Okemgbo v. Washington State Department of Ecology et al, No. 2:2012cv05119 - Document 84 (E.D. Wash. 2014)
Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Defendants Motion for Summary Judgment ECF No. 24 is GRANTED. Plaintiffs untimely Motion for Summary Judgment ECF No. 50 is DENIED as moot. All other pending motions are DENIED as moot. All pending hearings and the jury trial are VACATED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)
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Okemgbo v. Washington State Department of Ecology et al Doc. 84 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 ASOPURU OKEMGBO, NO: 12-CV-5119-TOR Plaintiff, 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. WASHINGTON STATE DEPARTMENT OF ECOLOGY, 11 Defendant. 12 13 BEFORE THE COURT is Defendant’s Motion for Summary Judgment 14 (ECF No. 24) and Plaintiff’s untimely Motion for Summary Judgment (ECF No. 15 50). 1 This matter was submitted for consideration without oral argument. The 16 Court has reviewed the briefing and the record and files herein, and is fully 17 informed. 18 /// 19 1 20 on January 17, 2014, 39 days after the deadline for dispositive motions. Plaintiff, appearing pro se, filed a motion for summary judgment (ECF No. 50) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 BACKGROUND 2 Pro se Plaintiff Asopuru Okembgo, Ph.D., (“Plaintiff” or “Dr. Okembgo”) 3 alleges that Defendant violated his civil rights under Title VII of the Civil Rights 4 Act by wrongfully terminating him on the basis of race, national origin, and 5 religion. Defendant Washington State Department of Ecology (“Department”) 6 now moves for summary judgment on grounds that Plaintiff fails to establish a 7 prima facie case of discrimination; the Department had a legitimate, 8 nondiscriminatory reason for terminating Plaintiff’s employment; and Plaintiff 9 fails to show the Department’s proffered reason for terminating him was pretext 10 for discrimination. For the reasons explained below, the Court grants Defendant’s 11 motion. 12 FACTS 2 13 Plaintiff Asopuru Okembgo, Ph.D., (“Plaintiff” or “Dr. Okembgo”) is a 14 chemist; president of a nonprofit corporation named Skills Development Mission 15 headquartered in Kennewick; and author of a book titled “Pop the Question, Get 16 Yes, Get Married,” a book concerning Christianity and marriage advice. Defendant 17 2 18 The facts are excerpted from the parties’ statements of fact and supporting 19 exhibits and are accepted as true, with noted exceptions, for the purposes of the 20 instant motion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Washington State Department of Ecology (“Department”) hired Plaintiff as a 2 Chemist 3 in February 2008. ECF No. 25 at 1. Einar (“Ron”) Skinnarland 3 (“Skinnarland”), Waste Treatment Section Manager, was on the hiring committee 4 and became Plaintiff’s direct supervisor.3 Id. at 1, 3. After Dr. Okembgo’s probation period had ended, three of Dr. Okembgo’s 5 6 co-workers, N.S., T.W., and A.C., alleged that Dr. Okembgo had engaged in 7 inappropriate touching and/or conversation with them. 4 ECF No. 25 at 2; 8 Skinnarland Declaration at 3. As a result, on June 11, 2009, Skinnarland contacted 9 his supervisor, and Human Resources investigated the allegations. ECF No. 25 at 10 10-11; Skinnarland Declaration at 3; Declaration of Polly Zehm at 2; Declaration 11 of Wendy Holton at 2. The investigation focused on alleged violations of 12 Department sexual harassment and use of state resources policies. Holton 13 Declaration at 2. During the investigation, 25 people were interviewed, and 14 “captures” of Dr. Okembgo’s computer and internet use were examined. 15 16 3 Dr. Okembgo states that Skinnarland did not want to hire him, preferring a 17 family friend, Dr. Eberlein—a claim that Defendant disputes. See ECF No. 45 at 2. 18 4 19 20 The Court considers the details of these and future allegations of inappropriate behavior in greater detail below. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 On December 7, 2009, Polly Zehm, Deputy Director of the Department, sent 2 Dr. Okembgo a predisciplinary notice indicating that the Department was 3 considering taking disciplinary action against him and citing allegations of 4 inappropriate touching and conversations with female employees and inappropriate 5 use of state resources. ECF No. 25 at 12; Zehm Declaration at 2. After a meeting 6 with Dr. Okembgo and Department and Union representatives, Zehm sent Dr. 7 Okembgo a notice suspending him without pay from March 9, 2010, through 8 March 29, 2010.5 9 Dr. Okembgo’s supervisor Skinnarland met with Dr. Okembgo before and 10 after his suspension, memorializing each of their discussions in writing in 11 memoranda entitled “Work Expectations.” ECF No. 25 at 13. The resulting 12 memoranda indicate that Dr. Okembgo was prohibited from using work time to 13 promote, sell, or distribute his book on marriage, and from using work time to 14 counsel co-workers or offer to pray with them. Id. 15 After Dr. Okembgo’s suspension and meetings with Skinnarland, the 16 Department hired S.N., who became seated in a cubicle close to Dr. Okembgo. 17 ECF No. 25 at 14; S.N. Declaration at 2. S.N. also reported a series of 18 5 19 20 Defendant states that although the collective bargaining agreement allowed Dr. Okembgo to grieve the decision, he did not file a grievance. ECF No. 25 at 13 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 uncomfortable interactions with Dr. Okembgo, which were reported to Human 2 Resources. ECF No. 25 at 18-19. After receiving report of the new allegations against Dr. Okembgo, Human 3 4 Resources began another investigation focusing on the alleged violations of the 5 Department’s sexual harassment policy, but more expansive, to include an inquiry 6 into whether Dr. Okembgo distributed his book on marriage and made offers of 7 counseling and prayer. Id. at 19. On March 22, 2011, Dr. Okembgo was sent 8 another pre-disciplinary notice informing him that the Department was considering 9 disciplinary action which included allegations of inappropriate behavior of a sexual 10 nature toward a female co-worker and failure to follow a supervisor’s directive. Id. 11 at 20. Dr. Okembgo and Department and Union representatives attended his pre- 12 disciplinary meeting on April 1, 2011. On April 15, 2011, Human Resources sent 13 Dr. Okembgo a notice of dismissal informing him that he was terminated from 14 employment effective that day. ECF No. 25 at 20. 15 A. The Sexual Harassment Allegations 16 Dr. Okembgo disputes many of his four co-workers’ substantive allegations; 17 however, he does not appear to dispute the fact that they made the allegations to 18 the Department. Each co-worker’s allegations are as follows: 19 /// 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 1. N.S. 6 2 According to the Fact-Finding Inquiry Form summary resulting from Human 3 Resources’ investigation, N.S.’s allegations against Dr. Okembgo included the 4 following: • • • • 5 6 7 8 Unwanted hugging Bringing her Bible verses Coming into N.S.’s cubicle and standing very close to her Patting her on the shoulder sliding his hand down to just above her elbow, and pinching her—an action repeated three times ECF No. 29-1, Exhibit D. 2. T.W. 9 According to the Fact-Finding Inquiry Form summary resulting from Human 10 11 Resources’ investigation, T.W.’ allegations against Dr. Okembgo included the 12 following: • Unwanted back rubs in her cubicle—a “couple” • “Forced” hugging, in which Dr. Okembgo would grab her elbows and pull her to him for a hug—an estimated ten occasions • “Pulling” her into a conference room to pray after she told him about a miscarriage 13 14 15 16 ECF No. 30, Exhibit E. 17 3. A.C. 18 According to the Fact-Finding Inquiry Form summary resulting from Human 19 Resources’ investigation, A.C.’s allegations against Dr. Okembgo included the 20 6 The Court uses initials here to protect the privacy of the women involved. