1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

 The Complaint names both the Secretary of the Navy and the Secretary of Defense as

Defendants. However, Plaintiff was employed by the Department of the Navy and not the Department of

Defense. Plaintiff does not attempt to argue that the Secretary of Defense is a proper Defendant. 

Moreover, under 42 U.S.C. 2000e-16(c), the proper Defendant in this matter is the Secretary of the

Department of the Navy. (See also Def.’s Reply Ex. 1 (final decision on EEO complaint).) The current

Secretary of the Navy is Donald Winter. 

ORDER – 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DANIEL C. WILLIAMS,

Plaintiff,

v.

GORDON R. ENGLAND, Secretary, Department

of the Navy; DONALD H. RUMSFELD,

Secretary, Department of Defense,

Defendants.

CASE NO. C05-1585C

ORDER

This matter comes before the Court on Defendant England’s1

 Motion To Dismiss and/or for

Summary Judgment (Dkt. No. 14), Plaintiff’s Opposition (Dkt. No. 20), and Defendant’s Reply (Dkt.

No. 23). The Court has considered the papers submitted by the parties and determined that oral

argument is unnecessary. The Court hereby finds and rules as follows.

//

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 1 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 2

I. BACKGROUND: FACTS AND ALLEGATIONS

Plaintiff has brought two retaliation claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e; a hostile work environment claim under Title VII and the Washington Law Against

Discrimination (“WLAD”), WASH. REV. CODE 49.60.180; and a tort claim for emotional distress. 

(Compl. (Dkt. No. 1) ¶¶ 4.1–4.4.) Defendant moves to dismiss these claims and/or for summary

judgment on various grounds. 

From July of 2002 through September of 2005, Plaintiff worked as a grade GS-5-0083 civilian

police officer for the Department of the Navy’s Security Department at Naval Station Everett. Plaintiff is

a Caucasian male and alleges generally that he has been targeted because he wrote a letter to Senator

Maria Cantwell and voiced grievances about his work environment and because he supported an AfricanAmerican officer and coworker, Howard Huff, as they both challenged a racially-charged work

environment and allegedly discriminatory employment practices. The chain of command over Plaintiff on

a given day would include a military watch commander with authority over both military and civilian

personnel, then a shift lieutenant, then civilian supervisor Sergeant Armando Batinga (a Filipino male),

then military Assistant Security Officer Cecil Williams (an African-American male), and finally Security

Officer Lieutenant Scott Pheasant, whose race is not described in the papers. The pertinent facts are as

follows. 

On April 7, 2004, Plaintiff was on duty with Huff when they were directed by their supervisor

(Chief Erbe) to make contact with a sailor who was riding a bicycle on base without proper reflective

gear and to bring him to their supervisor’s location. Huff demanded to see the biker’s military

identification card, which the biker showed but did not hand over. The biker then refused to surrender

the identification card, as Plaintiff alleges is required. Plaintiff and Huff arrested the biker, handcuffed

him, and put him into their patrol vehicle for transport to Chief Erbe. Plaintiff alleges that he and Huff

followed standard operating procedure at all times. (See Pl.’s Opp’n, Pl. Williams Decl. 3–4.) 

Nevertheless, the Executive Officer of the ship—USS Shoup (DDG 86)—to which the arrested biker was

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 2 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 3

attached filed a complaint regarding this incident. Pheasant assigned Master-at-Arms Chief Petty Officer

Welch to investigate. (See Def.’s Mot., Cecil Williams Decl. 2.) 

An initial interview of Plaintiff took place on April 16, 2004. Also on this date, Plaintiff signed an

acknowledgment form, which indicated that he had been informed and understood that the investigation

was administrative, not criminal, and that information provided and evidence gained would not be used

against him in a criminal proceeding unless he knowingly provided false information. (Id., Mittet Decl.

Ex. B (Employee Information and Acknowledgment Form).) Plaintiff answered questions at this initial

interview and apparently gave a written statement as well. (Id. Ex. A (Pl.’s Deposition) at 13–14.) 

