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Labrecque v. Mabus

United States District Court, D. Maine

February 16, 2017

RAY MABUS, Defendant.



         John LaBrecque is an employee at the Portsmouth Naval Shipyard. He was promoted to a supervisory position in 2011 shortly after he complained to the Shipyard's Equal Employment Opportunity (EEO) office about age discrimination. Mr. LaBrecque claims that ever since this complaint and promotion, he has been subjected to retaliation and a hostile work environment. The Navy moves for summary judgment on all of Mr. LaBrecque's claims.

         After winnowing through a hotly contested record, the Court determines that Mr. LaBrecque failed to demonstrate any disputes of material fact that would allow a reasonable jury to conclude that any of the adverse actions taken against him were causally connected to his EEO complaints. Mr. LaBrecque also fails to produce sufficient facts from which a reasonable jury could conclude there was severe, pervasive harassment on the basis of age giving rise to a hostile work environment. The Court grants the Navy's motion for summary judgment in its entirety.


         On September 10, 2014, John LaBrecque filed a complaint in this Court against Ray Mabus, Secretary of the Navy, containing one count of retaliation under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e et seq. Compl. and Demand for Trial by Jury (ECF No. 1). On January 26, 2015, Mr. LaBrecque moved to amend his complaint, adding a retaliation claim under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., as well as a hostile work environment claim under Title VII. Pl.'s Mot. to Amend the Compl. (ECF No. 9). The Navy filed a partial opposition to the motion to amend the complaint submitting that the Court should reject Counts II and III of the proposed First Amended Complaint, alleging gender-based hostile work environment and retaliation under Title VII, because Mr. LaBrecque did not exhaust his administrative remedies. Def.'s Partial Opp'n to Pl.'s Mot. to Amend the Compl. (ECF No. 10). Mr. LaBrecque replied on March 3, 2015. Pl.'s Reply in Supp. of His Mot. to Amend the Compl. (ECF No. 14). On July 21, 2015, the Magistrate Judge issued a memorandum decision granting the motion to amend with respect to the addition of the claim under the ADEA but denying the motion with respect to the claims for hostile work environment and retaliation under Title VII. Mem. Decision on Mot. to Amend (ECF No. 17). Mr. LaBrecque filed the First Amended Complaint on July 27, 2015 alleging the sole count of retaliation under the ADEA. Pl.'s Am. Compl. and Demand for Trial by Jury (ECF No. 19) (Am. Compl.).

         After the completion of discovery, the Court held a Local Rule 56(h) pre-filing conference on March 4, 2016. Min. Entry (ECF No. 45). On April 15, 2016, the parties filed a joint record and joint factual stipulations. Joint Record (ECF No. 49) (J.R.); Joint Factual Stips. (ECF No. 50) (Stips.). On April 25, 2016, the Navy filed a motion for summary judgment and a statement of undisputed material facts. Def.'s Mot. for Summ. J. (ECF No. 51) (Def.'s Mot.); Statement of Undisputed Material Facts in Supp. of Def.'s Mot. for Summ. J. (ECF No. 52) (DSMF). On June 23, 2016, Mr. LaBrecque filed an opposition to the Navy's motion for summary judgment, a responsive statement of material facts, and an additional set of material facts. Pl.'s Opp'n to Def.'s Mot. for Summ. J. (ECF No. 68) (Pl.'s Opp'n); Pl.'s Resp. to Def.'s Statement of Undisputed Material Facts and Pl.'s Statement of Additional Material Facts at 1-25 (ECF No. 69) (PRDSMF); id. at 25-32 (PSAMF). On July 11, 2016, the Navy filed a reply brief and a reply statement of facts. Def.'s Reply Brief in Supp. of Mot. for Summ. J. (ECF No. 72) (Def.'s Reply); Def.'s Resps. to Pl.'s Statement of Additional Material Facts (ECF No. 73) (DRPSAMF).


         A. Organization of the Portsmouth Naval Shipyard & John G. LaBrecque's Position

         At the Portsmouth Naval Shipyard (Shipyard), located in Kittery, Maine, the Department of the Navy (the Navy) overhauls, repairs, and modernizes nuclear submarines. Stips. ¶ 1; DSMF ¶ 1; PRDSMF ¶ 1. When a submarine is undergoing work at the Shipyard, it is frequently referred to as a project and/or identified by its name or hull number. Id.

         John LaBrecque began working at the Shipyard in November 1989. PSAMF ¶ 1; DRPSAMF ¶ 1. He consistently received positive performance reviews and feedback from his supervisors and peers, resulting in a promotion in May of 1999 to Painter, and again in September 2004 to Painter Leader (also referred to as a Worker Leader). Stips. ¶ 7; PSAMF ¶ 1; DRPSAMF ¶ 1. At all times relevant to this litigation, Mr. LaBrecque has been employed at the Shipyard, at times as a WL-4102-09 Painter Leader and at times as a WS-4102-09 Painter Supervisor, and assigned to an organizational unit called the Painting and Blasting Shop (Shop 71). Stips. ¶ 2; DSMF ¶ 2; PRDSMF ¶ 2. The Painting and Blasting Shop is part of a larger organizational unit called the Coating and Coverings Code (Code 970). Id. Code 970 is, in turn, part of the still larger Production Resources Department (Code 900). Id.

         At all times relevant to this litigation, Code 970 has been managed by a GS-14 Superintendent, who is assisted by several GS-13 managers, including at least one Operations Manager. DSMF ¶ 6; PRDSMF ¶ 6. The Shop to which Mr. LaBrecque was assigned, Shop 71, was managed by a General Foreman. DSMF ¶ 7; PRDSMF ¶ 7. The General Foreman is a GS-12 management employee who reports directly to the Code 970 Operations Manager. Id. The Code 970 Superintendent was the General Foreman's second-line supervisor. Id.

