Khufu v. Jones Retail Corporation et al

Filing 54

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' 37 MOTION FOR SUMMARY JUDGMENT: "....Motion for Summary Judgment, filed on March 8, 2011, is HEREBY GRANTED IN PART AND DENIED IN PART as follows: 1. The Motion is DENIED as to Cou nt I; 2. The Motion is GRANTED as to Counts II, III, and IV; and 3. The Motion is GRANTED with respect to Plaintiff's failure to mitigate damages, and Plaintiff's damages for lost wages are limited to no more than $4,800. IT IS SO ORDE RED." Signed by District JUDGE LESLIE E. KOBAYASHI on May 31, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL NO. 10-00262 LEK-BMK

SEBREN KHUFU,

)
)
Plaintiff,
)
)
vs.
)
)
JONES RETAIL CORPORATION and )
JONES APPAREL GROUP
)
CORPORATION,
)
)
)
Defendant.
_____________________________ )

ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants JAG Footwear,
Accessories and Retail Corporation, formerly known as Jones
Retail Corporation, and The Jones Group Inc., formerly known as
Jones Apparel Group, Inc.’s (collectively “Defendants” or “Jones
Group”) Motion for Summary Judgment (“Motion”), filed on March 8,
2011.

Plaintiff Sebren Khufu (“Plaintiff” or “Khufu”) filed his

memorandum in opposition on April 18, 2011, and Defendants filed
their reply on April 25, 2011.
on May 16, 2011.

This matter came on for hearing

Appearing on behalf of Defendants was

Lani Narikiyo, Esq., and appearing on behalf of Plaintiff was
Charles Brower, Esq.

After careful consideration of the Motion,

supporting and opposing memoranda, and the arguments of counsel,
Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART
for the reasons set forth below.

BACKGROUND
I.

Factual Background
Defendants hired Plaintiff on June 4, 2007 to work in

Defendants’ Waikiki retail store and terminated him in February
2008.

Plaintiff alleges that Defendants terminated his

employment because of his race (African-American), color (black),
and age (over forty-five) in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2 et seq., the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq., and the Hawai‘i Anti-Discrimination Act, Hawai‘i Revised
Statutes § 378-2 (Counts I and IV).

Plaintiff further alleges

that he was subjected to a hostile work environment based on the
allege discrimination (Count II), and suffered emotional distress
due to Defendants’ actions (Count III).
A.

Plaintiff’s Hiring
Defendants hired Plaintiff to work as a Sales Associate

in its Waikiki Nine West shoe store.

[Plaintiff’s Separate

Concise Statement of Material Facts in Opposition (“CSOF”), Decl.
of Sebren Khufu (“Khufu Decl.”), ¶ 1.]

He was hired by Manager

Freeah Samuelsson, a Caucasian in her twenties or early thirties.
[Id.]

As a Sales Associate, Plaintiff was expected to comply

with all company policies and procedures as outlined in company
manuals.

[Defendants’ Separate and Concise Statement of Facts

(“CSOF”), Exh. D, attached to Decl. of Michele Gatdula-Santiago
2

(“Santiago Decl.”).]

According to Plaintiff, he was “the top

sales person from the day [he] was hired.”

[Khufu Decl. ¶ 1.]

Before he was hired, Plaintiff alleges that he went to
the retail location to request an employment application, and
Manager Michele Santiago “said that she knew I didn’t feel
comfortable as a male in a female store and I could fill out the
application outside and bring it back into the store when I was
done, but I was not allowed to take the application home with
me.”

[Id. ¶ 6.]

According to Plaintiff, Samuelsson left him a

message telling him to come for an interview, and Plaintiff
states that “I could hear Santiago in the background telling
Samuelsson not to hire me.”

[Id.]

Plaintiff also claims that:

8.

I interviewed with Samuelsson in June 2007 in
the downstairs lobby of the Hyatt Regency.
She commented that it was unlikely that
someone that looks like me would be hired at
the Nine West store, and if not for her, I
would not have been hired for the job.

9.

Samuelsson told me that most of the retail
companies in Waikiki do not hire AfricanAmerican employees. I told Samuelsson that I
knew about this trend in Waikiki and it was
ridiculous that employers look at what a
person looks like rather than at their
qualifications for the job.