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 3 4 following: • Commenting on A.C.’s coat, which was hanging outside her cubicle. When she stated that it had stains from her young child’s food, he said that some stains have value, mentioning “Monica Lewinsky,” and her “blue dress.” • After lunch with Mr. Okembgo, he told A.C. “Tell your husband not to worry. I won’t take you away from him. 5 6 ECF No. 28, Exhibit C. 7 4. S.N. 8 According to the Fact-Finding Inquiry Form summary resulting from Human 9 10 11 12 13 14 15 16 17 18 19 20 Resources’ investigation and her declaration, S.N.’s allegations against Dr. Okembgo included the following: • Giving S.N. his book on marriage, which includes discussion about ovulation. • Asking personal questions about female reproduction. • Asking when her body temperature changed and stating that he could sense when his wife’s temperature changed. • Asking if she was “early in her cycle,” if she “knew how to tell,” and if she had “a regular 28-day cycle.” • Stating in a conversation about getting pregnant, “You have to hold on until you get a full deposit.” • Standing close to her after she told him to clean his desk and stating “what will be my reward for cleaning my desk?” • Repeatedly whispering her name from his cubicle. • Telling S.N. that she should try to get pregnant over the weekend. • Telling her he would pray for her over the weekend and making a gesture similar to holding a baby. • Keeping a piece of candy S.N. had given him in a heart-shaped box and telling S.N. that it was special to him and he was keeping it in his heart. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 • Stating that he could not look on the floor for a piece of candy S.N. had dropped because people would think he was looking between her legs. • Suggesting that S.N. bring her husband’s elastic exercise band to work because he could show her things her husband and she could do together with it. 4 5 6 7 Declaration of S.N., ECF No. 27; ECF Nos. 27-1 and 27-2, Exhibits A and B. B. Other Allegations The Department also claims that Dr. Okembgo misused state resources by 8 using his email for personal emails and viewing large numbers of non-work-related 9 internet sites. Though Plaintiff disputes at least some of these allegations, Human 10 Resources Consultant Wendy Holton declared that a “capture” of Plaintiff’s 11 computer and internet use indicated that between April 28, 2009, and June 1, 2009, 12 Dr. Okembgo had accessed 1,416 non-work-related websites. Holton Declaration, 13 ECF No. 33. She also stated that between February 15, 2009 and July 1, 2009, he 14 had sent or received 155 non-work-related emails, 44 of which appeared to be 15 related to Dr. Okembgo’s non-profit organization. Id. 16 Skinnarland also claims that Dr. Okembgo appeared to be spending time at 17 the Washington State University library (a place where employees sometimes went 18 for legitimate reasons) to work with students on his nonprofit corporation during 19 work hours. ECF No. 32-4, Exhibit M. Skinnarland reported seeing Dr. Okembgo 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 come in late from lunch, take personal calls, and leave meetings to take personal 2 calls. Id. 3 4 5 6 7 8 9 10 C. The Work Expectations Memoranda The Work Expectations memoranda provide, inter alia, the following supervisory directives: 4) You are not to use your work time for any non-work activity, including: • Promoting and soliciting contributions of money, time or other donations for your non-profit organization or other non-work related activities that you are involved in • Promoting, selling and/or distributing your book on marriage • Promoting religious opinions, providing religious information, counseling, offers to pray 5) You are not to use your assigned state computer, work phone, copy machine, fax machine or any other state equipment for any non-work related activity. 11 12 ECF No. 32-5, Exhibit N. The other Work Expectation memorandum has 13 substantially the same provisions. ECF No. 32-6, Exhibit O. 14 15 D. Procedural Background Through his union, Dr. Okembgo filed a grievance challenging his 16 discharge. ECF No. 25 at 21. An arbitration hearing was held on that issue and to 17 determine whether the Department violated the collective bargaining agreement 18 when it provided documents only to the union and not to Dr. Okembgo. Id. The 19 arbitrator determined that the Department and the Union agreed to a variance in the 20 collective bargaining agreement where in the Department only provided documents ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 to the union and not to Dr. Okembgo. Id. The arbitrator also determined that the 2 Department had just cause to dismiss Dr. Okembgo. Id. Dr. Okembgo maintains 3 that the Department failed to follow its own internal policies or the collective 4 bargaining agreement with the Union. 5 On September 10, 2012, Dr. Okembgo filed the action now before the Court, 6 alleging that the Department engaged in unlawful employment practices in 7 violation of Title VII of the Civil Rights Act by 8 9 10 11 subjecting [him] to disparate terms and conditions of employment (allegations of sexual harassment, failing to follow due process during the disciplinary hearing, issued management directive that violated my freedom of speech rights; and supporting Ronald Skinnarland’s, Section Manager, efforts of intimidation, hostile work environment, wrote that I was predatory toward women, undermining my standing at workplace), and by wrongly terminating my employment on the basis of my Black/African/Nigerian/ Christian, race, national origin and religion. 12 13 ECF No. 1. 14 15 16 DISCUSSION A. Legal Standard Summary judgment may be granted to a moving party who demonstrates 17 “that there is no genuine dispute as to any material fact and that the movant is 18 entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party 19 bears the initial burden of demonstrating the absence of any genuine issues of 20 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 shifts to the non-moving party to identify specific genuine issues of material fact 2 which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 3 242, 256 (1986). “The mere existence of a scintilla of evidence in support of the 4 plaintiff’s position will be insufficient; there must be evidence on which the jury 5 could reasonably find for the plaintiff.” Id. at 252. 6 For purposes of summary judgment, a fact is “material” if it might affect the 7 outcome of the suit under the governing law. Id. at 248. A dispute concerning any 8 such fact is “genuine” only where the evidence is such that a reasonable jury could 9 find in favor of the non-moving party. Id. In ruling upon a summary judgment 10 motion, a court must construe the facts, as well as all rational inferences therefrom, 11 in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 12 378 (2007). Only evidence which would be admissible at trial may be considered. 13 Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). 14 B. Plaintiff’s Discrimination Claims 15 Plaintiff contends that he was discharged from his position as chemist 16 because of his race, national origin, and religion. Defendant argues that Plaintiff’s 17 claim fails because he does not establish a prima facie case of discrimination; the 18 Department of Ecology had a legitimate, non-discriminatory reason for terminating 19 Plaintiff; and Plaintiff fails to show that the Department’s proffered legitimate, 20 non-discriminatory reasons were merely pretext for discriminatory motives. