Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 1 of 22 PageID #: <pageID> IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII KELVIN BANKS, ALISON BEAVERS, ) CIVIL NO. 11-00798 LEK-KSC DAVID “FLYING WITH EAGLES” ) BEVETT, CHARLES W. DICKEY, ) MARCEAU DOZE-GUILLORY, EDWARD ) MANIGAULT, TAMANEE MUNDY, ) WANDA THOMAS, SYLVIA VEGA, ) and CHINY WANG, ) ) Plaintiffs, ) ) vs. ) ) JOHN McHUGH, SECRETARY ) DEPARTMENT OF THE ARMY; ) LEON E. PANETTA, SECRETARY, ) DEPARTMENT OF DEFENSE, ) ) Defendants. ) _____________________________ ) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS AND TO SEVER PLAINTIFFS’ CLAIMS Before the Court is Defendants John McHugh, Secretary, Department of the Army, and Leon E. Panetta, Secretary, Department of Defense’s (“Defendants”), Motion to Dismiss and to Sever Plaintiffs’ Claims (“Motion”), filed May 25, 2012. Plaintiffs Kelvin Banks, Alison Beavers, David “Flying With Eagles” Bevett, Charles W. Dickey, Marceau Doze-Guillory, Edward Manigault, Tamanee Mundy, Wanda Thomas, Sylvia Vega, and Chiny Wang (collectively, “Plaintiffs”) filed their memorandum in opposition on August 13, 2012, and Defendants filed their reply on August 21, 2012. This matter came on for hearing on September 4, 2012. Appearing on behalf of Defendants were Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 2 of 22 PageID #: <pageID> Special Assistant United States Attorney Paul Galindo, Assistant United States Attorney Thomas Helper, and appearing on behalf of Plaintiffs were Anthony Bothwell, Esq., and Anthony Quan, Esq. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below. The Motion is GRANTED as to: dismissal of constitutional claims, Plaintiff Manigault’s claims, claims against Secretary of Defense Leon Panetta, and severance of Plaintiff Thomas’s claims. The Motion is DENIED in all other respects. BACKGROUND Plaintiffs are current and former employees of Tripler Army Medical Center (“Tripler”). They filed their Complaint on December 30, 2011, alleging that they suffered employment discrimination on account of race and color, and reprisal as a result of complaining about the discrimination, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. [Complaint at ¶¶ 3-4.] Defendants ask the Court to dismiss certain claims and parties, and to sever the ten Plaintiffs’ cases into separate actions. Count I alleges that Defendants discriminated against Plaintiffs and that this racial discrimination created a hostile work environment, and Count II alleges that Defendants retaliated 2 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 3 of 22 PageID #: <pageID> against Plaintiffs for complaining about unlawful discrimination, in violation of Title VII. Count III alleges a constitutional violation of Plaintiffs’ right to equal protection, pursuant to the Fifth Amendment’s Due Process Clause. [Id. at ¶¶ 104-112.] The Court briefly summarizes the claims of each plaintiff. Plaintiff Banks worked as a civilian emergency medical technician in the Tripler emergency department under the supervision of Captain Kenneth Kelly, Major William Meek, Sergeant First Class Cory Montague, and Sergeant First Class Kimberly McCaughtry. He claims that he was racially harassed on a daily basis; that his supervisors made derogatory remarks about African Americans during departmental supervisor meetings; that he was charged with absence without leave (“AWOL”) or leave without pay (“LWOP”) when he requested sick leave; that, on May 31, 2008, he received an unjustified notice of proposed suspension; and that, in September of 2008, emergency room care was unreasonably delayed to him. [Id. at ¶¶ 28-33.] Plaintiff Beavers worked as a civilian nurse in the emergency department under the supervision of Colonel Kenneth Batts, Captain Kelly, and Major Meek. She alleges that, on October 30, 2007, someone left a racially-charged letter in her locker, but that, when she reported the incident, no serious investigation took place; that she was verbally harassed; that she received an unwarranted notice of proposed suspension; that 3 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 4 of 22 PageID #: <pageID> she was transferred to an undesirable work shift; and that, on May 15, 2008, she was constructively discharged. [Id. at ¶¶ 34- 39.] Plaintiff Bevett, a retired Army medical officer, alleges that he applied in early 2011 for a civilian position at Tripler for which he claims he was qualified, but that he was denied a position; and, that he reported this incident to the Army Equal Employment Opportunity (“EEO”) office, but no serious investigation resulted. [Id. at ¶¶ 40-45.] Plaintiff Dickey worked as a nursing assistant in a surgical ward in 1985, then as a medical instrument technician in the cardiology department from 1995. His supervisors were Colonel