorneys’ fees, to which she also is entitled.
This Court’s conclusions are more fully supported by the accompanying
findings of fact and conclusions of law.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. FINDINGS OF FACT
A. Procedural History
1. This is an employment discrimination case arising out of Plaintiff's
former civilian employment with Defendant at Camp H.M. Smith, Hawaii.
The Court had jurisdiction over Plaintiff’s claims and venue is appropriate.
42 U.S.C. §§ 2000e, et seg.
2. Plaintiff, Barbara M. Hashimoto, was employed as a Budget
Analyst, GS-7, at Camp H.M. Smith from Apmil 2, 1984 through June 2,
1986. She brings this action, generally alleging unlawful discrimination and
retaliation during and after her former federal employment pursuant to § 717
of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e-16.
3. Just prior to Plaintiff’s removal due to a reduction in force (RIF) in
June 1986, she initiated her first of two administrative complaints. In that
complaint (“Case 1”), Plaintiff alleged that, because of her race and/or gender,
she was suspended without pay on two occasions. denied a within grade salary
increase, and eventually lost her job when her position was RIF-fed.
4. Later, while her first complaint was being investigated, Plaintiff
filed her second administrative complaint (“Case 2”) in which she has alleged
that she suffered a negative referral by one of her former Marine Corps
supervisors when she applied for a job with the Army in retaliation for filing
her Case 1 administrative complaint.
5. Both administrative complaints were consolidated for investigation
and were the subject of an adversarial hearing before an Administrative Judge
from the Equal Employment Opportunity Commission (“EEOC”).
6. The Administrative Judge found no discrimination on any of
Plaintiff’s claims and Defendant adopted that decision as its final agency
26a
Appendix C
decision. On administrative appeal, the EEOC’s Office of Review and Appeals
affirmed.
7. Upon further administrative appeal, the EEOC affirmed the finding
of no discrimination on all of Plaintiff’s Case 1 claims, but found “mixed
motives” on Plaintiff’s single Case 2 claim. Specifically, the EEOC found
that the negative referral by Plaintiff’s former supervisor was motivated by a
retaliatory animus but that Plaintiff would not have been elected for the position
with the Army even absent the retaliatory referral.
8. Initially, Plaintiff sought a trial de novo on all five of her
administrative claims. Prior to trial, however, Defendant obtained summary
Judgment on the first suspension and the RIF claims. The Court came very
close to granting summary Judgment on all of Plaintiff’s claims but in an
abundance of caution and in an effort to afford Plaintiff every opportunity to
prove her case, this Court allowed Plaintiff to proceed to trial on the claims
related to her 14 day suspension and the denial of her Within Grade Increase
despite finding her evidence to be “sketchy at best”. Additionally, the Court
allowed Plaintiff to amend her complaint to seek “enforcement” of the EEOC’s
finding on her Case 2 claim which was favorable to her while enjoying a trial
de novo on the remaining issues.
9. There were two jury trials of the Case | claims because, at the time
of trial, the law of this circuit entitled Plaintiff to a jury trial. The first trial
ended in a verdict for Plaintiff, but that verdict was vacated and a new trial
ordered on numerous grounds.
10. A second trial was held on Case | and Case 2 was also tried
before a jury. The Jury verdicts in Case | and Case 2 are vacated in light of
the United States Supreme Court’s ruling that the 1991 amendments to the
Civil Rights Act of 1964 which provided for Jury trials and compensatory
damages were not retroactive in application.
11. The Court and the parties were aware that the United States
Supreme Court had heard arguments on the issue of retroactivity at the time
of the second trial of Case 1. In light of the pending decision on retroactivity,
and in order to avoid a third trial in the interests of judicial efficiency and
economy, the parties were instructed to submit proposed findings of fact and
conclusions of law.
serrate
27a
Appendix C
B. Background
12. Plaintiff, Barbara M. Hashimoto, is a woman of Japanese ancestry.
13. Craig Hinman, Plaintiff’s immediate supervisor during the period
from July 1984 to April 1986, is a Caucasian male. Steven Lowery, Plaintiff's
second line supervisor from September 1984 to April 1986 is also a Caucasian
male.
14. Plaintiff began her employment at Camp Smith in April 1984.
She was hired as a Budget Analyst, GS-561-7, within the Special Services
section of the camp.
15. Initially, Plaintiff worked for Captain Cargill, a Caucasian female,
with whom Plaintiff worked well.
16. In May 1984, Captain Cargill left her position as a Special Services
Officer and her position was vacant until Captain Craig Hinman reported as
Special Services Officer in July 1984.
17. Prior to July 1984, Hinman had not supervised civilian employees
of the United States Marines, had not been a special services officer, and had
not received any training in budgetary and inventory control.
C. Case 1
18. Soon after the arrival of Hinman, the Special Services section
was consolidated with the Camp’s Clubs System, forming a unit referred to
as Morale, Welfare and Recreation (MW R). While the Special Services section
and the Clubs System sections remained, administrative and clerical support
personnel from both sections were consolidated within a new section referred
to as the MWR Administrative Support Unit (“MASU”). This consolidation
began in September 1984.
19. The head of MWR during Plaintiff’s employment was Major
Steven Lowery. Lowery was Hinman’s immediate supervisor and Plaintiff’s
second level supervisor.
20. There were three billets under Hinman’s direct supervision: (1)
the Athletic Director, filled by Hal Nakabayashi, an Asian-American male:
28a
Appendix C
(2) the Recreation Director, filled by an active duty male Marine; and (3) the
Budget Assistant, filled by Plaintiff.
21. Soon after the consolidation, Plaintiff began experiencing
problems in her employment. A co-worker of Plaintiff, Joan Goodman, a
Caucasian female, had worked in Special Services but had left Camp Smith
on vacation and sick leave from June 1984 until October 1984. During this
period, Plaintiff was required to take over some of Goodman’s responsibilities.
22. Goodman did not return to work until after the consolidation had
begun. Goodman’s billet was transferred to the MASU and she was never
under Hinman’s supervision.
23. Although Goodman’s billet was transferred as part of the
consolidation, this Court finds by a preponderance of the evidence that the
tasks taken over by Plaintiff were assigned to Plaintiff by Hinman as part of
the consolidation. In performing those tasks, this Court finds that Plaintiff
was performing her own assigned duties, not the duties of her co-worker
Goodman, whose position had been transferred to the MASU.
24. Plaintiff subsequently requested leave on the day following
Thanksgiving 1984. The undisputed testimony is that Plaintiff asked for leave
and it was denied. This Court finds by a preponderance of the evidence that
the reason that the leave request was denied was because Hinman and Lowery
believed that Plaintiff needed to complete certain of her assigned tasks in
order for the consolidation to go forward as scheduled. Specifically, the Special
Service accounting books had to be brought up to date in order for the books
to be consolidated with the Clubs System books. This Court further finds that
Hinman and Lowery believed that the tasks which Plaintiff was required to
complete on the day after Thanksgiving were the responsibility of Plaintiff,
not those of Joan Goodman. There is no evidence that this decision was based
on Plaintiff’s race and/or sex.
25. Additionally, Plaintiff’s allegations that all of her leave requests
were denied is rebutted by the undisputed evidence from Plaintiff’s Master
Leave Plan that she used 106 hours of annual leave during 1985. Def.’s Exh.
73. ;
26. Shortly after this incident, on November 30, 1984, Hinman
revoked Plaintiff’s authority to sign documents on behalf of Special Services.
ihe, acedetpats wceleeialllll
29a
Appendix C
Def.’s Exh. 52. The Court finds, by a preponderance of the evidence, that this
act was not motivated by discrimination but was necessitated by Plaintiff's
act of authorizing a single purchase which exceeded an entire quarterly budget.
27. On December 3, 1984, Plaintiff received a written instruction to
check in with Hinman at the beginning of each day and check out with him at
the end of each day. Def.’s Exh. 53.
28. Plaintiff claims that she was the only employee who was required
to attend daily briefings. This allegation was decisively rebutted by the
testimony of a number of civilian witnesses who testified that they attended
such briefings with Hinman or Lowery ona daily basis, as was the practice in
the military.
29. Hinman concedes that Plaintiff was the only employee who was
given a written order to attend such briefings. However, this Court finds by a
preponderance of the evidence that the written order was only given after
repeated oral counseling failed and that other employees regularly attended
such briefings without repeated instruction on the part of Hinman. Plaintiff
also conceded that the written instruction came after he had left work early
without informing Hinman, who had then been unable to locate her.
30. Plaintiff also contradicts her own testimony that only she was
required to attend daily briefings by asserting that the male employees regularly
had their briefings with Hinman in the snack bar while she alone was required
to attend such briefings in Hinman’s office. The testimony of Hal Nakabayashi
establishes that he and the Recreation Director would attend briefings together
at times and at times would attend them Separately, dependent upon their job
duties and schedules. Although Nakabayashi did testify that he did sometimes
meet with Hinman in the Snack Bar, there is no evidence that the Recreation
Director likewise did so.
31. Finally, Plaintiff testified that the twice daily briefings often lasted
over an hour and required Plaintiff to stand in front of Hinman’s desk while
Hinman either sat in absolute silence or subjected her to insults and vulgar
behavior.
32. This Court finds, by a preponderance of the evidence, that the
briefings were not required of Plaintiff alone and that all employees were
required to attend. This Court further finds that the fact that Hinman
30a
Appendix C
occasionally held a briefing with Hal Nakabayashi in the snack bar does not
constitute evidence of discrimination. Finally, not one witness could
corroborate Plaintiff’s allegations concerning the length and content of her
briefings with Hinman and this Court finds these allegations to be incredible.
Hinman testified that these meetings were of a few minutes duration.
33. This Court finds that Plaintiff’s continued failure to attend daily
briefings and her refusal to forward a response to an auditor’s report as
requested by Hinman motivated Hinman to issue a Letter of Caution on
February 5, 1985. Def.’s Exh. 55. This Court finds that this letter was motivated
by Hinman’s honest belief that Plaintiff was derelict in obeying instructions.
Indeed, this Court finds that Plaintiff’s unequivocal refusal to sign to
acknowledge receipt of this letter of caution and most other documents
highlights the difficulty faced by Plaintiff’s superiors in gaining compliance
with their orders and work assignments.
34. Also on February 5, 1985, Plaintiff was given her “Basic
Performance Appraisal Plan” (BPAP). Def.’s Exh. 69. This document listed
the critical elements of Plaintiff’s position and set forth standards on which
her performance of those elements would be evaluated.
35. The testimony is undisputed that Hinman gave Plaintiff a copy of
the BPAP but that Plaintiff disagreed with her assignment of duties as outlined
in the document. For that reason, Plaintiff refused to sign the BPAP
acknowledging that the elements and standards had been set.
36. Plaintiff maintained that her Position Description (PD) had become
outdated in light of the consolidation into the MWR and the creation of the
MASU. Hinman made attempts to have Plaintiff’s PD rewritten but the
personnel office returned the rewrite, stating that even after the revision, “the
position remains classifiable as Budget Assistant, GS-561-7” Def.’s Exh. 56.
There was undisputed testimony from Plaintiff’s witness, Ray Mendez, the
EEO counselor, that Hinman would have been entirely justified in relying on
the Civilian Personnel Office’s evaluation that Plaintiff’s position description
was valid.
