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Morgan v. Napolitano

United States District Court, E.D. California

December 19, 2013

JOHN P. MORGAN, Plaintiff,

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For John P. Morgan, Plaintiff: Louis Demas, LEAD ATTORNEY, Louis Demas Attorney at Law, Sacramento, CA.

For Janet Napolitano, Secretary, U.S. Department of Homeland Security, Defendant: David Taylor Shelledy, J. Earlene Gordon, GOVT, LEAD ATTORNEYS, U.S. Attorney's Office, Sacramento, CA.


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Plaintiff John P. Morgan brings this employment discrimination lawsuit against defendant Janet Napolitano, Secretary of the United States Department of Homeland Security (" DHS" ),[1] with claims

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arising under Title VII of the Civil Rights Act of 1964, as amended (" Title VII" ), the Americans with Disabilities Act (" ADA" ), and the Age Discrimination in Employment Act of 1967 (" ADEA" ), as well as for review of an administrative decision.

Defendant's summary judgment motion came on for hearing on December 9, 2013. For the reasons set forth below, defendant's motion will be granted in part and denied in part.


A. Factual Background

Defendant filed a Statement of Undisputed Facts in support of her motion. (ECF No. 41.) In opposition, plaintiff filed both a Response to this Statement (ECF No. 45) and a Statement of Disputed Facts (ECF No. 46). At the outset, it is worth noting two peculiarities about how the parties responded to the facts therein.

The first lies in the form of plaintiff's responses to a number of defendant's undisputed facts. Many of these responses carry the peculiar phrasing, " Admitted that [name of affiant or deponent] testified as stated." This form of response does not controvert the truth of the fact so addressed. Accordingly, so long as the testimony in question is admissible,[2] the facts introduced are treated as undisputed. See Fed.R.Civ.P. 56(c).

The second peculiarity is that, in her reply, defendant largely fails to raise evidentiary objections or otherwise contest plaintiff's Statement of Disputed Facts. Accordingly, the court must treat any disputed fact for which plaintiff has adduced admissible evidence as undisputed, at least for purposes of this motion. That said, a number of plaintiff's disputed facts lack any citation to supporting evidence, and will be disregarded on these grounds.

In light of the foregoing, the following facts appear both adequately supported by evidence, and either undisputed or sufficiently uncontroverted.

Plaintiff commenced civilian employment with the federal government in 1982, continuing until his discharge on January 7, 2009. (Plaintiff's Response to Defendant's Statement of Undisputed Facts (" PR-DSUF" ) ¶ 2, ECF No. 45.) At all times relevant to this action, plaintiff, who was born on June 24, 1947, was over the age of forty. (Plaintiff's Statement of Disputed Facts (" PSDF" ) ¶ 9.A, ECF No. 46.)

Plaintiff was formerly a Criminal Investigator with the DHS, U.S. Immigration and Customs Enforcement's (" ICE" ) Federal Protective Service (" FPS" ) in Sacramento, California.[3] (PR-DSUF ¶ 1.) Plaintiff was assigned to Region 9, which includes Sacramento and San Francisco. As a Criminal Investigator, plaintiff was responsible for conducting investigations of criminal activity on federal property. (Id. ¶ 4.)

Plaintiff's wife, Rayna Becker, is an attorney. She represented various employees of her husband's agency in employment-related proceedings between 1998 through 2006. (PR-DSUF ¶ ¶ 8, 30, 31.)

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Among the agency employees that Becker represented was one Michael Conrad, formerly a Special Agent in Charge of Criminal Investigations, Region 9. (Decl. Conrad ¶ 2, ECF No. 42-3.) Conrad originally hired plaintiff in 1992, and supervised him thereafter. (Id. ¶ ¶ 3, 4.) Becker represented Conrad from June 1998 through May 2003 in an EEO retaliation matter, and again, from November 2004 through June 2006 in both a retaliation matter and a disability case. (Id. ¶ ¶ 40, 41.)

