Gibo v. City and County of Honolulu, Department of Environmental Services et al

Filing 36

ORDER DENYING DEFENDANT'S 17 MOTION FOR SUMMARY JUDGMENT. Signed by Chief JUDGE HELEN GILLMOR on December 9, 2008. (bbb, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII GLENN H. GIBO, Plaintiff, vs. CITY AND COUNTY OF HONOLULU, DEPARTMENT OF ENVIRONMENTAL SERVICES; JOHN DOES 1-20; DOE ENTITIES 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) )

Civ. No. 07-00627 HG LEK

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT Plaintiff, a 55 year old collection systems employee, brings an age discrimination and retaliation case against Defendant, the City and County of Honolulu, Department of Environmental Services. Plaintiff alleges Defendant discriminated against him

when Plaintiff was not selected for the position of Wastewater Collection System Supervisor I with the Department of Environmental Services. Defendants move for summary judgment, asserting that Plaintiff's federal claims are untimely, and that Plaintiff did not engage in a protected activity that would form the basis of a retaliation claim. For the reasons set forth below, Defendant's Motion for Summary Judgment is DENIED.

1

PROCEDURAL HISTORY

On December 31, 2007, Plaintiff filed a Complaint. 1.)

(Doc.

On September 24, 2008, Defendant City and County of Honolulu filed a Motion for Summary Judgment, (Doc. 17), and Separate Concise Statement of Facts in support. (Doc. 18.)

On September 26, 2008, Defendant City and County of Honolulu filed an Errata to the Separate Concise Statement of Facts in support. (Doc. 20.)

On October 25, 2008, Plaintiff filed an Opposition, (Doc. 23), to the motion for summary judgment, and a document entitled "Concise Statement In Reply To Defendant's Concise Statement," (Doc. 24). On November 5, 2008, the Court issued an Order Striking Plaintiff's Opposition, (Doc. 23), and Concise Statement In Reply, (Doc. 24), and requiring Plaintiff to file an opposition and separate concise statement of facts on or before November 10, 2008. (Doc. 25.) On November 10, 2008, Plaintiff filed an Opposition to the motion for summary judgment, (Doc. 27), and a Separate Concise Statement Of Facts, (Doc. 28). On November 13, 2008, Defendant filed a Reply. (Doc. 29.) At the

The matter came for a hearing on November 21, 2008. hearing, the Court DENIED Defendant's Motion for Summary 2

Judgment. motion.

This order explains the basis for the denial of the

FACTS I. THE SUPERVISOR POSITION The dispute arises from Defendant's decision to not promote Plaintiff Glenn H. Gibo to the position of Wastewater Collection System Supervisor I ("Supervisor") when filling five Supervisor vacancies in December of 2005. Plaintiff has been employed by the City and County of Honolulu, Department of Environmental Services ("City"), since 1977. During Plaintiff's twenty-nine years of employment, he has

served as a Collection System Helper, and, since 1983, as a Collection System Maintenance, WCS Repairer, WB-10. 2, Doc. 28.) In a letter dated December 6, 2005, the City informed Plaintiff that he had not been promoted to the position of Supervisor. (Def. SCSF at 2, Doc. 18.) Plaintiff contends that Plaintiff (Pl. SCSF at

he was passed over for promotion because of his age.

asserts that the employees hired for the five vacant Supervisor positions are younger, less qualified, workers. Doc. 28.) II. NOTIFICATION OF THE AGE DISCRIMINATION CLAIM After receiving the December 6, 2005 letter, Plaintiff contends he notified the City regarding his age discrimination complaint, but that no action was ever taken despite assurances 3 (Pl. SCSF at 2,

that the matter would be investigated and a response given. SCSF at 3, Doc. 28.)

(Pl.

Plaintiff states in his separate concise statement of facts, and the City does not dispute, that Plaintiff telephoned Defendant's Director Eric Takamura sixteen times about the failure to promote him to the Supervisor position. Plaintiff On

first telephoned Director Takamura on January 3, 2006.

January 9, 2006, Director Takamura returned Plaintiff's initial telephone call and left a message. On January 10, Director (Pl. SCSF at 3,

Takamura reached Plaintiff on the telephone. Doc. 28.)