Because Plaintiff’s statement allegedly contained inconsistencies, Plaintiff was called back for a second

interview on April 21, 2004. (Def.’s Mot., Cecil Williams Decl. 2.) Despite that Plaintiff knew that this

was an administrative investigation and had been informed that only knowingly giving false information

potentially could lead to criminal charges, Plaintiff claims that he felt that answering any questions

whatsoever could subject him to criminal prosecution. (Pl.’s Opp’n, Pl. Williams Decl. 4–5.) He

therefore insisted on having an attorney present before he would cooperate. (Id.; Def.’s Mot., Cecil

Williams Decl. 2–3.) Ultimately, he answered no questions during the second interview. (Id.)

Due to Plaintiff’s failure to cooperate in the administrative investigation, he was “downloaded”

during the pendency of the investigation, which meant that he was assigned to administrative (“desk”)

duties and was not allowed to carry a firearm. (Def.’s Mot., Cecil Williams Decl. 3.) Plaintiff’s salary

and benefits were not affected, however. (Id.) When the investigation concluded, Plaintiff was again

“uploaded” and returned to active police work. (Id.) The “downloading” began in April 2004 and ended

in July 2004. (Id.) The eventual result of Plaintiff’s failure to cooperate in the investigation was a

“Letter of Reprimand” issued to Plaintiff on July 22, 2004, around the time he was “uploaded.” (Id.,

Mittet Decl. Ex. D (Letter of Reprimand).) It is undisputed that the Letter of Reprimand was solely due

to failure to cooperate in the administrative investigation and that there was absolutely no consequence

imposed on Plaintiff for the underlying incident involving his and Huff’s encounter with the biker. (Id.,

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 3 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 4

Cecil Williams Decl. 3; id., Mittet Decl. Ex. A at 19–21.) Before issuing the Letter of Reprimand,

Batinga issued Plaintiff a Proposed Suspension, dated June 30, 2004, wherein he proposed that Plaintiff

be suspended for failure to cooperate in the administrative investigation. (Id., Mittet Decl. Ex. C

(Proposed Suspension).) This letter gave Plaintiff until July 14, 2004 to respond orally or in writing. A

meeting occurred on July 15, 2004. (Id. Ex. A at 19.) Following that meeting, Pheasant issued the

Letter of Reprimand, which is a lesser form of discipline than the originally proposed suspension. (Id. at

19–20.) 

The administrative investigation, “downloading,” and ensuing Letter of Reprimand are the basis

for Plaintiff’s two retaliation claims. Plaintiff claims that he was retaliated against for two reasons: (1)

sending a letter to Senator Maria Cantwell and voicing grievances about working conditions and (2)

supporting Huff with respect to how Huff was allegedly treated on the base. As to the first reason, it is

undisputed that on February 17, 2004, Plaintiff wrote a letter to Senator Maria Cantwell. (Id. Ex. F (Pl.

Williams Letter to Senator Cantwell).) In his approximately two-page letter, Plaintiff complains of

disregard for the safety of personnel who have exhibited suicidal tendencies, threats of violence against

others, and inappropriate behavior while on duty. Plaintiff also alleges “illegal investigations” of

personnel without “probable cause or reasonable suspicion” and a “hostile work environment issue”

arising out of allegedly inappropriate access to keys for base buildings and offices. The letter goes on to

allege “log book” protocol violations and mentions in this discussion “Officer Devilla” who apparently

filed “a grievance for discrimination” and was investigated in retaliation. Plaintiff then complains about

payroll mistakes and scheduling disputes and discontent. Finally, the letter asserts that “[a]nother issue is

discrimination” and proceeds to describe this “discrimination” in terms of how military personnel are

treated better than civilian personnel. (Id.) Nowhere does this letter mention race or ethnicity or any

other protected status with respect to allegations of discrimination. Moreover, when questioned in his

deposition about the letter, Plaintiff confirmed repeatedly that the “discrimination” to which he was

referring was about treatment of military versus civilian personnel. (Id. Ex. A at 15–17.) 

