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Albro v. Spencer

United States District Court, E.D. California

June 26, 2019

RICHARD V. SPENCER, Secretary of the United States Department of the Navy, Defendant.


         This matter came before the court on May 21, 2019 for a hearing on defendant Richard V. Spencer's motion to dismiss. (Doc. No. 20.) Attorney John Harrington appeared on behalf of plaintiff William Albro. Assistant United States Attorney Joseph Frueh appeared on behalf of defendant. The court has considered the parties' briefs and oral arguments, and for the reasons set forth below, will grant in part and deny in part defendant's motion to dismiss with leave to amend.


         Plaintiff is an employee of the Naval Air Warfare Center Weapons Division (“NAWCWD”) in China Lake, California. He brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., claiming that he experienced disparate treatment and a hostile work environment at the NAWCWD based on his non-affiliation with the Church of Jesus Christ of Latter-day Saints (“LDS Church”), and that he also experienced retaliation when he complained of such discrimination.

         In his complaint plaintiff alleges as follows. Plaintiff holds a bachelor's degree in Chemistry, as well as a master's degree and Ph.D. in Physical Chemistry. (Doc. No. 1 at ¶ 8.) In 2006, plaintiff was hired by the Department of the Navy to work at NAWCWD, where he advanced to the position of Firing Officer. (Id. at ¶¶ 9, 10.) As part of his duties, plaintiff was authorized to carry out tests involving the use of explosives, was responsible for compliance with safety audits and the issuance of correction actions for violations of safety protocols, and, prior to February 2016, had custody of and responsibility for approximately $10 million worth of laboratory equipment. (Id. at ¶ 10.)

         Shortly after plaintiff began working at NAWCWD, co-worker Ephraim Washburn, who served as the High Priest of the local LDS Church, began pressuring plaintiff and plaintiff's wife to join the local LDS Church. (Id. at ¶ 12.) Plaintiff's wife joined the LDS Church, but disassociated from the LDS Church in 2010. (Id. at ¶¶ 13, 14.) Since that time, members of the LDS Church have continuously contacted plaintiff's wife in attempts to bring her back to the LDS Church, including via letters and missionaries showing up at the Albros' home. (Id. at ¶ 14.) In or around August 2012, plaintiff's supervisor, Fred Bloomshield, retired from his position as Branch Head and Washburn was selected to replace him. (Id. at ¶ 16.)

         Almost immediately after Washburn became plaintiff's new direct supervisor, Washburn began hostile treatment of plaintiff because plaintiff is not a member of the LDS Church. (Id. at ¶ 17.) For example, in January 2013, plaintiff returned from the holidays to discover that his cubicle had been reassigned to another employee and that he was missing various personal items. (Id.) When plaintiff complained to Washburn, Washburn replied, “Tough. Deal with it.” (Id.) In or around June 2014, plaintiff applied and interviewed for a Division Head position. (Id. at ¶ 18.) Despite being the most qualified candidate, plaintiff was not hired because management purportedly deemed him “too valuable to lose.” (Id.) In or around July 2014, Washburn knowingly allowed plaintiff to continue using a fume hood that had failed a safety inspection. (Id. at ¶ 19.) In or around January 2015, plaintiff had a performance review meeting with Washburn, where Washburn told plaintiff that “it will be political from here on out.” (Id. at ¶ 21.)

         Following the performance review meeting, plaintiff found himself defending against allegations of wrongdoing roughly every other week. (Id.) For example, in January 2015, someone attempted to access plaintiff's explosives safe multiple times, which caused a lock-out. (Id. at ¶ 22.) Plaintiff reported the incident to the China Lake security team, and someone other than plaintiff called 911. (Id.) Management, including Washburn, falsely accused plaintiff of mismanaging the situation and creating unnecessary panic by alerting 911, even though it was not plaintiff who did so. (Id.) Then, in or around February 2015, management ordered mediation between plaintiff and Washburn. (Id. at ¶ 23.) The conclusion of the mediation was that there was a “lack of trust” between plaintiff and Washburn. (Id.)

         In or around March 2015, plaintiff saw the words “TO BE FIRED” next to his name on a board at the office, which was visible to a number of people. (Id.) The same month, plaintiff met with Human Resources Specialist Christine Farris and Division Head of the Energetics Division Jeff Davis, who is plaintiff's second level supervisor, and complained about the unsupportive work environment. (Id. at ¶ 24.) Later that month, plaintiff learned that coworker Will Mangrum had falsely charged 141 hours of work to plaintiff's funding account, which plaintiff alleges was a deliberate attempt to drain plaintiff's account of funds. (Id. at ¶ 25.)

         In or around April 2015, Claresta Dennis, a physicist who worked in an office that plaintiff had vacated two years earlier, reported that she had discovered a gun in a box on a top shelf. (Id. at ¶ 26.) Though the gun was a tranquilizer gun of unknown origin, Washburn falsely accused plaintiff of having an unauthorized gun. (Id. at ¶¶ 26, 57.) Washburn and Dennis told plaintiff that the Naval Criminal Investigative Service (“NCIS”) would interview him about the incident. (Id. at ¶ 26.)