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 2 3 4 Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides in relevant part: It shall be an unlawful employment practice for an employer ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion…or national origin…. 5 6 42 U.S.C. § 2000e–2(a). Title VII claims are analyzed under the burden-shifting 7 analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 8 See Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008). Under 9 the McDonnell Douglas burden-shifting analysis, a plaintiff must first establish a 10 prima facie discrimination case. Chuang v. Univ. of Cal. Davis, 225 F.3d 1115, 11 1123 (9th Cir. 2000). If the plaintiff establishes a prima facie case, the burden of 12 production, but not persuasion, then shifts to the defendant to articulate some 13 legitimate, nondiscriminatory reason for the challenged action. Id. at 1124. If the 14 employer does so, then the plaintiff must show that the employer's proffered reason 15 is merely pretext for a discriminatory motive. Llamas v. Butte Cmty. Coll. Dist., 16 238 F.3d 1123, 1126 (9th Cir. 2001). 17 The Court notes that Plaintiff does not appear to allege that the Department 18 failed to accommodate his religious beliefs in violation of § 701(j) of Title VII. To 19 establish a prima facie case of discrimination under that theory, the plaintiff must 20 prove the following: 1) he had a bona fide religious belief, the practice of which ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 conflicts with an employment duty; 2) he informed his employer of the belief and 2 conflict; and 3) the employer discharged him because of his inability to fulfill the 3 job requirement. Peterson v. Hewlett–Packard Co., 358 F.3d 599, 606 (9th Cir. 4 2004); Berry v. Department of Social Services, 447 F.3d 642, 655 (9th Cir. 2006). 5 Here, there is no suggestion that Plaintiff’s behavior stemmed from a bona fide 6 religious belief, that he informed his employer of this belief, or that he was 7 discharged because he was unable to fulfil the job requirement. Accordingly, the 8 Court analyzes Plaintiff’s claims as disparate treatment claims under Title VII. 9 1. Whether Plaintiff Established a Prima Facie Case for Discrimination 10 To make a prima facie case for discrimination under Title VII, Plaintiff must 11 offer evidence that “‘give[s] rise to an inference of unlawful discrimination,’ either 12 through the framework set forth in McDonnell Douglas Corp. v. Green or with 13 direct or circumstantial evidence of discriminatory intent.” Vasquez v. Cnty. of Los 14 Angeles, 349 F.3d 634, 640 (9th Cir. 2003) (quoting Cordova v. State Farm Ins. 15 Companies, 124 F.3d 1145, 1148 (9th Cir. 1997)). In the absence of direct 16 evidence, under the McDonnell Douglas framework, Dr. Okembgo has the burden 17 of showing that (1) he is a member of a protected class; (2) he was qualified for his 18 position; (3) he experienced an adverse employment action; and (4) similarly 19 situated individuals outside his protected class were treated more favorably, or 20 other circumstances surrounding the adverse employment action give rise to an ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 inference of discrimination. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 2 (9th Cir. 2004) (citing Chuang v. University of Cal. Davis Bd. of Trs., 225 F.3d 3 1115, 1123 (9th Cir. 2000); Lyons v. England, 307 F.3d 1092, 1112-14 (9th Cir. 4 2002). This showing is minimal and need not even rise to the level of a 5 preponderance of the evidence. Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th 6 Cir. 1994). But it must be more than “purely conclusory allegations of alleged 7 discrimination, with no concrete, relevant particulars.” Peterson, 358 F.3d at 603 8 (quoting Forsberg v. Pac. Northwest Bell Tel. Co., 840 F.2d 1409, 1419 (9th Cir. 9 1988)). 10 A plaintiff can also establish a prima facie case of disparate treatment 11 without satisfying the McDonnell Douglas test if he provides evidence suggesting 12 that the “‘employment decision was based on a discriminatory criterion illegal 13 under the [Civil Rights] Act.’” Cordova, 124 F.3d at 1148-49 (quoting 14 International Brotherhood of Teamsters v. United States, 431 U.S. 324, 358 15 (1977)) (finding in lawsuit by a Mexican-American job candidate evidence of 16 discriminatory animus where hiring manager referred to another Hispanic 17 employee as a “dumb Mexican” and declared that he was hired because he was a 18 minority). Such derogatory comments can create an inference of discriminatory 19 motive. Id. See also Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir. 1995) 20 (fire chief's derogatory comments about Hispanics create inference of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 discriminatory motive); Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir. 2 1991) (supervisor's remarks indicating sexual stereotyping create inference of 3 discriminatory motive); and Chuang v. University of California Davis, Bd. of 4 Trustees, 225 F.3d 1115, 1128 (finding direct evidence of discriminatory motive 5 where state university official stated that “two Chinks” in the pharmacology 6 department were “more than enough” and the dean laughed in response). 7 Here, Plaintiff appears to allege direct discriminatory animus. First, he 8 indicates that Mr. Skinnarland and Ms. Singleton requested his dismissal based on 9 Plaintiff’s religious beliefs. See ECF No. 45 at 59 (“Both Mr. Skinnarland and his 10 ‘work wife’ Ms. Singleton cleared [sic] requested for dismissal of the plaintiff 11 based on the plaintiff’s religious beliefs. As was outline[d] on discussion of 12 material facts paragraphs 76 and 77. 7 Their statements were very clear and need no 13 further discussion.”). Dr. Okembgo’s statement of facts includes these allegations: It is fact Mr. Skinnarland pushed his discriminatory agenda when he wrote Ms. Polly Zehm an email (Exhibit 19) recommending dismissal of Dr. Okembgo based on religion. In Mr. Skinnarland’s email of 3/24/2011, he wrote: 14 15 16 7 17 This appears to be a mistake. Paragraphs 76 and 77 of Plaintiff’s statement of 18 facts excerpt a declaration of Kevin Leary, a Department of Energy Project 19 Manager for one of Dr. Okembgo’s projects. The excerpts concern Dr. Okembgo’s 20 professional qualifications and work demeanor. ECF No. 45 at 36. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 2 “I believe the recurrence of the inappropriate behavior for which Asopuru has been previously disciplined in March 2010, and the continued liability to Ecology that he poses if he is returned to our work place is sufficient reason to justify his termination. 3 4 5 6 7 8 9 10 [Dr. Okembgo] i. Continues to be a major liability for the state for inappropriate behavior, both inside our office and in his interactions with the Department of Ecology and its contractors in his work as a regulator. This [] risk is demonstrated by Asopuru’s behavior with S.N., which started only a few months after he was suspended without pay for his previous inappropriate behavior. ‘ ii. [sic] Continues to promote his non-profit and his book despite disciplinary action and repeated written direction not to do so. iii. Continues to promote religious opinions and provide unsolicited and unwelcome counseling to NWP staff and to people on the Hanford site who NWP regulates. … 11 12 13 14 15 16 17 18 19 Mr. Skinnarland further send [sic] another email originated by Ms. Deborah Singleton (Exhibit 20) on 3/28/2011 to Ms. Polly Zehm insisting that Dr. Okembgo should be dismissed on the bases of his religious opinion as follows: “Asopuru sincerely believes that because of his religious beliefs, his advice is warranted and useful; regardless of whether it is requested or not. I do not believe that his continued employment will offer much assistance to me in completing the tasks and assignments charged to him. His inability to meet deadlines and work within a team are evidence of the challenges that lay ahead. His continued communication of his religious beliefs and opinions to unsuspected staff could proof [sic] to be detrimental to the retention of good employees.” 