10.

Samuelsson told me that if not for her I
would probably not have been hired as
Defendants did not normally hire black men of
my age.

[Id. at ¶¶ 8-10.]
According to Samuelsson, she did not tell Plaintiff

3

that somebody who looks like him would not normally be hired by
Defendants, or that, but for her, he would not get hired by
Defendants, or that, people of his race, color, or age do not get
hired by Defendants.

[Defendants CSOF, Decl. of Conrad Kee (“Kee

Decl.”), Exh. M, 12/21/10 Deposition of Freeah Samuelsson
(“Samuelsson Depo.”), at 49-50, 58-59.]

Samuelsson left Nine

West around November 2007, and Santiago became Plaintiff’s
manager.

[Khufu Decl. ¶ 12.]
Santiago disputes that she told Samuelsson not to hire

Plaintiff.

She says that Plaintiff “raised this issue with me

shortly after he was hired.

I informed him he was mistaken and

that he had heard an unrelated conversation I was having with
another employee in the back room.
with my response.

Mr. Khufu seemed satisfied

He did not say or do anything that would

indicate he believed that this had something to do with his race,
age, or color.”

[Santiago Decl. ¶ 5.]

According to Plaintiff, after he started working in
June 2007, “Defendants’ employees made remarks regarding my race
and age to me while I was employed by Defendants.”

[Khufu Decl.

¶ 11.]
According to Plaintiff, in November 2007, he “was
instructed by Santiago to tell a black male who had requested an
employment application that she was not available and that he
would be wasting his time by filling ou[t] the application.”

4

[Khufu Decl. ¶ 13.]

Santiago also accepted a gay male’s

employment application and “after he left the store, she said
that there was no way she would ever hire him.

She said that she

. . . could not tell if he was male or female when she first saw
him.”

[Id. at ¶ 14.]
B.

June 20, 2007 Incident
Shortly afer he began work, Plaintiff was involved in

an incident with co-worker Michael Nakama on June 20, 2007.
According to Plaintiff, while he was working on stock, Nakama
told him to take out the trash, and he responded by asking “why
was it always me that had to take out the trash.”
¶ 26.]

[Khufu Decl.

Nakama then walked by, bumping Plaintiff twice.

[Id.]

Plaintiff informed Santiago of the incident, while she was
speaking with Samuelsson.

[Id.]

In a written statement to

Santiago about the incident, Plaintiff did not indicate that the
incident related to his race, color or age [Plaintiffs’ CSOF,
Decl. of Charles Bower (“Brower Decl.”), Exh. 6,] and
acknowledged at deposition that this written complaint made no
reference to race, color or age discrimination.

[Kee Decl., Exh.

L, 2/21/11 Deposition of Sebren Khufu (“Khufu Depo.”), at 61-66.]
According to Santiago, when Plaintiff reported the
incident, she looked into the matter and asked for each
employee’s version of events; Plaintiff related that Nakama
intentionally bumped into him and Nakama “who was in his mid-

5

50’s, told me it was an accident.”

[Santiago Decl. ¶ 6.]

Santiago addressed the matter with both employees and Santiago
stated that Plaintiff seemed satisfied with how she handled the
matter.

[Id. at ¶¶ 6-7.]

Nakama’s employment with Jones Group

ended in the summer of 2007 when he stopped coming to work as
scheduled.
C.

[Id. at ¶ 8.]
Associate Progressive Counseling Forms and Warnings
On several occasions, Plaintiff violated company

policies and his conduct was documented on Associate Progressive
Counseling forms.

[Santiago Decl. ¶ 12.]

Other employees also

violated company policies and their conduct was recorded on
Associate Progressive Counseling forms as well.

[Id.]

On or around November 11, 2007, Plaintiff issued a
customer a refund in violation of company policy.

He claims that

he had not been informed that only a manager could issue a
refund.

[Khufu Decl. ¶ 19.]

Plaintiff received a first written

warning, recorded on a November 13, 2007 Associate Progressive
Counseling form.

[Brower Decl., Exh. 2.]