         A Shop 71 Painter Supervisor is sometimes assisted by a WL-09 Painter Leader and can lead a team of approximately five to forty employees, who are frequently referred to as mechanics or painter/blasters. Stips. ¶ 4; DSMF ¶ 8; PRDSMF ¶ 8. These employees may be WG-05, WG-07, and WG-09 helpers, apprentices, and journeymen whose trade is marine painting and blasting. Id. Their work includes the application of various coatings on interior and exterior surfaces, tanks, and voids aboard submarines. Id. In addition to work performed aboard submarines, work is also performed off the submarines, which is referred to as other productive work or overhead work. Id.

         Crews of painter/blaster mechanics, led by Shop 71 Painter Supervisors, can be assigned as needed to perform work on various submarines undergoing overhaul, repair, and modernization work. Stips. ¶ 5; DSMF ¶ 9; PRDSMF ¶ 9. The number of submarines at the Shipyard varies, but it is common for there to be three at any given time. Id. The number of painter/blaster crews assigned to each submarine, as well as the shifts to which they are assigned, also varies according to production needs. Id.

         In the 2011/2012 timeframe, Zone Managers provided Painter Supervisors with daily direction concerning the work to be completed on a project during their shift. DSMF ¶ 11; PRDSMF ¶ 11. Over the course of a year, a Painter Supervisor typically worked on multiple projects, and received direction from several different Zone Managers. Id. Because Painter Supervisors received direction from multiple managers over the course of the year in 2011 and 2012, the Shop 71 General Foreman was given the task of mentoring and completing the performance evaluations of all Shop 71 Painter Supervisors in Code 970. Id.[2] Prior to 2011, Project Managers, not General Foremen, completed the evaluations. Id. General Foremen are rarely on the projects or the boats. Id.

         The timely planning and execution of work on specific projects are critical to the success of a project, each of which is governed by a project-specific budget that is carefully monitored by the Superintendent of Code 970 and others in management above him. DSMF ¶ 12; PRDSMF ¶ 12.[3] The tasks assigned to particular crews on any given day are usually communicated from the Zone Managers to the Supervisors at the beginning of a day shift. DSMF ¶ 13; PRDSMF ¶ 13. The day-shift Zone Manager and first-shift Supervisor provide direction to the second-shift Zone Manager and second-shift Supervisor during shift turnover. Id. The Zone Managers assign priorities for work to be completed. Id.[4] At the conclusion of the second and/or third shift, the Supervisor of the crew usually completes a written turnover sheet, which describes what work was completed, and what, if any, work the crew could not complete during the shift. Id.

         B. John G. LaBrecque's Informal EEO Complaint of January 2011

         In 2009, despite his hard work and seniority, Mr. LaBrecque was denied a promotion to Supervisor. Stips. ¶ 8; PSAMF ¶ 2; DRPSAMF ¶ 2. Instead, the positions went to four other Worker Leaders who were all younger and less experienced than him. PSAMF ¶ 2; DRPSAMF ¶ 2.[5] After bringing this issue to his shop head's attention, Mr. LaBrecque was told that he would get the next Supervisor opening. Id. In December 2010, Mr. LaBrecque again applied for and did not receive a Supervisor promotion, the position going to another worker leader who was much younger than him and far less experienced. Stips. ¶ 8; PSAMF ¶ 3; DRPSAMF ¶ 3.[6]

         As a result, on January 27, 2011, Mr. LaBrecque filed an informal complaint of discrimination with the Shipyard's EEO office. Stips. ¶ 9; DSMF ¶ 14; PRDSMF ¶ 14; PSAMF ¶ 4; DRPSAMF ¶ 4. At that time, he alleged that he had been denied a promotion to Painter Supervisor due to age (41), disability (tendinitis in both hands), and in retaliation for an informal EEO complaint he had filed in 2008. Id. At the time Mr. LaBrecque filed his informal EEO complaint Dana Hamil was the Code 970 Superintendent and Roland Hudson was the Shop 71 General Foreman. DSMF ¶ 15; PRDSMF ¶ 15.

         Mr. LaBrecque elected to participate in an informal mediation of his complaint, which was held on March 10, 2011. DSMF ¶ 16; PRDSMF ¶ 16; PSAMF ¶ 5; DRPSAMF ¶ 5. Mr. LaBrecque's personal representative was Terrance Barry, a union steward. DSMF ¶ 17; PRDSMF ¶ 17. The Agency's Management Official at the mediation was Fred Kunz. Id. Mr. Kunz had been named the Code 970 Superintendent in February 2011. DSMF ¶ 18; PRDSMF ¶ 18. He had previously worked in Code 950 (Electrical) and had no prior involvement with Code 970 or with Mr. LaBrecque. Id.

         During the mediation, Mr. LaBrecque explained to Mr. Kunz the age discrimination to which he had been subjected, and the reason he filed his complaint. PSAMF ¶ 5; DRPSAMF ¶ 5. Mr. Kunz harshly replied, “I will promote anybody I feel like.” Id.[7] It may have been that Mr. Kunz used a harsh tone because he was upset that Mr. LaBrecque had used the EEO process. Id. The individuals also discussed an appointment to Supervisor that would start sometime in March and last for one year, which Mr. Hamil and Mr. Hudson originally told Mr. LaBrecque he would receive after he filed his informal EEO complaint. Id.[8] Because Mr. LaBrecque was assigned to Acting Supervisor as a result of the EEO filing, no further action on the complaint was taken. Id. No written settlement agreement was produced at the mediation. DSMF ¶ 19; PRDSMF ¶ 19.[9]