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Plaintiff’s Statement of Facts, ECF No. 45 at 33-35, paras. 74-75 (emphasis in 2 Plaintiff’s quotation). 3 Though not a strong argument for discrimination, Plaintiff’s dispute of the 4 facts, taken in the light most favorable to him, are sufficient to preclude summary 5 judgment on Plaintiff’s failure to make a prima facie case. 6 Additionally, under the McDonnell Douglas scheme, the Court notes that 7 there is at least a dispute of material fact as to whether individuals outside of 8 Plaintiff’s protected class were treated more favorably. For example, Dr. Okembgo 9 states that pink Post-It Note hearts were placed around his cubicle, constituting 10 sexual harassment which was never investigated by Defendant. He appears to 11 claim that the alleged sexual harassment he received (evidenced by the pink Post- 12 Its) went uninvestigated by Human Resources, while Human Resources 13 overinvestigated the allegations against him. See ECF No. 45 at 54 (“Mr. 14 Skinnarland took it upon himself to contact female employees coercing them to 15 bring sexual harassment allegations against the plaintiff.”), and ECF No. 45 at 57 16 (“The Plaintiff brought the attention of Management and the Union to the fact that 17 there was unwelcome posting of pink hearts in plaintiff’s cubicle…. This was 18 particularly a harassment since the person who posted them did not identify 19 himself/herself. Management did not carry out any investigation.”). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Plaintiff also argues that the Department’s hiring of Dr. Elis Eberlein is 2 evidence of disparate treatment. The Court disagrees. Plaintiff sets forth in his 3 responsive statement of facts that, at the time Plaintiff was hired, Mr. Skinnarland 4 had wanted to hire another candidate, Dr. Eberlein. Plaintiff states that “Mr. 5 Skinnarland created a Chemist 3 position for Dr. Eberlein, a Microbiologist. He 6 was hired for that position.” ECF No. 45 at 2. Plaintiff provides no evidence or 7 supporting declaration for this statement, which appears in his response to 8 Defendant’s motion for summary judgment. In reply, Defendant points out that the 9 Department of Ecology hired Dr. Eberlein as a permanent chemist on July 1, 2009. 10 ECF No. 54 at 4, citing Skinnarland Declaration at 2:20-22. Dr. Eberlein’s hiring 11 therefore took place more than nine months before Plaintiff’s discharge. Thus, 12 there is no indication that Dr. Okembgo was terminated so that Dr. Eberlein could 13 have his job, or that Dr. Eberlein was treated differently than Dr. Okembgo with 14 respect to hiring decisions. 15 Proceeding under the facts viewed in a light most favorable to Plaintiff, the 16 Court assumes that Plaintiff has made out his prima facie case of discrimination. 17 Accordingly, the Court next considers whether the Defendant established 18 nondiscriminatory reasons for discharging Dr. Okembgo. 19 /// 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 2 3 2. Whether Defendant Established Nondiscriminatory Reasons for the Challenged Action If the plaintiff establishes a prima facie case, the burden of production, but 4 not persuasion, then shifts to the defendant to articulate some legitimate, 5 nondiscriminatory reason for the challenged action. Chuang, 225 F.3d at 1124. 6 Here, through the introduction of admissible evidence, the Department can 7 articulate legitimate, non-discriminatory reasons for having discharged Dr. 8 Okembgo. In fact, the record is rife with compelling, non-discriminatory reasons 9 for discharging Plaintiff, particularly the repeated allegations of sexual harassment 10 by Dr. Okembgo. Defendant also cites Dr. Okembgo’s alleged misuse of state 11 resources. 12 a. Allegations of Sexual Harassment 13 The Department’s sexual harassment policy makes clear that the Department 14 “Does Not Tolerate Any Kind of Sexual Harassment in the Workplace.” Dep’t of 15 Ecology, Chapter 1: Executive Policy and Procedure, ECF No. 33-3, Exhibit S. 16 Furthermore, this prohibition extends to all employees, not just supervisors: 17 18 All Ecology employees must foster and maintain a work environment free from any kind of sexual harassment and inappropriate behavior of a sexual nature. Any employee who is found to be in violation of this policy may be subject to disciplinary action, up to and including dismissal. 19 20 Id. The policy defines “inappropriate behavior of a sexual nature” as including ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 “written, graphic or verbal communication, including demeaning or offensive 2 comments, gossip, epithets, suggestions, jokes, slurs, or negative stereotyping 3 based on gender”; and “physical behavior such as unwelcome touching, standing 4 too close, cornering, leaning over, or repeated brushing against a person’s body.” 5 Id. 6 The undisputed evidence shows that the Department received multiple 7 complaints about Dr. Okembgo’s behavior in violation of the sexual harassment 8 policy. Dr. Okembgo was reported for repeated instances of physical invasions of 9 his female co-workers’ space. For example, two co-workers reported “unwelcome 10 touching,” including unwanted hugs and back rubs. See Declaration of T.W., ECF 11 No. 30; Declaration of N.S., ECF No. 29. T.W. reported that Dr. Okembgo pinched 12 the back of her arm three times. T.W. Declaration, ECF No. 30. Three women 13 reported that he would stand close to them in their cubicles. Dr. Okembgo was also 14 reported for inappropriate statements that made his female co-workers 15 uncomfortable. For example, A.C. reported his statements likening the food stains 16 on her coat to the infamous stains on Monica Lewinsky’s blue dress, and telling 17 her to tell her husband not to worry because he would not “take [her] away from 18 him.” A.C. Declaration, ECF No. 28 at 2. S.N. reported his repeated comments 19 about her fertility and possible pregnancy, including asking about her “cycle,” 20 telling her to “hold on until you get a full deposit,” and telling her she should try to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 get pregnant over the weekend. S.N. Declaration, ECF No. 27. These occurrences 2 and statements fall squarely into “inappropriate behavior of a sexual nature” 3 prohibited under the sexual harassment policy, including “verbal 4 communication… offensive comments, … suggestions” and “physical behavior 5 such as unwelcome touching, standing too close, cornering, leaning over, or 6 repeated brushing against a person’s body.” There is no suggestion that such a 7 prohibition on sexual harassment violates Mr. Okembgo’s rights; in fact, 8 discrimination based on sex, as can be evidenced by serious sexual harassment, is 9 one of the types of discrimination against which Title VII protects. See Meritor 10 11 Sav. Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986). Plaintiff makes mostly conclusory denials that these events occurred. But 12 what is undisputed is that these co-workers made the reports in question. Thus, 13 their reports give the Department ample cause to discharge Plaintiff, regardless of 14 Dr. Okembgo’s dispute of the reports’ accuracy. As Skinnarland stated, in a line 15 cited by Plaintiff, “the continued liability to Ecology that he poses if he is returned 16 to our work place is sufficient reason to justify his termination.” ECF No. 45 at 34. 