On November 15, 2007, Plaintiff accepted a $200 cash
payment from a customer, but according to Santiago, failed to put
the cash completely in the register; Plaintiff claims that he did
place the two $100 bills completely in the register.
Decl. ¶ 20.]

[Khufu

That same day, Plaintiff was asked to remain at

work for one extra hour because a co-worker had been injured on

6

the job, but Plaintiff left when his shift ended without
notifying management.

These two incidents resulted in a second

written warning, recorded on a November 15, 2007 Associate
Progressive Counseling form.

[Brower Decl., Exh. 3.]

The second

written warning states that if “improvement is not made, this can
and will lead to termination.”

[Id.]

On December 6, 2007, Plaintiff left the store without
following closing procedures and did not notify the manager, and
as a result received a final warning, recorded on a December 13,
2007 Associate Progressive Counseling form.
4.]

[Brower Decl., Exh.

According to Plaintiff, he did tell the manager on duty,

Tracy Brown, that he was leaving the store at 11:25 p.m. that
day, and there were many times when other employees left before
11:30 p.m.

[Khufu Decl. ¶ 18.]
Plaintiff states that, starting in November 2007, he

began to receive “false and unwarranted disciplinary write ups
from Santiago.”

[Khufu Decl. ¶ 15.]

Santiago asserts that the

documentation of any issues regarding Plaintiff was consistent
with that of other employees.
D.

[Santiago Decl. ¶ 12.]

Other Workplace Incidents
According to Plaintiff, on an unspecified date, he

heard Tracy Brown talking on her cell phone in the back of the
store and she “said ‘she was working with a black guy and she
didn’t know if she should be scared or not.’”

7

[Khufu Decl.

¶ 23.]

Plaintiff also claims that in December 2007, he had a

conversation with Brown about hair styles “when she made a
comment to me that she is just a ‘little white girl with straight
hair’ and that she washes her hair every couple of days so that
she doesn’t wash out the natural oils in her hair.”

[Id. at

¶ 24.]
Plaintiff also states that, “[a]t some point I was told
that everyone in the store was a manager except for me and a 16
year old female employee.”

[Khufu Decl. ¶ 24.]

On January 20, 2008, Plaintiff was sent home from work
by Assistant Manager Claire Neyra for being inappropriately
dressed.

Plaintiff asserts that he had worn that particular

outfit to work previously, but that Neyra “did not like my outfit
and sent me home.”

[Khufu Decl. ¶ 21.]

Plaintiff claims that

another employee, “Rob” (a Caucasian in his twenties), was
“allowed to wear shirts with labeling on them but I was not.
was written up for no reason.”
E.

I

[Id. at ¶ 22.]

Work Schedule Disputes and Plaintiff’s Termination
According to Plaintiff, he was to be attending school

at the time he was hired, and asked to work evening hours, but
that he “was not expecting to work until the store closed at
11:30.

I had to get up early in the morning for school.”

Decl. ¶ 16.]

[Khufu

He says that he “was usually scheduled for the

closing shift when Santiago knew I had school the next day and

8

closing the store would interfere with my homework and study
schedule.”

[Id. at ¶ 17.]
Plaintiff claims that when he asked why he was being

scheduled for closing times, he was not given an explanation.
[Khufu Decl. ¶ 27.]
they wanted.

And other employees “received the work/hours

Brown had a second job and Defendants’ man[a]gers

worked around Brown’s schedule to accommodate her, but would not
do the same for me.”

[Id. at ¶ 28.]

Santiago states that she typically prepared schedules
for the store one month in advance, and that schedules would
“generally be hung up in the store for employees to review and
employees were responsible for checking the schedule.”
Decl. ¶ 24.]

[Santiago

“If employees had unexpected issues regarding

scheduling, they were responsible for contacting me[,]” said
Santiago.

[Id.]

Plaintiff was aware of the scheduling process,

according to Santiago.

[Id.]

According to Santiago, she prepared the store schedules
for January 2008, and likely posted them sometime in December
2007.

[Id. at ¶ 15.]

Plaintiff claims that Santiago prepared

and posted weekly schedules the week prior to the next work week.
[Khufu Decl. ¶ 16.]
On both January 15 and January 18, 2008, Plaintiff was
scheduled to work from 4:00 p.m. to 11:30 p.m., but did not
report to work or call.