37. One week after the personnel office affirmed Plaintiff's PD,
Plaintiff sought assistance from an EEO counselor, Ray Mendez. Although
Plaintiff went to the EEO counselor, the undisputed testimony confirms that
Plaintiff did not believe she had a discrimination complaint and that Ray
ee ee iP ablated
3la
Appendix C
Mendez had to explain to her that the EEO dealt with discrimination
complaints. P1.’s Exh. 11. Nonetheless, Mendez wrote a memorandum to
Mike Long of the Civilian Personnel Office asking that Plaintiff’s complaint
regarding her PD be looked into. Id. Moreover, Hinmaa invited Plaintiff to
submit a proposed revised PD and she never did.
38. Shortly thereafter, Joanne Felman of the personnel office
conducted a desk audit. of Plaintiff’s position. Felman testified that this
involved her visiting Plaintiff’s worksite and Jointly reviewing the PD, BPAP,
and Plaintiff's current duties with Plaintiff. Felman testified that Plaintiff's
PD and BPAP were current and accurate during this time frame and that her
assignment of duties under the BPAP was appropriate.
39. The testimony of Ray Mendez on this issue lacked credibility
because his assessment of the PD and Hinman’s action’ was based solely on
the information provided by Plaintiff, which did not include critical facts
such as the personnel office letter to Hinman regarding the proposed rewrite
(Def.’s Exh. 56). Additionally, he acknowledged that someone else might not
think that the position needed to be rewritten.
40. This Court finds, by a preponderance of the evidence. that
Plaintiff's PD and BPAP accurately reflected the work that Plaintiff was
required to perform and upon which her performance was evaluated. This
Court further finds that Hinman’s evaluation of Plaintiff based on these
documents was motivated by the honestly held belief that the PD and BPAP
accurately reflected Plaintiff's assigned tasks, and was not motivated by race
and/or sex discrimination.
41. Plaintiff received her first “mid-cycle review” under her BPAP
on May 1, 1985. Def.’s Exh. 69. Plaintiff’s overall rating was marginal. At
this time, Hinman noted a number of concerns with Plaintiff’s performance
of her duties. Specifically, out of five “critical elements,” Hinman rated Plaintiff
unsatisfactory in two (Elements | and 4) and marginal in two others (Elements
3 and 5). Plaintiff refused to sign to acknowledge receipt of this review. This
evaluation of Plaintiff's performance led to another Letter of Caution on June
28, 1985. Def.’s Exh. 58. In addition to setting out the areas of deficient
performance, this letter made suggestions conceming how Plaintiff could work
to improve her performance. Plaintiff refused to sign to acknowledge receipt.
42. This Court finds, by a preponderance of the evidence, that this
32a
Appendix C
assessment of Plaintiff’s performance was based on the honestly held belief
that Plaintiff’s performance was indeed marginal and was not motivated by
any discriminatory animus.
43. On July 30, 1985, Hinman issued his first proposal to suspend
Plaintiff. Exh. 59. In this action, Hinman proposed to suspend Plaintiff for
five days based on charges that she was continuing to fail to attend daily
briefings, that she missed a deadline regarding some correspondence
addressing a financial management inspection without letting Hinman know
in advance of a problem, that she refused to prepare a letter concerning
insurance coverage stating that it was not her responsibility and that she had
refused to cooperate with MASU personnel regarding a backlog of clerical
work. Id.
44. Plaintiff submitted a written rebuttal to these charges to Lowery,
who was the deciding official. Lowery conducted an informal investigation
into the situation between Plaintiff and Hinman. Based on the investigation,
Lowery found that the charges were sustained, but that delay on his part caused
by his investigation merited a mitigation of the penalty to an admonishment.
Exh. 64-65. This Court finds that the actions of Hinman and Lowery were
motivated by the honestly held belief that Plaintiff was negligent in the
performance of her Job duties and not by any discriminatory animus.
45. This proposed suspension constitutes part of Plaintiff’s allegations
concerning clerical help. Plaintiff’s billet did not include supervisory
responsibilities and there were no employees subordinate to her. Although
Plaintiff did receive clerical assistance from Maria Alvior for a time, testimony
establishes that Alvior’s position, a clerical position, was transferred to MASU
along with all other clerical positions in MOOR. Plaintiff could have
requisitioned clerical help through MASU, but this Court finds, by a
preponderance of the evidence, that she ignored instruction to do so.
46. Plaintiff’s allegations that her male counterparts had clerical help
attached to them is rebutted by the testimony of other witnesses. This Court
finds, by a preponderance of the evidence, that all clerical positions were
transferred to MASU and that clerical help could only be requested through
MASU. This Court further finds, by a preponderance of the evidence, that to
the extent that the other employees under Hinman’s direct supervision had
assistance it was because these were supervisory positions which had enlisted
personnel directly assigned as subordinates as part of the overall structure of
OR ATE Nl ABE AAR ID: 1 en ett hh ua thn tle ai
aie AN Aone:
iia wane
33a
Appendix C
MOOR. These enlisted men were not assigned as clerical help. Indeed, the
undisputed testimony of Hal Nakabayashi established that he did his own
typing. Additionally, the undisputed evidence demonstrated that Russ Johnson,
a white male who held the Clubs System position equivalent to Plaintiff’s
position, had no clerical help and received help through MASU. This Court
holds that the evidence establishes that Plaintiff had the same access to clerical
help that every one in MWR was given. -
47. The next incident in Plaintiff's employment occurred on November
22, 1985. Ms. Evelyn Mau, also an Asian-American civilian employee in
Special Services, testified that she had experienced problems with Plaintiff,
who was responsible for delivery of paychecks to the civilian workforce in
Special Services. This dispute resulted in a written complaint by Mau to
Hinman, dated November 21, 1985, regarding delivery of paychecks. Def.’s
Exh. 100. Thereafter, Hinman gave a written instruction to Plaintiff that she
was to personally deliver paychecks to the library personnel on the day they
were issued. Exh. 67.
48. According to Hinman, Plaintiff flatly refused to personally deliver
checks. Although Plaintiff testified that she never refused to deliver the
paychecks, she has previously admitted that she refused to deliver the
paychecks. See Def.’s Exh. 77 7.c at 6. Defendant has argued that this issue
was a pretext because Hinman never subsequently corroborated that the
paychecks were being delivered. However, Hinman’s testimony establishes
that although the paycheck problem had been resolved the reason that Plaintiff
was disciplined was because of her unequivocal refusal to deliver the
paychecks after the task was assigned to her by Hinman. This Court finds
that this episode represents yet another example of Plaintiff's refusal to heed
the instructions of her supervisors and that this blatant refusal to heed
instructions was the reason for the disciplinary action. This Court finds that
neither Hinman nor Lowery were motivated by any discriminatory animus.
49. At approximately the same time as the dispute concerning delivery
of the paychecks, in November 1985, Plaintiff turned in a time card showing
the she had worked a day when, in fact, she had been on approved leave.
When this was discovered and Hinman queried Plaintiff about it, Plaintiff
explained that this was so that she could have compensatory time off for
overtime she had allegedly worked in August 1984---fifteen months earlier.
When Hinman instructed her this was not permissible under the regulations
and to change the time card to reflect her leave use, she refused.
POS er:
—
343
Appendix C
50. Based on the timecard incident and the delivery of the paycheck
incident, as well as Plaintiff’s alleged continued failure to attend daily briefings,
Hinman, on December 6, 1985, again proposed that Plaintiff be suspended
for five days. Exh. 70. Plaintiff did not make either a written or oral reply to
this proposed action and Lowery decided to impose this proposed action,
suspending Plaintiff for five work days effective January 27, 1986. Def.’s
Exh. 74.
51. This suspension was affirmed by the base commanding officer.
Def.’s Exh. 82. Although the commanaing officer stated there was insufficient
evidence that Plaintiff failed to keep Hinman appraised of her whereabouts,
the commanding officer found that Plaintiff’s “deliberate refusal. to amend
her time card and to deliver pay checks warranted a five day suspension. Id.
There has been no allegation that the commanding officer’s decision to affirm
the suspension was motivated by any discriminatory animus.
52. This Court finds that the evidence establishes that Hinman and
Lowery honestly believed that the five day suspension was warranted for the
reasons set out above. A preponderance of the evidence demonstrates Plaintiff
refused to follow the instructions of Hinman and was suspended accordingly.
This Court finds no evidence of discrimination on the part of either Hinman
or Lowery related to this adverse personnel action. Notwithstanding the fact
that Hal Nakabayashi would occasionally play tennis for an hour or two during
the day when he would work nights in attending athletic events in his capacity
as Athletic Director, this Court finds that there was absolutely no evidence
that other employees were ever allowed to claim comp time over a year after
the comp time was allegedly earned. Additionally, the Court notes the
testimony of Lowery that this suspension was part of an increasing level of
punishment because earlier, lesser measures had not succeeded in encouraging
Plaintiff to perform her assigned job duties and follow instructions from her
supervisors.
53. On December 9, 1985, Plaintiff requested a meeting with the
base commander through Lowery. The Court finds, by a preponderance of
the evidence, that Lowery denied this meeting because Plaintiff failed to follow
base procedure by submitting the request, in writing in a sealed envelope, to
Lowery for submission to the base commander.
54. The final confrontation between Plaintiff and Hinman concerned
Hinman’s written instruction to prepare a turnover file an a letter of instruction.
F
peer ocean eres
35a
Appendix C
P1.’s Exh. 20. Plaintiff was given until January 1, 1986 to have this completed.
55. Plaintiff submitted a written note regarding this instruction, asking
Hinman to “confirm that it is the desk top procedure that I suggested I do in
Feb 1985 that you wish me to do”. Id. Hinman responded by providing Plaintiff
with the local instruction on desktop procedures and turnover folders. Def.’s
Exh. 107.
56. Although Plaintiff contends that she already had a turnover file
prepared, Plaintiff concedes that she did not provide it to Hinman. When
Plaintiff failed to provide the document, he proposed that Plaintiff be suspended
for fourteen days. Def.’s Exh. 75. Plaintiff responded to this proposal by stating
that “Capt. Hinman was asking me, I felt, to do his Job by doing this letter of
instruction, as it would have been from him”. Def.’s Exh. 85.
57. Lowery decided to impose the fourteen day suspension based on
his belief that Plaintiff understood what was being asked of her but that she
was refusing to do as she had been told. Def.’s Exh. 87.
58. This Court finds that the evidence establishes that Plaintiff was
suspended for fourteen days for failure to follow orders. This Court finds
credible Lowery’s testimony that even if the assigned task was trivial,
Plaintiff’s repeated and continuous failure to follow orders was not trivial
and that a fourteen day suspension was warranted in light of the failure of
previous disciplinary actions to gain Plaintiff’s compliance.
59. Based on the numerous confrontations between Plaintiff and
Hinman, as well as Plaintiff’s continuous refusal to acknowledge that she
was required to perform the tasks which Hinman assigned, Plaintiff’s final
performance evaluation was an overall rating of marginal. Def.’s Exh. 69, 89.
The undisputed testimony of Joanne Felman established that civilian
employees whose current performance evaluation is marginal are not eligible
for a within grade increase (WGI). As a result, Plaintiff was denied a WGI
when she became eligible in April 1986. Def.’s Exh. 89.
60. Shortly after the WGI denial, Plaintiff’s position was eliminated
in a RIF and her employment was terminated.' Plaintiff’s position was not
Plaintiff appealed her removal through the Merit Systems Protection Board.
She allowed the MSPB decision sustaining her removal to become final, and
this Court previously ruled in favor of the Defendant on this issue.
36a
Appendix C
alone in being RIF-fed. Among the others whose positions were involved in
the RIF included Guy Guessford, a white male, and Russ Johnson, a white
male who held the equivalent position to Plaintiff in the Clubs System. This
Court finds, by a preponderance of the evidence, that the RIF was not personal
to Plaintiff because another position exactly like Plaintiff’s was involved in
the RIF as well, even though it was held by a white male.