17 b. Allegations of Misuse of State Resources 18 Under the Department’s policy, the private use of state resources is “Strictly 19 Prohibited” in certain circumstances, including “[a] use for the purpose of 20 supporting, promoting, or soliciting for an outside organization or group unless ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 provided for by law or authorized by an agency head or designee,” or 2 “[c]ommercial uses such as advertising or selling.” Dep’t of Ecology, Chapter 1: 3 Executive Policy and Procedure, ECF No 32-2, Exhibit R. These activities are not 4 subject to the Department’s de minimus use exception to the general prohibition on 5 private use of state resources. See id. 6 Plaintiff contends that the 44 emails about his nonprofit organization should 7 fall into the policy’s exception for nonprofit work. ECF No. 45 at 29. That 8 exception states that “employees may participate in fund-raising activities in a 9 state-owned or leased facility subject to the following conditions,” including that 10 “the activity is authorized by the Director.” ECF No. 33-2, Exhibit R. There is no 11 suggestion that Plaintiff had authorization from the Department in any way to use 12 state resources for work on his nonprofit organization. Thus, their inclusion as one 13 of the reasons the Department cited for terminating Mr. Okembgo appears 14 legitimate. 15 Plaintiff disputes much of Human Resources’ findings with respect to the 16 Department’s claims that he misused state resources. For example, Plaintiff 17 disputes that he visited 2,270 websites within 47 days, as Defendant alleges, and 18 that all of the non-work related sites were in fact not related to work. ECF No. 45 19 at 27-28. But this alone does not defeat summary judgment on this issue. He 20 acknowledges sending at least some non-work emails. These allegations compound ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 generally with the inappropriate behavior to his female-coworkers. Even viewed in 2 the light most favorable to Plaintiff, it is evident that he was discharged, not 3 because of his religious beliefs or race or national origin, but because he violated 4 the Department’s sexual harassment and misuse of state resources policies, and 5 because he did so repeatedly, after warnings and discipline. Defendants have 6 consequently rebutted the presumption arising from Plaintiff’s prima facie case, 7 and the burden returns to Plaintiff to show that his former employer’s proffered 8 reasons for termination were merely pretext for an underlying discriminatory 9 motive. 10 3. Whether Employer’s Proffered Reasons Were Merely Pretext for 11 12 Discriminatory Motive To prevail on his employment discrimination claim, Plaintiff must show that 13 Defendant’s proffered legitimate, non-discriminatory reasons for discharging him 14 were pretext for discriminatory animus. Plaintiff makes several arguments that the 15 Department’s proffered reasons for termination were pretexual. 16 First, he states that “sexual harassment allegations were used as a ploy to 17 discriminate against the Plaintiff. Mr. Skinnarland set the stage, was the drum 18 beater, and got what he wanted—to dismiss the plaintiff since he had positioned 19 his family friend as his new chemist in his Section.” ECF No. 45 at 58. Plaintiff 20 explains: ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 2 3 4 The defendant policy 1-32 on sexual harassment was not followed in investigating and dismissing the plaintiff from his appointment. The policy against sexual harassment was clear on what sexual harassment is supposed to be. There was no place in which it stated that management should snooze [sic] around asking whether employees felt comfortable around/about another employee. However Mr. Skinnarland took it upon himself to contact female employees coercing them to bring sexual harassment allegations against the plaintiff. 5 6 ECF No. 45 at 54. This conclusory denial of the legitimacy of the claims and 7 further conclusory statement that Skinnarland “coerced” the women who alleged 8 his misconduct are insufficient to create genuine issue of material fact as to pretext. 9 The evidence shows no indication of coercion or trumping up complaints against 10 Dr. Okembgo. Dr. Okembgo points to the fact that several of the women were 11 reluctant to report him. See ECF No. 45 at 39, citing S.N.’ statement to 12 Skinnarland, Defendant’s Exhibit A. For example, he states that “[S.N.] was 13 pressured by Mr. Skinnarland to write a report and she reluctantly submitted an 14 information letter sent to Mr. Skinnerland and the HR.” Id. But S.N.’s statement 15 does not speak to her reluctance; rather she stated that she felt it was “important” to 16 make the Department of Ecology aware of these events.” ECF No. 27-1, Exhibit A. 17 Plaintiff additionally makes a conclusory statement suggesting that S.N.’s 18 report was coerced. ECF No. 45 at 55 (“Why was [S.N.] coerced into writing a 19 report that she was unwilling to do?”). But he offers no evidence that she was in 20 fact coerced or unwilling to write the report, other than suggesting that fear of her ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 superiors “might have been a possibility.” Id. However, such speculation is 2 insufficient to throw S.N.’s entire report into dispute. He also mentions that after 3 S.N. told him that she did not want to talk about morning sickness, he did not 4 pursue the conversation. Id. But he fails to mention the other eight allegations of 5 inappropriate behavior listed in her report. See ECF No. 27-1, Exhibit A. 6 Similarly, Dr. Okembgo cites another reference to T.W.’s reluctance to 7 report him. Again, however, the interview notes cited do not indicate coercion or 8 even real reluctance to report. See ECF No. 45, Plaintiff’s Exhibit 8 (“Initially, 9 [T.W.] did not want to be involved in a confrontation with management there and 10 Asopuru, she was uncomfortable with the idea. Later on, after additional 11 incidences in the hall, she changed her mind and we met…”). Reluctance to be 12 involved with an official investigation cannot be equated to reluctance to make a 13 report or coercion. T.W. in fact “changed her mind” after additional inappropriate 14 incidents. 15 Dr. Okembgo additionally cites a number of declarations of other 16 Department employees, stating that they had never had a problem with him or 17 noticed the alleged behavior. But the Court notes that evidence that Plaintiff did 18 not have problems with some co-workers is not evidence that Plaintiff did not have 19 problems with the co-workers who made allegations of inappropriate behavior. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 Nor is it relevant that Dr. Okembgo is not the supervisor of the women 2 alleging the inappropriate behavior, as Dr. Okembgo argues. See ECF No. 45 at 54 3 (“Taken individually, [N.S.’s], [T.W.’s], and [S.N.’s] allegation of sexual 4 harassment does not stand the test of the plaintiff being their superior at work or 5 having authority to make any decisions in the work place. They, therefore, do not 6 have any basis of being afraid of telling the plaintiff that they were uncomfortable 7 with him or around him.”). The behavior the women reported violated the 8 Department’s sexual harassment policy, regardless of the relative status of the 9 individuals involved. 10 In short, Dr. Okembgo appears to have believed that Skinnarland had it out 11 for him, that Skinnarland went around the office asking women if they had a 12 problem with Dr. Okembgo, and that Skinnarland coerced women into making 13 untrue statements about Dr. Okembgo. But there is simply no evidence for this 14 conclusion. Skinnarland made inquiries into Dr. Okembgo’s behavior following 15 the allegations of harassing behavior; those inquiries necessarily involved asking 16 other women about their experiences with Dr. Okembgo. 