Conrad describes an interaction he had with one Joe Loerzel, formerly Regional Director for Region 9, as follows:

[I]n the Spring of 2002, Loerzel took me aside while in Los Angeles on work-related business and secretly offered to pay $20,000 to me if I dropped my lawsuit against the Agency. He did not tell my attorney about offering the deal. Loerzel also told me to fire my attorney and accept his deal. He knew I was represented by attorney Becker. Loerzel then told me, " It looks bad when you use another employee who works for you, who has done nothing wrong, and hire his wife as your attorney. It gives you both black eyes and doesn't look good for the Agency. You'll never win this!" (Decl. Conrad ¶ 28.)

According to Conrad, Loerzel ceased working for the Federal Protective Service in July 2005. (Id. ¶ 27.)

Between December 2003 and November 2005, plaintiff was detailed to various temporary, " acting" positions in San Francisco. (PR-DSUF ¶ 113.) The first of these positions was Acting Supervisory Criminal Investigator, which plaintiff held until May 25, 2005. (PSDF ¶ 1.B.)

On March 1, 2005, plaintiff began a term as Acting Chief, Threat Management Bureau, continuing in this position until November 7, 2005. (Id.)

At the end of September 2005, plaintiff had a one-week temporary stint as Regional Director and Deputy Regional Director. (Id.) Plaintiff has submitted declarations of three supervisors attesting to his exemplary performance in these acting positions. (Decl. Conrad; Decl. Meyerhoff, ECF No. 42-2; Decl. Oase, ECF No. 42-4.)

On Friday, October 28, 2005, Loerzel, the former Regional Director, sent an email to Kenneth Ehinger (agency Deputy Director, Mission Support), which reads in pertinent part:

I'm going to offer you a suggestion regarding the [Region 9] Threat Chief position . . . . You should get a referral next week with only one qualified name on it - JP Morgan [ i.e., plaintiff] . . . . I'm going to trust that you will not share this message with anyone but Paul and certainly not with the R9 folks.
My recommendation is that you do not approve that selection. I say this for two reasons:
1) [T]he region is one of the most difficult to manage and the responsibilities will be over JP's head - he is currently a GS-12 CI and would be better suited for the senior CI 13 position which is also currently open. He qualified because he was detailed to the 14 when Don went east. I don't think his selection would be in the best interest of FPS primarily due to his lack of experience and the high demands of the region, especially the courts . . . .
2) JP's wife is an attorney who handles many of FPS' regional labor cases. She represented Mike Conrad and is now representing Brewster . . . . I don't know what happen [ sic ] with it after I left but I denied it. Anyway, without getting into the weeds and suggesting improprieties, she seems to get background information on these cases that attorneys' [ sic ] usually don't have. I think

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there's a potential conflict of interest there. You may recall the lawsuit going on by Conrad and Dave Current when I arrived - which we lost on Conrad and prevailed on Current - she was their attorney.
Anyway, its [ sic ] now on your shoulder to handle. Again, please keep this correspondence confidential. (Opposition Exh. I, ECF No. 42-16.)

That same day, Ehinger forwarded this email to Paul Durette, FPS Deputy Director for Operations (and later FPS Acting Director), adding, " Need to discuss both issues next week. I am going to suggest that [ sic ] to OPLA that they seek a recusal by the subject attorney. The TMP chief issue is yours but his logic seems remarkably logical and based in sound judgement [ sic ] . . . ." (Id.)[4]

Approximately one week later, a series of events, which are the basis of this lawsuit, began.

On November 4, 2005, plaintiff's annual leave was canceled by Ruben Ballestros, Acting Supervisory Criminal Investigator, only to be restored by Plaintiff's then-supervisor, Russell Oase. (PSDF ¶ 5.A.)

On November 7, 2005, Rudy Negrete replaced plaintiff as Acting Chief, Threat Management Branch. (PR-DSUF ¶ ¶ 61, 65; PSDF ¶ 1.B.) Plaintiff was never again named to a higher-level " Acting" position. (Amended Decl. Morgan ¶ 42, ECF No. 47-1.)