61. Plaintiff argued that her RIF was discriminatory because even
though Russ Johnson’s position was RIF-fed as well, Johnson was given a
temporary position as acting head of the Clubs System. This Court finds this
argument to be lacking because the undisputed testimony established that
Plaintiff was given the opportunity to apply for the position and did not apply.
Indeed, the undisputed evidence established that Johnson’s position was only
temporary pending the appointment of a permanent director and Johnson
refused to apply for the permanent position because Lowery insisted on
opening the permanent position to applications from other potential applicants,
including Plaintiff. Accordingly, this Court finds that Plaintiff's RIF was not
discriminatory as evidenced by the contemporaneous RIF of similarly-situated
white males and also by the undisputed fact that Plaintiff could have applied
for a different position and refused to do so.
62. Both Hinman and Lowery presented testimony that they had first
or second line supervisory responsibility over a number of Asian-American
and/or females. Each testified that Plaintiff was the only Asian-American
female who was subject to discipline by them. Although Lowery testified
that he disciplined a white female, both Hinman and Lowery testified that the
rest of those disciplined by them were males.
63. Additionally, other than Plaintiff’s bald allegations, not one witness
testified that they had observed Hinman or Lowery discriminate against anyone
on the basis of race and/or sex. This included the testimony of white women,
Asian-American women and Asian-American men. The evidence established
that Hinman had never before supervised civilians and Plaintiff’s witnesses
criticized Hinman not for discrimination, but for treating civilians like Marines.
This is illustrated by the testimony of Guy Guessford.
64. Plaintiff did produce the testimony of Deborah Okamoto an
Asian-American female, who felt that she was sexually harassed by Hinman
because he asked her out to lunch three times and made a Joke about a Super
Bowl ring. However, Okamoto stated that the treatment that she was subjected
37a
Appendix C
to was not encountered by the enlisted personnel, other officers there, or other
females on the base. “So it was assumed that it had to do with the fact that it
was because I was civilian.” Okamoto Dep. at 27-28. She conceded that she
was never adversely affected by refusing to go to lunch with Hinman and that
when she mentioned the lunch invitations to her supervisor, Hinman ceased
asking her to lunch.
65. Additionally, this Court finds that the undisputed evidence
established that Hinman is married to an Asian-American woman who was
described as being strong willed. The Court finds that this fact evidences the
fallacy of Plaintiff's theory that Hinman was biased against Asian-American
women and expected them to be meek and subservient.
66. Finally, on the issue of credibility, witnesses testified that
Plaintiff’s character for truthfulness was lacking. On the other hand, witnesses
uniformly testified to the fact that the character of Hinman and Lowery for
truthfulness was above reproach. The attempts of Plaintiff’s counsel to impeach
the testimony of various witnesses with prior testimony from the many different
proceedings over the last number of years only served to illustrate the difficulty
witnesses faced in testifying to events of so many years ago. Further, much
was made of the failure of Lowery to correct a mistake in an affidavit. This
Court finds Lowery’s testimony that it was an honest Oversight to be credible
and to be supported by the failure of Plaintiff’s counsel to correctly count the
corrections in the affidavit while going over the affidavit in minute detail
during cross-examination.
67. In sum, this Court finds, by a preponderance of the evidence, that
all of the disciplinary actions taken by Hinman and Lowery while Plaintiff
was under their supervision to have been motivated by the honestly held belief,
even if wrong or unfair, that Plaintiff was insubordinate and that the disciplinary
actions were not motivated in any respect by a discriminatory animus.
D. Case 2 - Negative Job Reference
68. In July 1988, Plaintiff applied for a temporary position as a budget
clerk with the Army at Fort Shafter. The selecting official, Mr. Richard Satake,
arranged for an interview with Plaintiff. Before this interview, however, Satake
contacted Major Lowery for an employment reference regarding Plaintiff.
69. Lowery informed Satake of Plaintiff’s employment history to
38a
Appendix C
include the numerous attempts at counseling and her suspensions.
Although he did include mention of her EEO complaint, the clear
emphasis of Major Lowery’s comments concerned Plaintiff’s
unwillingness to follow instractions or heed counseling. Def.’s Exh. 106.
70. After learning of Plaintiff’s suspensions, Satake refused to consider
Plaintiff for employment. Satake expressly denies having relied on the fact
that Plaintiff filed an EEO complaint during his consideration of her
application.
71. This Court finds that testimony of Plaintiff’s sister that Satake
asked why she had not informed him about Plaintiff’s EEO activity to be
lacking in credibility in light of the fact that (1) she refused to acknowledge
on the witness stand that she had been called as Plaintiff’s witness in previous
administrative hearings despite the clear record of the previous proceeding;
(2) given the fact that she had previously filed a discrimination suit against
the officer who was sent to ask her questions about
Plaintiff's case as part of the discovery process; and (3) her bias in favor of
her sister evident from her demeanor.
72. As noted at the outset, Plaintiff's two administrative EEO
complaints were subject to extensive litigation. In the final administrative
decision on these claims, the EEOC found no discrimination during Plaintiff’s
employment at Camp Smith. With respect to the Army job, however, the EEOC
found that Plaintiff was subject to retaliation by virtue of Lowery’s comments,
but it also found that Plaintiff would not have been selected for the Army
position.
73. Plaintiff has been allowed to enforce. that portion of the EEOC
decision favorable to her---that Lowery’s negative Job reference was motivated
by a retaliatory animus---while relitigating de novo the remaining issue of
whether the Army would have hired her.
74. Although this Court finds that Lowery’s negative job reference
was motivated by the belief that Plaintiff was incompetent and insubordinate
and not by a retaliatory animus, this Court will allow Plaintiff to enforce the
EEOC’s determination that the recommendation was motivated by a retaliatory
animus. Lowery should not have referred to Plaintiff’s EEO claim. In any
event, this Court finds that the Army would not have hired Plaintiff even
absent the retaliatory reference to Plaintiff’s EEO activities in light of her
39a
Appendix C
marginal performance review and extensive disciplinary record.
75. Therefore, this Court finds that Plaintiff is entitled solely to an
award of attorneys’ fees and costs related to her Case 2 retaliation claim, in
addition to the attorneys’ fees awarded to her by the EEOC. This award is
limited to that portion of fees and costs necessary to pursue enforcement of
her retaliation claim and is not to include any amount related to Plaintiff’s de
novo relitigation of the issue of whether the Army would have hired ier in the
absence of the retaliatory reference. Plaintiff is not entitled to any other
equitable relief related to Case 2. Additionally, Plaintiff is not entitled to any
attorneys’ fees or costs or other equitable relief related to the litigation of
Case 1.
II. CONCLUSIONS OF LAW
|. This Court has jurisdiction over Plaintiff’s Case 1 and Case 2 claims
pursuant to 42 U.S.C. SS 20006¢ et seq.
A. Case ]
2. The Supreme Court has established a clear framework for the
evaluation of Title VII claims:
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 ( 1973), we
set forth the basic allocation of burdens and order of presentation of
proof in a Title VII case alleging discriminatory treatment. First, the
plaintiff has the initial burden of proving by the preponderance of the
evidence a prima facie case of discrimination. Second, if the plaintiff
succeeds in proving the prima facie case, the burden ther shifts to the
defendant “to articulate some legitimate, nondiscriminatory reason
for the employee’s rejection.” Id. at 802. Third, should the defendant
carry this burden, the plaintiff must then have an opportunity to prove
by a preponderance of the evidence that the legitimate reasons offered
by the defendant were not its true reasons, but were a mere pretext
for discrimination. Id., at 804. Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Accord St. Mary’s
Honor Center v. Hicks, 113 S.Ct. 2742, 2753 ( 1993); Odima v. Westin
Tucson Hotel Co., 991 F.2d 595, 599 (9th Cir. 1993).
3. The two Case | issues which remain for adjudication are whether
40a
Appendix C
Plaintiff suffered unlawful discrimination when she was suspended for fourteen
days and when she was denied a within grade increase. On each of these
issues, Plaintiff has established a prima facie case in that she was a member
of one or more protected classes, she suffered some form of adverse
employment decision, and others who were not in her protected classes were
not subject to the adverse employment decision.
4. A defendant need only articulate---not prove---a legitimate
nondiscriminatory reason for the personnel action being challenged. The
employer’s burden is satisfied if he simply ‘explains what he has done’...”
Burdine, 450 U.S. at 256 (quoting Board of Trustees v. Sweeney, 439 U.S. at
24, 25 n.2 (1978)). In this case, Defendant clearly articulated legitimate
nondiscriminatory reasons for the actions taken: Plaintiff was suspended for
fourteen days because she did not produce a turnover folder (in any format)
as she had been instructed to do and she was denied a WGI because her
performance had been rated as marginal.
5. At this stage in the analysis of a Titie VII case, the burden on
Plaintiff merges with her “ ‘ ultimate burden of persuading the court that [she
had] been the victim of intentional discrimination.’” Odima, supra, (quoting
Burdine, 450 U.S. at 256. Plaintiff could have carried this burden “ ’ either
directly by persuading the court that a discriminatory reasor more likely
motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.’ ” Id. Plaintiff did not carry this burden.
6. Plaintiff expended the vast majority of her energies attempting to
show that Hinman and, to a lesser extent, Lowery were not good supervisors
of civilian employees. For example, Plaintiff’s greatest apparent complaint
concerning the turnover file order was the wording of Hinman’s order. Hinman
is not on trial for issuing poorly worded instructions, however, and Title VII
does not offer relief for poor supervision or unfair employment in general.
7. The Ninth Circuit has only recently cautioned trial courts:
The district courts must not substitute its own Judgment about
whether the employment decisions tat issue] were wise, or even fair,
for that of the employer. . . . [T]he district court’s conclusions must
be based on factual findings grounded in the record, and not on vague,
impressionistic notions that [defendant] must have discriminated
against [plaintiff] because [she] is deserving of better [treatment].
4la ‘
Appendix C
Odima, 991 F.2d at 602. Plaintiff’s evidence demonstrates, at most,
that Hinman and Lowery may not have been accustomed to the
differences in managing civilian and military personnel and this Court
finds, by a preponderance of the evidence, that management decisions
of Hinman and Lowery were not the product of any unlawful
discrimination.
8. Plaintiff's other allegations that she was treated differently than
others who were Caucasian and/or male were all decisively rebutted by
evidence or are insufficiently indicative of any discriminatory animus. For
example, Plaintiff's allegation that she was the only employee who was
required to attend daily briefings was rebutted by the testimony of a number
of witnesses; and her allegation that she never received annual leave while
other white female employees did was rebutted by Plaintiff’s 1985 master
leave plan.
9. The Supreme Court recently made clear that the central issue in a
Title VII case such as this is whether the plaintiff suffered the challenged
personnel action because of the characteristic protected by the statute. St.
Mary’s Honor Center, 113 S.Ct. at 2747. On this point, Plaintiff has offered
only her conclusory allegation that Hinman and Lowery were motivated by a
discriminatory animus. There is simply no evidence which backs up these
allegations.
10. Because Plaintiff has failed to carry her burden as to any of the
Case | claims she has presented, judgment is hereby ordered for Defendant.
B. Case 2
11. A federal employee may seek enforcement of a favorable EEOC
order in district court. See Moore v. Devine, 780 F.2d 1559, 1562-63 (llth Cir.
