United States District Court, N.D. California
DANIEL J. OFFIELD, Plaintiff,
ERIC HOLDER, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Re: ECF No. 52
JON S. TIGAR, District Judge.
In this Age Discrimination in Employment Act ("ADEA") action brought by Plaintiff Daniel J. Offield ("Plaintiff"), Defendant Eric Holder, in his capacity as Attorney General of the United States ("Defendant") has moved for summary judgment, or in the alternative for partial summary judgment. ECF No. 52. The matter came for hearing on March 20, 2014.
A. Factual Background
Plaintiff was born in 1961. Exh. R to Declaration of Jennifer Wang ("Wang Decl."), ECF No. 63. He was a Special Agent ("S/A") and Special Agent Pilot for the United States Drug Enforcement Agency's ("DEA") San Francisco Field Division ("SFFD") from 1984 to 2010. Declaration of Daniel Offield ("Offield Decl.") ¶ 3, ECF No. 68. DEA personnel records indicate that Plaintiff's assigned duty station throughout the relevant time period was the SFFD's San Francisco Division Office at 450 Golden Gate Avenue. Exh. R to Wang. Decl., at DEA3467, 3422, 3421, 3416 (ECF No. 63). Plaintiff has testified that while he was initially assigned to work in the San Francisco office, during his time as a pilot, before 2006 he did not generally report to work in any field office and when he was not flying he would work out of an office in the hangar unless he was needed in a field office. Plaintiff's Deposition ("Pl. Depo.") 39:23-40:10, 47:5-13, 48:5-7, 50:18-51:20, 58:5-24, 60:20-23 (ECF No. 60-1, at ECF Page Nos. 11-15, 20-22).
During 2003-04, Plaintiff became aware that the DEA planned to relocate aircraft, including those he flew, to a facility in Stockton, California, and the DEA did so in 2005. Offield Decl. ¶¶ 16, 21; Declaration of Brooks Petersen ¶ 5, ECF No. 58. Plaintiff moved his residence to Morada, a suburb of Stockton, in April 2005. Offield Decl. ¶¶ 16, 23, 25. Plaintiff reports that he generally worked out of the Stockton airport area after that time. Offield Decl. ¶¶ 27, 29.
Plaintiff's immediate superior during much of the relevant time period was Resident Agent in Charge ("RAC") Shawn Speicht. Speicht, in turn, reported to Assistant Special Agent in Charge ("ASAC") William Inselmann, head of the SFFD's Western Division. During the relevant period, Inselmann reported to SAC William Brown, and later to Acting SAC William Dionne.
Plaintiff testified that, in Spring 2005, SAC Inselmann came to the Stockton hangar with RAC Speight, and that ASAC Inselmann said "[y]ou know, I'm not going to allow you senior guys to retire in place." Pl. Depo. 101:22-24, 111:8-15 (ECF No. 69, at ECF Page Nos. 95 & 98).
1. 2006 Actions
On or about February 15, 2006, ASAC Speight advised Plaintiff that, pursuant to SAC Inselmann's instructions, Plaintiff was to report each day to the Oakland office each day by 8:30 a.m. to assist with non-aviation enforcement activities, and to drive back to Stockton if he needed to fly a mission. Offield Decl. ¶ 30; Exh. 21 to Pl. Depo. (ECF No. 60-2 at ECF Page No. 50). If the mission was completed prior to the close of business, Plaintiff was to drive back to Oakland again to report back to the Oakland office. Id. Plaintiff's home is approximately 75 miles from Oakland.
On March 1, 2006, Plaintiff wrote a letter to SAC Brown to object to the Reporting Requirement. Exh. 21 to Pl. Depo. ("March 1 Letter"), ECF No. 60-2, at ECF Page Nos. 50-58. Plaintiff initially complied with the Reporting Requirement, but was placed on stress leave on March 3, 2006. Offield Decl. ¶¶ 31-32. During Plaintiff's stress leave, RAC Speight informed Plaintiff that he was required to box up his gear and equipment from the Stockton hangar and return his laptop computer. Offield Decl. ¶ 32. As set forth more fully infra at III-A, Plaintiff contacted an EEO counselor around March 11, 2006.
In March 2006, the DEA aircraft Plaintiff flew was relocated from Stockton to Oakland. Brown Decl. ¶¶ 5-6. After returning from stress leave in April 2006, Plaintiff was not assigned to fly again until December 2006, and was denied a government vehicle to commute to work. Offield Decl. ¶ 35. Plaintiff met with ASAC Inselmann on December 18, 2006, at which time Inselmann provided a memorandum documenting Plaintiff's work requirements, including the Reporting Requirement. Offield Decl. ¶ 35; Exh. 2 to Pl. Depo. (ECF No. 60-2, at ECF No. 2).