During the January 10 telephone call, Plaintiff alleges he told Director Takamura that he believed he was not promoted because of his age. Plaintiff contends Director Takamura told

him that Director Takamura would ask questions about Plaintiff's claim and would call him back. (Pl. SCSF at 3, Doc. 28.) In his

declaration, Director Takamura states that during the conversation, Plaintiff did not mention an age discrimination claim. Director Takamura states that he did not promise to speak Director Takamura did tell Plaintiff

further with Plaintiff.

that because he had no knowledge of the matter he "would need to confer with [Plaintiff's] division." 29.) After the January 10 conversation, it is undisputed that Plaintiff tried numerous times to speak further with Director 4 (Takamura Decl. at 2, Doc.

Takamura by telephone, calling him on the following dates: January 11, 12, 17, 23, 24, 25, 26, 27, 30, and 31, 2006; March 3 and 24, 2006; May 4, 8, and 10, 2006. Plaintiff left messages (Pl. SCSF at 3, Doc.

each time he telephoned Director Takamura. 28.)

Plaintiff also left messages for, and spoke with Director Takamura's secretary Michelle on several more dates. On January

31, March 3, and May 4, 2006, Plaintiff left messages for Director Takamura with Michelle. Plaintiff actually spoke with

Michelle four times, on June 22, in July, on August 16, and on September 20, 2006. In the first conversation in June, Plaintiff In July, Michelle

told Michelle of his discrimination claim.

told Plaintiff that she would speak with Director Takamura and call Plaintiff back. During the August 16 conversation,

Plaintiff asked Michelle about the status of his age discrimination complaint, and was told that she did not know the status. On September 20, 2006, Michelle told Plaintiff that she (Pl. SCSF

would give Plaintiff's message to Director Takamura. at 3, Doc. 28.)

On November 2, 2006 Plaintiff spoke with Deputy Director of Human Resources Noel Ono. Plaintiff informed Director Ono that

he had notified Director Takamura of his age discrimination complaint. Deputy Director Ono told Plaintiff he would set up a A meeting was held in January

meeting with Director Takamura.

2007 with Deputy Director Ono, Deputy Director Ken Shimizu, 5

Carreen Kurihara, UPW Shop Steward Darryn Ng, UPW Shop Steward Daniel Akana, and UPW Shop Steward John Chang. did not attend. Director Takamura

At the meeting, Plaintiff presented a hand Deputy

written document detailing his age discrimination claim.

Director Ono told Plaintiff that his letter would be reviewed and the City would follow up with Plaintiff. (Age discrimination On May

letter, Compl. at 6-8, Doc. 1; Pl. SCSF at 3, Doc. 28.)

3, 2007, Deputy Director Ono telephoned Plaintiff and told him that the investigation was "out of their hands and Ken Shimizu would handle it," and that Deputy Director Ono was waiting for a response from Assistant Chief Lori Kahikina-Moniz. 3, Doc. 28.) III. THE ALLEGED ACTS OF RETALIATION Plaintiff alleges that the City took action against him in retaliation for his age discrimination complaint. 3, Doc. 28.) (Pl. SCSF at (Pl. SCSF at

Plaintiff outlines a series of actions he alleges On February 14, 2007, the City notified

are retaliatory.

Plaintiff that he was being investigated for possible abuse of his allotted sick leave. The City then required Plaintiff,

during a further evaluation period from March through August of 2007, to undergo a medical evaluation by the Medical Coroner to verify each day of absence due to illness. 28.) Plaintiff alleges that younger co-workers were offered overtime work on the sewage spill into the Ala Wai canal. 6 From (Pl. SCSF at 3, Doc.

March 24, 2006 through April 1, 2006 Plaintiff was not offered overtime work despite being available. 28.) Plaintiff states that on May 24, 2006 he was accused of leaving work 28 minutes early. On June 19, 2006 the City issued (Pl. SCSF at 3, Doc.

Plaintiff a written reprimand and charged him with one hour of leave without pay. Plaintiff asserts the accusation was false,

and that the City reprimanded him despite the submission of written statements by two other employees confirming he had completed the full work day. Defendant counters that all of the alleged acts, apart from the sick leave investigation, were not the subject of a timely EEOC action by Plaintiff. (Reply at 5-6, Doc. 29.) Defendant

distinguishes the sick leave investigation, as involving a group of employees, and that Plaintiff was not singled out for investigation. (Reply at 7-8, Doc. 29.)

Plaintiff alleges he was constructively discharged by Defendant on June 30, 2007. contends Plaintiff resigned. IV. (Compl. at 9, Doc. 1) The City

(Def. SCSF at 2, Doc. 18.)