         C. John G. LaBrecque's Promotion to Supervisor Effective March 27, 2011

         Effective March 27, 2011, Mr. LaBrecque was given a temporary 120-day promotion to a Painter Supervisor position. DSMF ¶ 20; PRDSMF ¶ 20.[10] Mr. Kunz was the deciding official responsible for selecting Mr. LaBrecque for the temporary promotion. DSMF ¶ 21; PRDSMF ¶ 21. Shipyard records reflect that Mr. Kunz selected Mr. LaBrecque prior to the mediation, shortly after becoming the new Code 970 Superintendent. DSMF ¶ 22; PRDSMF ¶ 22.[11] Mr. LaBrecque was under the impression that the promotion would last for a year. DSMF ¶ 20; PRDSMF ¶ 20. The temporary promotion formally expired in June of 2011, but Mr. LaBrecque continued to function as a Supervisor on projects at a lower rate of pay. DSMF ¶ 25; PRDSMF ¶ 25.[12]

         Almost immediately after his assignment to Painter Supervisor, Mr. LaBrecque was constantly subjected to degrading and demeaning comments, treated differently by management, and accused by members of his team of receiving the assignment because he filed an EEO complaint. PSAMF ¶ 6; DRPSAMF ¶ 6.[13] In July 2011, the day-shift Supervisor, Michael Parry, was upset that Mr. LaBrecque would not assign one of the members of his team to a certain job. Id. Mr. Parry called Mr. LaBrecque a “fucking idiot” and said the only reason that he was a Supervisor was because he was involved in an EEO proceeding. Id. Mr. LaBrecque emailed Mr. Kunz about the incident and Mr. Kunz held a meeting with Mr. LaBrecque, Mr. Parry, and Tom Dyer, Mr. Parry's boss. Id.[14] Beyond the meeting, no other action was taken. Id.

         In August 2011, one of Mr. LaBrecque's direct reports, Ryan Cincotta, accused him of engaging in inappropriate behavior that included masturbating in the engine spaces of a submarine (the Cincotta allegations). DSMF ¶ 26; PRDSMF ¶ 26; PSAMF ¶ 7; DRPSAMF ¶ 7.[15] Mr. Cincotta made these allegations shortly after Mr. LaBrecque counseled him, and two other employees, Kathryn Hook and Dolly Saucier-Decatur, regarding the Shipyard's leave request protocol. Id. Mr. Cincotta's allegations of sexual misconduct were false and unfounded. PSAMF ¶ 7; DRPSAMF ¶ 7.[16] Mr. LaBrecque was extremely upset, and immediately submitted a voluntary statement and declaration under oath in which he adamantly denied the accusations. Id. Guy Drapeau, a Shipyard official one level above Mr. Kunz, investigated the Cincotta allegations in August 2011. DSMF ¶ 27; PRDSMF ¶ 27.[17] After reviewing the Report of Investigation (ROI), Mr. Kunz concluded that the allegations could not be substantiated and informed Mr. LaBrecque that no adverse action would be taken against him. DSMF ¶ 28; PRDSMF ¶ 28; PSAMF ¶ 8; DRPSAMF ¶ 8.

         Mr. LaBrecque, still upset, informed Mr. Kunz that he wanted to file a complaint against Mr. Cincotta due to the fraudulent and false nature of his allegations, and because he wanted management to conduct an investigation into Mr. Cincotta, Ms. Hook, and Ms. Saucier-Decautur's untrue and defamatory allegations. PSAMF ¶ 8; DRPSAMF ¶ 8. He informed Mr. Kunz that he believed they made their untrue allegations because he had disciplined them for failing to follow Shipyard leave protocol, and because they resented him for receiving an assignment to Acting Supervisor as a result of the EEO proceeding. Id.[18] Mr. Kunz dissuaded Mr. LaBrecque from filing a complaint, stating that “things were too crazy in the department” at the time. PSAMF ¶ 9; DRPSAMF ¶ 9.[19] Mr. Kunz assured Mr. LaBrecque he would no longer have to work with Mr. Cincotta, Ms. Hook, or Ms. Saucier-Decatur. DSMF ¶ 29; PRDSMF ¶ 29; PSAMF ¶ 9; DRPSAMF ¶ 9.[20]

         D. Evaluations & Observations of John G. LaBrecque's Work as a Painter Supervisor

         Mr. LaBrecque's mid-year performance evaluation was completed by Thomas Moody on April 21, 2011. DSMF ¶ 24; PRDSMF ¶ 24.[21] The evaluation indicated that Mr. LaBrecque was “starting out on the right foot as a new supervisor.” Id. Mr. LaBrecque signed and dated his April 2011 performance evaluation, confirming receipt of it. Id.

         Mr. LaBrecque's end-of-year performance appraisal was completed by Daniel Kays, the new Shop 71 General Foreman, on November 23, 2011. DSMF ¶ 30; PRDSMF ¶ 30. Although it rated Mr. LaBrecque's performance as acceptable overall, it noted that Mr. LaBrecque needed to improve in some areas, including the thoroughness and completeness of his work, prioritizing his work to meet deadlines, clear and effective written communication, and diffusing or resolving conflicts effectively. Id. Mr. LaBrecque signed and dated his performance evaluation on November 23, 2011, confirming receipt of it. Id. Mr. Kays concluded: “If [LaBrecque] keeps up the good work he will do just fine.” Id.[22]

         Additionally, during the time when Mr. LaBrecque worked as a Painter Supervisor, a Code 970 Supervisor Proficiency Coach by the name of Tim Glennon was assigned to help new supervisors throughout Code 970 obtain certain qualifications that were required for the position. DSMF ¶ 23; PRDSMF ¶ 23.[23] In his role as Supervisor Proficiency Coach, Mr. Glennon had the opportunity to observe Mr. LaBrecque's work as a supervisor. DSMF ¶ 23; PRDSMF ¶ 23.