[Santiago Decl. ¶ 16.]

9

On January 22,

2008, Plaintiff was scheduled to work from 3:00 p.m. until 9:30
p.m., but did not call or report to work.

On January 25,

Plaintiff was scheduled to work from 9:00 a.m to 4:00 p.m., but
did not report to work or call.

On February 1, 2008, Plaintiff

was scheduled to work from 4:00 p.m. to 11:30, but again, failed
to report to work or call.

[Id. at ¶ 18.]

Santiago asserts that, each time Plaintiff failed to
report to work or call in, she attempted to contact him by
telephone, but he did not answer, and each time she left a
message, but Plaintiff did not return her call.
¶ 20.]

[Santiago Decl.

The six absences are also recorded in a February 6, 2008

Associate Progressive Counseling form.

[Santiago Decl., Exh. B.]

Plaintiff claims that he gave his school schedule to
Assistant Manager Neyra “at the beginning of the Spring semester.
I also spoke to her on January 10, 2008, about a conflict between
my work schedule and my school schedule.

I would be scheduled

for the exact days/times that I was supposed to be in class.”
[Khufu Decl. ¶ 16.]

“When I did not come to work because I had

school, one of the managers would call me to ask why I was not at
work.

I could not call in because I was in class.”

[Id.]

According to Plaintiff, “[t]he managers knew why I was
not at the store as they had my school schedule that I gave them
at the beginning of the semester.

I was purposely scheduled on

my school days, and [then] fired because I did not come to work.”

10

[Id. at ¶ 31.]
Defendants claim that Plaintiff was terminated as a
result of his repeated failure to comply with the attendance
policy.

Andrew Poulin, a Human Resources Manager with Jones

Group, made the decision to terminate Plaintiff in February 2008,
“in conjunction with Betsy Eddy (District Sales Manager).”
[Defendants’ CSOF, Decl. of Andrew Poulin (“Poulin Decl.”), ¶ 6.]
According to Poulin,
Although there may have been information in Jones’
records regarding Mr. Khufu’s race, color, and
age, I did not consider this information and it
played no role in the decision to terminate his
employment. Terminating an employee who failed to
report to work a total of six times is fully
consistent with other terminations I have handled
while Human Resources Manager.
[Id. at ¶ 7.]

From January 2007 until February 2008, five

employees including Plaintiff were terminated for non-compliance
with attendance rules: two employees in the Kahala store
(identified as “White” and “Asian”) and two other employees at
the Waikiki store (both identified as “Asian”).

[Id. at ¶ 10,

Exh. F.]
According to Plaintiff, he was given “various reasons
for . . . my termination.

District Manager Betsy Eddy told me

that I was terminated because I failed to show up for work.”
[Khufu Decl. ¶ 4.]
F.

Plaintiff’s Complaints to Defendants
Plaintiff attests that he reported “inappropriate
11

actions to Defendants’ home office in New York, but the Actions
(sic) continued as Defendants’ did not correct . . . what was
happening in its Waikiki store where I was employed.”
¶ 32.]

[Id. at

Plaintiff sent an email dated December 18, 2007 to

Peter Bonepath at the Nine West corporate office, complaining
about Plaintiff’s co-workers and managers.
7.]

[Brower Decl., Exh.

The December 18, 2007 email states that another employee,

Isaac Gonzalez, left the store for twenty-five minutes when he
was not on a break, and later provoked an argument with
Plaintiff, telling him that Plaintiff was “on [his] F@@@ way out
any way.”

[Id.]

He also states that, during a busy night,

Betsy Eddy told him “in a rude and loud voice not to come behind
the counter and that she will ring up everyone[,]” and he alleged
that Eddy rang up “an item under someone elses [sic] that I
should have gotten credit for.”

[Id.]

Plaintiff also complains

in the email about co-workers going to Starbucks while on the
clock.

The email does not mention race, color, or age

discrimination.

[Id.]