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 4 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 5

Senator Cantwell apparently responded by writing to the Navy in a letter dated February 27,

2004, although this letter is not part of the record. According to Defendant, her letter was received at

Naval Station Everett on April 30, 2004. Specifically, Senator Cantwell’s letter is mentioned as being

dated February 27, 2004 and received on April 30, 2004 in a responsive letter written by Captain D.L.

Squires on May 12, 2004. (Id. Ex. G (Squires Letter to Senator Cantwell).) Based on this notation of

the date Senator Cantwell’s letter was written, Plaintiff concludes in his brief that his own letter to

Senator Cantwell “was forwarded” to Squires at Naval Station Everett on February 27, 2004 (Pl.’s

Opp’n 2) and that Plaintiff’s superiors at Naval Station Everett therefore knew about his letter to Senator

Cantwell “at least” by February 27, 2004 (id. at 10). However, Plaintiff does not assert any personal

knowledge of this alleged February 27, 2004 date of notice in his deposition or his Declaration in

opposition to Defendant’s motion. In response, Defendant asserts that Squires’s statement in his own

letter that Senator Cantwell’s letter was received on April 30, 2004 is correct and therefore that

Plaintiff’s superiors were first made aware of Plaintiff’s letter to Senator Cantwell on April 30, 2004. In

the end, the only actual evidence on the record regarding the date upon which Naval Station Everett

command had notice of Plaintiff’s letter to Senator Cantwell is the May 12, 2004 letter from Squires. 

Plaintiff has submitted no evidence to contradict the notice date of April 30, 2004 in support of his

allegation of earlier notice. 

Plaintiff’s complaints regarding military–civilian treatment (as discussed in his letter to Senator

Cantwell) not only form the basis of his first retaliation charge, but also his hostile work environment

charge. (Def.’s Mot., Mittet Decl. Ex. A at 24–26 (generally alleging “hostile work environment” due to

“failure to salute” and the “letter of reprimand” and discussing a “tense and uptight” environment

“because of conflicts between military and civilians”).) When asked at his deposition if he was subjected

to a hostile environment because of his gender, Plaintiff responded: “Because I was a civilian. It’s

common practice that if you file a complaint or anything in the department that you can expect to be

intimidated.” (Id. at 26.) In support of his theory of different treatment for military versus civilian

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 5 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

 This individual is also referred to as “Massey.” 

ORDER – 6

personnel, Plaintiff cites an incident that occurred on April 8, 2004, just a day after the incident between

Plaintiff, Huff, and the biker, where a military police officer (MA1 Keoloha) allegedly choked and beat

someone he was arresting, but was not reprimanded in any way. (Id. at 28–30.) Plaintiff met with

Batinga about his concerns in this regard on April 12, 2004. (Id. at 30.) Also on April 12, 2004, another

officer (Wernau) overheard Williams say “I sent two people up the river . . . [and] I have no problem

sending somebody else up the river.” (Pl.’s Opp’n, Moody Decl. Ex. (Wernau Deposition) at 7.) 

However, Wernau has no idea to whom Williams was referring. (Id. at 9–10.) Wernau also testified

regarding references around the base to “The Black Days,” which he explained refer to tense times on the

base with the military staff on “one side” and the civilian employees on the “other side,” where the

civilians have lower status and must do whatever the military personnel order. (Id. at 13–14.)

The second retaliation claim stems out of Plaintiff’s undisputed support lent to Huff, as follows. 

On January 26, 2004, Huff overheard another Navy member (MA2 Maxey2) who was on the telephone

say the “N-word,” which offended Huff because he felt that the epithet was directed at him. (Pl.’s Opp’n,

Huff Decl. 1–2.) On February 18, 2004, another military member (EN2 Milward) referred to Huff as

“Leroy,” which is considered derogatory in the African-American community. (Id. at 2.) Huff reported

these incidents to Sergeant Batinga and Assistant Security Officer Williams on February 19, 2004. 

(Def.’s Reply, Cecil Williams Decl. 1–2.) The following day, February 20, 2004, Williams held a

meeting that included Maxey, Milward, watch commanders, a union representative, Batinga, and Huff. 