         E. John G. LaBrecque's Second Promotion to Supervisor Effective November 12, 2011 & Performance Evaluations

         In October 2011, there was a job posting for a Painter Supervisor that was understood to be Mr. LaBrecque's billet, meaning that he was essentially preselected for the position, in this instance, because of the EEO resolution in February. PSAMF ¶ 10; DRPSAMF ¶ 10.[24] Effective November 13, 2011, Mr. Kunz selected Mr. LaBrecque from among several qualified applicants for the competitive promotion, not to exceed November 12, 2016, to Painter Supervisor, working day shifts on the deactivation boat, the USS Memphis. DSMF ¶ 31; PRDSMF ¶ 31; PSAMF ¶ 10; DRPSAMF ¶ 10.

         In the spring of 2012, Mr. Kays, the Shop General Foreman, gave Mr. LaBrecque a disappointing performance appraisal. PSAMF ¶ 11; DRPSAMF ¶ 11; DSMF ¶ 32; PRDSMF ¶ 32.[25] It noted that Mr. LaBrecque “needs to become more precise while reviewing work before starting & while cowering TWDs [technical work documents].” DSMF ¶ 32; PRDSMF ¶ 32. “Cowering” refers to reviewing technical work documents, which give instructions to the mechanics, and ensuring that they contain all required certifications validating that all work has been completed within prescribed standards. Id. The mid-year performance appraisal also noted that “more tours need to be performed on the project, they also need to be more thorough.” Id. It stated that “[LaBrecque] needs to improve before the final year review.” Id. Mr. LaBrecque signed and dated his 2012 mid-year performance appraisal on April 20, 2012, confirming receipt of it. Id.[26]

         When asked, Mr. Kays told Mr. LaBrecque that he had not contacted anyone for information regarding Mr. LaBrecque's work performance. PSAMF ¶ 11; DRPSAMF ¶ 11.[27] The Project Manager for the boat, Daniel Bolduc, confirmed that he had not been contacted by Mr. Kays about Mr. LaBrecque's work. Id. Mr. LaBrecque never observed Mr. Kays on the boat. Id. Mr. LaBrecque believes that the only individuals who can evaluate the quality of his work or that of his crew are the individuals in charge of the boats, not the supervisor back in the shop. PSAMF ¶ 12; DRPSAMF ¶ 12.

         F. John G. LaBrecque's Assignment to Projects with Ryan Cincotta & Dolly Saucier-Decatur

         In July 2012, Mr. Kays told Mr. LaBrecque that he was going to be reassigned to the 752 project (USS Pasadena). DSMF ¶ 33; PRDSMF ¶ 33; PSAMF ¶ 13; DRPSAMF ¶ 13. Mr. Cincotta and Ms. Saucier-Decatur were also assigned to that project. Id. Mr. LaBrecque was unhappy about this reassignment because it would have required him to supervise Mr. Cincotta and Ms. Saucier-Decatur. DSMF ¶ 34; PRDSMF ¶ 34. Mr. LaBrecque told Mr. Kays that Mr. Kunz had promised him he would not have to work with either of them given their history of unsupported allegations. DSMF ¶ 34; PRDSMF ¶ 34; PSAMF ¶ 13; DRPSAMF ¶ 13.[28] After Mr. Kunz became aware that the reassignment would have required Mr. LaBrecque to work with Mr. Cincotta and Ms. Saucier-Decatur, Code 970 management “looked at it to see what [they] could do different and [they] chose a different supervisor” to go to the Pasadena project. DSMF ¶ 35; PRDSMF ¶ 35. Pat Parquette was assigned to the 752 ship instead. PSAMF ¶ 13; DRPSAMF ¶ 13.

         In September 2012, Mr. Kays told Mr. LaBrecque that he was being reassigned to the 752 project, second shift. DSMF ¶ 36; PRDSMF ¶ 36; PSAMF ¶ 14; DRPSAMF ¶ 14. Mr. LaBrecque explained again why he did not want to work with Mr. Cincotta or Ms. Saucier-Decatur, and was told that Mr. Cincotta and Ms. Saucier-Decatur were being reassigned to a day shift, and that he would not have to work with them. Id. A few days later, Mr. LaBrecque was told that management could not force Mr. Cincotta and Ms. Saucier-Decatur to switch from the second shift to a day shift per union rules. Id.

         Mr. LaBrecque, concerned, spoke with Mr. Kunz, whose reply was that “it was out of his hands” and he "was not going to get involved unless he was forced to." Id.[29]Before deciding that Mr. LaBrecque would need to be assigned to the Pasadena project, where Mr. Cincotta and Ms. Saucier-Decatur were assigned, Mr. Kunz had first considered “all [other] supervisor options” to meet the mission needs of the Pasadena project. DSMF ¶ 37; PRDSMF ¶ 37. He ultimately determined that, “there were no other options” because he had “limited supervisors available due to [the need to] support the USS Miami [project].” Id.[30]

         G. John G. LaBrecque's Contact with EEO Counselor Terry Burk in September 2012

         On September 24, 2012, after it became apparent that Mr. Kunz was not going to follow through with their agreement, Mr. LaBrecque visited an EEO Counselor by the name of Terry Burk to ask for his assistance about the decision to have him supervise Mr. Cincotta and Ms. Saucier-Decatur. DSMF ¶ 38; PRDSMF ¶ 38; PSAMF ¶ 15; DRPSAMF ¶ 15.[31] Mr. LaBrecque believed that having to supervise Mr. Cincotta and Ms. Saucier-Decatur would put him in a “hostile work environment, ” because of the nature of Mr. Cincotta's allegations in 2011, which he described as “allegations of Sexual Mis-Conduct [sic].” DSMF ¶ 38; PRDSMF ¶ 38.[32] He also believed that having to supervise Mr. Cincotta and Ms. Saucier-Decatur would be a violation of the 2011 agreement that he would not have to work with them. Id. When he met with Mr. Burk, Mr. LaBrecque explicitly stated that he was not there to file an EEO complaint. DSMF ¶ 39; PRDSMF ¶ 39. Mr. Burk told Mr. LaBrecque to speak with Mr. Kunz. PSAMF ¶ 15; DRPSAMF ¶ 15.

