United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones, United States District Judge.
matter comes before the Court on the parties' motions for
partial summary judgment. Dkt. ## 30, 34. Both motions are
opposed. Dkt. ## 39, 46. For the reasons that follow, the
Court DENIES Plaintiff's Motion (Dkt. #
30), and GRANTS in part and DENIES
in part Defendant's Motion (Dkt. # 34).
David DeLaittre is the Regional Chief Administrative Law
Judge (“RCALJ”) for Region 10 in the Office of
Hearing Operations (formerly the Office of Disability
Adjudication and Review) (“ODAR”) for the Social
Security Administration (“SSA”) in Seattle,
Washington. Dkt. # 5 at ¶ 4. He is a 71-year-old blind
male. Dkt. # 5 ¶ 8. Plaintiff became an Administrative
Law Judge (“ALJ”) with the SSA on July 14, 1991.
He became the RCALJ for Region 10 on or about July 31, 2000.
Id.; Dkt. # 36 Ex. 1. As RCALJ for Region 10, he is
the head of ODAR for Region 10, and is in the supervisory
chain of all employees in Region 10 who work for ODAR.
2013, a female subordinate employee made a complaint of
harassment and hostile work environment against Plaintiff.
The SSA then began an investigation into the complaint. Dkt.
# 5; Dkt. # 36 Ex. 1. On December 27, 2013, Deputy Chief
Administrative Law Judge John Allen, Plaintiff's
supervisor, placed Plaintiff on administrative leave pending
disciplinary action. Dkt. # 5 ¶ 29. During the course of
the investigation, other subordinate employees and a regional
executive described additional instances in which they
alleged that Plaintiff engaged in sexual harassment of other
employees or engaged in other inappropriate behavior. Dkt. #
5 ¶ 24; Dkt. # 36 Ex. 1. Specifically, these employees
alleged that Plaintiff made comments stereotyping employees
based on their sex, race, and national origin, disclosed
employees' medical conditions to subordinates who did not
have a need to know, grabbed and touched a female employee
inappropriately in an elevator, and told a female regional
executive that she was so beautiful that she could be his
girlfriend. Dkt. # 36 Ex. 1. Investigators also learned that
Plaintiff was improperly using the parking pass assigned to
the RCALJ position by letting two subordinate employees use
the parking pass in exchange for occasionally driving
Plaintiff to various places during and outside of work time.
Id. Judge Allen interviewed Plaintiff during the
investigation regarding these allegations. Dkt. # 36 Ex. D.
On February 18, 2014, Plaintiff wrote a letter to Judge Allen
detailing alleged defects and deficiencies in Defendant's
investigation. Dkt. # 5 ¶¶ 40, 41. Judge Allen then
forwarded this letter and the attachments to the
investigators. Dkt. # 36 Ex. D.
about December 12, 2014, Judge Allen informed Plaintiff that
his executive assistant, Kathleen Williams, would no longer
be assisting him in duties that provided a reasonable
accommodation for his disability, but would instead be
working on assignments specific to her position as an
executive assistant. Judge Allen noted that an additional
individual would be hired to assist Plaintiff. Dkt. # 1 Ex.
C. On February 19, 2015, after review of the results of the
investigation, Chief Administrative Law Judge Debra Bice
determined that the incidents alleged in the complaint did
not show that Plaintiff subjected the female subordinate
employee to a hostile work environment or harassment as
defined by law. Dkt. # 36 Ex. 1. However, based on the
statements made by employees in their investigative
interviews, the CALJ Bice decided to seek a reduction in
Plaintiff's grade for conduct unbecoming a federal
employee. Id. CALJ Bice also temporarily removed
Plaintiff's supervisory duties. Dkt. # 36 Ex. E. On March
23, 2015, Judge Allen informed Plaintiff that Defendant had
determined that he was not using the parking pass assigned to
the RCALJ position and asked that it be returned. Dkt. # 1
October 2015, the Merit System Protection Board
(“MSPB”) held a hearing on the SSA's charge
that there was good cause for a reduction in Plaintiff's
grade. Plaintiff was present at the hearing and represented
by counsel. During the hearing, Susan Brown, the Regional
Management Officer of Region 10, and Lorraine Vega, Regional
Director of Operations and Administration of Region 10, gave
testimony in support of the SSA's charge. In her
testimony, Vega alleged that Plaintiff gave her an
“unwelcomed hug and kissed her on the cheek in the
elevator at the office.” Dkt. # 36 Ex. 1.
December 4, 2015, prior to the issuance of the MSPB's
decision, Plaintiff filed this lawsuit. The Complaint was
then circulated in the region. Dkt. # 32 Exs. C, D. Vega
later stated that she felt that the Complaint contained
“very negative and damaging information about [her],
which [she] consider[s] to be slander.” Id.
That same day, Vega made a complaint by email to executives
at ODAR that Plaintiff was harassing her for participating in
the MSPB proceedings. Dkt. # 47 Ex. 1. Around this same time,
Reginald Jackson, senior advisor to the Deputy Commissioner,
relayed to Assistant Deputy Commissioner for ODAR, Donna
Calvert, that Brown had also complained that Plaintiff was
harassing her. Id.; Dkt. # 47 Ex. 2.