1986); Houseton v. Ninmo, £70 F.2d 1375, 1378 (9th Cir. 1982). A district
court may enforce such an order without requiring de novo review of the
merits. Id. Finally, if the court finds that the relief granted by the EEOC is
insufficient, it may grant additional remedies as it deems appropriate. See
Pecker v. Heckler, 801 F.2d 709 (4th Cir.1986).
12. In the event that only a portion of the EEOC’s findings are
favorable to a plaintiff, the plaintiff may accept that portion of the EEOC’s
finding that is favorable while relitigating de novo that portion that is
unfavorable. See Morris v. Rice, 985 F.2d 143 (4th Cir. 1993): Haskins v.
42a
Appendix C
Department of Army, 808 F.2d 1192 (6th Cir. 1987); Pecker v. Heckler, 801
F.2d 709 (4th Cir. 1986). But see, Cocciardi v. Russo, 721 F.Supp. 735 (E.D.Pa.
1989) (discussing fragmentary trial de novo). Accordingly, Plaintiff is able to
accept as binding the EEOC’s finding of retaliatory animus on the part of
Major Lowery while being allowed to relitigate the damages issue related to
whether Plaintiff would have been offered a job with the Army in the absence
of the retaliatory employment reference.
13. A negative job reference is an actionable negative personnel action
under Title VII. See Rutherford v. American Bank of Commerce, 565 F.2d
1162 (lOth Cir. 1977); Pantchenko v. C.B. Dolge Co., Inc., 581 F.2d 1052
(2nd Cir. 1978); Shehadeh v. Chesapeake & Potomac Tel. Co., 595 F.2d 711
(D.C. Cir. 1978). The Ninth Circuit has not explicitly so held, but has in dicta
approved Title VII actions for negative employment references. See London
v. Cooper & Lybrand, 644 F.2d m811, 817 (9th Cir. 1981) (citing Shehadeh,
Rutherford, and Pantchenko and allowing a former employee to sue under §
1981 for adverse job reference).
14. This Court, having accepted the finding of retaliatory animus by
the EEOC, is asked to determine whether the Army would have hired Plaintiff
in the absence of the negative job reference. The undisputed testimony of
Richard Satake established that he was not motivated by the retaliatory
reference and would not have hired Plaintiff in light of her substantial
disciplinary record and marginal performance rating. Plaintiff has failed to
offer any credible evidence that Satake’s decision was motivated, in whole or
in part, by Lowery’s retaliatory job reference.
15. Because Plaintiff has established that Lowery’s job reference
was motivated by an unlawful retaliatory animus, Plaintiff is entitled to an
award of attorneys’ fees and costs related to her enforcement action, in addition
to her attorneys’ fees awarded by the EEOC, but not for her counsel’s efforts
to establish that the Army would have hired her in the absence of the retaliation
by Lowery. See Smith v. Secretary of the Navy, 659 F.2d 1113 (D.C.Cir.
1981). This is the extent of the relief to which Plaintiff is entitled.
CONCLUSION
16. Any finding of fact which may be deemed, in whole or in part,
more properly a conclusion of law shall be deemed as such, and any conclusion
of law which may be deemed, in whole or in part, more properly a finding of
43a
Appendix C
fact shall be deemed as such. All findings by the Court are based upon a
preponderance of the evidence.
17. The Jury Verdicts in Case | and Case 2 are vacated.
18. This Court orders that judgment be entered for Defendant on Plaintiff's
Case | claims.
19. This Court further orders that Plaintiff is entitled to reimbursement for
the attorneys’ fees and costs expended on her Case 2 retaliation claims to the
extent that the expenditures relate to enforcement of EEOC findings awarding
her attorneys’ fees, to which she also is entitled. This is the only equitable
relief to which Plaintiff is entitled. The determination of such fees and costs
is designated to a Magistrate Judge for a report and recommendation. IT IS
SO ORDERED.
DATED: Honolulu, Hawaii. MAY 25, 1994
s/ Alan C. Kay
Chief United States District Judge
HASHIMOTO V. DALTON. SECRETARY OF THE NAVY: CIV. NO. 91-0008]
ACK; ORDER VACATING JURY VERDICTS AND DECISION AND FINDINGS
OF FACT AND CONCLUSIONS OF LAW
44a
Appendix D
JUDGEMENT ORDER OF THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT DATED JULY 3, 1997
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
DEC 01, 1992
at 2 o'clock and _0 min. S/W.CHIN M.
WALTER A. V.H. CHINN, CLER
NO. 95-15827
CT/AG#: CV-91-00081-ACK
BARBARA MUTSUKO HASHIMOTO
Plaintiff - Appellee
V.
JOHN DALTON, Secretary of the Navy
Defendant - Appellant
NO. 95-159600
CT/AG#: CV-91-0008 1-ACK
BARBARA MUTSUKO HASHIMOTO
Plaintiff - Appellee
v.
JOHN DALTON, Secretary of the Navy
Defendant - Appellant
APPEAL FROM the United States District Court for the District of
Hawaii (Honolulu).
THIS CAUSE came on to be heard on the Transcript of the Record
from the United States District Court for the District of Hawaii (Honolulu)
and was duly submitted.
45a
Appendix D
ON CONSIDERATION WHEREOF, It is now here ordered and
adjudged by this Court, that the judgement of the said District Court in this
cause be, and hereby is AFFIRMED
Filed and entered July 3, 1997
A TRUE COPY
CATHY A. CATTERSON
Clerk of Court
ATTEST
SEP 16, 1997
by: _s/ “illegible”
Deputy Clerk
46a
Appendix D
FOR PUBLICATION
UNITED STATES COURT
FOR THE NINTH CIRCUIT
BARBARA MATSUKO HASHIMOTO, Nos. 95-15827
Plaintiff-Appellee 95-15960
Cross-Appellant, D.C. No.
CV-91-0008 1-ACK
JOHN DALTON, Secretary of the Navy, OPINION
Defendant-Appellant
Cross-Appellee
Appeals from the United States District Court
for the District of Hawaii
Alan C. Kay. District Judge, Presiding
Argued and Submitted
March 14, 1997—San Francisco, California
Filed July 3, 1997
Before: Otto R. Skopil, Jr., William C. Canby, Jr. and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Skopil
SUMMARY
Labor & Employment/Employment Discrimination
The court of appeals affirmed a judgment of the district court. The
court held that under Title Vl, a former employer's retaliatory negative job
reference for a discharged employee may serve as an “adverse personnel
action” even if it does not affect the prospective employer’s hiring decision.
While appellant Barbara Hashimoto worked for the Navy, her
immediate and second-line supervisors were Captain Craig Hinman and Major
Steven Lowery. Hashimoto contacted an Equal Employment Opportunity
(EEO) counselor, complaining that she was being evaluated for work that
47a
Appendix D
was not her responsibility to perform. Although Hashimoto did not believe
that Title VII discrimination was involved, the EEO counselor notified the
personnel office that there was a potential EEO complaint.
Just prior to her discharge due to a reduction in force (RIF), Hashimoto
brought an administrative complaint (Case | ) alleging that Hinman and
Lowery had subjected her to adverse employment action due to her race and
gender and because she had met with the EEO counselor: (1) a five-day
suspension; (2) a 14 day suspension; (3) denial of a within-grade salary
increase (WGI); and (4) discharge by RIF.
While her first administrative complaint was pending, Hashimoto
filed < second (Case 2), alleging that when she applied for a job with the
Army. .she received a negative job reference from Lowery in retaliation for
Case 1.
The Equal Employment Opportunity Commission (EEOC) rejected
all of Hashimoto’s Case I claims. However, on the Case 2 retaliation claim,
the EEOC found that Lowery’s negative reference had been animated by
retaliatory animus, but that Hashimoto would not have been hired in any
event. The EEOC ordered the Navy to cease and desist its practice of notifying
prospective employers of its employees’ or former employees’ participation
in protected EEO activity; to remove from Hashimoto’s personnel file
Lowery’s negative reference; to give Lowery and all supervisory staff EEO
training; and to post copies of an EEO notice. The EEOC also ordered the
Navy to pay Hashimoto’s attorneys’ fees. Hashimoto sought a trial de novo
on all her claims.
The district court dismissed Hashimoto’s claims based on the 5-day
suspension and the RIF. The court found that Hashimoto had failed to exhaust
administrative remedies because she did not alert an EEO counselor within
30 days of the allegedly discriminatory suspension, and had not pursued the
RIF claim before the Merit Systems Protection Board (MSPB).
As to her retaliation claims based on the meeting with the EEO
counselor. the court granted summary judgment for the government on the
ground that Hashimoto had failed to show that the government retaliated
against her for engaging in protected activity.” The court reasoned that
Hashimoto did not reasonably believe that the Navy had engaged in unlawful
employment practices because she had sought only to have her personal
48a
Appendix D
problem (outdated job description) remedied.
On the remaining Case 2 retaliation claims ( 14-day suspension, denial
of WGI. negative job reference). the case proceeded to trial. Successive juries
awarded Hashimoto damages. but the district court vacated both verdicts. At
the court’s direction. the parties submitted proposed findings of facts and
conclusions of law.
The district court concluded that on Hashimoto’s Case |
discrimination claims. the adverse personne! actions were not based on
discriminatory animus, but on various deficiencies in her performance the
government cited as legitimate reasons for her discharge. With respect to the
Case 2 retaliation claim, the court determined that it was unsupported because
the Army would not have hired Hashimoto even if Lowery had not
disseminated the negative job reference.
However, the district court enforced the EEOC’s award of attorneys”
fees, and awarded additional fees on the Case 2
retaliation claims to the extent that they related to the EEOC’s award of fees.
Both sides appealed.
The government contended that the attorneys” fee award was
unjustified because a negative employment reference is not an actionable
adverse personnel action under Title VII. Additionally, the government
contended that because Lowery’s negative job reference did not result in
employment-related harm, there was no Title VII violation, i.e., ‘no harm, no
foul.” In any event. the government asserted, no award was permissible because
Hashimoto was not a prevailing party.”
Hashimoto asserted that the dismissal of the Case I suspension and
RIF termination was improper because she alleged a pattern of discriminatory
acts sufficient to support a continuing violation” theory. In Hashimoto’s view,
her meeting with the EEO counselor was protected activity.” As to the
remaining Case I claims, Hashimoto contended that the district court erred in
crediting testimony by Hinman and Lowery because they made misstatements
of fact during the two trials and in documents admitted into evidence.
[1] Dissemination of adverse employment references can constitute
a violation of Title VIl if motivated by discriminatory intent. It was beside the
point that Lowery’s negative reference was not the reason Hashimoto did not
49a
Appendix D
get the job with the Army. Lowery’s dissemination of the negative reference
was an actionable employment decision
[2] The government could have avoided Title VII liability if it had
established that Lowery would have given Hashimoto the negative reference
even if she had not filed the EEOC complaint. The government failed to do
so.
[3] Traditionally in cases alleging retaliation, the conduct takes the
form of discharge, demotion, failure to promote, or similar actions that inflict
tangible employment-related harm on the employee. A retaliatory negative
job reference does not
inflict tangible employment harm in the traditional sense. It requires a
prospective employer’s subsequent adverse action (failure to hire) in reliance
on the reference to create demonstrable employment harm.
[4] A plaintiff may seek relief for retaliatory actions taken after her
employment ends if the alleged discrimination is related to or arises out of
the employment relationship. Title VII does not limit its reach only to acts of
retaliation that take the form of cognizable employment actions such as
discharge, transfer, or demotion.
[5] Lowery’s dissemination of the adverse job reference violated Title
VII because it was a personnel action motivated by retaliatory animus. That it
fumed out to be inconsequential went to the issue of damages. not liability.