         Mr. LaBrecque met with Mr. Kunz and Chuck McDonald later that same day. DSMF ¶ 40; PRDSMF ¶ 40; PSAMF ¶ 16; DRPSAMF ¶ 16. After Mr. LaBrecque explained why he was uncomfortable with an assignment on the 752, Mr. Kunz replied that he needed to report to the project or “turn his hat in.” Id. The term “hat” was common parlance on the Shipyard for a supervisory position, and “turning” one's “hat in” meant giving up one's supervisory position. DSMF ¶ 40; PRDSMF ¶ 40.

         Mr. LaBrecque relayed this conversation to Mr. Burk, the EEO counselor, who told him that Mr. Kunz had called him in April 2012 and told him that he wanted to get rid of Mr. LaBrecque because of how he obtained his position. PSAMF ¶ 19; DRPSAMF ¶ 19.[33] Mr. Burk then instructed Mr. LaBrecque to speak with Head of Code 900 Production, Guy Drapeau. Id. Mr. LaBrecque spoke with Mr. Drapeau, who indicated that he had absolutely no idea that Mr. LaBrecque would not have to work with Mr. Cincotta or Ms. Saucier-Decatur. Id.[34]

         Mr. Burk contacted Mr. Kunz directly and had an in-person meeting with him in Mr. Burk's EEO office on the next day, September 25, 2012, where Mr. LaBrecque was discussed. PSAMF ¶ 17; DRPSAMF ¶ 17. Later that day, Mr. Kays informed Mr. LaBrecque that Mr. Cincotta and Ms. Saucier-Decatur were in fact moving to the third shift. DSMF ¶ 41; PRDSMF ¶ 41.[35] Mr. Kays also told Mr. LaBrecque that his meeting had “pissed” Mr. Kunz off. PSAMF ¶ 20; DRPSAMF ¶ 20. A few weeks after the September meeting, Mr. LaBrecque received a text message warning from Mr.

         Kays that stated: "You better watch you (sic) self get it together." Id.

         H. John G. LaBrecque's Negative Evaluation & Demotion to Worker Leader

         Beginning in September 2012, Mr. Kays was serving both as the Shop 71 General Foreman and as a Zone Manager on the Pasadena project, to which Mr. LaBrecque had been assigned. DSMF ¶ 42; PRDSMF ¶ 42. Mr. LaBrecque's performance evaluation indicates that on Friday, September 28, 2012, Mr. Kays discovered that two tasks that had been assigned to Mr. LaBrecque's team the night before, including the task that had been prioritized as “Number 1, ” had not been completed, despite the fact that Mr. LaBrecque had indicated on his “turnover” sheet that the work was done. DSMF ¶ 43; PRDSMF ¶ 43.[36] The evaluation indicates that Mr. LaBrecque's failure to complete these tasks during his shift required that the day shift complete the unfinished work, on top of their regular workload. Id. The evaluation also indicates that between October 1, 2012 and October 12, 2012, Mr. Kays discovered eight additional instances in which work that had been assigned to Mr. LaBrecque was performed incorrectly or incompletely, resulting in delays, cost overruns, and additional work for the day shift to complete. DSMF ¶ 44; PRDSMF ¶ 44.[37] The records indicate that in most of these instances, his turnover sheet inaccurately stated that the work had been completed. Id. However, Mr. LaBrecque denies that his work was incomplete or shabby. Id. Additionally, according to Mr. Labrecque, he was not assigned to the Pasadena boat until September 25, 2012, so any delays or cost overruns were already present on the boat when he reported to the Pasadena. Id.

         On October 12, 2012, after being on the Pasadena for less than three weeks, Mr. Kays told Mr. LaBrecque that he had lost his hat and that starting Monday, October 15, he would be assigned to the Miami on day shifts as a Worker Leader, reporting to Rikki Nesbitt. PSAMF ¶ 21; DRPSAMF ¶ 21; DSMF ¶ 45; PRDSMF ¶ 45. The decision to return Mr. LaBrecque to his permanent Painter Leader position was made by Mr. Kunz, allegedly based on input he received from Mr. Kays regarding Mr. LaBrecque's performance as a supervisor. DSMF ¶ 48; PRDSMF ¶ 48.[38] Mr. LaBrecque believed that he was demoted because Mr. Kunz was “pissed off” that he had gone to the EEO to complain. Id. The change was not made effective until October 28, 2012. DSMF ¶ 45; PRDSMF ¶ 45.

         I. John G. LaBrecque's Assignment to the Mock-Up Facility

         The week after Mr. Kays notified Mr. LaBrecque of his demotion, Mr. LaBrecque was told to report to the “mock-up” training facility for new employees, not as a Supervisor, not even as a Worker Leader, but as a mechanic, despite being a Worker Leader since 2004; however, Mr. LaBrecque was paid as a Worker Leader during this time. DSMF ¶ 55; PRDSMF ¶ 55; PSAMF ¶ 22; DRPSAMF ¶ 22.[39] At the facility, he was assigned to sandblast inside a mock-up tank. DSMF ¶ 55; PRDSMF ¶ 55.