On January 11, 2008, Plaintiff sent a fax to the Nine
West corporate office, stating that Neyra told Plaintiff that
Santiago “received a complaint that I refuse to have my bag
checked when I leave the store after a work shift.
Ms. Neyra that this is 100% not true.”

I told

[Brower Decl., Exh. 10.]

Plaintiff said “I would rather not bring a bag to work because I

12

never know what could happen if Issac [sic] Gonzalez or Michele
[sic] Santiago is there.

I strongly believe they will try

something if I have a bag in the store.”

[Id.]

On January 15, 2008, Plaintiff sent another fax, in
which he discussed his problems scheduling work and school.
[Brower Decl., Exh. 11.]

Plaintiff says that he told Neyra that

he would only be able to work on Saturday nights, and she told
him that all schedule changes are supposed to be done two weeks
before they are done. . . .

[T]his is my first time hearing

anything about a dead line [sic] when wanting to change days on
the schedule.”

[Id.]

Plaintiff sent another undated fax

repeating concerns about his schedule conflicting with school.
[Brower Decl., Exh. 12.]

Plaintiff sent a final fax on February

21, 2008 concerning his scheduled work days and school conflicts.
[Brower Decl., Exh. 13.]

None of the faxes references race,

color, or age discrimination.
G.

Procedural Background
Plaintiff filed a Charge of Discrimination with the

Hawai‘i Civil Rights Commission (“HCRC”), dual-filed with the
Equal Employment Opportunity Commission (“EEOC”), on August 20,
2008, alleging discrimination due to race (African-American),
color (black), and age (forty-five at the time of the alleged
discrimination).

[Kee Decl., Exh. H; Khufu Decl. ¶ 5.]

Plaintiff did not check the box labeled “Retaliation” on the

13

Charge of Discrimination form.

Plaintiff received a right-to-sue

letter from the HCRC, dated August 4, 2009.

[Brower Decl., Exh.

N.]

Plaintiff filed his Complaint on November 2, 2009.

II.

Defendants’ Motion
Defendants seek summary judgment on the grounds that:

(1) Plaintiff’s retaliation claim fails because he did not
exhaust administrative remedies or engage in protected activity;
(2) Plaintiff was not subjected to a hostile work environment;
(3) Plaintiff was terminated due to his failure to report to work
and not due to discrimination based on his race, color, or age;
and (4) Plaintiff cannot maintain a claim for infliction of
emotional distress.

Defendants also assert that Plaintiff’s

economic damages are limited to $4,800.

Each argument is set

forth more fully below.
A.

Retaliation (Count IV)
Defendants first argue that Plaintiff’s retaliation

claim must be dismissed for failure to exhaust administrative
remedies because his HCRC Charge of Discrimination did not
include retaliation.

Plaintiff did not check the box for

retaliation or include any details relating to his retaliation
claim in the narrative section.

[Mem. in Supp. of Motion at 7.]

Next, Defendants argue that Plaintiff did not engage in
any protected activity, and cannot establish a prima facie case
for retaliation.

Plaintiff did not oppose a discriminatory
14

employment practice, and his complaints to Defendants’ corporate
office did not reference race, color, or age discrimination.
[Id. at 8-9.]

For these reasons, Defendants argue that Count IV

fails to state a claim for retaliation.
B.

Hostile Work Environment (Count II)
Defendants claim that Plaintiff fails to state a prima

facie claim for hostile work environment because he cannot
establish that he was subject to conduct of a racial or age-based
nature.

Further, Defendants claim that Plaintiff could identify

only two comments related to race at his deposition, and that
this conduct was not sufficiently severe and pervasive to create
a hostile work environment.
C.

[Id. at 10-11.]

Race, Color, and Age Discrimination (Count I)
According to Defendants, Plaintiff has not met his

burden of establishing a prima facie case of discrimination
because he cannot show that he was performing up to Jones Group’s
legitimate expectations or that Jones Group treated similarly
situated younger, non-black employees more favorably.

[Id. at

12-13.]
Defendants also argue that Plaintiff cannot establish
that Jones Group’s legitimate business reason for terminating him
was pretextual.

Poulin, the Human Resources Manager who made the

ultimate decision to terminate Plaintiff, did not consider
Plaintiff’s race, color or age when making the decision,
15

according to Defendants.
D.