[6] Actions taken in retaliation for the exercise of Title VII mghts can
have a deleterious effect on the exercise of those rights by others. Although
this harm was not suffered by Hashimoto because she was no longer employed
by the Navy, the chilling effect that Lowery’s conduct might have had on
employees under his supervision counseled against accepting the government's
narrow conception of what constitutes a violation of Title VII.
[7] A litigant need not prevail on every issue, or even on the central
issues in the case. to be considered the prevailing party. It is enough that she
succeeds on any significant claim affording some of the relief sought. If the
plaintiff is only partially successful and achieves only some of the benefit
sought by the litigation, she is still considered the prevailing party.
[8] To remedy Lowery’s retaliatory actions. 19] the EEOC did more
50a
Appendix D
than merely determine that Hashimoto had been the victim of a retaliatory
negative character reference. It ordered a panoply of remedial measures, at
least .some of which were personal to Hashimoto. The EEOC’s order effected
a material alteration in the legal relationship between the plaintiff and
the defendant sufficient to confer prevailing party status on Hashimoto.
[1® _. plaintiff who achieves a significant nonmonetary result not
only for himself but for the community in general attains more than a
~technical” victory. Hashimoto obtained relief that not only benefited her
personally, but served to assist persons like her in that the EEOC’s remedial!
measures prevented others from being subjected to retaliatory actions by the
Navy.
[11] The continuing violations doctrine did not save Hashimoto's
claim relating to her 5-day suspension. To establish a continuing violation.
one or more of the allegedly discriminatory acts must fall within the limitations
period. Hashimoto failed to show that the Navy committed any discriminatory
acts between the effective date of her 5-day suspension and the expiration of
the 30-day limitations period. [12] Hashimoto also failed to establish how the
existence of a continuing violation would have cured the jurisdictional defect
in her claim relating to the RIF. A district court simply does not have
jurisdiction over discrimination claims that were not raised before the MSPB.
[13] To succeed on a retaliation claim, the plaintiff must demonstrate
(1) that she was engaging in protected activity; (2) that she suffered an adverse
employment decision; and (3) that there was a causal link between her activity
and the employment decision. The district court determined that Hashimoto
satisfied the last two elements, but failed to establish the first.
[14] Hashimoto did more than merely complain to a superior. She
contacted an EEO counselor about her concerns. Even assuming that her
concerms were “personal,” this contact with the EEO counselor was itself
protected activity.
[15] An employer can violate the anti-retaliation provisions of Title
Vil in either of two ways: (1) if the adverse action occurs because of the
employee's opposition to conduct made an unlawful employment practice,
or (2) if it is in retaliation for the employee’s participation in the machinery
set up by Title VII to enforce its provisions. Hashimoto's visit with the EEO
counselor constituted participation in the machinery set up by Title VII. As
Sla
Appendix D
such. it was protected activity. The district court erred in determining that
Hashimoto failed to establish a prima facie case of retaliation.
[16] Hashimoto made no attempt to refute the government’s legitimate
explanation for its actions. She failed to carry her burden of establishing a
~able issue-of fact on the question of whether the government retaliated against
her for meeting with the EEO counselor. The district court’s grant of summary
judgment was thus appropriate.
[17] On Hashimoto’s Case | claims, the district court credited the
testimony of Hinman and Lowery. This was a credibility determination. The
district court s credibility determinations are entitled to special deference.
[18] The alleged misstatements provided no reason to disturb the district court’s
decision to credit Hinman and Lowery. [19] The district court did not err in
granting judgment in the government’s favor on the remaining Case | claims.
COUNSEL
Clayton C. Ikei, Honolulu, Hawaii, for the plaintiff-appellee-cross-appellant.
Theodore G. Meeker, Assistant United States. Attorney, Honolulu, Hawaii;
Major Raymond T. Lee, ITI. United States Marine Corps, Santa Ana, California,
for the defendant-appellant-cross-appellee.
OPINION
SKOPIL, Circuit Judge:
In this Title VII action, an Asian-American woman alleges incidents
of disparate treatment and retaliation by her former employer, the Department
of the Navy. The district court ruled in favor of the Navy on all but one of
plaintiff’s claims. On the remaining claim, the court concluded that the Navy
retaliated against the plaintiff for filing an administrative complaint with the
Equal Employment Opportunity Commission (~.EEOC”). The court awarded
attorney’s fees.
The Navy appeals the award of fees. Plaintiff’ cross-appeals the court’s
rejection of her other claims. We have carefully reviewed the record, and
conclude that no reversible error occurred. Accordingly, we affirm.
52a
Appendix D
I. Background
Plaintiff Barbara Hashimoto worked for the Navy as a Budget Analyst
from April 1984 through June 1986. For most of this time, Captain Craig
Hinman was her immediate supervisor and Major Steven Lowery was her
second line supervisor —both white males. The relationship between
Hashimoto and her supervisors was quite turbulent. Just prior to her termination
due to a reduction in force (*"RIF’), she initiated an administrative complaint.
In that complaint (~-Case 1"), Hashimoto alleged that Hinman and Lowery
subjected her to four adverse employment actions because of her race and
gender and because she met with an Equal Employment Opportunity (.EEO-)
counselor (1) a 5-day suspension effective January 27, 1986; (2) a 14-day
suspension effective April 10, 1986; (3) denial of a within grade salary increase
(“WGI”) on April 13, 1986; and (4) termination by RIF on June 2, 1986.
While her first complaint was pending, Hashimoto filed a second
administrative complaint (~.Case 2") in which she alleged that. when she
applied for a job with the Army in 1988, she received a negative job reference
from Lowery in retaliation for filing her Case I administrative complaint. The
two complaints were consolidated and eventually reached the EEOC, which
rejected all of Hashimoto’s Case | claims. On the Case 2 retaliation claim.
however, the EEOC found that the negative reference was motivated by
retaliatory animus but that Hashimoto would not have been hired by the Army
in any event. The EEOC ordered the Navy to undertake certain measures to
remedy the retaliatory conduct and to pay Hashimoto’s attorney’s fees.
Hashimoto sought a trial de novo on all five of her administrative
claims. Prior to trial, however, the district court dismissed the 5-day suspension
and RIF claims on procedural grounds. Further, the district court granted the
Navy’s motion for summary judgment on the retaliation portion of her Case
I claims. The court also allowed Hashimoto to seek enforcement of the EEOC’s
finding of retaliation on her Case 2 claim, while receiving a trial de novo on
the remaining issues. Thus. the only issues for trial were Hashimoto's
discrimination claims relating to her 1 ~day suspension and denial of the
WGI, and her claim that the Army would have hired her in the absence of the
negative job reference.
There were two jury trials on Hashimoto’s claims. The first trial ended
in a $300.000 verdict for Hashimoto, but that verdict was vacated by the
district court and a new trial was ordered. A second trial resulted in a $280,000
53a
Appendix D
verdict for Hashimoto. That verdict. however, was vacated by the district
court in light of Landgraf v. USI Film Products, 51 1 U.S. 244 (1994), which
held that the 1991 amendments to the Civil Rights Act of 1964, providing for
jury trials and compensatory damages, were not retroactive in application.
Hashimoto does not contest the district court’s decisions to vacate the jury
verdicts.
To avoid a third trial, and in the interests of judicial efficiency and
economy,” the parties were instructed to submit proposed findings of fact and
conclusions of law based on the evidence admitted in the second trial. The
district court thereafter issued its findings of fact and conclusions of law.
Hashimoto vs. Dalton, 870 F. Supp. 1544 (D. Haw. 1994). The court concluded
on the Case | discrimination claims that “the adverse personnel actions taken
against Plaintiff were not the result of any discriminatory animus but rather
because of her repeated refusal] or failure to follow instructions, her refusal
to perform assigned tasks, her obstinate manner of dealing with her superiors,
and her inability to word; under the supervision of military officers.” Id. at
1547. Further, the court concluded that Hashimoto’s Case 2 retaliation claim
was meritless because the Army would not have hired her even if a negative
job reference had not been disseminated. Id Nevertheless, the court specifically
enforced the EEOC’s award of attorney’s fees, and awarded additional
attorney’s fees and costs on the Case 2 retaliation claim to the extent that the
expenditures related to enforcement of the EEOC’s award of attorney’s fees.
The government appeals the district court’s order awarding Hashimoto
attorney’s fees and costs. Hashimoto cross-appeals the district court's orders
(1) dismissing on procedural grounds her claims relating to her 5-day
suspension and her termination pursuant to a RIF; (2) granting summary
judgment in favor of the government in her Case I retaliation claim; and (3)
granting judgment in favor of the government on her remaining Case I disparate
impact claims.
IL Attorney's Fees
A. The Title VII Violation
The district court concluded that “[a] negative job reference is an
actionable negative personnel action under Title VII.” Hashimoto. 870 F. Supp.
at 1557. The court also accepted the EEOC’s findings that Lowery’s
dissemination of a negative job reference to the Army was motivated by
——
54a
Appendix D
unlawful retaliatory animus. On this basis, the district court concluded that
Hashimoto was entitled to the attorney's fees awarded by the EEOC.
The government contends that the district court’s enforcement of the
EEOC’s attorney’s fee award is unsupportable because Hashimoto failed to
establish a violation of Title VII. In the government’s view, a negative
employment reference is not an independently actionable adverse ..personnel
action.” Instead. the only personnel action” involved here was the Army’s
decision not to hire Hashimoto. Because, as the district court found. the
negative reference did not cause this adverse personnel action” by the Army,
the government posits that Hashimoto failed to establish a Title VII violation.
[1] The government’s lack; of causation argument must fail. .. There
is little question that the dissemination of adverse employment references
can constitute a violation of Title VII if motivated by discriminatory intent.-
London v. Coopers & Lybrand. 644 F.2d 811, 817 (9th Cir. 1981). Thus, it is
beside the point that Lowery’s negative job reference was not the reason
Hashimoto did not get the job with the Army. Lowery’s dissemination of the
negative job reference is an actionable employment decision. Both the EEOC
and the district court found that Lowery gave Hashimoto the negative reference
in retaliation for her EEOC activities, and the government does not challenge
that finding on appeal. Thus, the requisite causal connection is established.
[2] The government’s initial misstep leads it to the erroneous
conclusion that Price Waterhouse v. Hopkins. 490 U.S. 228 (1989), supports
its position. On the basis of statements made in the various opinions of a
divided Supreme Court, the government asserts that there can be no Title VII
violation here because the Army did not rely upon Lowery’s negative reference
in its decision not to hire Hashimoto. The plurality opinion in Price Waterhouse
concludes that ..an employer shall not be liable if it can prove that, even if it
had not taken [an illegitimate factor] into account, it would have come to the
same decision regarding a particular person.” 490 U.S. at 242. Once it is
understood, however, that it is the reference itself which is the actionable
employment decision, the plurality’s statement fully supports the district
court's decision. Properly applied to this case, that statement merely means
that the government could have avoided Title VII liability if it had established
that Lowery would have given Hashimoto the negative employment reference
even if she had not filed a complaint with the EEOC. This, according to both
the EEOC and the district court, the government failed to do. Thus, the district
court did not flout the teachings of Price Waterhouse in holding that Lowery’s
55a
Appendix D
conduct violated Title VII.