         Mr. Kunz was responsible for assigning Mr. LaBrecque to the mock-up facility. DSMF ¶ 56; PRDSMF ¶ 56. Mr. Kunz says that he assigned Mr. LaBrecque there because he believed he was a skilled painter/blaster and he thought it would be good for the new mechanics to work with him. Id. In addition, Mr. Kunz says that he was conducting an important time study regarding the amount of time it should take to blast high-solids paint in a ballast tank, and he believed that as an experienced painter/plaster, Mr. LaBrecque was a good person to use for the time study. Id.[40] Mr. LaBrecque was aware of the time study, and of its importance to the Shipyard; however, he was not aware if he had been assigned to blast in the mock-up training facility as part of the time study. DSMF ¶ 57; PRDSMF ¶ 57.[41] Mr. LaBrecque, however, believes that he was sent to the mock-up training facility to humiliate and mess with him and to deny him overtime opportunities because he served as a trainee, not a trainer, while he worked there. DSMF ¶ 56; PRDSMF ¶ 56. Mr. LaBrecque left mock-up training before the time study was completed. DSMF ¶ 57; PRDSMF ¶

         J. Further Contact with EEO Counselor Terry Burk & AIG Kevin Brigham in October 2012

         After the demotion and assignment to the mock-up facility, Mr. LaBrecque contacted EEO counselor Mr. Burk on October 18, 2012, and had an initial interview with him on October 22, 2012.[42] PSAMF ¶ 23; DRPSAMF ¶ 23. On that date, Mr. Burk offered alternative dispute resolution, and Mr. LaBrecque elected to have a mediation which was scheduled for November 15, 2012. Id. Upon scheduling the mediation, Mr. Burk notified several personnel, including Mr. Kunz, Mr. Drapeau, and Agency Representative Penny Colomb. PSAMF ¶ 24; DRPSAMF ¶ 24.

         Mr. LaBrecque was under an extreme amount of stress and anxiety at this time and also sought help from an Employee Assistance Program (EAP) counselor who directed him to speak with Kevin Brigham, AIG for the Shipyard.[43] PSAMF ¶ 25; DRPSAMF ¶ 25. Mr. Brigham notified Mr. LaBrecque that he was not aware of Mr. Cincotta's allegations, and called Mr. Drapeau to ask him about the location of the ROI. Id.[44] In response to Mr. Brigham's inquiry as to why the matter was not brought to his attention, especially now that Mr. LaBrecque had lost his hat, Mr. Drapeau stated that he had been told by Mr. Kunz that Mr. LaBrecque had voluntarily returned his hat. Id. However, Mr. LaBrecque would not have returned his hat, a hat he fought so hard to get. Id.

         Joe Brooks, the supervisor of the mock-up building, referring to Mr. LaBrecque's meeting with EAP and Mr. Brigham said, “I am not paying you for training when you have all of these meetings!” PSMF ¶ 26; DRPSMF ¶ 26. Mr. LaBrecque's pay was then docked for 3.5 hours for attending these meetings, a decision that took approximately one year to reverse. Id.[45]

         K. Assignment to Building 285

         Between November 2, 2012 and the end of November 2012, Mr. LaBrecque was assigned to Building 285, under the supervision of Worker Supervisor Robert Abbott. DSMF ¶ 58; PRDSMF ¶ 58. In Building 285, Shop 71 paints and blasts submarine parts that have been removed from the submarines. DSMF ¶ 59; PRDSMF ¶ 59.

         In or about November 21, 2012, while he was working in Building 285, Mr. LaBrecque met Mr. Burk and Mr. Berry, the shop steward, to discuss an EEO pre-complaint. PSAMF ¶ 27; DRPSAMF ¶ 27. When Mr. Abbott was told about the meeting, he said Mr. LaBrecque only had an hour for the meeting. Id. Mr. Abbott was informed that the meeting would take as long as necessary. Id. The meeting went longer than an hour, past the muster time. Id. Mr. Abbott then told Mr. LaBrecque that, because the meeting went too long, Mr. Kays was going to write him up. Id. Mr. LaBrecque experienced a significant amount of stress due to the ongoing harassment, went to the Shipyard clinic and was directed to go home, which he did, and took three days of sick leave. Id.

         L. John G. LaBrecque's Overtime & Sick Leave

         On October 12, 2012, Mr. LaBrecque worked 0.5 hours of scheduled overtime. DSMF ¶ 46; PRDSMF ¶ 46. The following day, on Saturday October 13, 2012, Mr. LaBrecque worked 8.5 hours of scheduled overtime on the Pasadena to fulfill a commitment he made to work that day. DSMF ¶ 46; PRDSMF ¶ 46; PSAMF ¶ 22; DRPSAMF ¶ 22. Mr. LaBrecque took eight hours of sick the following Monday, Tuesday, and Wednesday, October 15-17, 2012, because he was too upset to work due to his demotion. PSAMF ¶ 22; DRPSAMF ¶ 22.[46] Of the remaining thirteen regular workdays in October 2012, Mr. LaBrecque took annual leave or sick leave for all or part of six of them. DSMF ¶ 47; PRDSMF ¶ 47.

         Of the 18 regular workdays between November 2, 2012 and November 30, 2012, Mr. LaBrecque took annual leave or sick leave for nine full days and part of a tenth day. DSMF ¶ 60; PRDSMF ¶ 60. Mr. LaBrecque worked eight hours of scheduled overtime on two Sundays during that time period. Id. Mr. LaBrecque had been scheduled to work eight hours of overtime on a third day during that time period, but he called in because he was ill. DSMF ¶ 61; PRDSMF ¶ 61.[47] The Shipyard records reflect that Mr. LaBrecque called in that day because he was tired. Id.

         M. Further Evaluations of John G. LaBrecque's Performance & the Navy's Rationale for the Demotion

         Mr. Kays completed Mr. LaBrecque's end-of-year performance evaluation on November 20, 2012. DSMF ¶ 49; PRDSMF ¶ 49.[48] Mr. Kays noted that Mr. LaBrecque did not meet the goals set for him and discussed at his mid-year performance evaluation. Id. He noted a failure to “stay focused on the work at hand, ” an “inability to move production work [forward]” that “caused rework and overcharges on work assignments, ” and a “lack of leadership” and “worksite visits” that “caused work to be competed over cost and not on schedule.” Id. He also noted Mr. LaBrecque's failure to “be more precise with work overview, ” as he had been instructed during his mid-year performance evaluation. Id. Finally, he noted that Mr. LaBrecque's “preparedness for work assignments is unsat[isfactory].” Id. Mr. LaBrecque refused to sign this performance evaluation and denies the truth of the reports. Id.