Beginning on November 8, 2005, and for over two years thereafter, plaintiff was not provided an FPS criminal investigator/special agent to work with, contrary to agency practice. (Amended Decl. Morgan ¶ 21.)

In early December 2005, Negrete demanded plaintiff's immediate presence in San Francisco for a program review. He was stationed in Sacramento at the time. Other, similarly-situated employees were given sufficient notice of the review to adjust their schedules, while plaintiff was not. Plaintiff attended the program review, participating for 20 minutes. (PSDF ¶ 5.C; Amended Decl. Morgan ¶ ¶ 23-24.)

At some point in December 2005 or January 2006, Negrete learned of Becker's representation of an employee against the agency. (PR-DSUF ¶ 66.)

On January 6, 2006, Oase was removed from his position as Deputy Regional Director. (PSDF ¶ 4.D.)

On January 12, 2006, Negrete issued plaintiff notice of a proposed five-day suspension in connection with his failure to comply with an " Order, Direction, Instruction, or Assignment of a Supervisor" in connection with the December 2005 program review. (Amended Decl. Morgan ¶ 26.)

On January 12, 2006, plaintiff was issued a vehicle that complied with specifications for FPS criminal investigators; the next day, Ballestros and Negrete ordered that plaintiff exchange it for a vehicle that did not meet these specifications ( e.g., it was easily-identifiable as a law enforcement vehicle, it lacked emergency equipment and an agency radio, etc.). (Amended Decl. Morgan ¶ 28.)

On January 23, 2006, Ballestros denied plaintiff's request to use annual leave to attend his aunt's funeral. (PSDF ¶ 5.G.)

In February 2006, Negrete departed the position of Acting Chief, Threat Management Branch. (PR-DSUF ¶ 62.)

On February 12, 2006, plaintiff interviewed for the position of Chief, Threat Management Branch. (PR-DSUF ¶ 90.) Plaintiff ended the interview by reciting a Rudyard Kipling poem, becoming teary-eyed

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as he read it. (PR-DSUF ¶ 94.) Nine days later, plaintiff was informed that he was not selected for the position, which he had held on an acting basis from December 15, 2003 to May 25, 2005. (Amended Decl. Morgan ¶ ¶ 32, 36.) The interview panel scored each candidate with scores ranging from a high of 130 to a low of 32; plaintiff's score was 64. After the two top-scoring candidates turned down the position, it went unfilled. (PR-DSUF ¶ ¶ 90-92.)

That same day, plaintiff also learned that he had not been selected for another position to which he had applied, that of Supervisory Criminal Investigator. The position went to one John Hartman, who was 20 years younger than plaintiff. (Decl. Oase ¶ 29.)

By agency decision dated March 3, 2006, plaintiff was suspended for five days with loss of pay and benefits. (Amended Decl. Morgan ¶ 39.) This was the first time that plaintiff had been subject to discipline during his career with the federal government. (Id.) Shortly thereafter, plaintiff was notified by the agency that he did not qualify for union representation in contesting the suspension. (Id.; Decl. Wright ¶ 2, ECF No. 42-18.) Plaintiff was a member of the American Federation of Government Employees. When a fellow union member contacted the agency's Employee Labor Relations office, the person he spoke to, one Tony Ashby, said that plaintiff's wife Rayna Becker had represented several FPS employees against the agency, and he " could not stand" her. (Decl. Wright ¶ 3.)

On March 31, 2006, plaintiff made his first informal EEO complaint. On July 26, 2006, he followed up with a formal EEO complaint, case number HS-06-ICE-002648. (PR-DSUF ¶ ¶ 9, 10; Mot. Exh. F, ECF No. 41-2.)

In June 2006, at an " all hands" meeting, Acting Regional Direct Steve Dade made disparaging remarks regarding EEO complaints. Plaintiff reported these comments to the agency's EEO Manager, Deborah Lewis. (Amended Decl. Morgan ¶ 47.)