THE EEOC CLAIMS AND THE COMPLAINT Plaintiff filed complaints for age discrimination and

retaliation with the Equal Employment Opportunity Commission ("EEOC") and the Hawaii Civil Rights Commission ("HCRC") on October 10, 2007. to sue letter. On October 25, 2007, the EEOC issued a right

On December 6, 2007, the HCRC issued a right to 7

sue letter.

(Pl. SCSF at 4, Doc. 28.)

On December 31, 2007,

Plaintiff filed the Complaint. In the Complaint, Plaintiff brings an age discrimination claim under the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-34, and Haw. Rev. St. § 378-2; and a claim for unlawful retaliation under 42 U.S.C. § 2000e and H.R.S. § 378-2. STANDARD OF REVIEW Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). There must

be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. Nidds v. Schindler Elevator

Corp., 113 F.3d 912, 916 (9th Cir. 1996). The moving party has the initial burden of "identifying for the court the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party, however, has no

burden to negate or disprove matters on which the opponent will have the burden of proof at trial. The moving party need not

produce any evidence at all on matters for which it does not have the burden of proof. Celotex, 477 U.S. at 325. The moving party

must show, however, that there is no genuine issue of material 8

fact and that he or she is entitled to judgment as a matter of law. That burden is met simply by pointing out to the district

court that there is an absence of evidence to support the nonmovant's case. Id.

If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir. 1979). The opposing party must present admissible Fed.

evidence showing that there is a genuine issue for trial.

R. Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). "If the evidence is merely

colorable, or is not significantly probative, summary judgment may be granted." Nidds, 113 F.3d at 916 (quoting Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). The court views the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872

F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of declarations, admissions, evidence obtained through discovery, and matters judicially noticed. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324. The

opposing party cannot, however, stand on its pleadings or simply assert that it will be able to discredit the movant's evidence at trial. Fed. R. Civ. P. 56(e); T.W. Elec. Serv., 809 F.2d at 630.

The opposing party cannot rest on mere allegations or denials. 9

Fed. R. Civ. P. 56(e); Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). party rest on conclusory statements. Nor can the opposing

National Steel Corp. v.

Golden Eagle Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997). ANALYSIS I. THE TIMELINESS OF THE AGE DISCRIMINATION CLAIM Plaintiff brings a claim pursuant to the federal Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-34. The ADEA was designed to eliminate arbitrary age discrimination in employment. 29 U.S.C. § 621(b).

Pursuant to the ADEA an aggrieved party must file a claim with the United States Equal Employment Opportunity Commission ("EEOC") within 300 days of the act of alleged discrimination, or within 180 days of the discriminatory action if the state involved has no agency authorized to investigate age discrimination. 29 U.S.C. §§ 626(d)(1), (d)(2), 633(b). Both

parties agree that because Hawaii has such an agency, the Hawaii Civil Rights Commission ("HCRC"), 300 days is the applicable filing limitations period in the case. Plaintiff did file his

charges of age discrimination and retaliation with the HCRC, triggering the 300-day time limit. Plaintiff asserts that the act of alleged age discrimination took place on December 6, 2005, the date of the letter from the City notifying him he was not promoted to Supervisor. According

to Defendants, the 300-day time limit commenced on December 6, 10

2005 and expired on October 2, 2006, 300 days later.

It is

undisputed that Plaintiff did not file a charge with the EEOC until October 10, 2007. The Court must consider the undisputed

facts to determine if appropriate grounds exist to warrant equitably tolling the EEOC filing deadline or equitably estopping the City from asserting the EEOC filing deadline as a defense. II. EQUITABLE MODIFICATION OF THE LIMITATIONS PERIOD In an Age Discrimination in Employment Act ("ADEA") suit, failure to file an EEOC charge within the prescribed 300-day limitations period in section 626(d) is not a jurisdictional bar. Naton v. Bank Of California, 649 F.2d 691, 696 (9th Cir. 1981). The limitations period is subject to equitable modification. Id.

The applicability of equitable modification was addressed by the United States Supreme Court in the Zipes case. Trans World Airlines, Inc., 455 U.S. 385 (1982). Zipes v.

The Supreme

Court held "that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling." Id. at 393.

The Supreme Court was analyzing the limitations provision of Title VII, but based its reasoning in part on the legislative history of the ADEA, which was modeled after Title VII. 395 n. 11. Id. at

The House Conference Report on the 1978 revision of

the ADEA shows Congress intended the limitations period to be of the nature of a statute of limitation, subject to equitable 11

modification, and not a jurisdictional prerequisite.

