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McEvoy v. Spencer

United States District Court, W.D. Washington, Tacoma

February 20, 2018

EDWARD P. MCEVOY, Plaintiff,



         This matter comes before the Court on the motion for summary judgment of Defendant Richard Spencer, Secretary of the United States Navy (“Defendant”), Dkt. 12, and Plaintiff Edward McEvoy's (“McEvoy”) motion for partial summary judgment, Dkt. 15. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby rules as follows:


         On August 1, 2016, McEvoy filed a complaint against Defendant asserting claims for unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e-3(a) and Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12132, denial of reasonable accommodations in violation of the ADA, violation of the First Amendment, violation of the Fifth Amendment, and breach of a settlement agreement. Dkt. 1.

         On November 21, 2017, Defendant filed a motion for summary judgment on all of McEvoy's claims. Dkt. 15. On November 29, 2017, McEvoy filed a 53-page motion for partial summary judgment on liability for his retaliation claims. Dkt. 15.

         On December 15, 2017, Defendant filed a reply to its motion noting that McEvoy failed to respond to the motion. Dkt. 20. On December 18, 2017, McEvoy filed a 28-page untimely response. Dkt. 22. On December 19, 2017, McEvoy filed a second untimely response. Dkt. 24. Later that day, Defendant filed a surreply requesting that the Court strike McEvoy's untimely responses. Dkt. 26. On December 21, 2017, McEvoy's attorney filed a declaration asserting that the untimely filing was due to a calendaring error in his office and requesting that the Court accept the late responses. Dkt. 27.

         On December 26, 2017, Defendant responded to McEvoy's motion. Dkt. 28. On December 28, 2017, McEvoy replied and submitted additional evidence in support of his motion. Dkts. 29, 30.


         The Navy hired McEvoy in December 2005 as a Work Control Assistant at the Naval Facilities Engineering Command, Northwest, (“NAVFAC NW”), in the Public Works Department (“PWD”). Dkt. 13-1 at 33-34. The mission of the PWD is facility maintenance, repair, construction, and engineering services for all military tenants located on the Naval Base Kitsap (“NBK”) in Kitsap County, Washington, which includes Naval Base Kitsap Bangor (“NBK Bangor”), Naval Base Kitsap Bremerton (“NBK Bremerton”), and Naval Base Kitsap, Keyport. Initially, McEvoy worked in NBK Bremerton. Id. at 33.

         Problems arose almost immediately. In 2006, one of McEvoy's supervisors, Robert Fojtik, terminated McEvoy for performance reasons. Dkt. 15 at 2. McEvoy filed a complaint with the Equal Employment Opportunity (“EEO”) office. The parties resolved the complaint with a settlement resulting in Defendant reinstating McEvoy. This pattern continued over the next eight years with McEvoy filing “between 10 and 14 EEO complaints, alleging that he was being subjected to discrimination and retaliatory harassment because of his EEO activity.” Dkt. 15 at 11.

         On August 13, 2014, the parties entered into another settlement agreement to resolve three pending EEO complaints. Dkt. 1-1. Under the terms of the agreement, McEvoy's 14-day suspension was reduced to ten working days, and the temporary detail at Bangor was extended until he was permanently reassigned on April 19, 2015. Id. After his reassignment, Joshua Bass (“Bass”) became McEvoy's first-level supervisor and Lieutenant Commander (“LCDR”) Ross Pitcairn became McEvoy's second-level supervisor. Dkt. 13-9 at 2-3. The Navy intended the move to provide McEvoy with a “fresh start.” Dkt. 13-2 at 19-20.

         On September 16, 2014, McEvoy's temporary supervisor, Commander Michael Leonard, placed the new suspension notice on McEvoy's work chair, with a red folder. McEvoy filed an EEO complaint alleging that this was retaliatory.

         In November of 2014, Defendant appointed Glen Miller to investigate McEvoy's claims of retaliation from his previous chain of command. McEvoy refused to participate in the investigation and asserted that continuing the investigation after the settlement was retaliatory. McEvoy filed another EEO complaint based on this alleged retaliation.

         In January of 2015, McEvoy and thirteen other employees sent a letter to Senator Patty Murry detailing alleged retaliation and discrimination on the Naval Base. Senator Murray sent a letter to the Navy requesting a response. On March 12, 2015, the Navy responded assuring Senator Murray that all employees had access to numerous administrative agencies to address and investigate any retaliation or discrimination. Dkt. 15-6.

         In May 2015, McEvoy posted numerous comments about the Navy on his social media accounts. For example, McEvoy asserted that he and his coworkers were experiencing constant discrimination and retaliation, that his commanders were part of the “biggest mafia in the world, ” and that they even had tried to kill him. Dkt. 13-5 at 36, 38, 40.

         In late May 2015, McEvoy had an anxiety attack at work. Bass refused to allow McEvoy to go to the base infirmary under the mistaken assumption that the infirmary was only for active duty personnel on the base. McEvoy left work, went straight to his doctor, and then returned to work on June 8, 2015. When McEvoy returned to work, Bass delivered a letter of reprimand to McEvoy for leaving the base without permission from his supervisor.

         On August 5, 2015, LCDR Pitcairn issued McEvoy a proposed removal. Dkt. 13-5 at 8-15. The notice was based on one charge of disrespectful conduct with five specifications, which are separate incidents. Id. On August 28, 2015, McEvoy responded arguing that the allegations violated his constitutional rights, federal laws, and amounted to unlawful retaliation for his numerous EEO complaints. Dkt. 15-2 at 2-7. On September 9, 2015, LCDR Pitcairn issued a new proposed removal, which rescinded the original notice. Dkt. 13-5 at 2-7. The notice included one charge of unacceptable conduct with eight specifications and one charge of insolent language with six specifications. Id. In relevant part, the notice provides as follows:

Charge I: Unacceptable Conduct
Specification 1: On Monday, 08 June 2015, at building 1101, NA VF AC NW, Bangor, WA, you were directed by two female Navy Region Northwest Master at Arms (MAAs) to present your Common Access Card (CAC) and your bag for random inspection. After being told by the MAA's that they were conducting a Random Anti-Terrorism Measure (RAM) directed by the Naval Base Kitsap Commanding Officer, you demanded to know what their probable cause was; moved into their personal space, hovering over their clipboard with your arms crossed; stated “make it quick, I have a meeting in three (3) mikes, I don't have time for rookies”; stated that you were “doing their jobs since before they were born” ...

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