(Id.) Maxey and Milward admitted making the comments and apologized to Huff, who accepted the

apologies. The Navy later disciplined Maxey. (Id.) Plaintiff was not at the meeting, but he expressed

dismay about these incidents to Williams and his other superiors. (Pl.’s Opp’n, Pl. Williams Decl. 1–2;

id., Huff Decl. 2.) 

On May 26, 2004, Plaintiff participated in a meeting with Officer Huff and others at the base, as

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 6 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 7

well as local NAACP president Carl Mack, to discuss the reasons that Officer Huff had, by then, been

fired. (Def.’s Mot., Mittet Decl. Ex. A at 21–24.) Huff had received a disciplinary sanction in

connection with his alleged failure to reduce to the lowest possible level the conflict with the biker whom

he and Plaintiff had arrested on April 7, 2004. (Pl.’s Opp’n, Huff Decl. 3.) Huff was terminated

thereafter for this and other reasons. He also filed a lawsuit against the Navy, which later settled. (Id.) 

Despite his earlier testimony that his hostile work environment claim related only to

military–civilian treatment, in response to the instant motion, Plaintiff asserts that his hostile work

environment claim is race-based as well. 

Plaintiff initiated contact with the Navy EEO office on May 20, 2004 and filed an informal

complaint with the Navy EEO on June 7, 2004, complaining about the administrative investigation that

had occurred in April, during which he had been “downloaded,” and listing his letter to Senator Cantwell

regarding “discriminatory activities in work environment.” (Def.’s Mot., Mittet Decl. Ex. E (EEO

Complaint (Informal)).) Following his receipt of his Letter of Reprimand, he filed a formal complaint

with the Navy EEO, dated July 26, 2004. (Id. Ex. H (Formal Complaint of Discrimination).) In it, he

added the facts that he had participated in the May 26, 2004 meeting regarding Huff, that he had stood by

Huff, that he had received the Letter of Reprimand, and that he had complained about Keoloha’s alleged

assault on an arrestee. (Id.) Reprisal was the only basis for discrimination indicated on Plaintiff’s formal

complaint. (Id.) Plaintiff also testified in his deposition that “reprisal” was the only basis of his EEO

complaint. (Id. Ex. A at 15.) The Navy EEO issued its final decision on June 16, 2005. (Def.’s Reply,

Ex. 1 (final decision on EEO complaint).)

Defendant now moves (1) for summary judgment on both retaliation claims; (2) to dismiss

Plaintiff’s state and federal hostile work environment claims for failure to exhaust administrative

remedies; and (3) to dismiss the negligent infliction of emotional distress claim for lack of subject matter

jurisdiction. Plaintiff opposes dismissal of any claims.

//

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 7 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 8

II. ANALYSIS

A. Legal Standards

Rule 56 of the Federal Rules of Civil Procedure governs summary judgment motions, and

provides in relevant part, that “[t]he judgment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as

a matter of law.” FED. R. CIV. P. 56(c). In determining whether an issue of fact exists, the Court must

view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in

that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986); Bagdadi v. Nazar, 84

F.3d 1194, 1197 (9th Cir. 1996). A genuine issue of material fact exists where there is sufficient evidence

for a reasonable factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The moving

party bears the burden of showing that there is no evidence which supports an element essential to the

nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has met this

burden, the nonmoving party then must show that there is in fact a genuine issue for trial. Anderson, 477

U.S. at 250. In order to defeat a motion for summary judgment in an employment discrimination case,

the nonmoving party must make more than conclusory allegations, speculations or argumentative

assertions that material facts are in dispute. Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th Cir. 1994). 

The United States and its agencies have sovereign immunity from all lawsuits unless Congress

expressly waives that immunity. Department of Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999);

United States v. Shaw, 309 U.S. 495, 500–01 (1940). Any legislative waiver of immunity must be strictly

construed, “in favor of the sovereign.” Blue Fox, 525 U.S. at 261; see also United States v. Sherwood,

312 U.S. 584, 590 (1941). Failure to follow statutory filing requirements may be a bar to the sufficiency

of a claim, as in the case of timely filing a Title VII lawsuit following an EEO decision. See Zipes v.