[Id. at 15.]

Emotional Distress Claim (Count III)

Defendants argue that they are entitled to summary
judgment on Plaintiff’s intentional infliction of emotional
distress (“IIED”) claim because Plaintiff made no allegations
that Defendants engaged in acts that were outrageous, without
just cause, or beyond all bounds of decency.
E.

[Id. at 16.]

Economic Damages

Last, in the event that any claims survive the Motion,
Defendants assert that Plaintiff’s economic damages are limited
to $4,800.

After he was terminated by Jones Group, Plaintiff

worked at Banana Republic in Waikiki from June 2008 to January
2009, when the store closed.

[Kee Decl., Exh. K, Plaintiff’s

Answers to Interrogatories, at ¶¶ 9, 11.]

There, Plaintiff

earned ten dollars per hour for thirty hours per week, the same
rate he earned at Nine West.

[Id. at ¶ 9.]

As of September 1,

2010, Plaintiff stated that he was not looking for work because
he was a full-time student.

[Id. at ¶ 11.]

Defendants claim that Plaintiff has a duty to use
reasonable diligence to find other employment in order to
mitigate his damages.

[Mem. in Supp. of Motion at 16.]

Because

Plaintiff was terminated in February 2008, and began working at
Banana Republic in June 2008, but stopped looking for work when
the Banana Republic store closed in January 2009, Plaintiff’s
16

maximum potential damages are limited to the period from
February 6, 2008 through May 2008.

[Id.]

Defendants calculate

Plaintiff’s damages at $10 per hour for thirty hours per week
($300 per week) for sixteen weeks, for a total amount of $4,800.
Defendants ask that partial summary judgment be granted to limit
Plaintiff’s claim for lost wages to no more than $4,800.
III. Plaintiff’s Memorandum in Opposition
Plaintiff argues in opposition that the actions of
Plaintiff’s “co-workers and managers indicate the tone of
discrimination at the store and the underlying racially motivated
actions in creating the scenario to terminate Plaintiff.”
in Opp. at 5.]

[Mem.

Plaintiff argues that Defendants have not

rebutted his claim that he was the highest producing Sales
Associate at the store, and that “[n]o other employees were set
up to be fired as was Plaintiff.”

[Id.]

According to Plaintiff, the fact that Poulin made the
decision to terminate him “is not dispositive in light of the
recent Supreme Court decision in Staub v. Proctor, [131 S. Ct.
1186] (2011), which held that the Court must look at all
incidents of adverse employment action, not just the final
decision.”

[Id. at 5-6.]
Plaintiff disputes the facts as presented by

Defendants, arguing that he was falsely accused of violating
company policies, and that he had “informed management that he

17

could not work on the days he was terminated for by not calling
in nor working.”

[Id. at 3.]

Plaintiff asserts that there are

genuine issues of material fact precluding summary judgment.
IV.

Defendants’ Reply
In reply, Defendants argue that there are no genuine

issues of material fact, and the Court should dismiss case in its
entirety.

Defendants claim that Plaintiff’s affidavit “deals

only with petty slights not relevant to the issues before the
Court” and that there is no connection between these issues and
Plaintiff’s termination, nor is there any evidence that his
termination was based on improper discrimination.

[Reply at 2.]

Defendants assert that Plaintiff’s opposition failed to
address, and therefore abandoned, several of his claims.

They

claim Plaintiff failed to provide any evidence of a hostile work
environment, offered no challenge to their defense to his
retaliation claim, and made no effort to support his claim for
intentional infliction of emotional distress.

[Id. at 3-4.]

According to Defendants, Plaintiff offers no admissible
evidence that contradicts the showing that Plaintiff was
terminated based on his violations of the attendance policy, and
was not subject to illegal discrimination.

Defendants claim they

made substantial efforts to accommodate Plaintiff’s school
schedule, and that Plaintiff failed to explain why the company
was required to “schedule him for work only one day per week

18

because of his 6 credit hour schedule[.]”

[Id. at 5.]

Plaintiff

was aware of his class schedule months before the semester began,
but Defendants argue that he neglected to inform them of his
schedule until January 2008.

[Id.]