Id., citing

H.R.Conf.Rep. No. 950, 95th Cong., 2d Sess., 12, reprinted in 1978 U.S.Code Cong. & Ad.News 528, 534 ("The conferees agree that the `charge' requirement is not a jurisdictional prerequisite to maintaining an action under the ADEA and that therefore equitable modification for failing to file within the time period will be available to plaintiffs under this Act."). Similarly, in Boyd v.

U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985), the Ninth Circuit Court of Appeals held that "[a] timely filing of an EEOC charge is not a jurisdictional prerequisite to suit." The ADEA

filing deadline in the case is subject to equitable modification. In setting out the supporting policy reasons for equitable modification of the limitations period, the Ninth Circuit Court of Appeals explained that the ADEA is to be liberally interpreted, and that the status of laymen should be considered: The ADEA is remedial and humanitarian legislation and should be liberally interpreted to effectuate the congressional purpose of ending age discrimination in employment. Additionally, strict compliance with section 626(d)(1)'s time limitation should not be required of laymen attempting to enforce their statutory rights. Naton, 649 F.2d at 696, quoting Dartt v. Shell Oil Co., 539 F.2d 1256, 1260 (10th Cir. 1976), aff'd by equally divided court, 434 U.S. 99 (1977) (citations omitted). The Naton Court stated that

"harsh results may be avoided through equitable modification of the limitations period." Id. at 696. The relief being

considered is equitable, and so the modification of the statutory 12

limitations provision is to be determined "on a case-by-case basis, depending on the equities in each case." Hageman v.

Phillips Roxane Laboratories, Inc., 623 F.2d 1381, 1385-86 (C.A.Cal. 1980). A. EQUITABLE ESTOPPEL

The doctrine of equitable estoppel may be applicable when misleading conduct of the defendant has induced the plaintiff to delay filing an EEOC claim. See, e.g., Bonham v. Dresser The

Industries, Inc., 569 F.2d 187, 193 & n.6 (3rd Cir. 1977).

Tenth Circuit Court of Appeals in the Wilkerson case stated that the "action by an employer which misleads an employee and causes him to fail to file notice within 180 days of his discharge is also a factor to be considered in connection with equitable tolling or estoppel." Wilkerson v. Siegfried Ins. Agency, Inc.,

621 F.2d 1042, 1045 (10th Cir. 1980). A district court must rest a finding of estoppel on the consideration of several factors, including: (1) evidence of the plaintiff's actual and reasonable reliance on the defendant's conduct or representations; (2) evidence of improper purpose on the part of the defendant, or of the defendant's actual or constructive knowledge of the deceptive nature of its conduct; and, (3) the extent to which the congressional purpose of the ADEA limitations period has been satisfied. See Cooper v. Bell,

628 F.2d 1208, 1214 (9th Cir. 1980); Dartt v. Shell Oil Co., 539 F.2d 1256, 1261 (10th Cir. 1976). 13 The applicability of the

doctrine depends on a showing of wrongful conduct by the defendant that prevented the plaintiff from filing suit. Santa

Maria v. Pacific Bell, 202 F.3d 1170, 1176 (9th Cir. 2000). Here, Plaintiff contends that the City is equitably estopped from asserting the 300-day limitations period because of his reliance on statements made by Director Takamura and his secretary Michelle that the City had been notified of his claim of discrimination and that the claim would be investigated. The facts concerning the series of telephone calls made during the 300 day period stretching from December 6, 2005 to October 2, 2006 are central to the determination of equitable modification. In the January 10, 2006 telephone conversation

Plaintiff asserts that he notified Director Takamura that he believed he had not been promoted because of his age. In his

declaration Plaintiff indicates he relied on representations made by Director Takamura that his age discrimination claim would be investigated, and that Director Takamura would get back to Plaintiff about his claim. In contrast, Director Takamura states

he told Plaintiff he had no knowledge of the matter and "would need to confer with his division, Collection Systems Management ("CMS"). Director Takamura did not direct Plaintiff to contact (Takamura Decl., Doc. 29-2.)

someone else with his claim.