Trans World Airlines, 455 U.S. 385 (1982) (holding Title VII’s timeliness requirements subject to waiver

and equitable tolling and not jurisdictional); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 95–96

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 8 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 9

(1990) (applying same principles of equitable tolling of timely filing requirements to suits against the

federal government as would be applied to suits between private litigants). Alternatively, failure to

exhaust administrative remedies may be fatal to a federal court’s subject matter jurisdiction altogether, as

in the case of failure even to file an EEO complaint before filing a Title VII suit, see Lyons v. England,

307 F.3d 1092, 1103–04 (9th Cir. 2002), or failure to exhaust administrative remedies under the Federal

Tort Claims Act, see Jerves v. United States, 966 F.2d 517, 521 (9th Cir. 1992). The particular

exhaustion bases to dismiss various claims are discussed in more detail infra.

B. Motion for Summary Judgment on Retaliation Claims

With respect to retaliation, 42 U.S.C. § 2000e-3 makes it unlawful to discriminate against an

employee “because he has made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under” Title VII. Title VII prohibits discrimination based on “race,

color, religion, sex, or national origin” against federal employees. 42 U.S.C. § 2000e-16(a). The

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting framework governs retaliation

cases. Under McDonnell Douglas, Plaintiff can survive summary judgment only if he meets his initial

burden to set forth a prima facie case of unlawful discrimination. 411 U.S. at 802. To make out a prima

facie case of retaliation, Plaintiff must show that (1) he engaged in a protected activity; (2) his employer

subjected him to an adverse employment action; and (3) a causal link exists between the protected activity

and the adverse action. Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994). The

burden then shifts to the employer to articulate some legitimate, non-retaliatory reasons for any adverse

actions taken. McDonnell Douglas, 411 U.S. at 802; Steiner, 25 F.3d at 1464–65. If the employer

meets this burden, the presumption created by Plaintiff’s prima facie case of unlawful retaliation “‘simply

drops out of the picture.’” Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1037 (9th Cir.

2005) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). After Defendants meet their

burden and the presumption disappears, the burden shifts back to Plaintiff. At this next stage, in order to

survive summary judgment under the McDonnell Douglas framework, Plaintiff must produce sufficient

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 9 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 10

evidence to raise a genuine issue of material fact as to whether Defendant’s proffered nonretaliatory

reason is merely a pretext for retaliation. Steiner, 25 F.3d at 1465; see also Wallis, 26 F.3d at 890. 

There are two ways Plaintiff may show pretext—either (1) directly, “by showing that unlawful

[retaliation] more likely motivated the employer” or (2) indirectly, “by showing that the employer’s

proffered explanation is unworthy of credence because it is inconsistent or otherwise not believable.” 

Dominguez-Curry, 424 F.3d at 1037; see also Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

256 (1981).

In proffering evidence on summary judgment, an employee’s evidence may be either direct or

circumstantial. Desert Palace, 539 U.S. at 101–02. Direct evidence is that, which, “‘if believed, proves

the fact [of retaliatory motive] without inference or presumption.’” Dominguez-Curry, 424 F.3d at 1038

(quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1999)). When an employee relies

on circumstantial evidence, which requires an inferential step, such circumstantial evidence must be both

specific and substantial. Id. Plaintiff relies on circumstantial evidence in this case, so he must produce

specific and substantial evidence in opposing summary judgment.

1. Prima Facie Cases

As noted supra, Plaintiff’s prima facie cases of retaliation depend on him showing that (1) he

engaged in a protected activity; (2) his employer subjected him to an adverse employment action; and (3)

a causal link exists between the protected activity and the adverse action. His retaliation claims are for

(a) writing a letter to Senator Cantwell and voicing analogous grievances on the base (Compl. ¶ 4.1); and

(b) demonstrating support for Huff (id. ¶ 4.2).