         In November 2012, Mr. Kays wrote a separate memorandum memorializing some of Mr. LaBrecque's specific performance failures that contributed to the decision to remove him from the Painter Supervisor position. DSMF ¶ 50; PRDSMF ¶ 50.[49] In the memorandum, Mr. Kays prefaced his observations by noting, “These events are examples of his failures in setting expectations, oversight of work, and general leadership needed by a supervisor.” Id.[50] Mr. Kays' assessment of Mr. LaBrecque's performance was based on feedback he received from other supervisors, from information Mr. LaBrecque reported in his turnover emails, and from Mr. Kays' review of information documenting cost overruns resulting from Mr. LaBrecque's shifts. DSMF ¶ 51; PRDSMF ¶ 51. It was also based on Mr. Kays' firsthand observations of Mr. LaBrecque beginning in late September 2012 when Mr. Kays was temporarily assigned as a Zone Manager on the same project to which Mr. LaBrecque was assigned. Id.[51] Mr. Kays says that at the time he prepared Mr. LaBrecque's performance evaluations in 2011 and 2012, he was unaware that Mr. LaBrecque had filed an EEO complaint in January of 2011. DSMF ¶ 52; PRDSMF ¶ 52.[52]

         On November 21, 2012, Mr. Glennon, the Code 970 Supervisory Proficiency Coach, also wrote a memorandum memorializing Mr. LaBrecque's performance as a Painter Supervisor. DSMF ¶ 53; PRDSMF ¶ 53.[53] These included that Mr. LaBrecque “[f]requently misses details in executing TWD work, ” and a lack of understanding regarding requirements for “correcting and transferring data on [quality assurance] forms, ” and failure to properly brief jobs to his employees. Id. He summarized that “in order to be an effective Painter/Blaster Supervisor, [LaBrecque] needs to take ownership of and improve these skills and responsibilities.” Id. In Mr. Glennon's view, Mr. LaBrecque's issues were very similar to the issues of the other Supervisors. Id. During the time that he worked with Mr. LaBrecque in his capacity as a Supervisor Proficiency Coach, and at the time he prepared his November 2012 memorandum regarding Mr. LaBrecque's performance, Mr. Glennon was unaware that Mr. LaBrecque had engaged in any EEO activity. DSMF ¶ 54; PRDSMF ¶ 54.

         N. Formal EEO Complaint as of January 2, 2013

         Due to the progressively worsening work environment, on January 2, 2013, Mr. LaBrecque filed a formal complaint with the Shipyard EEO office wherein he alleged that he had been discriminated against on the basis of his earlier EEO activity and his age. DSMF ¶ 72; PRDSMF ¶ 72; PSAMF ¶ 31; DRPSAMF ¶ 31.[54] When asked to explain specifically how had had been discriminated against, Mr. LaBrecque wrote:

After meeting with Fred Kunz on Sept. 24 in regards to the verbal agreement we had about making a certain employee work for me after he accused me of criminal conduct back in 2011, Fred Kunz (Shop Head) tried to make me go back to this employee. After I left meeting I went back to EEO for answers. Fred pulled my hat 2 weeks later for prior EEO involvement.

         DSMF ¶ 72; PRDSMF ¶ 72. Mr. LaBrecque believes that he has continued to be subject to harassment and retaliation as a result of his EEO complaints. PSAMF ¶ 32; DRPSAMF ¶ 32.[55]

         O. John G. LaBrecque's Work with Rikki Nesbitt

         From approximately December 4, 2012 through January 28, 2013, Rikki Nesbitt was Mr. LaBrecque's first-line supervisor on the USS Miami project. DSMF ¶ 62; PRDSMF ¶ 62. Ms. Nesbitt became aware that Mr. LaBrecque was involved in EEO activity in January 2013. DSMF ¶ 63; PRDSMF ¶ 63.[56]

         1. Locker Reassignment

         On December 16, 2012 Ms. Nesbitt instructed Mr. LaBrecque to move his locker out of the supervisor area because it was connected to a supervisor office area intended for supervisor use only, and Mr. Kays had told her that Mr. LaBrecque was no longer a Worker Leader. DSMF ¶ 64; PRDSMF ¶ 64; PSAMF ¶ 29; DRPSAMF ¶ 29.[57] Many non-supervisors had lockers in the area. PSAMF ¶ 29; DRPSAMF ¶ 29.[58]Ms. Nesbitt told Mr. LaBrecque to move after she noticed that he was in the locker room area while she was having a private conversation with another employee and other supervisory personnel. DSMF ¶ 64; PRDSMF ¶ 64.[59] Mr. LaBrecque had been using this locker since 2004, and was humiliated when he was forced to move into the general population, and anxious and stressed that he now had to share a space with Mr. Cincotta. PSAMF ¶ 29; DRPSAMF ¶ 29.

         2. Denial of Fill-In Supervisor Positions

         The decision that Mr. LaBrecque was no longer a Worker Leader resulted in him losing overtime shifts and being denied fill-in supervisor shifts, shifts that he had for over 7 years. PSAMF ¶ 30; DRPSAMF ¶ 30.[60] Ms. Nesbitt did not assign any of her direct reports “worker leader” duties while she was present because her crew was small enough, approximately 8 mechanics, that she did not need to use a Worker Leader; however, she did assign worker leader duties when she was away. DSMF ¶ 65; PRDSMF ¶ 65.[61] For example, when Ms. Nesbitt was away, Chris Marquis, a mechanic with approximately five years of experience, was designated as a Worker Leader in charge, not Mr. LaBrecque. PSAMF ¶ 28; DRPSAMF ¶ 28.[62]

         During the time he reported to her, Ms. Nesbitt considered Mr. LaBrecque's performance to be poor; however, she never communicated any performance concerns to Mr. LaBrecque. DSMF ¶ 66; PRDSMF ¶ 66.[63] Based on her observations of his poor performance, and the fact that he had been demoted from a supervisor position, Ms. Nesbitt most likely would not have selected Mr. LaBrecque to fill in for her in the event of her absence due to leave or training obligations. Id.