By letter dated August 10, 2006, ICE's EEO office dismissed all of Morgan's claims except for (i) being passed over for the positions of Chief, Threat Management Branch and Deputy Regional Director, (ii) the five-day suspension, and (iii) not being selected for " acting" supervisory positions beginning in February 2006. (PR-DSUF ¶ 14.)

In October 2006, ICE received an anonymous tip that plaintiff, as a favor to a friend, had run background checks on applicants to his friend's private security firm. (PR-DSUF ¶ 119; Opposition Exh. 10, ECF No. 42-10.) In response, the agency's Office of Professional Responsibility (" OPR" ) interviewed plaintiff. Before the interview began, plaintiff was advised in writing that he could not disclose any information about the investigation, and that a failure to comply could lead to discipline and/or criminal prosecution. Plaintiff signed a statement acknowledging receipt of these warnings. (Id. ¶ 121.)

During the interview, plaintiff denied running background checks for his friend. (PR-DSUF ¶ 122.) Plaintiff and defendant disagree as to what else occurred at the interview, but it is reasonable to infer that plaintiff (i) acknowledged conducting background checks on one or more individuals in connection with his employment, and (ii) mentioned the involvement of one ICE Special Agent Luz Dunn in conducting these checks. (Id.)

Four days after the interview, plaintiff arranged to meet Dunn for lunch " in the spirit of Christmas." When she arrived at his office, he gave her a carrot cake and pointed out a magazine on his desk. Dunn

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said she was familiar with the magazine, but plaintiff insisted that she open and read it. (PR-DSUF ¶ 123.) Dunn avers that inside was an affidavit that included her name and the name " Mustafa," a " suspicious [A]rab male[] seen in the parking lot of the federal building in Sacramento" whom Dunn had included in queries to various databases. (Affid. Dunn, Mot. Exh. Z, ECF No. 41-3.) Dunn averred that she felt intimidated by Morgan's conduct, and reported his actions to OPR. (PR-DSUF ¶ 126.)

Later in 2006, Special Agent Timothy Rivero was sent by Acting Regional Director Dade to Sacramento to seize tape recordings from plaintiff's office. (PR-DSUF ¶ 116.) Rivero searched the office and took the tape recordings on December 1, 2006. (Id. ¶ 15.) Rivero and Dade testified that, according to their understanding, plaintiff had been tape recording staff meetings and other agents surreptitiously, against agency policy. (Id. ¶ 117.) Plaintiff's account is different:

I found this practice [ i.e., tape recording] also useful in non-investigative meetings. I openly, in plain sight and with the notice of my supervisors, tape recorded some meetings that I attended, including some " all hands" staff meetings. I did so without objection or counseling from my supervisors throughout my employment with the federal government and continuing until this practice was possibly questioned in December 1, 2006 when my tape recordings were illegally seized . . . . After my tapes were seized, I stopped the practice of recording meetings. (Amended Decl. Morgan ¶ 46.)

Plaintiff believes that Dade sought to seize recordings of the June 2006 meeting where he (Dade) had impugned EEO complaints; however, plaintiff had not recorded this meeting. (Amended Decl. Morgan ¶ ¶ 47, 49.)

Plaintiff had previously requested training; on December 8, 2006, this request was denied. (Amended Decl. Morgan ¶ 50.)

Plaintiff then amended his EEO complaint to add claims relating to the search of his office, the denial of his training request, and the refusal to place him in any " acting" supervisory positions. (PR-DSUF ¶ 15; Mot. Exh. I, ECF No. 49.) By letter dated February 15, 2007, ICE's EEO office accepted these issues for investigation. (Mot. Exh. J, ECF No. 41-2.)

On March 12, 2007, plaintiff had a Policy Compliance Interview with two Special Agents regarding plaintiff's tape recording of conversations. He was denied union representation at this interview. (Amended Decl. Morgan ¶ 52.)

Between April and August 2007, plaintiff, while serving as a union steward, participated in the EEO complaints of two employees, Nathan Bailey (who complained of race and age discrimination, and retaliation) and Douglas Neibauer (who complaint of ...

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