17 Dr. Okembgo also states that Skinnarland created a Chemist 3 position for 18 one of the three candidates who was interviewed at the same time as Dr. Okembgo, 19 Dr. Eberlein. ECF No. 45 at 1. He contends that “Mr. Skinnarland had to hire Dr. 20 Eberlein because he had laid out his plans to get Dr. Okembgo dismissed from ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 working at Ecology.” ECF No. 45 at 2. He goes on to say “it was clearly evident 2 that the position of a Chemist was not needed,” citing an email from Alisa 3 Huckaby as proof that Skinnarland intended to replace Dr. Okembgo with Dr. 4 Eberlein. 8 However, the email in question simply notes that Dr. Okembgo’s “work 5 deliverables” are those typically assigned to permit writers, and asking for 6 clarification and modification of the workscope associated with Dr. Okembgo, Dr. 7 Eberlein, and another chemist. ECF No. 45 at 67, Exhibit 1. Accordingly, this 8 conclusory allegation is unsupported and insufficient to create a dispute of material 9 fact for the purposes of summary judgment. Likewise, other statements regarding 10 Skinnarland’s attempts to sow discord, ask women if they were being harassed, or 11 attack Dr. Okembgo’s book are unsupported by any reference to supporting 12 material, such as a declaration. See ECF No. 45 at 3. There is simply no indication that the people who made the decision to 13 14 discharge Dr. Okembo had any discriminatory motivation for doing so. To the 15 contrary, they were concerned about Dr. Okembgo’s repeated sexual harassment 16 8 17 Defendant contends in its reply, to which Dr. Okembgo did not have an 18 opportunity to respond, that Dr. Eberlein was hired in July 2009, eight months 19 before any disciplinary action taken against Dr. Okembgo. ECF No. 54 at 4; 20 Skinnarland Declaration at 2. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 and, to a lesser degree, Dr. Okembgo’s misuse of state resources and time for his 2 nonprofit work and promotion of his book—all activities which expressly violated 3 Department policy. 4 For the reasons stated, the Court finds that Defendant provided legitimate 5 and nondiscriminatory reasons for discharging Plaintiff, and Plaintiff failed to 6 show that those reasons were pretext for discriminatory animus. Accordingly, the 7 Court grants Defendant’s motion for summary judgment on this issue. 8 9 C. Plaintiff’s Allegations of First Amendment Violations Plaintiff contends in his opposition to Defendant’s Motion for Summary 10 Judgment that “it is a discrimination for the defendant to make rules that conflict 11 with the Constitutional rights of a citizen” under the First Amendment of the U.S. 12 Constitution. ECF No. 45 at 60. He further argues that the defendant enacted an 13 official policy that interfered with his right to freedom of religion, and appears to 14 argue that restriction on sharing his book impinges on his freedom of speech. Id. 15 Plaintiff also cites United States v. Means, 627 F. Supp. 247 (D. South Dakota 16 1985), rev’d in United States v. Means, 858 F.2d 404 (8th Cir. 1988), for the 17 proposition that it is arbitrary and capricious when a policy denies freedom of 18 religion. Id. Plaintiff’s complaint includes a request for relief from “Defendant’s 19 trumping of [his] protected speech in the work environment.” ECF No. 1 at 4. 20 Factual allegations in the complaint relating to speech consist of the following: ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28 1 2 3 4 5 6 [Skinnarland] trampled on my right to freedom of expression by forbidding the sharing of my thoughts during normal conversations with colleagues and forbade giving my book to those who wanted to read it. He gave management a directive that I should not use the word ‘pray’ when other staffs [sic] were allowed to express their cultural values as they wished. ECF No. 1 at 3. 1. Freedom of Speech Based on Dr. Okembgo’s pro se complaint and response to Defendant’s 7 motion for summary judgment, the precise grounds under which he claims First 8 Amendment protections are unclear. However, the Court construes pro se 9 pleadings and responses liberally, and accordingly examines several possibilities. 10 One basis for protection is that Defendant’s memoranda were rules that infringed 11 on his freedom of expression. Another is that he was discharged for exercising his 12 First Amendment rights. The Court considers each in turn. 13 a. Whether the Department’s Work Expectations 14 Memoranda Violated Dr. Okembgo’s First Amendment 15 Rights 16 Defendant frames the alleged First Amendment violation as a restriction on 17 speech, applying the “public concern” test to measure whether the Department, as 18 a state agency, could impose certain restrictions on Dr. Okembgo. 19 20 Government employees do not relinquish all First Amendment rights otherwise enjoyed by citizens just by reason of their employment. Connick v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 29 1 Myers, 461 U.S. 138, 142 (1983). But “a governmental employer may impose 2 certain restraints on the speech of its employees, restraints that would be 3 unconstitutional if applied to the general public.” City of San Diego, Cal. v. Roe, 4 543 U.S. 77, 80, 82 (2004). When an employee speaks as a “citizen on matters of 5 public concern” rather than as an “employee upon matters only of personal 6 interest,” the Court will apply a balancing test. Id. at 83 (citing Connick v. Myers, 7 461 U.S. 138, 143 (1983)). “Whether an employee's speech addresses a matter of 8 public concern must be determined by the content, form, and context of a given 9 statement, as revealed by the whole record.” Id. If the speech in question is a 10 matter of public concern, the Court applies the Pickering balancing test, which 11 evaluates “restraints on a public employee's speech to balance ‘the interests of the 12 [employee], as a citizen, in commenting upon matters of public concern and the 13 interest of the State, as an employer, in promoting the efficiency of the public 14 services it performs through its employees.’” Id. (quoting Pickering v. Board of 15 Education of Township High School District 205 Will Cnty., Ill., 391 U.S. 563, 568 16 (1968). 17 18 19 20 The January 27, 2010, Work Expectation memorandum’s provisions pertaining to free speech provide: 4) You are not to use your work time for any non-work activity including: • Promoting and soliciting contributions of money, time or other donations for your non-profit organization or other non-work related activities that you are involved in ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 30 1 2 3 • Promoting, selling and/or distributing your book on marriage • Promoting religious opinions, providing religious information, counseling, offers to pray 5) You are not to use your assigned state computer, work phone, copy machine, fax machine or any other state equipment for any non-work related activity. 