Wallace Brown, Iii v. Department of Public Safety, S

446 F. App'x 70
CourtCourt of Appeals for the Ninth Circuit
DecidedJuly 29, 2011
Docket09-17234
StatusUnpublished
Cited by11 cases

This text of 446 F. App'x 70 (Wallace Brown, Iii v. Department of Public Safety, S) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallace Brown, Iii v. Department of Public Safety, S, 446 F. App'x 70 (9th Cir. 2011).

Opinions

MEMORANDUM

Wallace R. Brown, III appeals from the district court’s order granting summary judgment in favor of the State of Hawaii, Department of Public Safety (the “Department”) on Brown’s claims of racial discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964 (codified at 42 U.S.C. §§ 2000e-l et seq). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Brown filed formal charges of Title VII violations with the EEOC asserting racial discrimination based on the use of the term “Operation Mandingo” by a subordinate on March 28, 2007, and a retaliation claim based upon his removal from a temporary assigned position on May 8, 2008.

I

Brown failed to demonstrate that, in connection to the “Operation Mandingo” incident, he suffered an adverse employment action. See Davis v. Team Electric Co., 520 F.3d 1080, 1089 (9th Cir.2008) (To establish a prima facie case of disparate treatment, Brown must show that (1) he belongs to a protected class; (2) he was qualified for his position; (3) he was subjected to an adverse employment action; and (4) similarly situated individuals outside his protected class were treated more favorably). Although “adverse employment action” is broadly defined, Fonseca v. Sysco Food Servs. of Ariz., Inc., 374 F.3d 840, 847 (9th Cir.2004), Brown did not present evidence that he suffered an adverse action with respect to the events surrounding the “Operation Mandingo” report. See Little v. Windermere Relocation, Inc., 301 F.3d 958, 970 (9th Cir.2002) (a reduction in base monthly pay is an adverse employment action); University of Hawai’i Prof'l Assembly v. Cayetano, 183 F.3d 1096, 1105-06 (9th Cir.1999) (receiving pay a couple of days late constitutes [72]*72substantial impairment); Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987) (job transfers and undeserved performance ratings can be adverse employment decisions). Brown received favorable evaluations throughout his employment and was temporarily assigned to a higher position at an increase in salary after the “Operation Mandingo” incident.

II

A

Brown failed to file a formal EEOC charge as to his claim that certain members of the Department did not investigate his complaints of insubordination and rule violations by Department employees on 52 separate occasions between November 2002 and May 2007. These incidents were not similar to his claim that the “Operation Mandingo” report created a hostile working environment based on a single act of actual racial discrimination.

“Incidents of discrimination not included in an EEOC charge may not be considered by a federal court unless the new claims are ‘like or reasonably related to the allegations contained in the EEOC charge.’ ” Green v. Los Angeles Cnty. Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir.1989) (quoting Brown v. Puget Sound Elec. Apprenticeship & Training Trust, 732 F.2d 726, 729 (9th Cir.1984)).

In response to the motion for summary judgment, Brown presented only his conclusions and speculation that the failure to investigate his claims was based on his race. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir.2004) (“Under Title VII, an individual suffers disparate treatment when he or she is singled out and treated less favorably than others similarly situated on account of race.”) (internal quotations and citations omitted). In opposing summary judgment, Brown “ ‘may not rest upon the mere allegations or denials of his pleading, but ... must set forth specific facts showing that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(e)). Brown failed to present evidence in opposition to the Department’s motion for summary judgment that the Department’s alleged failure to investigate the 52 incidents of insubordination and rule violations was due to racially discriminatory treatment. He, therefore, failed to demonstrate that the incidents were “like or reasonably related to the allegations contained in the EEOC charge.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th Cir.2002) (internal quotations and citation omitted). Brown’s counsel should have filed a third formal charge with the EEOC based on his claim that his superiors’ failure to investigate 52 acts of insubordination and rule violations complaints created a hostile working environment.

B

Brown also failed to demonstrate that the Department’s failure to investigate created a severe or pervasive alteration of the condition of his employment. See Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir.2003) (“To determine whether conduct was sufficiently severe or pervasive to violate Title VII, we look at ‘all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.”) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)). Brown presented no evidence that the Department’s alleged failure to investigate [73]*73the 52 other incidents was due to racial discrimination. Further, Brown continued to receive favorable evaluations and was temporarily assigned to a higher position at an increase in salary while these events allegedly occurred. Accordingly, Brown has not demonstrated that the Department’s alleged failure to investigate his other claims constituted severe or pervasive racial discrimination.

C

Furthermore, his attorney failed to exhaust his administrative remedies in order to obtain a right to sue letter with respect to the 52 incidents which the Department allegedly failed to investigate. “Title VII claimants generally establish federal court jurisdiction by first exhausting their EEOC administrative remedies.” Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir.1990). The purpose of these procedures is to “afford[ ] the agency an opportunity to investigate the charge.” B.K.B.,

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