a. Letter to Senator Cantwell and Associated Grievances

As to his claim of retaliation arising out of his letter to Senator Cantwell, as well as any times he

raised concerns to military staff that track the points made in his letter to Senator Cantwell, Plaintiff

alleges that he was unfairly investigated, “downloaded,” and then given the Letter of Reprimand as a

result. With the exception of Plaintiff’s conversation on April 12, 2004 with Batinga, no dates are given

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 10 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 11

for conversations with personnel about issues also raised in the letter to Senator Cantwell. The

chronology of events vis-a-vis the letter is notable, however, as is the content of the letter. First, the

letter to Senator Cantwell complained of discrimination against “civilian” personnel. Plaintiff never

mentions discrimination based on any protected class. While he argues that racial discrimination is

insinuated by his reference to “Officer Devilla,” nothing in the letter actually indicates Devilla’s protected

status or actually refers to actionable discrimination. It is only now that Plaintiff emphasizes that Devilla

is Native American. Likewise, his April 12, 2004 conversation with Batinga was about how military

personnel are treated better than civilians. Second, Plaintiff’s reference to a “hostile work environment”

in the letter refers to who on the base had access to keys of entry to various buildings and offices. Again,

this has nothing to do with harassment due to a protected status. Plaintiff’s own deposition testimony

underscores that writing the letter to Senator Cantwell and his associated grievances did not constitute

“protected activity” due to any Title VII activity they embodied. 

As to the second element, the Court recognizes that Plaintiff’s “downloading” was likely an

adverse employment action, despite that it was not accompanied by a reduction in salary or benefits. The

Ninth Circuit has found that reductions in status may be sufficiently adverse and that the only requirement

is that the action be “reasonably likely to deter employees from engaging in protected activity.” Ray v.

Henderson, 217 F.3d 1234, 1240–44 (9th Cir. 2000). The same applies to the Letter of Reprimand,

which arose out of the investigation.

However, even if the Court could find the letter to Senator Cantwell and associated grievances to

be protected, and accepting that Plaintiff faced adverse employment action, there is no evidence of the

third element—a causal connection between the letter and the administrative investigation, the

“downloading,” or the Letter of Reprimand. As a purely temporal matter, there is little, if any, evidence

that Plaintiff’s writing of the letter could have caused either the administrative investigation (begun on

April 16, 2004) or the “downloading” (begun before the end of April), because both of those events

occurred before Defendant claims it had notice of Plaintiff’s letter on April 30, 2007. Though the Squires

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 11 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 12

letter mentions that Senator Cantwell’s letter to the Navy was dated February 27, 2004, Plaintiff presents

no additional evidence to support his assertion that February 27, rather than April 30, is the notice date. 

Nor does Plaintiff suggest who allegedly forwarded the letter or how it was routed. Regardless, even

taking Plaintiff’s assertion as true that his superiors at Naval Station Everett had notice on February 27,

2004 that he had written Senator Cantwell, this, without more, is insufficient to constitute “specific and

substantial evidence” of causation. The record is completely devoid of any suggestion that any one of

Plaintiff’s superiors (a group that included both civilians and military personnel) was upset that he wrote

the letter or complained about conditions for civilians on the base and then set out to retaliate against him

by starting the investigation, “downloading” him, or ultimately issuing the Letter of Reprimand. This

claim amounts to conjecture about actions taken in “retaliation” for activity that does not fall within Title

VII’s coverage. 

b. Demonstration of Support for Huff

As with the foregoing claim, Plaintiff alleges that he was unfairly investigated, “downloaded,”

and then given the Letter of Reprimand as a result of his demonstrated support for Huff. Assuming that

the first element of the prima facie case—protected activity—is met because Huff was protesting raciallymotivated discrimination or harassment, and assuming that the second element—adverse action—is met

for the same reasons set forth supra, the Court finds that the third element—causation—is questionable

at best. Again, Plaintiff submits no evidence beyond his conclusory allegations that anyone was upset

with him for supporting Huff. On the contrary, a meeting was held to clear the air about why Huff was

fired. Before that, a meeting was held (which Plaintiff did not attend) to allow Huff and his superiors to

confront the two coworkers following their derogatory utterances in Huff’s presence and directed at him. 