4 ECF No. 32-5 at 2, Exhibit N. The April 7, 2010, memorandum contains the same 5 provisions. The memoranda, therefore, prohibit three specific expressive acts 6 during work time: (1) promoting or soliciting for outside activities, including a 7 nonprofit organization; (2) promoting, selling or distributing a book; and (3) 8 promoting religion and religious beliefs and offering to pray. 9 Defendant contends that Dr. Okembgo’s speech was not on a matter of 10 public concern because it pertained to a subject of personal interest. ECF No. 54 at 11 8-9. While this is a close question, Plaintiff’s speech—promotion of the nonprofit 12 organization, his book, and his religion during work hours—constitutes a matter of 13 public concern, contrary to Defendant’s argument. “This circuit and other courts 14 have defined public concern speech broadly to include almost any matter other 15 than speech that relates to internal power struggles within the workplace.” Tucker 16 v. State of Cal. Dep't of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996); see also Gillette 17 v. Delmore, 886 F.2d 1194, 1197 (9th Cir. 1989) (“Speech that can fairly be 18 considered as relating to any matter of political, social, or other concern to the 19 community is constitutionally protected.”); National Treasury Employees Union v. 20 United States, 990 F.2d 1271 (D.C.Cir. 1993), aff'd in relevant part, rev'd in part ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 31 1 on other grounds, 513 U.S. 454 (1995) (“The contrast, [between public concern 2 speech and non-public concern speech], then was between issues of external 3 interest as opposed to ones of internal office management. Accordingly, we read 4 the “public concern” criterion as referring not to the number of interested listeners 5 or readers but to whether the expression relates to some issue of interest beyond 6 the employee's bureaucratic niche.”). Here, under this broad standard and in the 7 light most favorable to Plaintiff, all three types of speech arguably concern social 8 matters or matters possibly of concern to the community, not “internal power 9 struggles within the workplace.” Insofar as selling his book or asking for donations 10 may be unprotected, the underlying speech about the cause the nonprofit 11 organization stands for, Plaintiff’s religious beliefs, and the subject matter of the 12 book are arguably matters of public concern; at minimum, they are not matters of 13 internal grievances. Thus, taken in the light most favorable to Plaintiff and under 14 the Ninth Circuit’s broad standard, all three types of speech are protected by the 15 First Amendment, and the Court moves to the next question in the analytical 16 framework. 17 Even where a public employee's speech implicates a genuine matter of 18 public concern, a public employer may still be justified in firing the employee. 19 Nunez v. Davis, 169 F.3d 1222, 1228 (9th Cir. 1999). In determining a public 20 employee's rights to free speech, courts must strike a balance “between the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 32 1 interests of the [employee], as a citizen, in commenting upon matters of public 2 concern and the interest of the State, as an employer, in promoting the efficiency of 3 the public services it performs through its employees.” Pickering, 391 U.S. at 568. 4 “When someone who is paid a salary so that [he] will contribute to an agency's 5 effective operation begins to do or say things that detract from the agency's 6 effective operation, the government employer must have some power to restrain 7 [him].” Waters v. Churchill, 511 U.S. 661, 675 (1994). The employer's interest 8 outweighs the employee's interest in speaking on a matter of public concern if the 9 employee's speech “impairs discipline by superiors or harmony among co-workers, 10 has a detrimental impact on close working relationships for which personal loyalty 11 and confidence are necessary, or impedes the performance of the speaker's duties 12 or interferes with the regular operation of the enterprise.” Rankin v. McPherson, 13 483 U.S. 378, 388 (1987). In balancing these interests, a court must consider “the 14 manner, time, and place of the employee's expression.” Id. 15 Here, the memoranda prohibit three types of speech during work hours. 16 First, the memoranda prohibit “Promoting, selling and/or distributing your book on 17 marriage”—language suggesting that the Department was restricting commercial 18 activities related to the book. Defendant has a much greater interest in preventing 19 an employee from spending work time and state resources on selling a book than 20 the Plaintiff has in using those hours to sell the book, especially when there were ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 33 1 no restrictions on him doing so outside of work hours. Furthermore, the 2 Department, as a state agency, has an interest in maintaining the appearance of 3 independence from religion. Insofar as the book contained themes on Christianity 4 and marriage, as the evidence suggests, the Court notes that the Department has a 5 strong interest in maintaining the appearance of neutrality with respect to religion. 6 With respect to the Department’s prohibition on “Promoting and soliciting 7 contributions of money, time or other donations for your non-profit organization or 8 other non-work related activities that you are involved in,” the Court likewise finds 9 that the Department’s interest in restricting these activities during work hours and 10 using work resources outweighs Plaintiff’s interest. This is particularly so in the 11 context of the evidence that Dr. Okembgo had gone to the WSU library during 12 work hours to work with the students from his nonprofit organization, and that he 13 was receiving non-work emails regarding the nonprofit organization at his work 14 email address. The Department paid him to perform a public service as a chemist, 15 not to work on personal projects, however worthwhile and important. While Dr. 16 Okembgo disputes the extent of his email use, he does not dispute that there may 17 have been some use, and he does not appear to dispute that he spent time on his 18 nonprofit organization during work hours. As such, the Department’s interest in 19 restricting activities that impede the employee’s productivity weighs heavy in the 20 balance. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 34 1 With respect to the last type of speech restricted under the memoranda, 2 “Promoting religious opinions, providing religious information, counseling, offers 3 to pray,” the Court again finds that the Department’s interest in promoting 4 “harmony among co-workers” and limiting impediments to “the performance of 5 the speaker's duties” and “the regular operation of the enterprise” outweigh the 6 Plaintiff’s interest. This is especially so given the context of the restrictions; this 7 particular restriction arose after a co-worker complained of being “pulled” into a 8 conference room to pray after a miscarriage, and another complained that Plaintiff 9 had repeatedly offered to pray for her fertility. The prayers, proffered religious 10 information, and offers of counseling were intertwined with the topics of 11 conversation Dr. Okembgo’s co-workers found uncomfortable discussing with 12 him: pregnancy and fertility. Furthermore, since the restriction was only on this 13 activity during work, the Department may have been concerned about Dr. 14 Okembgo’s use of work public space, such as the conference room, for these 15 impromptu prayers. Again, the Department’s interest in maintaining neutrality with 16 respect to religion is one more factor weighing in its favor. 17 Accordingly, the Court finds that the Department’s interest in maintaining a 18 workplace that is free of sexual harassment, does not promote a particular religion, 19 and which maintains some semblance of order and efficiency outweighs the 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 35 1 Plaintiff’s interest in selling his book, promoting his religious beliefs, or running 2 his nonprofit organization, while he is supposed to be working. 