The other cases upon which the government relies do not support the
government’s position for the same reason. Those cases would be apposite
only if the Army’s decision not to hire Hashimoto was the relevant employment
decision. As previously established, however, the adverse ~ personnel action”
at issue here is Lowery’s dissemination of the negative reference itself. Thus,
those cases do not apply. See, e.g., Ruggles v. California Polytechnic State
Univ., 797 F.2d 782 (9th Cir. 1986) (relevant employment action was failure
to hire); Visser v. Packer Engineering Assoc., Inc., 924 F.2d 655 (7th Cir.
1991) (en bane) (discharge); Cesaro v. Lakeside Community Sch. Dist., 953
F.2d 252 (6th Cir.) (failure to hire); Wilson v. Stroh Companies, Inc., 952
F.2d 942 (6th Cir. 1992) (discharge); Shager v. Upjohn Co., 913 F.2d 398
(7th Cir. 1990) (discharge).
13] In aclosely related argument, the government further asserts that
because Lowery’s reference did not inflict any employment-related harm upon
Hashimoto, there can be no Title VII violation. This presents a thornier
question. Traditionally, in cases alleging retaliation, the retaliatory conduct
takes the form of discharge, demotion, failure to promote, or similar actions
that clearly inflict tangible, employment-related harm upon the employee. A
retaliatory negative job reference, by contrast. does not itself inflict tangible
employment harm in the traditional sense. It requires a prospective employer's
subsequent. adverse action (failure to hire) in reliance on that reference to
create the demonstrable employment harm. The government correctly points
out that in every published case-involving a negative reference, the reference
allegedly resulted in a failure to hire by the prospective employer, The
government contends that, because such an injury is lacking here, no Title
VII liability attached.
[4] We reject the government’s .-no harm, no foul” approach. A
plaintiff’ may seek relief for retaliatory actions taken after her employment
ends if “the alleged discrimination is related to or arises out of the employment
relationship.” Passer v. American Chemical Soc., 935 F.2d 322, 330 (D.C.
Cir. 1991) (collecting cases). Title VII .’does not limit its reach only to acts of
retaliation that take the form of cognizable employment actions such as
discharge, transfer, or demotion.- Id. at 331.’
Moreover. we have squarely rejected a similar no harm, no foul”
argument in the Title VII context. In EEOC v. Hacienda Hotel. 881 F.2d 1504
56a
Appendix D
(9th Cir, 1989), the EEOC initiated an employment discrimination action
alleging that the employer had violated Title VII by terminating three pregnant
employees. The employer argued that it should not be held liable because the
employees suffered no “damage” as a result of the terminations since two of
the employees were rehired following their pregnancies without loss of
seniority or other benefits, and the third employee would not have been rehired
in any event because of her poor work performance, Hacienda Hotel, 881
F.2d at 1511, We vigorously rejected the employer’s argument:
Although Passer was an ADEA case. the court specifically concluded
that the ADEA anti-retaliation provision is “parallel to the anti-retaliation
provision contained in Title VI. and that “cases interpreting the latter provision
are frequently relied upon in interpreting the former.” 935 F.2d at 330.
[T]he Hacienda’s view of its employees’ pregnancy discrimination
claims is no harm, no foul.” Beyond the cavalier attitude such statements
convey, appellant’s argument evidences an almost total misapprehension of
the purposes and operation of federal employment discrimination law....
Appellant is confusing the liability determination with the relief phase.
Even if no employee suffered a tangible loss” of an ..economic nature,” i.e..,
a loss of seniority or wages or other monetarily quantifiable employment
benefits, appellant’s implementation of a policy or practice under which
pregnant employees were treated differently from other temporarily-disabled
employees with similar capacity for work; would stil! be a violation of both
the letter and spirit of Title VII's prohibition against pregnancy discrimination,
Id at 1511-12,
(51 Just as in Hacienda Hotel, the government’s argument in this
case fails to recognize the distinction between a violation and the availability
of remedies, Lowery’s dissemination of the adverse job reference violated
Title VII because it was a “personnel action” motivated by retaliatory animus,
That this unlawful personnel action turned out to be inconsequential goes to
the issue of damages, not liability. See, e.g., Smith v. Secretary of Navy, 659
F.2d 1113, 1120 (D.C. Cir. 1981 ) (“[T]he questions of statutory violation
and appropriate statutory remedy are conceptually distinct. An illegal act of
discrimination—whether based on race or some other factor such as a motive
of reprisal—is a wrong in itself under Title VII, regardless of whether that
wrong would warrant an award of [remedies].”’) (citation omitted); Sparrow“
v. Piedmont Health Sys. Agency, Inc., 593 F. Supp. 1107, 1119 (M.D.N.C.
1984) (agency’s retaliatory refusal to provide a letter of recommendation
57a
Appendix D
violated Title VII, but plaintiff was not entitled to a remedy because he failed
to demonstrate any harm resulting from the agency’s action).
[6] Further, as in Hacienda Hotel, adoption of the government's
position would undermine both the letter and the spins of Title VII's prohibition
against actions in retaliation for EEO activities. We have recognized that
actions taken in retaliation for the exercise of Title VII mghts can have a
deleterious effect on the exercise of these rights by others.” Garcia v. Lawn,
805 F.2d 1400, 1405 (9th Cir. 1986). Although this particular harm was not
suffered by Hashimoto in the present case because she was no longer employed
by the Navy, the chilling effect which Lowery’s retaliatory conduct might
have on the remaining employees under his supervision does counsel against
accepting the government’s narrow conception of what constitutes a violation
of Title VII. Accordingly, we conclude that the retaliatory dissemination of a
negative employment reference violates Title VII, even if the negative reference
does not affect the prospective employer’s decision not to hire the victim of
the discriminatory action.
B. The Fee Award
The district court awarded Hashimoto $20,565.19 in attorney’s fees
for her counsel’s successful prosecution of the retaliation claim before the
EEOC. The court also awarded Hashimoto an additional $10,982.50 in
attorney's fees incurred in her action to enforce that award in the district
court The court expressly declined to award attorney’s fees for her counsel's
efforts to establish that the Army would have hired her in the absence of the
retaliation by Lowery. Hashimoto, 870 F. Supp. at 1557. The government
argues that the district court failed to review the legal propriety of the attorney's
fees award ordered by the EEOC. In the government’s view, the EEOC’s
award of attorney’s fees was inap-
propriate as a matter of law because Hashimoto was not a “prevailing party”
in the EEOC action. We disagree.
[7] In cases brought under 42 U.S.C. § 2000e-16(a). the court, in its
discretion, may allow the prevailing party . .. a reasonable attorney's fee
(including expert fees) as part of the costs.” 42 U.S.C. § 2000e-S(k). A litigant
need not prevail on every issue, or even on the ~central issue” in the case. to
be considered the prevailing party. Texas State Teachers Ass’n ev. Garland
Independent Sch. Dist., 489 U.S. 782, 790-91 (1989). It is enough that she
succeeds “on any significant claim affording some of the relief sought.” Id. at
58a
Appendix D
791. If the plaintiff is only partially sucessful in seeking the relief, and
achieves only some of the benefit sought by tie litigation, she is still considered
the prevailing party. Stivers v. Pierce. 71 F.3d 732. 751 (9th Cir. 1995) (citing
Farrar v. Hobby, 506 U.S. 103. 111-12 (1992)).2 The degree of success is
irrelevant to the question whether the plaintiff is the prevailing party.” Id.
[8] Here, Hashimoto sought a determination of retaliation.
reinstatement and backpay in her action before the EEOC. The EEOC declared
that Lowery’s bad character reference was indeed motivated by retaliatory
animus, but declined to award reinstatement or backpay. Instead, to remedy
Lowery’s retaliatory actions against Hashimoto, the EEOC ordered the Navy
to (1) cease and desist its practice of notifying prospective employers of its
employees’ or former employees’ participation in protected EEO activity; (2)
remove from Hashimoto’s personnel files the negative character reference
disseminated by Lowery; (3) provide EEO training to Low
be court in Stivers was interpreting 42 U.S.C. § 1988. rather than 42 U.S.C. §
2000e-5(k). The Supreme Court has recognized. however. that the standards
articulated in cases interpreting section 1988 “are generally applicable in all
cases in which Congress has authorized an award of fees to a ‘prevailing
party.’- Hensley v. Eckerhart, 461 U.S. 424. 433 n.7 (1983); see also Schwarz
v. Secretary of Health ~ Human Servs., 73 F.3d 895, 901 n.2 (9th Cir. 1995).
ery and all supervisory staff within 180 days; and (4) post copies of an EEOC
notice throughout the camp.3
The government contends that the EEOC’s finding of retaliation and
the remedial measures it imposed are insufficient to confer ‘prevailing party”
status upon Hashimoto. To support its position, the government relies on Slade
v. U.S. Postal Service, 952 F.2d 357 (JOth Cir. 1991), and Walker v. Anderson
Electrical Connectors, 944 F.2d 841 (11th Cir. 1991). In Slade, the plaintiff
successfully sought a determination by the EEOC that the Postal Service had
discriminated against him on the basis of race in its decision not to hire him.
952 F.2d at 362. The EEOC declined, however, to award the plaintiff back
pay or benefits. The plaintiff asserted that the EEOC’s finding of discrimination
entitled him to attorney’s fees as a prevailing party.” The Tenth Circuit rejected
this argument on the ground that plaintiff had obtained no relief on the merits
of his claim. Id.
In Walker, the plaintiff obtained a jury finding of sexual harassment
on the part of her employer, but the jury declined to award damages. The
plaintiff asserted that she was a prevailing party” and therefore entitled to
59a
Appendix D
attorney’s fees. The Eleventh Circuit rejected this argument, reasoning that a
jury’s finding of harassment, unaccompanied by any relief, ~ is not the stuff
of which legal victories are made.” 944 F.2d at 847 (quoting Hewitt v. Helms,
482 U.S. 755, 760 (1987)).
[9] The government asserts that Slade and Walker apply to this case
because here, as in those cases, [t]he most that can be said for [Hashimoto’s]
‘victory’ was that Major Lowery was declared to have acted in a discriminatory
fashion.” Both
The notice which the Navy was ordered to post conspicuously reads
as follows: “{[The Department of the Navy will not in any manner restrain
interfere, coerce, or retaliate against any individual who exercises his or her
right to oppose practices made unlawful by. or who participates in proceedings
pursuant to, Federal equal employment opportunity law.” Slade and Walker,
however, are distinguishable. Here. the EEOC did more than merely determine
that Hashimoto had been the victim of a retaliatory negative character
reference. Although it did not order reinstatement or backpay, it did order a
panoply of remedial measures, at least some of which were unquestionably
personal to Hashimoto. The government’s failure to acknowledge these
important aspects of the EEOC’s disposition of Hashimoto’s claim manifests
an overly narrow view of what constitutes a legal ~victory.” We therefore
conclude that the EEOC’s order effected a ~material alteration in the legal
relationship between plaintiff and defendant” sufficient to confer prevailing
party status upon Hashimoto. See Stivers, 71 F.3d at 753 n.10 (citing Farrar,
506 U.S. at 111-12); see also Smith, 659 F.2d at 1122 (plaintiff who is subject
to an adverse performance evaluation in retaliation for EEO activities, but
suffers no financial harm from the evaluation, is a .’ prevailing party” entitled
to attorney’s fees even though only proper relief on the merits is removal of
the improper evaluation from his personnel file).
The government alternatively challenges the reasonableness of the
fee award, arguing that because Hashimoto tool: nothing tangible from either
her EEOC or district court proceedings, ..the only reasonable fee is no fee at
all.” We acknowledge that, in cases where a civil rights plaintiff “prevails”
but receives ~only de minimis relief and achieves only “technical” success,
the court is permitted to bypass the general rule requiring calculation of a
lodestar and simply establish a low fee or no fee at all. See Morales vs. City
of San Rafael, 96 F.3d 359, 362-63 (9th Cir. 1996) (interpreting Farrar).