2. 2009 Actions
In mid-2007, Plaintiff again began flying out of the Stockton hangar. Speight Depo. 131:3-11 (ECF No. 69, at ECF Page Nos. 148:3-11); Offield Depo. 130:4-131:19 (ECF No. 69, at ECF Page Nos. 100:4-101:19). This occurred after Speight told him: "Let's just move [the plane] over to Stockton. Let's pull the manhole cover over our heads, right, and let's just hope that in six months [Inselmann]'s gone and we don't have to worry about it anymore." Offield Depo. 131:2-7 (ECF No. 69, at ECF Page Nos. 101:2-7); Speicht Depo. 283:16-24 (ECF No. 69, at ECF Page No. 151). Plaintiff believes that, after mid-2007, it was well known in the Western Aviation Resident Office ("WARO") that he was operating out of Stockton, because SFFD personnel either spoke to him about it or themselves flew aircraft out of Stockton. Offield Depo. 131:24-132:25 (ECF No. 69, at ECF Page Nos. 101-02). He also maintains that his flight records documented the fact that he was operating out of Stockton. Id.
Plaintiff, who had previously been granted a deferral of a temporary duty assignment ("TDY") in Afghanistan, requested a second deferral of the assignment on April 20, 2009. Offield Depo. 179:1-180:21 (ECF No. 69, at ECF Page Nos. 109-110), and Exh. 6 thereto (ECF No. 60-2, at ECF Page Nos. 8-9). Plaintiff noted, as he had in his previous request for a deferral, that overseas deployment would impact his ability to care for his adopted children, who had significant psychological needs. Exh. 6 to Offield Depo. (ECF No. 60-2, at ECF Page Nos. 8-9).
On April 24, 2009, Inselmann called Offield to tell him that he was required to go to Afghanistan as a condition of his position within the Air Wing, and that if he was not willing to do so he should "consider going back to the street... in the asset forfeiture group in a 9:00 to 5:00 job." Offield Depo. 140:18-141:4 (ECF No. 69, at ECF Page Nos. 103-104). Inselmann maintains that in the conversation Plaintiff "said that... he would rather go back to the street than go to Afghanistan or go TDY, " and that it was Inselmann's understanding that Plaintiff would leave the Air Wing if another position were available: "[a]t his discretion - at his request, I thought he wanted to leave the Air Wing, yes." Inselmann Depo. 197:10-11, 198:7-9, ECF No. 60-7, at ECF Page Nos. 27-28. Plaintiff disputes this account of the conversation. Offield Depo. 140:9-141:10 (ECF No. 69, at ECF Page Nos. 104-05).
On April 28, 2009, Speight ordered Offield to write a memorandum requesting a transfer to the street. Offield Depo. 221:1-222:9 (ECF No. 69, at ECF Page Nos. 112-113). Offield sent Speight and Inselmann an e-mail at the end of that day, stating that he was not willing to write or sign such a memo. Id . 221:1-223:25 (ECF No. 69, at ECF Page Nos. 112-114). Plaintiff sent another e-mail on the morning of April 29, 2009, confirming that "at no time have I ever requested a transfer back to the street, " reiterating his request to be relieved of his TDY assignment to Afghanistan, and stating that he believed he was being subjected to age discrimination. Offield Depo. 256:9-257:12 (ECF No. 69, 118:9-119:12), & Exh. 9 thereto (ECF No. 60-2, at ECF Page Nos. 11-13).
On about April 30, 2009, ASAC Inselmann learned that Offield was operating out of Stockton and not Oakland. Inselmann Depo. 313:7-17 and Exh. E thereto (ECF No. 60-7, at ECF Page No. 42). On May 4, 2009, ASAC Speight issued Plaintiff a memo, carbon-copied to SAC Inselmann, entitled "Work Expectations" (the "May 2009 Work Expectations Memo"), which stated that Speicht was memorializing a telephone conversation between Plaintiff and Speicht. Speight Depo. 255:3-256:4 (ECF No. 60-10 at ECF Page Nos. 42-43), and Exh. CC thereto (ECF No. 77-2, at ECF Page Nos. 9-10). In addition to stating that Offield must "report to the Oakland District Office every working day at 8:30am and you are to call at that time from that office, " Speicht wrote in the memo that Offield was "to call me every work day at 5:00 pm or at the conclusion of the work day from that office." Exh. CC to Speicht Depo. (ECF No. 77-2, at ECF Page Nos. 9-10). The memo also stated that Plaintiff was "directed to deploy TDY to Afghanistan from July 15 - September 15." Id.