3 4 5 6 7 a. Whether Dr. Okembgo Was Discharged in Retaliation for Exercising Protected First Amendment Rights In a closely related argument, Dr. Okembgo also may be claiming that he was terminated for exercising his First Amendment rights. “When a government employee exercises his protected right of free 8 expression, the government cannot use the employment relationship as a means to 9 retaliate for that expression.” Coszalter v. City of Salem, 320 F.3d 968, 973-74 (9th 10 Cir. 2003). In order to state a claim against a government employer for violation of 11 the First Amendment, an employee must show (1) that he or she engaged in 12 protected speech; (2) that the employer took “adverse employment action”; and (3) 13 that his or her speech was a “substantial or motivating” factor for the adverse 14 employment action. Coszalter, 320 F.3d at 973-74 (citing Bd. of County Comm'rs 15 v. Umbehr, 518 U.S. 668, 675 (1996); Nunez, 147 F.3d at 874-75; Hyland v. 16 Wonder, 972 F.2d 1129, 1135-36 (9th Cir. 1992); Allen v. Scribner, 812 F.2d 426, 17 430-36 (9th Cir. 1987)). 18 The first question is whether Dr. Okembgo engaged in protected speech. To 19 be protected, as noted above, the speech must be on a matter of public concern, and 20 the employee's interest in expressing herself on this matter must not be outweighed ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 36 1 by any injury the speech could cause to “‘the interest of the State, as an employer, 2 in promoting the efficiency of the public services it performs through its 3 employees.’” Waters, 511 U.S. at 668 (quoting Connick, 461 U.S. at 142; 4 Pickering, 391 U.S. at 568). Plaintiff does not clearly indicate what speech might be protected. The 5 6 complaint states that Defendant had forbidden him from sharing his “thoughts” 7 during “normal conversations” with co-workers; from giving his book to people 8 who wanted to read it; and from using the word “pray.” ECF No. 1 at 3. 9 Presumably at least some of the speech implicated by the Work Expectations 10 Memoranda is included in this description, such as discussions of religion, trying 11 to distribute his book, and solicitations for his nonprofit organization. However, as 12 noted above, the Department’s interest in maintaining an efficient and harassment- 13 free workplace outweigh whatever interest Plaintiff may have in carrying out those 14 activities during work hours. 9 Insofar as there might be other protected speech at 15 9 16 For example, the Supreme Court has indicated that Title VII's prohibition on 17 discrimination in the “terms, conditions, or privileges of employment” includes the 18 requirement that employers maintain a workplace where employees are free from 19 harassment based upon a protected status. See Meritor Sav. Bank, FSB v. Vinson, 20 477 U.S. 57, 65-66 (1986). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 37 1 issue, the Court notes that it is ultimately immaterial because here, as discussed in 2 the Title VII context, the undisputed evidence overwhelmingly points toward the 3 repeated sexual harassment complaints against Dr. Okembgo as the motivating 4 factor in his termination—not retaliation for any form of protected speech. His 5 female co-workers made claims that he stood too close, made suggestive 6 comments, discussed pregnancy and fertility, hugged and touched them and 7 otherwise made them uncomfortable in violation of the Department’s sexual 8 harassment policy. In fact, the most extensive of these complaints took place after 9 Dr. Okembgo was first investigated for and warned about violation of the sexual 10 harassment policy. Furthermore, an investigation revealed evidence that Dr. 11 Okembgo was using work time for his nonprofit organization. 12 13 14 Accordingly, Plaintiff’s suggestion that he was terminated in retaliation for protected speech fails. 2. Freedom of Religion 15 The Court next turns to Plaintiff’s allegations that the Department “enacted 16 an official policy that interfered with plaintiff’s right to freedom of religion.” ECF 17 No. 45 at 60. The Court first notes that this claim, raised in Plaintiff’s responsive 18 memorandum, is only obliquely referenced in the complaint, and Defendant did not 19 address it in its reply. Plaintiff cites U.S. v. Means, 627 F. Supp. 247 (1985), rev’d 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 38 1 in U.S. v. Means, 858 F.2d 404 (8th Cir. 1988), for the proposition that it is 2 arbitrary and capricious when a policy denies freedom of religion. Id. 3 Plaintiff has failed to establish that his right freely to exercise his religion 4 was substantially burdened by the government’s action in this case. Vernon v. City 5 of Los Angeles, 27 F.3d 1385, 1393 (9th Cir. 1994) ([t]o show a free exercise 6 violation, the religious adherent . . . has the obligation to prove that a governmental 7 [action] burdens the adherent's practice of his or her religion by pressuring him or 8 her to commit an act forbidden by the religion or by preventing him or her from 9 engaging in conduct or having a religious experience which the faith mandates. 10 This interference must be more than an inconvenience; the burden must be 11 substantial and an interference with a tenet or belief that is central to religious 12 doctrine.) (citation omitted). 13 Insofar as Plaintiff claims relief under the Administrative Procedure Act , 14 the Court notes that the Federal Administrative Procedure Act governs federal 15 agencies. Washington State Agencies, like the Washington State Department of 16 Ecology, are governed by the Washington Administrative Procedure Act, codified 17 at RCW 34.05. Having dismissed Plaintiff’s federal discrimination and 18 constitutional claims above, the Court declines to exercise supplemental 19 jurisdiction over any possible pendent state law claims. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 39 1 Because the parties do not brief or discuss any possible additional 2 infringement of Dr. Okembgo’s right to free exercise of religion on other theories, 3 nor does Plaintiff make such claim in his Complaint, the Court will not further 4 consider such an argument here. 5 D. Plaintiff’s Further Allegations that Defendant Failed to Follow its 6 Policies 7 Plaintiff again invokes the Administrative Procedure Act in his opposition to 8 Defendant’s Motion for Summary Judgment when he claims that it is a violation of 9 the APA when an agency fails to follow its own policy. ECF No. 45 at 60. As 10 noted above, the Court again declines to exercise any supplemental jurisdiction 11 over possible pendent state law claims arising out of violations of state 12 administrative procedure rules. 13 14 E. Plaintiff’s Motion for Summary Judgment Plaintiff, appearing pro se, filed a motion for summary judgment (ECF No. 15 50) on January 17, 2014, 39 days after the deadline for dispositive motions 16 established in the Jury Trial Scheduling Order (ECF No. 22). Plaintiff has not filed 17 any motion to extend the deadline for dispositive motions or indicated any good 18 cause for the delay. Defendant objects to Plaintiff’s motion as untimely and notes 19 that it merely presents arguments made in Plaintiff’s response to Defendant’s 20 motion for summary judgment. ECF No. 68. Regardless, because the Court grants ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 40 1 Defendant’s motion for summary judgment on all claims, Plaintiff’s untimely 2 motion is moot. 3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 5 6 7 1. Defendant’s Motion for Summary Judgment (ECF No. 24) is GRANTED. 2. Plaintiff’s untimely Motion for Summary Judgment (ECF No. 50) is DENIED as moot. 8 3. All other pending motions are DENIED as moot. 9 4. All pending hearings and the jury trial are VACATED. 10 The District Court Executive is hereby directed to enter this Order, provide 11 copies to counsel and Plaintiff at his address of record, enter judgment in favor of 12 Defendant Department of Ecology, and CLOSE the file. 13 DATED February 24, 2014. 14 15 THOMAS O. RICE United States District Judge 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 41
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