         In or around May 2015, Washburn, in violation of procedure, directed Will Mangrum to approach the China Lake security team about gaining access to the combinations on plaintiff's explosive safes. (Id. at ¶ 27.) Later that month, plaintiff learned that he had not received emails about an upcoming Explosives Safety Inspection, which fell directly within the scope of his duties, because his name had been removed from an email list. (Id.)

         On or about June 10, 2015, plaintiff participated in a second meeting with Human Resources Specialist Christine Farris and Division Head of the Energetics Division Jeff Davis. (Id. at ¶ 28.) At the meeting, Davis informed plaintiff that he had conducted an investigation and concluded that plaintiff was “the problem.” (Id.) The next day, plaintiff learned that Davis had falsely informed Greg Wheelock, Deputy Associate Director for Energetics and plaintiff's third level supervisor, that plaintiff had been offered disciplinary measures at the June 10, 2015 meeting. (Id. at ¶¶ 20, 29.)

         On or about June 16, 2015, plaintiff learned that management planned to move him under the supervision of Martin Minthorn, which would require plaintiff to leave his laboratory and equipment behind and under the control of Washburn. (Id. at ¶ 30.) On or about June 30, 2015, Washburn and Davis ordered plaintiff to cut off the locks of the secure area in his laboratory. (Id.) When plaintiff expressed concerns about doing so, Washburn and Davis threatened to escort plaintiff to base counseling. (Id.)

         On or about July 7, 2015, plaintiff learned that someone had recommended removal of his security clearance, which would have resulted in the loss of his job. (Id. at ¶ 31.) Around the same time, management required plaintiff to undergo a psychological examination. (Id.) The base psychologist concluded that plaintiff did not have any psychological issues. (Id.) On or about July 22, 2015, plaintiff received notification from the China Lake security team that the investigation into his security clearance had been adjudicated in his favor with a recommendation to not remove or suspend his clearance. (Id. at ¶ 32.)

         Shortly thereafter, on July 27, 2015, management and Human Resources ordered an investigation of plaintiff to be conducted by Robert Long, the Head of the Avionics and Weapons Integration Engineering Division. (Id.) During the course of this investigation, Long interviewed plaintiff on more than one occasion, was argumentative during the interviews, and refused to accept any documents that plaintiff attempted to offer in defense. (Id. at ¶ 33.)

         On or about October 8, 2015, Long issued a report of his investigation, which found multiple instances of purported wrongdoing by plaintiff. (Id. at ¶ 35.) Plaintiff claims that the allegations upon which the report relied were not true or grossly distorted the underlying facts. (Id.) Although plaintiff denied the allegations, he was unable to respond fully to the report because large portions of that report were redacted. (Id.)

         On or about December 9, 2015, plaintiff received a Notice of Proposed Suspension, which proposed suspending plaintiff for seven days based on allegations mirroring those in Long's report. (Id. at ¶ 36.) In order to respond to the Notice of Proposed Suspension, plaintiff requested an unredacted copy of the Long report and the identities of the witnesses upon whom the report relied, but management denied plaintiff's request. (Id. at ¶ 37.) On January 11, 2016, plaintiff submitted a 234-page response to the Notice of Proposed Suspension denying the allegations made against him. (Id. at ¶ 38.)

         On or about January 19, 2016, plaintiff contacted the Equal Employment Opportunity (“EEO”) office with an informal complaint. (Id. at ¶ 40; Doc. No. 20-7 at 3.) On February 16, 2016, Charles Bechtel, the Technical Director of Weapons and Energetics, upheld the Notice of Suspension. (Id. at ¶ 38.) On or about February 16, 2016, plaintiff amended his EEO informal complaint to include a challenge to the upholding of his suspension. (Id. at 40.) Plaintiff later filed a formal EEO complaint on or about April 18, 2016. (Id.)

         Because plaintiff was reassigned to work under Martin Minthorn on February 23, 2016, plaintiff was required to turn over custody of his laboratory and laboratory equipment to Washburn. (Id. at ¶ 39.) Since that time, plaintiff has been unable to secure facilities to continue performing the work on his projects, and has lost funding for those projects as a result. (Id. at ¶¶ 41, 42.)

         Plaintiff initiated this civil action on August 24, 2018. (Doc. No. 1.) He brings three claims under Title VII against the Secretary of the United States Department of the Navy for: (1) discrimination based on his non-affiliation with the LDS Church; (2) hostile work environment based on his non-affiliation with the LDS Church; and (3) retaliation for engaging in EEO activity. (Id. at ¶¶ 43-108.)

         On March 29, 2019, defendant filed the motion to dismiss now pending before the court. (Doc. No. 20.) Plaintiff filed his opposition on May 7, 2019, and defendant filed its reply on May 13, 2019. (Doc. Nos. 22, 23.)


         The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). A dismissal may be warranted where there is “the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         In evaluating whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). However, the court will not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at ...

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