Whether the plaintiffs “success is purely technical or de minimis,” however,
60a
Appendix D
is determined by examining factors beyond the amount of money damages
awarded. Id. at 363 (quoting Farrar, 506 U.S. at 117 (O’Connor, J..
concurring)). “Primary among such other considerations is ‘the significance
of the legal issues on which the plaintiff claims to have prevailed’ and the
‘public purpose’ the plaintiff’s litigation served.” Id.
[10] We have recently recognized that a plaintiff who achieves a
..Significant nonmonetary result not only for himself but for the community
in general” attains more than a technical” victory. Id In Morales, for example,
the deterrent effect of a nominal award was held to serve ‘’the public purpose
of helping to protect [the plaintiff] and persons like him from being subjected
to similar unlawful treatment in the future.” Id. at 36~65. Here, as in Morales.
Hashimoto obtained relief which not only benefited her personally, but also
served to assist persons like her in that the EEOC’s remedial measures
prevented others from being subjected to retaliatory actions by the Navy. We
therefore conclude that the district court properly declined to invoke the Farrar
..no fee at all” exception for cases in which the relief obtained is de minimis.
See Stivers, 71 F.3d at 753 (plaintiff who obtains tangible results,” but does
not obtain all of the relief sought, is still entitled to fees). For these reasons,
the district court did not abuse its discretion in awarding fees or in setting
their amount.
II. Dismissal of the Case I Claims Arising from the 5-day Suspension and
the Termination Pursuant to a RIF
During the time period relevant to this action, EEOC regulations
required an aggrieved employee to alert an EEO counselor of an alleged
violation within 30 days of the alleged discriminatory event. 29 C.F.R.
§1613.214{a)(1)(i) (1991). The district court concluded that Hashimoto failed
to contact an EEO Counselor within 30 days of her 5-day suspension, and
had therefore failed to exhaust her administrative remedies. Thus, the court
granted the government’s motion to dismiss the claim relating to this
suspension.
[11] Hashimoto asserts that this dismissal was improper because she
had alleged a pattern of discriminatory acts sufficient to support a “continuing
violation” theory. Under that doctrine, allegations of conduct occurring prior
to the limitations period are actionable if the complainant can show that they
are part of a series of related acts against the complainant. Green v. Los Angeles
County Superintendent of Schs., 883 F.2d 1472, 1480 (9th Cir. 1989). We
6la
Appendix D
conclude that the continuing violations doctrine does not save Hashimoto's
claim relating to her 5-day suspension. To establish a continuing violation,
one or more of the allegedly discriminatory acts must fall within the limitations
period. Id Hashimoto failed to show that the Navy committed any
discriminatory acts between the effective date of her 5-day suspension and
the expiration of the 30-day limitations period.
[12] The district court also granted the government’s motion to dismiss
Hashimoto's discrimination claims arising from her termination pursuant to
a RIF because she did not pursue those claims before the Merit Systems
Protection Board (“MSPB”). The court concluded that this failure foreclosed
its exercise of jurisdiction over those claims. See Hays v. Postmaster General,
868 F.2d 328, 330 (9th Cir. 1989). Hashimoto contends that the district court
should not have dismissed these claims because the RIF was part of a
“continuous violation” on the part of the Navy. We reject this argument.
Hashimoto fails to establish how the existence of a continuous violation would
cure the jurisdictional defect in her claim relating to the RIF. A district court
simply does not have jurisdiction over discrimination claims that were not
raised before the MSPB. Id.
IV. Summary Judgment on the Case I
Retaliation Claim
On May 21, 1985, Hashimoto contacted an EEO counselor about
filing a complaint. According to the EEO counselor, Hashimoto believed that
she was being evaluated for work which was no longer her responsibility to
perform. Upon being advised by the EEO counselor of her right to file a
discriminatory complaint, Hashimoto stated that she -.did not really believe
that this is a discriminatory complaint.” Never
theless, the EEO counselor sent a memorandum to the personnel office endued
.POTENTIAL~ EEO COMPLAINT” detailing the interview with Hashimoto.
Hashimoto alleged that within a few months of her meeting with the
EEO counselor, certain adverse employment actions were taken against her.
The district court granted the government’s motion for summary judgment
on this retaliation claim on the ground that Hashimoto failed to establish that
the government retaliated against her for engaging in “protected activity.”
Hashimoto contests this conclusion.
[13] To succeed in a retaliation claim, the plaintiff must demonstrate
62a
Appendix D
(1) that she was engaging in protected activity, (2) that she suffered an adverse
employment decision, and (3) that there was a causal link between her activity
and the employment decision. Folkerson v. Circus Circus Enterprises, Inc.,
107 F.3d 754, 755 (9th Cir. 1997). The district court determined that Hashimoto
satisfied the last two elements, but failed to establish the first element of her
prima facie case.
The district court concluded that Hashimoto’s contact with the EEO
counselor was not a “protected activity” in this instance because, at the time
of her meeting with the EEO counselor, she did not ‘reasonably believe that
the employer had engaged in an unlawful employment practice” under Title
VII. Rather, in the district court’s view, she .’ merely sought to have her personal
problem [of an outdated job description] remedied.” The court analogized
Hashimoto’s retaliation claim to the claim at issue in Jurado v. Eleven-Fifty
Corp., 813 F.2d 1406 (9th Cir. 1987). [here, an Hispanic disc jockey
complained to his program director about an on-air Englishonly policy
instituted at the radio station where he was employed. He was subsequently
fired. The court upheld the district court’s grant of summary judgment on his
retaliation claim, reasoning that his complaint to the program director
evidenced concern over his personal success at the station
rather than a concern about discrimination. Thus, it was not a “protected
activity” for purposes of establishing a prima facie retaliation claim. Jurado,
813 F.2d at 1411-12.
Hashimoto asserts that her meeting with the EEO counselor was
- protected activity” because, at the time she set-up the meeting, she felt that
the failure to update her job description was motivated by race and sex
discrimination. In Hashimoto’s view, that she no longer felt this action was
discriminatory at the end of the meeting is of no moment, and the district
court erred in focusing on this fact. See Gifford v. Atchison, Topeka and Santa
Fe Ry. Co., 685 F.2d 1149, 1156-57 (9th Cir. 1982) (employee need not be
aware that practice is unlawful under Title VII at time of complaint in order
for complaint to be protected). Hashimoto’s argument is compelling. but we
conclude that the district court erred at a more fundamental level.
[14] Adopting the approach taken in Jurado, the district court here
- looked behind” Hashimoto’s meeting with the EEO counselor and concluded
that it was not protected activity because she did not at that time allege
discrimination. Unlike in Jurado, however, Hashimoto did more here than
merely complain to a superior. Rather, she contacted an EEO counselor about
63a
Appendix D
her concerns. Even assuming her concerns were .’personal” in nature, we
conclude that this contact with the EEO counselor was itself “protected
activity.”
[15] An employer can violate the anti-retaliation provisions of Title
VII in either of two ways: “(1) if the [adverse employment action] occurs
because of the employee’s opposition to conduct made an unlawful
employment practice by the subchapter, or (2) if it is in retaliation for the
employee’s participation in the machinery set up by Title VII to enforce its
provisions.” Si/ver v. KCA, Inc., 586 F.2d 138, 141 (9th Cir. 1981) (interpreting
42 U.S.C. § 2000e-3(a) (§ 704(a))). The considerations controlling the
interpretation of the opposition clause are not entirely the same as those
applying to the participation clause. The purpose of the latter is to protect the
employee who utilizes the tools provided by Congress to protect his rights.”
Sias v. City Demonstration Agency, 588 F.2d 692, 695 (9th Cir. 1978). The
district court appears to have examined Hashimoto’s retaliation claim under
the opposition clause only. Under the participation clause, however, there
can be little doubt that Hashimoto’s visit with the EEO counselor constituted
participation ..in the machinery set up by Title VII.” As such, it was protected
activity. See, e.g., Eastland v. Tennessee Valley Auth, 704 F.2d 613, 627 (11th
Cir. 1983) (contacting an EEO officer is protected activity); Gonzalez. v.
Bolger, 486 F. Supp. 595, 601 (D.D.C. 1980) ( Once plaintiff ... initiates
pre-complaint contact with an EEO counselor ... he is participating in a Title
VII proceeding.” (citations omitted)), affd, 656 F.2d 899 (D.C. Cir. 1981).
Thus, we conclude that the district court erred in determining that Hashimoto
failed to establish a prima facie case of retaliation.
The error does not, however, require that we reverse the district court’s
grant of summary judgment on this claim. After concluding that Hashimoto
failed to establish a prima facie case, the district court commented that "even
if Plaintiff had been successful in establishing a prima facie case of retaliation,
the burden would then shift to Defendant to provide a legitimate reason for
the adverse employment actions.” Because the government articulated
legitimate, nondiscriminatory reasons for the actions taken against Hashimoto
after her contact with the EEO counselor, the court concluded that summary
judgment on her retaliation claim would have been appropriate in any event.
[16] A review of the record reveals that Hashimoto made no attempt
to refute the government’s legitimate explanations for its actions. Her affidavit
accompanying her opposition to the government’s motion for summary
64a
Appendix D
judgment merely states that when Captain Hinman reamed that I had contacted
an EEO counselor, his harassment of me intensified and his supervisor
supported all his actions. The letters of caution, proposed suspensions and
threats of dismissal all began after my contact with the EEO counselor in
May, 1985.” Although the timing of these events suffices to establish a minimal
prima facie case of retaliation, it does nothing to refute the government's
proferred legitimate reasons for disciplining Hashimoto. We therefore conclude
that Hashimoto failed to carry her burden of establishing a triable issue of
fact on the ultimate question of whether the government retaliated against
her for meeting with the EEO counselor. Thus, the district court’s grant of
summary judgment was appropriate. See Wallis v. J.R. Simplot Co., 26 F.3d
885, 890-91 (9th Cir. 1994) (“[W]hen evidence to refute the defendant’s
legitimate explanation is totally lacking, summary judgment is appropriate
even though plaintiff may have established a minimal puma facie case.”).
V. Judgment on the Remaining Case I Claims
[17] Hashimoto contends that the district court’s judgment on her
Case | claims is flawed because it is based on clearly erroneous findings of
fact. She first asserts that the testimony of Hinman and Lowery should not
have been credited because they allegedly made various misstatements of
fact during the first and second trials and in certain documents admitted into
evidence. This is a credibility determination, and we therefore treat it as such.
See Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1983) treating assertion
on appeal that witnesses committed perjury, based solely on evidence which
was before the factfinder, as attack on credibility finding). The district court’s
credibility determinations are entitled to special deference. Fed. R. Civ. P.
52(a); Anderson v. Bessemer City, 470 U.S. 564, 573 (1985): EEOC v. Bruno’s
Restaurant, 13 F.3d 285, 287 (9th Cir. 1993); Jordan v. Clark.-847 F.2d 1368,
1375 (9~ Cir. 1988) (Credibility determinations are insulated from appellate
review.’’).
[18] The alleged misstatements provide no reason to disturb the district
court's decision to credit Hinman and Lowery. On February 18, 1986, Hinman
sent a handwritten note to Hashimoto referencing a discussion they had on
February 10. In the first trial, Hinman testified that he did not recall having a
discussion with Hashimoto during the three week period preceding this note.