Thomas Dove and Dr. Michael Illovsky. He claims that he suffered regular harassment and that his work environment was so racially hostile that he took early retirement on December 27, 2010; and that, in early 2011, he complained to the Army EEO office regarding the work conditions at Tripler, but no serious investigation resulted. [Id. at ¶¶ 46-54.] Plaintiff Doze-Guillory was a civilian cardiac nurse in the cardiology department from January 2010, under the supervision of Captain Thelma Nichols. She alleges that two of her co-workers, Mary Burt and Cynthia Chung, called her a “beast”; and that Captain Nichols treated her rudely, withheld training opportunities, and issued her a performance evaluation 4 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 5 of 22 PageID #: <pageID> that was satisfactory except in the area of teamwork. [Id. at ¶¶ 56-66.] Plaintiff Manigault was an active duty Army medical officer assigned to military operations in Iraq, Schofield Barracks in 2006, and to Tripler in 2008. Plaintiff Manigault alleges that Army doctors in Iraq did not invite him to military planning sessions, and sent him forward on military field operations. He claims that, in September 2008, Lieutenant Colonel Troy Denuzio, Chief of Tripler’s Nefrology Service, accused him of being incompetent and unprofessional; that between October 2008 and August 2009, his medical privileges were suspended; that on February 7, 2010, he was not recommended for further military duty due to a lack of communication skills; and that he was discharged from military service after complaining of discrimination. [Id. at ¶¶ 67-73.] Plaintiff Mundy is a disabled veteran who worked as a supervisory health system specialist in the emergency department under the supervision of Colonel Batts. She alleges that she suffered verbal abuse and retaliation and was unfairly charged AWOL. She claims that she was told that she would not have been hired if she had not “sounded white over the phone”; and was instructed to resign one day before she was scheduled to receive surgery, ordered to work a full-time schedule even though she had agreed to work only half-time on account of her disability, and 5 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 6 of 22 PageID #: <pageID> ordered to come into work even though she was in post-surgery convalescence. She claims to have received an unprecedented and unfavorable performance evaluation, and that she was fired on April 25, 2009. [Id. at ¶¶ 74-87.] Plaintiff Thomas was a manager in charge of administrative staff, and worked under the supervision of Lieutenant Colonel David R. Petray. She alleges that she was subjected to a racially hostile work environment, denied overtime requests, issued an unjustified disciplinary counseling memorandum, had her hiring authority suspended, was denied legitimate workers compensation requests, demoted from Supervising Management Analyst to Management Analyst, and then fired without good cause. [Id. at ¶¶ 88-91.] Plaintiff Vega worked under the supervision of Dr. Jay Gloeb and Maria Ballacuang. Plaintiff Vega alleges that she was accused of working overtime without permission, denied access to military family leave, charged AWOL despite making legitimate sick leave requests, and was suspended and fired on account of the AWOL for which she had been charged. [Id. at ¶¶ 92-95.] Plaintiff Wang was a civilian doctor of pharmacy under the supervision of Captain Aparna Raizada and Captain Franklin. She alleges that she was insulted and demeaned, charged with AWOL despite making legitimate requests for sick leave, denied 6 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 7 of 22 PageID #: <pageID> training opportunities, and notified on December 28, 2010 that she was terminated. [Id. at ¶¶ 97-101.] Plaintiffs seek $20,000,000 in compensatory damages, the removal of negative material from their personnel files, and disciplinary charges against their supervisors. [Id. at pg. 20.] I. Defendants’ Motion Defendants move the Court for an order: 1. Dismissing all plaintiffs’ claims to the extent they do not arise under Title VII of the Civil Rights Act of 1964 pursuant to [Fed. R. Civ. P.] 12(b)(1) for lack of subject-matter jurisdiction; 2. Dismissing Plaintiff Edward Manigault’s claims pursuant to Rule 12(b)(1) for lack of subject-matter jurisdiction; 3. Dismissing, with prejudice, all claims against Secretary of Defense Leon E. Panetta . . . , with prejudice, pursuant to [Fed. R. Civ. P.] 12(b)(6) for failure to state a claim upon which relief can be granted; and 4. Severing all remaining claims into separate actions for separate docketing and assignment pursuant to [Fed. R. Civ. P.] 20, 21, and 42(b), by directing Plaintiff Banks to file an amended complaint in this action; dismissing the remaining claims