United States District Court, D. Nevada
ORDER (1) DENYING DEFENDANT'S SECOND RENEWED
MOTION FOR SUMMARY JUDGMENT AND (2) DENYING PLAINTIFF'S
RENEWED MOTION FOR SUMMARY JUDGMENT (ECF NOS. 57,
P. GORDON UNITED STATES DISTRICT JUDGE.
Stephanie Hashem was fired from her job at defendant Army and
Air Force Exchange Service (“AAFES”) in July
2013. Hashem contends that, due to an elbow injury requiring
her to perform less physically-demanding work, she was
subjected to a hostile work environment and disability
discrimination while employed at AAFES. AAFES previously
moved to dismiss Hashem's amended complaint, arguing that
Hashem failed to exhaust her administrative remedies. I
converted that motion into a motion for summary judgment and
granted it for Hashem's wrongful termination claim and
denied it for her claims for hostile work environment and
disability discrimination. ECF No. 21.
filed a second amended complaint. ECF No. 24. The parties
then moved for summary judgment. ECF Nos. 39, 48. I denied
both motions but extended the dispositive motion deadline to
give each party an opportunity to address the identified
deficiencies in their respective motions. ECF No. 56. The
parties now renew their summary judgment motions.
judgment is appropriate if the pleadings, depositions,
discovery responses, and affidavits demonstrate “there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a), (c). A fact is material if it
“might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). An issue is genuine if
“the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion, and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to go beyond the
pleadings and set forth specific facts demonstrating there is
a genuine issue of material fact for trial. Fairbank v.
Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir.
2000). I view all evidence and inferences that may be drawn
therefrom in the light most favorable to the non-moving
party. James River Ins. Co. v. Hebert Schenk, P.C.,
523 F.3d 915, 920 (9th Cir. 2008).
AAFES's Motion for Summary Judgment (ECF No. 59)
moves for summary judgment on the basis that Hashem did not
exhaust her administrative remedies because she never filed a
formal complaint with AAFES. Hashem responds that she filed a
complaint through an email hotline.
filing a suit for employment discrimination, a federal
employee must first exhaust administrative remedies.
Kraus v. Presidio Trust Facilities Div./Residential Mgmt.
Branch, 572 F.3d 1039, 1043 (9th Cir. 2009); 42 U.S.C.
§§ 2000e-16(a), (c); 29 C.F.R. § 1614.103
et seq. The employee begins the administrative
process by consulting an EEO counselor within 45 days of the
discriminatory incident. 29 C.F.R. § 1614.105(a)(1). If
the matter is not resolved through counseling within 30 days,
the EEO counselor issues a notice informing the employee of
her right to file a formal discrimination complaint with the
entity that employs her and “of the appropriate
official with whom to file a complaint.” Id.
§ 1614.105(d). The employee then has 15 days to file a
formal complaint with her employer. Id. §§
1614.105(d), 1614.106(a)-(b). Once she files the complaint,
the employer has 180 days to investigate. Id.
§§ 1614.108(a), (e). After the employee receives a
copy of the investigation file, she must choose and exhaust
one of two administrative routes before filing suit in
federal court. Id. § 1614.108(f); see
also 29 C.F.R. § 1614.407.
purpose of the exhaustion requirement is to provide the
agency with an opportunity to informally resolve a dispute
“before resorting to the formal EEO complaint process .
. . without imposing an unduly rigid or formalistic
procedural hurdle on injured employees seeking
redress.” Kraus, 572 F.3d at 1045.
“Whether a plaintiff in a Title VII action has timely
exhausted her administrative remedies is an affirmative
defense, [so] the defendant bears the burden of pleading and
proving it.” Id. at 1046 n.7 (quotation
out the background facts more fully in my prior order and I
will not repeat them here except where necessary. On April
24, 2013, Hashem sent an email with the subject line
“harassment complaint” to the AAFES Inspector
General's hotline. ECF No. 59-3. Within that email,
Hashem complained that her supervisor told her there is no
light duty and that she was required to work or be demoted or
fired despite her injury. Id. at 6.
presents evidence that the Inspector General hotline is meant
for complaints about fraud, waste, and abuse, and is not
connected to the EEO process. ECF No. 59-4 at 2. However, the
Inspector General investigated the harassment complaint by
requesting Lawrence Simmons, Jr., the general manager of
AAFES at Nellis, to conduct an inquiry. ECF No. 59-4. Simmons
did so and found the allegation that Hashem's supervisor
told her there was no light duty was “sustained.”
ECF Nos. 59-5 at 2; 59-4 at 4. Hashem was informed about the
results of the Inspector General's investigation and that
“[a]ppropriate action has been taken, ” but she
was not told what specific action was taken. ECF No. 59-5.
this evidence in the light most favorable to Hashem on
AAFES's summary judgment motion, genuine issues of fact
remain as to whether Hashem filed a formal complaint with
AAFES. Section 1614.106 states that the plaintiff must file a
complaint “with the agency.” It does not identify
a particular office or officer that the complaint must be
filed with. That is likely because the 15-day period to file
the formal complaint is triggered when the plaintiff receives
“the notice required by § 1614.105(d), (e), or
(f).” 29 C.F.R. § 1614.106(b). That notice arises
out of the informal resolution process initiated upon
consulting an EEO counselor. Id. § 1614.105.
The notice must inform the plaintiff of her right to file a
discrimination complaint within 15 days and it must identify
“the appropriate official with whom to file a
complaint.” Id. § 1614.105(d); see
also Id. §§ 1614.105(e), (f) (requiring the
notice in subsection (d)).
has not moved for summary judgment on the ground that Hashem
failed to timely consult with an EEO counselor. It is unclear
from the evidence presented whether she did so. It thus is
also unclear whether Hashem was given a 15-day notice and
told with whom she should file her formal complaint. Viewing
the facts and reasonable inferences in Hashem's favor,
and bearing in mind that AAFES bears the burden of
establishing the affirmative defense of failure to exhaust,
issues of fact remain as to whether Hashem satisfied the
formal complaint requirement by emailing her hotline
complaint to the Inspector ...