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Arnold Galloway v. Ray Mabus

February 4, 2013


The opinion of the court was delivered by: Hon. Roger T. BenitezUnited States District Judge


Now before the Court is the Motion for Summary Judgment of Defendant, Ray Mabus, Secretary of the Navy. For the reasons stated below, Defendant's Motion for Summary Judgment is granted as to all claims except the fourth claim for relief. The fourth claim for relief is transferred to the Court of Federal Claims.


Plaintiff, Arnold R. Galloway, is an African-American male who has worked for the Navy Fleet Antisubmarine Warfare Training Center in San Diego, California, since April 2002. In January 2008, Plaintiff was promoted to the Acting N5 Department Head ("N5 DH") position. Plaintiff alleges he performed well in the position and requested consideration for the permanent N5 DH position. Over time, Plaintiff apparently grew frustrated in his role as Acting N5 DH and wrote an email to Commander McCallum requesting reassignment to his previous position. On April 24, 2009, Commander McCallum and the Fleet Antisubmarine Warfare Training Center Commanding Officer, Captain Moss, allegedly met with Plaintiff to discuss the email. Plaintiff told them he was not interested in continuing his work as Acting N5 DH without another pay raise. On April 27, 2009, Commander McCallum allegedly dismissed Plaintiff as Acting N5 DH. Rick Frazier replaced Plaintiff as the Acting N5 DH. Plaintiff alleges Frazier received additional resources to manage the department -- resources that Plaintiff had requested but did not receive. Plaintiff also alleges he worked 600 hours of uncompensated overtime as Acting N5 DH from January 2008 to April 2009.

On the other hand, Plaintiff claims he desired a permanent position as N5 Department Head. He alleges that on August 18, 2009, he learned the Navy was hiring for the permanent position of N5 DH. Plaintiff alleges that his resume was not selected for consideration because he was African-American and that the three candidates who were considered were all Caucasians. The Navy alleges that the recruitment for the new position was limited to retired veterans with at least a 30% disability. Mr. Silver, a Caucasian and a retired veteran with at least a 30% disability rating, was selected to fill the position. Plaintiff believes the Defendant discriminated against him on the basis of his African-American race.

On December 18, 2009, Plaintiff complained to the Equal Employment Opportunity ("EEO") Commission that he had been subjected to a hostile work environment on the basis of his race/color (African-American) and religion (Islam). He contends he suffered reprisal when: (1) he was not paid for overtime hours he worked as Acting N5 DH; (2) he was dismissed as Acting N5 DH; (3) he was not selected for the permanent N5 DH position; (4) an Executive Officer tried to discredit his suitability for the position; and (5) his work schedule was changed.

In this case, Plaintiff asserts five claims for relief: (1) Discrimination in violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000(e), et seq.); (2) Discrimination in violation of FEHA (California Government Code § 12940(a)); (3) Failure to Prevent Discrimination/Retaliation (Government Code § 12940(k)); (4) Failure to Pay Overtime Wages (Violation of Fair Labor Standards Act); and (5) Violations of the California Labor Code.

Under Federal Rule of Civil Procedure 56, Defendant moves for summary judgment contending:

1. Plaintiff's First Cause of Action under Title VII fails on the merits;

2. Plaintiff's Second, Third, and Fifth Causes of Action for violations of California state law cannot survive as the United States has not waived sovereign immunity and has not consented to be sued under those statutes;

3. Plaintiff's Fourth Cause of Action under the Fair Labor Standards Act (for failure to pay overtime wages) must be brought within the Court of Federal Claims as district courts lack jurisdiction and also fails on the merits.


Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is "material" when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. In evaluating whether summary judgment is appropriate, the court may limit its review to the summary judgment papers and is not obligated "to scour the record in search of a genuine issue of triable fact." Keenan v. Allen, 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co., 55 F.3d 247, 251 (7th Cir. 1995)).

The party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the non-moving party's case; or (2) by demonstrating that the evidence supporting one or more essential element of the non-moving party's claims or defenses is insufficient such that the non-moving party will fail to carry its ultimate burden of persuasion at trial. Id. at 322-23; Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party fails to discharge this initial burden, summary judgment must be denied and the court need not consider the non-moving party's evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159-60 (1970); see also Henry v. Gill Indus., Inc., 983 F.2d 943, 950 (9th Cir. 1993) ("the party opposing [a motion for summary judgment] is under no ...

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