On May 5, Offield received a memo from ASAC William Dionne, dated May 1, entitled "Denial of Request for Removal from Extended Temporary Duty Assignment." Offield Depo. 307:14-308:9 (ECF No. 69, at ECF Page Nos. 125-26) & Exh. 11 thereto (ECF No. 60-2, at ECF Page Nos. 20-21). Offield called Inselmann to tell him that he did not agree with the memo and would not sign it. Offield Depo. 308:11-20. Inselmann told Plaintiff he had to sign the memo. Id . 308:21. Plaintiff discussed the matter with ASAC Gabrielle Zucco, who had delivered the memo to him, and she recommended that Plaintiff date and sign the memo and write do not concur' underneath his signature. Id . 308:23-24. Plaintiff apparently wrote "I do not concur" on the memo, and signed the line labeled "received by" on May 5. Exh. 11 to Offield Depo.
On June 4, 2009, Inselmann informed Dionne that Offield had relocated the plane without his permission, failed to report to the Oakland office, and refused to perform a TDY in Afghanistan. Dionne Depo. 81:5-22 (ECF No. 60-5, at ECF Page No. 5) & Exh. Y thereto (ECF No. 60-5, at ECF Page Nos. 16-18). Dionne informed DEA Chief of Operations Thomas Harrigan of this, and on June 17, 2009, Dionne submitted a written request to have Offield transferred. Dionne Depo. 85:13-86:20, 96:3-23 (ECF No. 60-5, at ECF Page Nos. 7-9), & Exh. Y thereto (ECF No. 60-4, at ECF Page Nos. 16-18); Harrigan Decl. ¶¶ 8-9 (ECF No. 54). Harrigan approved Dionne's request, and on July 2, 2009 ordered that Offield be reassigned. Harrigan Decl. ¶¶ 9-10.
On July 3, 2009, Offield was informed by RAC Scott Pascoe that he was being removed from the DEA Aviation Division and was being transferred to Oakland as a street agent. Offield Depo. 333:10-20 (ECF No. 69 at ECF Page No. 127). He was replaced by Andy Crody, a 32-year-old pilot. Offield Depo. 259:9-22 (ECF No. 69, at ECF Page No. 120); Offield Decl. ¶ 47. As of July 3, 2009, Offield had 75 more days before he would have been eligible to retire on September 16, 2009. Offield Decl. ¶ 45, ECF No. 68.
In March 2010, plaintiff applied to became the Group Supervisor of the Tactical Diversion Squad at the SFFD's Sacramento District Office. Declaration of Michele M. Leonhart ¶ 18 (ECF No. 56). Plaintiff was not selected for the position. Declaration of Anthony D. Williams ¶¶ 8-12 (ECF No. 59). Plaintiff retired in December 2010. Offield Decl. ¶ 3.
B. Procedural History
Plaintiff filed this action in June 2012 against Defendant and Does 1-50, bringing causes of action for age discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., as well as a cause of action for retaliation under the False Claims Act, 31 U.S.C. §3730(h). Complaint for Age Discrimination in Workplace and Retaliation ("Complaint"), ECF No. 1. The Court granted in part and denied in part Defendant's Motion to Dismiss in October 2012. ECF No. 21. The Court declined to dismiss Plaintiff's first two causes of action, finding that the constructive termination claim was sufficiently "like or reasonably related to the allegations" in Plaintiff's 2009 EEOC complaint. Id . (quoting Oubichon v. N. American Rockwell Corp. , 482 F.2d 569, 571 (9th Cir. 1973)). By Plaintiff's stipulation, the Court dismissed the Complaint's third cause of action for retaliation under the False Claims Act.
Since Plaintiff's claims arise under federal statutes, this Court has jurisdiction pursuant to 28 U.S.C. §1331.
D. Legal Standard
When considering a motion for summary judgment or partial summary judgment, "the court must draw all reasonable inferences in the light most favorable to the non-moving party." Johnson v. Rancho Santiago County Cmty. Coll. Dist. , 623 F.3d 1011, 1018 (9th Cir. 2010). However, unsupported conjecture or conclusory statements do not defeat a genuine dispute as to material fact and will not defeat summary judgment. Surrell v. Cal. Water Serv. Co. , 518 F.3d 1097, 1103 (9th Cir. 2008). Partial summary judgment is appropriate for "part of each claim or defense" provided that there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ. Pro. 56(a).