Waiting until January 2008

to inform his managers of his scheduling conflicts was too late
to enable them to accommodate his class schedule for January or
February 2008, according to Defendants.

[Id. at 6.]

To the

extent Plaintiff alleges that he was purposely scheduled to work
on days that he had classes, Defendants argue that those claims
are conclusory and lack foundation.

[Id.]

Next, Defendants assert that Plaintiff’s opposition
made no attempt to rebut their showing that other employees were
not treated more favorably with respect to scheduling or
attendance.

[Id. at 7.]

Defendants also argue that portions of Plaintiff’s
Declaration are inadmissible and should be disregarded, because
they are self-serving and uncorroborated by other testimony.
[Id. at 7-8.]

For example, Plaintiff states that Santiago

prepared weekly schedules only one week in advance, [Khufu Decl.
¶ 30,] but Defendants argue that he had no personal knowledge of
when she prepared the schedules.

[Reply at 8.]

Defendants also

argue that Plaintiff’s assertion that his termination was
discriminatory because he informed management of his scheduling
conflict, and because he did not commit the violations for which

19

he was written up, is conclusory, and unsupported by evidence.
Finally, Defendants posit that Plaintiff’s assertion that
Samuelsson told him that Defendants do not hire African-Americans
is hearsay and is contradicted by her deposition testimony.
[Id. at 8-9.]
Defendants contest Plaintiff’s reliance on Staub,
arguing instead that the case is not applicable here because
Plaintiff’s termination was based on his absences, rather than a
violation of some prior corrective action or directive.
9-10.]

[Id. at

Defendants argue that there is no evidence that any

supervisor was motivated by unlawful animus, like race or age
discrimination, so the theory in Staub does not apply.
STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a
party is entitled to summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Summary judgment must be granted against a
party that fails to demonstrate facts to establish
what will be an essential element at trial. See
Celotex [Corp. v. Catrett], 477 U.S. [317,] 323
[(1986)]. A moving party has both the initial
burden of production and the ultimate burden of
persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210
F.3d 1099, 1102 (9th Cir. 2000). The burden
initially falls on the moving party to identify
for the court “those 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. Pac. Elec. Contractors Ass’n, 809
20

F.2d 626, 630 (9th Cir. 1987) (citing Celotex
Corp., 477 U.S. at 323). “A fact is material if it
could affect the outcome of the suit under the
governing substantive law.” Miller [v. Glenn
Miller Prods., Inc.], 454 F.3d [975,] 987 [(9th
Cir. 2006)].
When the moving party fails to carry its
initial burden of production, “the nonmoving party
has no obligation to produce anything.” In such a
case, the nonmoving party may defeat the motion
for summary judgment without producing anything.
Nissan Fire, 210 F.3d at 1102-03. On the other
hand, when the moving party meets its initial
burden on a summary judgment motion, the “burden
then shifts to the nonmoving party to establish,
beyond the pleadings, that there is a genuine
issue for trial.” Miller, 454 F.3d at 987. This
means that the nonmoving party “must do more than
simply show that there is some metaphysical doubt
as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted). The nonmoving
party may not rely on the mere allegations in the
pleadings and instead “must set forth specific
facts showing that there is a genuine issue for
trial.” Porter v. Cal. Dep’t of Corr., 419 F.3d
885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
“A genuine dispute arises if the evidence is such
that a reasonable jury could return a verdict for
the nonmoving party.” California v. Campbell, 319
F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000)
(“There must be enough doubt for a ‘reasonable
trier of fact’ to find for plaintiffs in order to
defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving
party’s evidence is to be believed, and all
justifiable inferences are to be drawn in that
party’s favor.” Miller, 454 F.3d at 988
(quotations and brackets omitted).
Rodriguez v. Gen. Dynamics Armament & Technical Prods., Inc., 696
F. Supp. 2d 1163, 1176 (D. Hawai‘i 2010) (some citations
omitted).

21

DISCUSSION
I.

Retaliation (Count IV)
Under Title VII, an employer may not discriminate

against an employee because the employee has opposed an
employment practice made unlawful by Title VII.