of Plaintiffs Beavers, Bevett, Dickey, Doze-Guillory, Mundy, Thomas, Vega, and Wang; and directing Plaintiffs Beavers, Bevett, Dickey, Doze-Guillory, Mundy, Thomas, Vega, and Wang to file separate individual complaints with the Clerk of the Court. [Motion at 2.] Defendants ask the Court to dismiss Plaintiffs’ constitutional claims because Title VII provides the 7 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 8 of 22 PageID #: <pageID> exclusive, preemptive remedy in cases against the United States alleging discrimination or retaliation. They argue that Plaintiffs’ claims are all based on allegations of unlawful discrimination or retaliation motivated by race or protected EEO activity. They argue that, because Plaintiffs’ constitutional due process and equal protection claims are preempted by Title VII, the Court lacks subject matter jurisdiction over them, thereby requiring their dismissal. [Mem. in Supp. of Motion at 12-13.] With respect to Plaintiff Manigault’s claims, Defendants ask the Court to dismiss them for lack of subject matter jurisdiction because they concern military personnel decisions relating to his status as an active duty member of the United States Army. Such claims are non-justiciable in civilian courts, and Title VII does not apply to non-civilian military personnel. Defendants note that permitting such suits would impact the unique command and disciplinary structure of the military. [Id. at 13-14.] Defendants ask the Court to dismiss Defense Secretary Panetta because, under Title VII, John McHugh, in his official capacity as Secretary of the Army, is the only proper defendant in this case. They argue that, in a Title VII case brought against the United States, “the only proper defendant is the head of the agency in which the alleged discrimination occurred.” 8 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 9 of 22 PageID #: <pageID> [Id. at 15 (citing 42 U.S.C. § 2000e-16(c)).] Finally, Defendants ask the Court to order Plaintiff Banks to file an Amended Complaint in this action, and to direct all remaining Plaintiffs to file separate, individual complaints. They argue that Plaintiffs do not satisfy the requirements to permit joinder of their claims under Rule 20(a)(1). According to Defendants, Plaintiffs’ claims do not arise out of the same transaction, occurrence, or series of transactions or occurrences because of multiple factual distinctions. They argue that Plaintiffs’ claims involve different supervisors, offenders, job roles and responsibilities, work histories, performance issues, conduct, employment actions, discipline, and time periods. They acknowledge that Plaintiffs Banks, Beavers, and Mundy, each worked at some point in Tripler’s emergency department, but argue that the claims fail to meet the transactional relatedness requirement. [Id. at 18-21.] Defendants assert that, even if Plaintiffs satisfy Rule 20(a), joinder of their claims in a single action is too prejudicial and confusing, and they should be severed into separate actions for docketing an assignment, pursuant to Rule 42(b). They argue that the numerous differences among supervisors, offenders, jobs, conduct, employment actions, and time periods “would likely be too confusing for a single jury to organize, and presents a significant danger that the jury would 9 Case 1:11-cv-00798-LEK-KSC Document 40 Filed 09/28/12 Page 10 of 22 PageID #: <pageID> simply apply the distinct facts of one plaintiff to each and every other plaintiff.” [Id. at 25.] II. Plaintiffs’ Memorandum in Opposition Plaintiffs oppose dismissal and severance of their claims, arguing that severance is premature. They contend that Tripler has a “culture of racial discrimination” that is common to all Plaintiffs, and a “culture of coverup – anyone who complains about the discrimination going on there becomes a target for career-wrecking reprisal.” [Mem. in Opp. at 1.] With respect to their constitutional claims, Plaintiffs argue that “racial discrimination claims asserted by uniformed military personnel arise under the equal protection component of Fifth Amendment due process.” [Id. at 3.] They further argue that, pursuant to Chappell v. Wallace, 42 U.S. 296 (1983), claims for injunctive relief by discharged military personnel are permissible. [Mem. in Opp. at 3-4.] Plaintiffs claim that a court may review internal military affairs where intraservice corrective measures are exhausted, and that Plaintiff Manigault did exhaust intraservice corrective measures. [Id. at 5.] Plaintiffs argue that the Court has subject matter jurisdiction to hear Plaintiff Manigault’s claims because it is not essential for each Plaintiff to be interested in obtaining all the relief demanded; that is, the equitable nature of Plaintiff Manigault’s request for relief does not constitute 10