United States District Court, W.D. Washington, Tacoma
EDWARD P. MCEVOY, Plaintiff,
RICHARD V. SPENCER, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
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:
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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