A fact is "material" if it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248-49 (1986). A "genuine dispute" over any such fact exists only where there is sufficient evidence from which a reasonable jury could find for the non-moving party. Id. at 248. In considering a motion for summary judgment, the "court may not weigh the evidence or make credibility determinations, and is required to draw all inferences in a light most favorable to the non-moving party." Freeman v. Arpaio , 125 F.3d 732, 735 (9th Cir. 1997).
Where the moving party for summary judgment would bear the burden of proof at trial, that party bears the initial burden of producing evidence that would entitle it to a directed verdict if uncontroverted at trial. See C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc. , 213 F.3d 474, 480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of proof at trial, that party bears the initial burden of either producing evidence that negates an essential element of the non-moving party's claim, or showing that the non-moving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial. Greer v. Lockheed Martin Corp. , 855 F.Supp.2d 979, 985 (N.D. Cal. 2012). If the moving party satisfies its initial burden of production, then the non-moving party must product admissible evidence to show that a genuine issue of material fact exists. See Nissan Fire & Marine Ins. Co. v. Fritz Cos. , 210 F.3d 1099, 1102-03 (9th Cir. 2000). The non-moving party must "identify with reasonable particularity the evidence that precludes summary judgment." Keenan v. Allan , 91 F.3d 1275, 1279 (9th Cir. 1996). It is not the duty of the district court "to scour the record in search of genuine issue of triable fact." Id . "A mere scintilla of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some significant probative evidence tending to support the complaint." Summers v. Teichert & Son, Inc. , 127 F.3d 1150, 1152 (9th Cir. 1997) (citation and internal quotation marks omitted). If the non-moving party fails to make this showing, the moving party is entitled to summary judgment. See Celotex Corp. v. Caltrett , 477 U.S. 317, 323 (1986).
Defendant seeks summary judgment on a number of specific issues: (a) that all claims arising out of the 2006 actions are time-barred, (b) that the May 2009 Work Expectations Memorandum cannot constitute an "adverse employment action, " (c) that there is insufficient evidence from which a reasonable fact-finder could conclude that the DEA's actions were pretext for age discrimination, (d) that the challenged actions cannot constitute "constructive discharge, " (e) that Plaintiff's claims arising out of a 2010 interview with the DEA's Office of Professional Responsibility are barred, (f) that Plaintiff's claims arising out of his non-selection for the Sacramento promotion are barred, and (g) that certain of Plaintiff's damages claims are barred as a matter of law.
A. Exhaustion of Claims Arising From 2006 Actions
"A discriminatory practice, though it may extend over time and involve a series of related acts, remains divisible into a set of discrete acts, legal action on the basis of each of which must be brought within the statutory limitations period." Lyons v. England , 307 F.3d 1092, 1108 (9th Cir. 2002); see also Nat'l Passenger Corp. v. Morgan, ("Morgan") , 536 U.S. 101, 113 (2002). Defendant moves for partial summary judgment that Plaintiff cannot challenge the discrete acts that occurred in 2006 (namely, the Reporting Requirement, the requirement that he clear out his office in the Stockton hangar and turn in his laptop, the denial of his official government vehicle request, and his not being returned to flight duty immediately after his stress leave),  since he did not file his EEO complaint until 2009. See Compl. ¶ 9. In response, Plaintiff does not dispute that he failed to timely exhaust claims arising out of the 2006 action, but he invokes equitable estoppel and waiver as reasons to bar application of the regulatory exhaustion requirement.
"Federal employees who believe they have been discriminated against on the basis of age have the option of pursuing administrative remedies, either through the agency's EEO procedures, or through the Merit Systems Protection Board.'" Shelley v. Geren , 666 F.3d 599, 605 (9th Cir. 2012) (quoting Bankston v. White , 345 F.3d 768, 770 (9th Cir. 2003)). "Equal Employment Opportunity Commission (EEOC) regulations provide that an aggrieved federal employee who pursues the EEO avenue must consult an EEO counselor within forty-five days of the effective date of the contested personnel action, prior to filing a complaint alleging age discrimination." Shelley , 666 F.3d at 605 (citing 29 C.F.R. §§ 1614.103, 1614.105(a)(1)).