One of the offenders was disciplined. Nevertheless, establishing the prima facie case on this claim is less

of a stretch than with respect to the letter to Senator Cantwell and associated military–civilian grievances.

//

//

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 12 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 13

2. Pretext

The foregoing weaknesses in Plaintiff’s prima facie cases notwithstanding, even if the Court could

find that Plaintiff had made out at least one prima facie case, thereby shifting the burden to Defendant,

Defendant has articulated a legitimate, non-retaliatory reason for its allegedly adverse employment

actions. To survive summary judgment, therefore, Plaintiff must raise a genuine issue of material fact that

would show that Defendant’s reasons were pretextual. Specifically, Plaintiff may show pretext indirectly,

by raising a genuine issue of material fact that could show at trial that Defendant’s “proffered explanation

is unworthy of credence” or directly, by raising a genuine issue of material fact that could prove at trial

that unlawful discrimination “more likely” motivated Defendant. Plaintiff cannot meet this burden.

Plaintiff focuses on his assertion that he was acting completely within the standard operating

procedure when he and Huff encountered the biker on April 7, 2004. However, Plaintiff was not

disciplined for the underlying incident. Accordingly, it is irrelevant that he may have handled that

situation perfectly. Further, it is undisputed that an outside complaint precipitated the investigation. 

Plaintiff cannot therefore argue that the investigation’s instigation was pretext for a retaliatory measure. 

Moreover, it was Plaintiff’s failure to cooperate in the administrative investigation once it began that

eventually got him the Letter of Reprimand. Plaintiff has presented absolutely no evidence that he was

justified in refusing to cooperate and, more importantly, that the Navy was not justified in reprimanding

him. Notably, the Navy initially suggested suspension but ultimately reduced that penalty to a Letter of

Reprimand. As to the “downloading,” Plaintiff has presented absolutely no evidence that there was

anything unusual about that procedure during an internal investigation. In sum, there is no reason to

believe that retaliation “more likely” motivated Defendant and there is no evidence that suggests

Defendant’s proffered explanation is “unworthy of credence.” 

Significantly, the issue is whether Defendant’s reasons can be believed from Defendant’s

subjective perspective, not whether Defendant exercised unsound judgment. See Bradley v. Harcourt,

Brace & Co., 104 F.3d 267, 270 (9th Cir. 1996) (“”[A]n employee’s subjective personal judgments of her

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 13 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 14

competence alone do not raise a genuine issue of material fact.”). Rather, Plaintiff must show that

Defendant’s stated reasons are merely pretextual. Here, Plaintiff cannot eliminate Defendant’s legitimate

reasons for conducting the administrative investigation in the way that it did, “downloading” Plaintiff, or

issuing Plaintiff the Letter of Reprimand. 

Thus, the Court finds that even when all the evidence is viewed in the light most favorable to

Plaintiff, he simply cannot show pretext. Because no genuine issue of material fact exists as to Plaintiff’s

retaliation claims, they both shall be DISMISSED. 

C. Motion to Dismiss Hostile Work Environment Claim 

As noted supra, failure to file an EEO claim at all is fatal to subject matter jurisdiction under

Lyons, 307 F.3d at1103–04. However, failure to include particular issues in a filed claim is treated

somewhat differently:

Incidents of discrimination not included in an EEOC charge may not be considered by a

federal court unless the new claims are like or reasonably related to the allegations

contained in the EEOC charge. In determining whether an allegation under Title VII is

like or reasonably related to allegations contained in a previous EEOC charge, the court

inquires whether the original EEOC investigation would have encompassed the additional

charges.

Green v. Los Angeles County Superintendent of Schs., 883 F.2d 1472, 1475–76 (9th Cir. 1989) (internal

quotations and citations omitted). Accordingly, the question here is whether the formal complaint that

Plaintiff did file contained enough information to encompass a hostile work environment charge even

though only “reprisal” was explicitly claimed. 