Counsel for Hashimoto subsequently pointed out the reference to the February
10 discussion, and Hinman acknowledged his mistake. In the second trial,
Hinman affirmatively stated that he had a discussion with Hashimoto on that
65a
Appendix D
date. Hashimoto characterizes this as a ~dramatic change in testimony”
between the first and second trials. We disagree with this characterization.
Hinman justified his change in testimony by stating that his memory on this
issue had been refreshed in the first trial, a justification which we conclude is
reasonable under the circumstances.
Hashimoto next points to the negative reference which Lowery
disseminated to the Army on August 10, 1988, in which he wrote that
Hashimoto failed to follow guidance from audit teams resulting in loss to
fund of approximately] $140,000.” At trial, Lowery acknowledged that
Hashimoto did not have authority to commit the expenditure of that money
without approval of a superior. Hashimoto fails to articulate how the
requirement of a signature by a superior to release the money undermines
Lowery’s statement in the job reference that she failed to follow guidance
from the audit team. Thus, she has established no inconsistency between these
statements.
Hashimoto further challenges Lowery’s testimony at trial regarding
the termination of her position by RIF. As her RIF claim was dismissed on
procedural grounds prior to trial, however, any statements by Lowery on this
matter at trial relate to imriaterial facts. The district court was not required to
discredit Lowery’s material testimony because an immaterial part of his
testimony was In dispute.
Next, Hashimoto challenges the district court’s finding that
Hashimoto’s job description accurately reflected the work that she was required
to perform and upon which her performance was evaluated. Hashimoto, 870
F. Supp. at 1551 (940). She contends that the district court failed to consider
adequately the testimony of Ray Mendez and Ruth Christiansen on this matter.
The court, however, expressly found that the testimony of Ray Mendez lacked
credibility because his assessment of Hashimoto's job description was based
solely on the information provided by Hashimoto. Id. (139). The court did
not expressly acknowledge the testimony of Ruth Christiansen, but *’[a] judge
is not required, in making findings, to mention every item of evidence and
either adopt or reject it.” Western Pac. Fisheries, Inc. v. 55 President Grant,
730 F.2d 1280, 1285 (9th Cir. 1984). The appellate court presume(s] that the
{trial] judge considers all of the evidence. and relies on so much of it as
supports the finding and rejects what does not support the finding, unless the
judge states otherwise.” Id.
nie dl
66a
Appendix D
Hashimoto also challenges the district court’s specific factual findings
relating to her 5-day4 and 14-day suspensions. Because her 5-day suspension
claim was dismissed on procedural grounds prior to trial. the district court’s
findings related to this incident are immaterial. Regarding the 14-day
suspension, the district court found that it was motivated by Hashimoto's
failure to comply with Hinman’s order to prepare a turnover file, and that
Hashimoto understood the order. Hashimoto, 870 F. Supp. at 1553 (4957-
58). Hashimoto contends that the district court failed to address contradictory
evidence on these points. To the contrary, the court expressly acknowledged
each and every piece of contradictory’ evidence which Hashimoto recites.
but found that the | 4-day suspension was justified. 870 F. Supp. at 1553
({454-58). This finding is not clearly erroneous.
The incidents underlying the S-day suspension were: (1) Hashimoto
s alleged failure to keep Hinman apprised of her whereabouts: (2) her defiance
of Hinman’s instruction to deliver paychecks to a librarian: and (3) her refusal
to correct her ~time card. Hashimoto. 870 F. Supp. at 1552 (*SO).
Finally, Hashimoto contends that the trial court’s findings, when
viewed in the light of the two contradictory jury verdicts, are suspicious and
should be reversed as clearly erroneous. Although the verdicts, at an intuitive
level, are a cause for concern, we conclude chat there is no legal basis for
departing from the traditional “special deference” accorded a trial court’s
factual findings in these circumstances. Indeed, the Seventh Circuit recently
approved of the procedure utilized in this case. In Dombeck v. Milwaukee
Valve Co., 40 F.3d 230 (7th Cir. 1994), the court considered whether a bench
trial is required when a Title VII action is erroneously submitted to a jury
under Landgraf. The court concluded that a district court is not required to
conduct an entirely new trial. Dombeck, 40 F.3d at 237. Although as an
appellate court reviewing a cold record, we are unable to make credibility
determinations and to resolve existing factual disparities, the district court
would not operate under the same disability, as that court heard the evidence
along with the jury. The error in submitting [plaintiff’s] Title VII claim to a
jury could thus be cured by the entry of independent findings of fact and
conclusions of law by the district judge.” Id. That is precisely what the district
court did here, and we decline to second-guess the district court’s findings.
VI Conclusion
[19] The district court did not err in awarding Hashimoto attorney's
67a
Appendix D
fees for her counsel's efforts in prosecuting her Case 2 retaliation claim.
Further, the district court did not err in dismissing two of Hashimoto's Case |
claims on procedural grounds, granting summary judgment in favor of the
government on her Case | retaliation claim, and granting judgment in the
government's favor on the remaining Case | claims.
AFFIRMED.
PRINTED FOR
Administrative OFFICE—U.S. COURTS
BY BARCLAYS / ELECTROGRAPHIC SAN FRANCISO
(800) 888-3600
The summary. which does not constiolte a part of the opinion of the coun”
is copynghted
0 1997 by Barclays Law Publishers.
68a
Appendix E
UNITED STATES NINTH CIRCUIT COURT OF APPEALS DENIAL
OF SECRETARY OF NAVY’S PETITION FOR REHEARING
FILED
SEP 09, 1997
CATHY A. CATTERS, CLERK
U.S. COURT OF APPEALS
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BABARA MATSUKO HASHIMOTO C.A. Nos. 95-15827
Plaintiff-Appellee- 95-15960
Cross-Appellant,
D.C.No. CV-91-00081-ACK
v.
JOHN DALTON, Secretary of the Navy
Defendant-Appellant-
Cross-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Before: SKOPIL, CANBY and RYMER, Circuit Judges
The panel has unanimously voted to deny the government's
petition for rehearing. Accordingly, the petition for rehearing is DENIED.
69a
Appendix F
REVOCATION OF AUTHORITY TO SIGN
CORRESPONDENCE DATED 30 NOV 84
UNITED STATES MARINE CORPS
HEADQUARTERS AND SERVICE BATTALION, FMFPAC
CAMP H. M. SMITH
CAMP H. M. SMITH, H1 96861-5010
From: Special Services Officer
To: Mrs B. HASHIHOTO, Budget Assistant, 0561, GS-7
Subj: REVOCATION OF AUTHORITY TO SIGN
CORRESPONDENCE
|. As of | December 1984 you will no longer sign matters concerning
Special Services, Morale, Welfare and Recreation section, nor Camp
H.M. Smith, with the exception of matters that specifically require your
signature as the Custodian of the Recreation Fund.
2. All matters that require your signature as the Custodian of the
Recreation Fund will be submitted to me for approval prior to release.
My initials on these matters will represent my approval for release.
3. All matters that do not specifically require your signature but are
required to be released in order to accomplish your job responsibilities
will be signed by me.
S/ C.N. HINMAN
C.N. HINMAN
70a
Appendix G
ESTABLISHMENT OF COMPUTER SUPPORTED MANAGEMENT
INFORMATION SYSTEM (MIS) FOR MARINE CORPS CLUB AND
RECREATION PROGRAMS
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
WASHINGTON, D.C. 20380
From: To: Commandant of the Marine Corps
Distribution List
Sub): Establishment of Computer Supported Management
Information System (MIS) for Marine Corps Club and
Recreation Programs
Encl: (1) Volume I, General Preparation Information,
| December 1983
1. On 26 September 1983, the implementation of the MIS with
consolidated club/recreation administrative offices at 17 mayor commands
was approved. The enclosure is forwarded as an introduction to the MIS project
and to provide information on: the new organization and related preparation
aspects. All organizational and preparation requirements must be completed
by commands prior to commencing implementation of the automated system.
2. This system is currently installed at Marine Corps. Development
and Education Command (MCDEC), Quantico, Virginia. The following
commands have already received the enclosure and are therefore not listed
on distribution of this letter:
MCAS, El Toro, CA
MCAS, Cherry Point, NC
MCB, Camp Lejeune, NC
MCAS, New River, NC
MCAS, Beaufort, SC
3. It should be noted that the time frame presented in the .
implementation schedule, page 1-6 of the enclosure, represents the best
estimate for installing all automated systems with the aid of Headquarters
Tila
Appendix G
Marine Corps manpower resources. This Headquarters desires to maintain
the implementation schedule as closely as possible. Where lead time exists
the Command may accomplish the organization and preparation requirements,
set [forth in steps | through 19 of Attachment 5 of the enclosure, at the earliest
date regardless of the anticipated schedule for installing the automated system.
4. The Headquarters Marine Corps point of contact for the MIS project
is Mr. Bob Bieshelt, (Code MSI), Autovon 227-8595.
Subj: Establishment of Computer Supported Management Information System
(MIS) for Marine Corps Club and Recreation Programs.
5. Further information regarding specific issues and confirmation of
the automated system installation dates will be coordinated with commands
an the Implementation of the MIS project progresses.
E. J. CLARKSON
By direction -
DISTRIBUTION LIST:
CG, MCB Camp Butler, FPO Seattle 98773
CG, MCRD, San Diego, CA 92140
CO, MCLB, Albany, GA 31704
CG, MCRD, Parris Island, SC 29905
CO, MCB, Camp Pendleton, CA 92055
CG, MCAGCC, Twentynine Palms, CA 92278
CO, MCLB, Barstow, CA 92311
CO, MCAS, Yuma, AZ 05364
CO, MCAS, Kaneohe Bay, HI 96863
CO, MCAS, Iwakuni, FPO Seattle 98764
CO, Camp Smith, HI 96861
2001. MASD STAFF REQUIREMENTS.
1. Staffing Strength. Since the size and complexity of club and
recreation operations differ greatly between commands, the size of MASD
staffs will also be different between commands. The total number of employees
in the initial MASD office configuration will equal the combined number of
club and recreation fund employees now on board. The formation of the MASD
72a
Appendix G
organization or the conversion to automation will not require a larger staff. In
fact, the test of the MIS at MCDEC, Quantico, VA, identified significant
manpower savings resulting from automation and combined administrative
staffs. Eventually, the size of the MASD staff may be reduced through-attrition
and adjustments in the number of employees assigned to the automated
subsystems of General Ledger, Accounts Payable, Accounts Receivable and
Inventory Control. In the future, commands should attempt to match the
MASD staff-levels with manpower savings that result through automation of
manual tasks and increased proficiency of the personnel. While staff reductions
may occur through attrition during the implementation of the MASD
organization, no reductions in force are to be imposed. Any reductions in
MASD staffing levels as a result of improved . administrative operations after
implementation of the automated system will remain a local command
decision.
2. Combining Staffs. The task of collocating/combining club and
recreation accounting and administrative personnel into the MASD
organizational facility will be the responsibility of the Command's Services
Officer. The task will also involve coordination efforts of Club and Recreation
Program Directors. All administrative and policy issues (i.e., personnel
assignments, facilities selection/ renovation/construction coordination, space
requirements, schedules, moving contractors’ T/O modifications. procurement
actions, etc.) relating to the consolidation oi Club and Recreation fund
administrative offices will be accomplished solely by the commands. Basically,
employees with the same functional duties will be grouped together in the
new MASD office layout. A Prototype Morale Administrative “upport
Organization chart is provided in ATTACHMENT 2. The new MASD
organization should be aligned according to the functional areas in this example
to be compatible with the automated subsystems of the MIS. ATTACHMENT
2 represents organizational alignments for commands with combined club
and special services annual
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