The regulations further provide that an employee's failure to initiate contact with an EEO Counselor within 45 days is grounds for the dismissal of her EEO complaint, see id. § 1614.107(a)(2), although "[t]he time limits in this part are subject to waiver, estoppel and equitable tolling." Id . § 1614.604(c). Similarly, although the regulatory pre-filing exhaustion requirement at § 1614.105 "does not carry the full weight of statutory authority" and is not a jurisdictional prerequisite for suit in federal court, we have consistently held that, absent waiver, estoppel, or equitable tolling, "failure to comply with this regulation [is]... fatal to a federal employee's discrimination claim" in federal court. Lyons v. England , 307 F.3d 1092, 1105 (9th Cir.2002); see also Johnson v. U.S. Treasury Dep't , 27 F.3d 415, 416 (9th Cir.1994) (per curiam); Boyd v. U.S. Postal Serv. , 752 F.2d 410, 414 (9th Cir.1985).
Kraus v. Presidio Trust Facilities Div./Residential Mgmt. Branch , 572 F.3d 1039, 1043 (9th Cir. 2009). However, "[a]lthough failure to file an EEOC complaint is not a complete bar to district court jurisdiction, substantial compliance with the exhaustion requirement is a jurisdictional pre-requisite." Leong v. Potter , 347 F.3d 1117, 1122 (9th Cir. 2003) (citing Sommatino v. United States , 255 F.3d 704, 708 (9th Cir. 2001).
The Court must first consider whether Plaintiff has demonstrated at least "substantial compliance" with the exhaustion requirement. Only after the Court determines that this jurisdictional prerequisite is satisfied can the Court then proceed to consider whether Plaintiff is entitled to invoke equitable estoppel or waiver. Where, as here, the jurisdictional issue is independent from the merits of the case, "the district court is ordinarily free to hear evidence regarding jurisdiction and to rule on that issue prior to trial, resolving factual disputes where necessary." Carijano v. Occidental Petroleum Corp. , 686 F.3d 1027 (9th Cir. 2012) (quoting Augustine v. United States , 704 F.2d 1074, 1077 (9th Cir. 1983)).
In the Complaint, Plaintiff alleges as follows:
On or about March 11, 2006, Plaintiff contacted a DEA San Francisco Field Division EEO Counselor, and advised her that he wanted to file an EEO complaint based on harassment and discrimination.
On or about March 21, 2006 Plaintiff received a phone call from the DEA SFFD EEO. She advised Plaintiff that she did not believe Plaintiff had enough evidence to file an EEO complaint at the time and that Plaintiff should return to work and see "how things played out."
On or about April 11, 2006, Plaintiff spoke with the DEA SFFD EEO Counselor. She advised Plaintiff that she had spoken with her EEO boss at DEA Headquarters, who advised him that Plaintiff did not have sufficient cause to file an EEO complaint. Ms. Judkins further advised Plaintiff that upon returning to work she might be able to mediate with Plaintiffs superior regarding the requirement to drive to the Oakland RO on a daily basis from his residence in Morada, California, an approximate one hundred fifty four (154) mile round trip drive.
Complaint ¶¶ 26, 29, 38. In his 2013 deposition, Plaintiff testified as follows:
Q. When was the first time that you had contact with the EEO office at the DEA? So an EEO counselor, for example?
A. Boy, that would have probably gone back to 2006, I think.
Q. Okay. And was it just one occasion in 2006 or multiple occasions in 2006?
A. It was probably several times when I was talking to the EEO counselor over a period of time.
Q. Was it the same counselor each time?
A. Well, there were several counselors, so I think Judy Judkins was the person that I was actually talking to originally, and then I don't know, I know I had spoken to Iris Myers, the other EEO counselor. She was in Oakland and I don't know how long it was before I actually started mentioning or talking to her about the case.
Q. So in 2006, do you recall if all of the communications that you had with an EEO counselor were with Judy Judkins?
A. Well, I think it progressed eventually from Judy, because I don't think that things were going well under her, and eventually we progressed to somebody else, Natasha Krogstadt, I think was the next EEO person but she was the EEO investigator up in - in Reno, I believe.
Q. Okay. My understanding is that that was in 2009?
A. Yeah, well -
Q. Is that right?
A. Right, because I think originally I started talking to the first EEO counselor and basically things just kind of calmed down. I don't think we really went anywhere with it, so...
Q. Okay. So let me - I want to go sort of in chronological order.
Q. So focusing - it seems like 2006 is the first time that you had any contact with any ...