United States District Court, D. Maine
JOHN G. LABRECQUE, Plaintiff,
RAY MABUS, Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE
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.
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.
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)
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).
STATEMENT OF FACTS
Organization of the Portsmouth Naval Shipyard & John G.
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.
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).
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.
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.
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.
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. Prior to 2011, Project Managers, not
General Foremen, completed the evaluations. Id.
General Foremen are rarely on the projects or the boats.
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 ¶
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. 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.
John G. LaBrecque's Informal EEO Complaint of January
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 ¶
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.
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.
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.
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. 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. 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 ¶
John G. LaBrecque's Promotion to Supervisor Effective
March 27, 2011
March 27, 2011, Mr. LaBrecque was given a temporary 120-day
promotion to a Painter Supervisor position. DSMF ¶ 20;
PRDSMF ¶ 20. 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. 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.
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. 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. Beyond the meeting, no
other action was taken. Id.
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. 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. 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. 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.
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. 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. 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.
Evaluations & Observations of John G. LaBrecque's
Work as a Painter Supervisor
LaBrecque's mid-year performance evaluation was completed
by Thomas Moody on April 21, 2011. DSMF ¶ 24; PRDSMF
¶ 24. 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.
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
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. In his role as Supervisor Proficiency
Coach, Mr. Glennon had the opportunity to observe Mr.
LaBrecque's work as a supervisor. DSMF ¶ 23; PRDSMF
John G. LaBrecque's Second Promotion to Supervisor
Effective November 12, 2011 &
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. 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
spring of 2012, Mr. Kays, the Shop General Foreman, gave Mr.
LaBrecque a disappointing performance appraisal. PSAMF ¶
11; DRPSAMF ¶ 11; DSMF ¶ 32; PRDSMF ¶
32. 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.
asked, Mr. Kays told Mr. LaBrecque that he had not contacted
anyone for information regarding Mr. LaBrecque's work
performance. PSAMF ¶ 11; DRPSAMF ¶
11. 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.
John G. LaBrecque's Assignment to Projects with
Ryan Cincotta & Dolly
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. 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.
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.
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.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].”
John G. LaBrecque's Contact with EEO Counselor Terry
Burk in September 2012
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. 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. 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.
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.
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. 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.
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. 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.
that stated: "You better watch you (sic) self get it
John G. LaBrecque's Negative Evaluation & Demotion
to Worker Leader
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. 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. 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.
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. 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.
John G. LaBrecque's Assignment to the Mock-Up
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. At the
facility, he was assigned to sandblast inside a mock-up tank.
DSMF ¶ 55; PRDSMF ¶ 55.
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. 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. 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;
Further Contact with EEO Counselor Terry Burk & AIG
Kevin Brigham in October 2012
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. 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.
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. 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. 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.
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.
Assignment to Building 285
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.
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.
John G. LaBrecque's Overtime & Sick Leave
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. 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.
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. The Shipyard records reflect that Mr.
LaBrecque called in that day because he was tired.
Further Evaluations of John G. LaBrecque's Performance
& the Navy's Rationale for the
Kays completed Mr. LaBrecque's end-of-year performance
evaluation on November 20, 2012. DSMF ¶ 49; PRDSMF
¶ 49. 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.
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. 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. 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. 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 ¶
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. 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.
Formal EEO Complaint as of January 2, 2013
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. When asked to explain
specifically how had had been discriminated against, Mr.
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
¶ 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
John G. LaBrecque's Work with Rikki Nesbitt
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 ¶
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. Many non-supervisors had
lockers in the area. PSAMF ¶ 29; DRPSAMF ¶
29.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. 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.
Denial of Fill-In Supervisor Positions
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. 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. 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 ¶
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. 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.
Questionable Sick Leave Discussion
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.
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. Mr. LaBrecque asserts that he handed
doctors' notes over to the main shop between October 2012
and December 2012. DSMF ¶ 70; PRDSMF ¶ 70.
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. 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.
Letter of Requirement Regarding Sick Leave
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 ¶
Assignment to Work with Ryan Cincotta in 2014
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. 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.
THE PARTIES' POSITIONS
The Navy's Motion
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.
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.
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