In the instant case, Plaintiff’s formal EEO complaint, upon which a final decision was issued,

included no direct allegations of a racially-charged hostile work environment. The language of his EEO

complaint notwithstanding, Plaintiff argues that his support of Huff should have put the Navy on notice

that he also was alleging a hostile work environment. However, the reference to his May 26, 2004

meeting with Huff and others in his formal complaint was followed by the statement that “ever since these

incidents I have been increasingly pressured to comply with this chain of command[’]s decision to

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 14 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 15

disregard my rights so I have been discriminated against and falsely accused of wrong doing with no

justification or cause.” (Def.’s Mot., Mittet Decl. Ex. H.) Clearly, this language suggests retaliation and

not a hostile work environment. Later in the document, Plaintiff writes that the “command”

discriminated against him for “standing by Officer Howard Huff.” (Id.) Again, this suggests retaliation,

not a hostile work environment. Finally, any statements coming close substantively to allegations of a

“hostile work environment” relate to the non-protected status of being a “civilian” officer rather than

“military” personnel. These allegations are not actionable.

Because the foregoing was the extent of the EEO complaint and because there was no EEO

decision issued regarding hostile work environment, the Court finds that Plaintiff failed to exhaust his

administrative remedies because he did not include a claim of hostile work environment in his EEO

complaint and he did not write his complaint such that it “would have encompassed the additional

charges.” Accordingly, this Court cannot adjudicate a hostile work environment claim, and such claim

shall be DISMISSED. 

D. Motion to Dismiss Emotional Distress Claim

As noted, supra, the United States and its agencies have sovereign immunity from all lawsuits

unless Congress expressly waives that immunity. Blue Fox, Inc., 525 U.S. at 260. Moreover, “[a]

federal employee’s exclusive remedy to challenge discriminatory employment practices in the federal

government” is a Title VII claim pursuant to 42 U.S.C. § 2000e-16. Charles v. Garrett, 12 F.3d 870,

873 (9th Cir. 1993). 

The Federal Tort Claims Act (“FTCA”) expressly waives sovereign immunity for claims against

the United States for personal injury, death, or property damage, 28 U.S.C. § 1346(b), if a private

individual in like circumstances would be liable, id. § 2674. The FTCA contains an exhaustion

requirement, id. § 2675, and a statute of limitations, id. § 2401. Failure to state a valid claim within the

constraints of Congress’s limited waiver of sovereign immunity in the FTCA deprives this Court of

subject matter jurisdiction over the United States (and its branches and agencies) in a FTCA action. Id. §

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 15 of 16
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26 ORDER – 16

1346(b). Furthermore, FTCA claims are not available to federal employees alleging torts arising out of

an employment relationship, and federal courts have no subject matter jurisdiction over such claims. Saul

v. United States, 928 F.2d 829, 840–43 (9th Cir. 1991). 

Plaintiff asserts that the Court should not consider dismissing his tort claim because Defendant did

not fully brief this issue in his opening motion. However, subject matter jurisdiction is an issue that may

be raised by the Court sua sponte and it cannot be waived. Accordingly, the Court finds that Plaintiff’s

tort claim fails for lack of subject matter jurisdiction because it is preempted as noted in Saul and, in any

event, Plaintiff has made no allegation that he administratively exhausted any tort claims and he has

presented no evidence of exhaustion. 

For the foregoing reasons, Plaintiff’s emotional distress claim shall be DISMISSED for lack of

subject matter jurisdiction. 

III. CONCLUSION

For the reasons set forth in this Order, (1) Defendant’s motion for summary judgment on

Plaintiff’s retaliation claims (Compl. ¶¶ 4.1, 4.2) is GRANTED; (2) Defendant’s motion to dismiss

Plaintiff’s hostile work environment claim (Compl. ¶ 4.3) is GRANTED; and (3) Defendant’s motion to

dismiss Plaintiff’s tort claim (Compl. ¶ 4.4) is GRANTED. The trial in this matter is STRICKEN,

Plaintiff’s case is DISMISSED, and the Clerk is DIRECTED to CLOSE this case.

SO ORDERED this 20th day of April, 2007.

AJohn C. Coughenour

United States District Judge

Case 2:05-cv-01585-JCC Document 24 Filed 04/20/07 Page 16 of 16