While the exact contents of the January 10 conversation is in dispute, the parties do not dispute that Plaintiff persisted in following up on his January 10 conversation with Director 14

Takamura, leaving 15 further messages with the Director alone. It is also an undisputed fact that Plaintiff notified Director Takamura's secretary Michelle of his age discrimination claim on June 22, 2006, well before the October 2, 2006 limitations deadline. There is no opposing declaration by secretary Michelle

in the record, and Director Takamura's declaration is silent regarding his failure to respond to the subsequent 15 messages. (Takamura Decl., Doc. 29-2.) The undisputed facts of the actual

notification as well as the repeated attempts at notification, and the pattern of deliberate avoidance by Director Takamura, support the conclusion that an estoppel argument applies. The limitations period of the 300 day notice is meant, in part, to ensure that the employer has early notice of a possible law suit. Giving the employer early notice promotes both the

preservation of evidence and good faith negotiating on the part of the employer during the conciliation period. Moses v.

Falstaff Brewing Co., 525 F.2d 92, 94 (8th Cir. 1975); Powell v. Southwestern Bell Telephone Co., 494 F.2d 485, 488 (5th Cir. 1974) (ensuring early notice "would promote the good faith negotiation of employers during the 60 day conciliation period and provide an opportunity for preservation of evidence and records for use at a trial necessitated by failure of negotiation. "). There is no dispute that the City learned of Plaintiff's age discrimination claim at the very latest on June 22, 2006. 15 The

City does not argue any loss of evidence resulted from the tardy filing of the EEOC claim. Plaintiff's unopposed statement

concerning the numerous messages left for Director Takamura and his notification of Michelle of the age discrimination claim place the City in the position of having caused the loss of the opportunity for good faith negotiations during the conciliation period. As the United States Supreme Court stated in the case of Glus, equitable estoppel is available so that "no man may take advantage of his own wrong." Glus v. Brooklyn Eastern District

Terminal, 359 U.S. 231, 232-33 (1959). B. Equitable Tolling

Equitable tolling focuses on a plaintiff's excusable ignorance of the limitations period, on whether there was excusable delay by the plaintiff, and on lack of prejudice to the defendant. See, e.g., Abbott v. Moore Business Forms, Inc., 439

F.Supp. 643, 646-49 (D.N.H. 1977). Equitable tolling is permissible when the plaintiff employee's failure to timely file an EEOC claim is the result of either a "deliberate design by the employer or actions that the employer should unmistakably have understood would cause the employee to delay filing his charge." Olson v. Mobil Oil

Corporation, 904 F.2d 198, 201 (4th Cir. 1990)(quoting Price v. Litton Business Systems, Inc., 694 F.2d 963, 965 (4th Cir. 1982)). The limitations period may be tolled "where the 16

complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass." Irwin v.

Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990); English v. Pabst Brewing Co., 828 F.2d 1047, 1049 (4th Cir.1987) (equitable tolling is based "primarily on the view that a defendant should not be permitted to escape liability by engaging in misconduct that prevents the plaintiff from filing his or her claim on time"). As the Fifth Circuit Court of Appeals explained in the

case of Coke, "[p]erhaps in no circumstance is equitable tolling of a time limitation more justified than where a defendant, through misleading conduct, has induced a plaintiff to delay filing suit until the limitations period has run." Coke v.

General Adjustment Bureau, Inc., 616 F.2d 785, 790-91 (5th Cir. 1980). It is true an employer's misbehavior does not excuse employees from the obligation to pursue their rights to the extent reasonably possible. Irwin, 498 U.S. at 96 (equitable

tolling not appropriate "where the claimant failed to exercise due diligence in preserving his legal rights." ). Equitable

tolling is appropriate, however, "where affirmative misconduct on the part of a defendant lulled the plaintiff into inaction." The appropriateness of the discretionary doctrine depends on the particular circumstances of the case. The Fifth Circuit

Court of Appeals in Fisher explained that "[a]s a discretionary doctrine that turns on the facts and circumstances of a 17

particular case, equitable tolling does not lend itself to bright-line rules." Cir. 1999). The facts, viewed in the light most favorable to Plaintiff, show that there is no dispute of material fact. The undisputed Fisher v. Johnson, 174 F.3d 710, 713 (5th

series of telephone calls by Plaintiff to Director Takamura that were not returned and the numerous calls to Takamura's secretary Michelle show a pattern of avoidance by Defendant during the critical 300 days. Further, Plaintiff was not told until May 3,