December 7, 2015, Vega met with Calvert and Deputy
Commissioner Theresa Gruber regarding her allegations. Vega
told them that Plaintiff was intentionally walking by her
office and “lurking” outside her office door in
an attempt to intimidate and harass her. Dkt. 47 Ex. 2. Vega
indicated that this alleged harassment was not verbal, but
limited to her allegation that Plaintiff was frequently
listening and lingering outside of her office. Dkt. # 32 Ex.
E. Calvert had also heard from Acting RCALJ Lyle Olson that
the regional office was experiencing a high level of tension.
Dkt. # 48. After the meeting, Calvert decided to refer the
complaint to a Harassment Prevention Officer
(“HPO”) in the Office of Labor Management and
Employee Relations (“OLMER”). Dkt. 47 Ex. 2.
Calvert was not involved with the subsequent investigation
and made no attempt to ascertain the truthfulness of the
allegations. Id. Calvert also decided to place
Plaintiff on administrative leave during the investigation
due to the reports of tension in the regional office and in
an effort to follow Defendant's “general practice
of separating accusers from the accused.” Dkt. # 48.
Judge Allen informed Plaintiff of this decision by email on
December 18, 2015. Dkt. # 5 Ex. F.
December 2015, HPO Celene Wilson received Vega's
harassment complaint and was advised that Brown had made an
oral complaint with similar allegations. Dkt. # 49. After
interviewing both Brown and Vega, she determined that an
investigation was necessary and assigned two investigators
and an Independent Reviewer to the investigation. The
investigators interviewed a total of ten people, including
people mentioned or suggested by witnesses or people that
were physically located where they could have heard or seen
the incidents described by other witnesses. Dkt. # 50. After
the interviews, the investigators prepared a first-party
statement in essay form to document the witnesses'
responses during the interview. These statements were given
to the witnesses to review, make suggested changes in pen and
ink, and then to sign. Wilson then provided the file with the
witness statements to the Independent Reviewer for her
determination. Dkt. # 49. After reviewing the information
from the investigation, the Independent Reviewer determined
that Plaintiff's alleged conduct did not rise to the
level of harassment so as to constitute a hostile work
environment under the law. Dkt. # 32 Ex. K.
the Independent Reviewer made her determination, Calvert was
informed of the outcome and was provided with the witness
statements. Calvert read the statements and spoke to Judge
Olsen, Judge Allen, and CALJ Bice. Olson told Calvert that,
based on his own personal observations, he believed Plaintiff
was walking by the offices deliberately and pausing outside
of manager's offices despite having alternative routes to
use the restroom or any other place Plaintiff would need to
be with the frequency with which it was happening. Dkt. # 48.
After reading the witness statements and speaking to Judge
Olson, Calvert concluded that the regional office was
experiencing a large amount of tension that needed to be
addressed. Calvert also concluded that Plaintiff was
“lurking” outside offices. Calvert then made the
decision to alleviate that tension by moving Plaintiff to an
office outside of ODAR. Id.
Plaintiff moved offices, it was brought to Calvert's
attention that the office had noise or vibration issues and
that Plaintiff needed to be moved to a new office. ODAR had
no other space available in the same building as the regional
office. Calvert authorized the work to determine whether the
noise or vibration issues could be mitigated. When it was
determined that the issues could not be solved, she directed
the current Acting RCALJ Rolph to locate alternative space.
Calvert also contacted Regional Commissioner Stanley
Friendship for assistance locating alternative space. Two
possible spaces were identified, and Plaintiff was offered
the choice between those two. Calvert then authorized the
expenditures to build out the selected space. Id. In
February 2016, Plaintiff was advised that his office would be
relocated and that the National Hearing Center would be
notified that he would be returning to duty and would be
available to resume hearing and deciding cases. Dkt. # 32 Ex.
L. By March 1, 2016, Plaintiff had returned to his duties.
Dkt. # 32 Ex. S. On April 13, 2016, the MSPB found that the
SSA met its burden of proving by a preponderance of evidence
that Plaintiff engaged in “conduct unbecoming a federal
employee and that good cause exists to discipline
[Plaintiff].” Dkt. # 36 Ex. 1.
about November 26, 2014, Plaintiff filed a complaint with the
EEO alleging discrimination based on age, sex, and
disability, and retaliation. Dkt. # 5 ¶ 50. On January
19, 2016, Plaintiff filed an Amended Complaint against
Defendant alleging discrimination based on his disability,
age, sex, and religion. Plaintiff also alleges that Defendant
violated his due process rights, engaged in retaliation
against him, and failed to accommodate his disability. Dkt. #
5. On October 30, 2017, Plaintiff filed a motion for summary
judgment of his retaliation claim. Dkt. # 30. On October 31,
2017, Defendant filed a motion for summary judgment of
Plaintiff's claims for discrimination based on his
religion and age, due process, and his claim that the SSA
failed to accommodate his disability. Dkt. # 34. In
Defendant's Motion, Defendant represents that Plaintiff
is no longer pursuing his claims for discrimination based on
his religion or age. Dkt. # 34; Dkt. # 35. Plaintiff does not
dispute this representation. Therefore, Defendant's
motion is granted as to Plaintiff's claims of age and
religious discrimination. Dkt. # 34.