         3. Questionable Sick Leave Discussion

         On January 14, 2013, the Code 970 administrative assistant, Shelly Gray, emailed Mr. Kays and other management officials that a Questionable Sick Leave (QSL) discussion needed to be held with Mr. LaBrecque and eight other Shop 71 employees. DSMF ¶ 67; PRDSMF ¶ 67. That same day, Mr. Kays forwarded Ms. Gray's email to Ms. Nesbitt and other supervisors, instructing them to hold a QSL discussion with anybody on their crews whose names were included on Ms. Gray's email. DSMF ¶ 68; PRDSMF ¶ 68.

         Ms. Nesbitt held the QSL discussion with Mr. LaBrecque on January 18, 2013. DSMF ¶ 69; PRDSMF ¶ 69. His union representative was present. Id. Mr. LaBrecque was given a form advising him that “if his sick leave balance did not improve, he may be notified in writing . . . that all future requests for sick leave must be supported by a medical certificate and that such notice would not be filed in employee's official personnel file.” Id.[64] Mr. LaBrecque asserts that he handed doctors' notes over to the main shop between October 2012 and December 2012. DSMF ¶ 70; PRDSMF ¶ 70.

         QSL discussions were held when management identified a questionable pattern in an employee's sick leave usage, and/or when an employee's sick leave balance was very low, based on periodic reviews. DSMF ¶ 70; PRDSMF ¶ 70.[65] In the two years immediately preceding the date of Mr. LaBrecque's QSL discussion, QSL discussions were held with approximately 88 other Shop 71 employees. DSMF ¶ 71; PRDSMF ¶ 71.

         P. Letter of Requirement Regarding Sick Leave

         In March 2013, Trevor Thayer replaced Mr. Kunz as the Superintendent for Code 970. DSMF ¶ 73; PRDSMF ¶ 73. On July 10, 2013, Mr. Thayer made the decision to give Mr. LaBrecque a Letter of Requirement after a review of his sick leave usage revealed no improvement following the January 18, 2013 QSL discussion. DSMF ¶ 74; PRDSMF ¶ 74. It explained that, “from 26 June 2012 through 20 June 2013, [LaBrecque] was granted twenty-one (21) periods of leave for three days or less because of absences claimed as sick leave.” Id. The Letter of Requirement informed Mr. LaBrecque that he was now required to provide medical documentation to support his sick leave usage, in accordance with Portsmouth Naval Shipyard Instruction 12630. DSMF ¶ 74; PRDSMF ¶ 74.[66]

         Q. Assignment to Work with Ryan Cincotta in 2014

         During the summer of 2014, Mike Parry was the Building 18 “shop supervisor” for Shop 71 employees not assigned to a specific project. DSMF ¶ 75; PRDSMF ¶ 75. For parts of that time period, Mr. LaBrecque and Mr. Cincotta both reported to Mr. Parry. Id. Mr. Parry does not recall specific instances but believes it is possible that during certain times, Mr. LaBrecque would have been in the same vicinity as Mr. Cincotta while they both reported to him. DSMF ¶ 76; PRDSMF ¶ 76. At that time, Mr. Parry was not aware of any agreement Mr. LaBrecque had made with Mr. Kunz that he would not be required to work in the vicinity of Mr. Cincotta. DSMF ¶ 77; PRDSMF ¶ 77.[67] Mr. LaBrecque never brought this concern to Mr. Parry's attention. Id. In March 2015, Mr. LaBrecque made a reasonable accommodation request not to be assigned to a work area that could involve inadvertent contact with Mr. Cincotta or Ms. Saucier-Decatur, due to complications related to an anxiety disorder. DSMF ¶ 79; PRDSMF ¶ 79. The Shipyard granted that request. Id.


         A. The Navy's Motion

         In its motion for summary judgment, the Navy notes that Mr. LaBrecque's “single-count retaliation claim is multi-faceted, and complains of both discrete, adverse employment actions and an overall hostile work environment” and therefore states that it is seeking summary judgment on each discrete aspect of Mr. LaBrecque's claim pursuant to Federal Rule of Civil Procedure 56(a). Def.'s Mot. at 16 n.2.

         It then begins by arguing that Mr. LaBrecque cannot establish a prima facie case of retaliation based on his demotion in October 2012. Id. at 16. The Navy concedes that Mr. LaBrecque engaged in ADEA-protected activity when he filed an informal complaint of age discrimination on January 27, 2011, and that the demotion in 2012 was an adverse employment action. Id. at 17. However, the Navy argues that Mr. LaBrecque has no credible evidence that the 2011 complaint was the “but for” cause of his demotion given the time that has elapsed between the demotion and EEO complaint and the fact that the individual who demoted Mr. LaBrecque was not the subject of the complaint and had previously promoted him. Id. at 17-18. The Navy goes on to argue that even if Mr. LaBrecque has made out a prima facie case, the Navy has offered a legitimate, non-discriminatory reason for the demotion, namely Mr. LaBrecque's deficient performance, and there is no evidence that those reasons are pretextual. Id. at 18-20.

         Next, citing caselaw, the Navy argues that Mr. LaBrecque's complaints about the Shipyard's handling of the Cincotta allegations are not protected activity and cannot serve as the basis for an ADEA retaliation claim. Id. at 20-21. It adds that Mr. LaBrecque's visit to EEO counselor Terry Burk in September 2012 about Mr. Kunz's unwillingness to honor his promise to keep Mr. LaBrecque away ...

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