2007 that Deputy Director Ken Shimizu and Assistant Chief Moniz were the correct contacts for an age discrimination claim. date of May 3, 2007 falls well after the end of the 300 day limitations period on October 2, 2006. The City argues that equitable estoppel is inapplicable because Plaintiff had constructive knowledge of the EEOC filing requirements from the equal employment opportunity notices posted at Plaintiff's work site. The City proffers the declaration of (Decl. Juan, Doc. 29-4.) In The

Florendo "Fuji" Juan in support.

his declaration, however, Juan simply states that notices were "posted in our administration office at the Koula base-yard." (Id. at 2.) The City does not proffer any evidence of what the No indication is provided to show if the

notices contained.

critical information required pursuant to the ADEA and the relevant portions of the code of federal regulations were posted. Pursuant to 29 C.F.R. 1627.10, an EEOC posting must consist of a 18

"notice pertaining to the applicability of the Act prescribed by the [EEOC]." The posted notice should advise employees of the

existence of the ADEA and inform them of their need to obtain assistance in pursuing an age discrimination claim. Avco Corp, 460 F.Supp. 389 (D.C.Conn. 1978). Franci v.

The notice must

provide employees with a meaningful opportunity of becoming aware of their rights under the ADEA. Charlier v. S.C. Johnson & Son,

Inc., 556 F.2d 761 (5th Cir. 1977), rehearing denied 559 F.2d 1217. The Defendant does not proffer any evidence that the

City's notice contained the vital information of the applicable limitations period, EEOC contact information, or directions as to the proper procedures for filing a claim. The City knew of Plaintiff's many attempts to follow up on his age discrimination claim. tolling. IV. RETALIATION Section 623(d) of the ADEA makes it unlawful for an employer to retaliate against an employee for opposing "any practice made unlawful by [the ADEA], or because such [employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under [the ADEA]." U.S.C. § 623(d). Plaintiff has alleged that the acts of investigating him for abuse of his allotted sick leave, reprimanding him for allegedly leaving work early, and failing to assign him overtime constitute 19 29 Plaintiff is entitled to equitable

unlawful retaliation under the ADEA. The City first contends that Plaintiff is unable to establish that any of the alleged acts were in retaliation for engaging in a protected activity. The City defines the protected The City

activity as Plaintiff's act of filing the EEOC claim.

argues that because the acts occurred before the EEOC October 10, 2007 filing date, they are not related to a protected activity within the meaning of the ADEA. The Ninth Circuit Court of

Appeals, in the case of Passantino1, stated that informal complaints to an employer also constitute protected activity "such that actions taken against [the employee] after these initial complaints are appropriately the subject of [the] retaliation claim." Passantino v. Johnson & Johnson Consumer Here,

Products, Inc., 212 F.3d 493, 506 (9th Cir. 2000).

Plaintiff alleges that his informal complaints to Director Takamoto resulted in retaliation. (Pl. SCSF at 3, Doc. 28.) The

complaints for retaliation survive summary judgement. There must be a factual determination as to whether they retaliation for protected activity. The doctrines of equitable tolling and equitable estoppel, constitute

In Passantino, the Ninth Circuit Court of Appeals analyzes a discrimination claim filed pursuant to Title VII. When analyzing a claim of retaliation under the ADEA, courts look to case law under the ADEA and Title VII. See Wallis v. J.R. Simplot Co., 26 F.3d 885, 888 (9th Cir. 1994) ("We combine the Title VII and ADEA claims for analysis because the burdens of proof and persuasion are the same."); Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1441 (9th Cir. 1990). 20

1

discussed previously, are equally applicable to the acts of alleged retaliation as they are to the claim of age discrimination. Defendant's Motion for Summary Judgement is DENIED.

// // // // // // // // // // // // // // // // // //

21

CONCLUSION For the foregoing reasons, the Court DENIES Defendant's Motion For Summary Judgment (Doc. 17). The Court finds as a

matter of law that the doctrines of equitable estoppel and equitable tolling are applicable to Plaintiff Glen H. Gibo's age discrimination and retaliation filings with the Equal Employment Opportunity Commission and the Hawaii Civil Rights Commission. IT IS SO ORDERED. DATED: December 9, 2008, Honolulu, Hawaii.

_/s/ Helen Gillmor_________________ Chief United States District Judge

GLENN H. GIBO v. CITY AND COUNTY OF HONOLULU, DEPARTMENT OF ENVIRONMENTAL SERVICES, et al, Civ. No. 07-00627 HG-LEK; ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT

22