42 U.S.C.

§ 2000e–3(a) (“It shall be an unlawful employment practice for an
employer to discriminate against any of his employees . . .
because he has opposed any practice [prohibited by Title VII]
. . . or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under [Title VII].”); Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 59 (2006) (“Title VII’s anti-retaliation
provision forbids employer actions that discriminate against an
employee . . . because he has opposed a practice that Title VII
forbids or has made a charge, testified, assisted, or
participated in a Title VII investigation, proceeding, or
hearing.” (citations and quotation marks omitted)).
A plaintiff first must exhaust his administrative
remedies before bringing a Title VII claim in federal court.
Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001)
(citing 42 U.S.C. § 2000e-16(c)).

The scope of a Title VII

action depends on the scope of the EEOC charge.

Id. at 708.

A

federal court therefore may not consider allegations outside the
EEOC charge.

See Freeman v. Oakland Unified Sch. Dist., 291 F.3d
22

632, 636 (9th Cir. 2002).

Plaintiff’s HCRC/EEOC charge did not

include allegations of retaliation, therefore, Plaintiff has not
exhausted his administrative remedies with respect to his
retaliation claim.
Further, at the May 16, 2011 hearing on the Motion,
Plaintiff’s counsel acknowledged that the record does not
demonstrate that Plaintiff complained to Defendants’ home office
regarding discrimination based on race, color, or national
origin.

Moreover, based on the Court’s review of the record, it

does not appear that Plaintiff opposed a practice that Title VII
forbids, and there is no evidence that Plaintiff suffered an
adverse employment action because of any such complaint.

The

Court therefore GRANTS Defendants’ Motion as to Count IV.
II.

Hostile Work Environment (Count II)
A hostile work environment claim based on race requires

that a plaintiff show that: (1) he was subjected to verbal or
physical conduct of a racial nature; (2) the conduct was
unwelcome; and (3) the conduct was sufficiently severe or
pervasive to alter the employee’s conditions of employment and
create an abusive work environment.

Vasquez v. County of Los

Angeles, 349 F.3d 634, 642 (9th Cir. 2003).
At the May 16, 2011 hearing on the Motion, Plaintiff’s
counsel conceded that the conduct at issue was not sufficiently
severe or pervasive to support a claim for hostile work

23

environment.

The Court agrees and therefore GRANTS Defendants’

Motion as to Count II.
III. Intentional Infliction of Emotional Distress (Count III)
“The elements of the tort of intentional infliction of
emotional distress are 1) that the act allegedly causing the harm
was intentional or reckless, 2) that the act was outrageous, and
3) that the act caused 4) extreme emotional distress to another.”
Hac v. Univ. of Haw., 102 Hawai‘i 92, 106-07, 73 P.3d 46, 60-61
(2003) (adopting IIED standard from Restatement (Second) of
Torts).
In explaining the type of “outrageous” conduct
that makes a claim for intentional infliction of
emotional distress actionable, the Restatement
(Second) of Torts states:
It has not been enough that the defendant has
acted with an intent which is tortious or
even criminal, or that he has intended to
inflict emotional distress, or even that his
conduct has been characterized by “malice,”
or a degree of aggravation which would
entitle the plaintiff to punitive damages for
another tort.
Liability has been found only
where the conduct has been so outrageous in
character, and so extreme in degree, as to go
beyond all bounds of decency, and to be
regarded as atrocious, and utterly
intolerable in a civilized community.
Generally, the case is one in which the
recitation of the facts to an average member
of the community would arouse his resentment
against the actor, and lead him to exclaim,
“Outrageous!”
Ross v. Stouffer Hotel Co. (Hawai‘i) Ltd., Inc., 76 Hawai‘i 454,
465 n.12, 879 P.2d 1037, 1048 n.12 (1994) (quoting Restatement

24

(Second) of Torts § 46, cmt. d. (1965)).

“The question whether

the actions of the alleged tortfeasor are . . .

outrageous is

for the court in the first instance, although where reasonable
persons may differ on that question it should be left to the
jury.”

Nagata v. Quest Diagnostics Inc., 303 F. Supp. 2d 1121,

1127 (D. Hawai‘i 2004) (citing Shoppe v. Gucci Am., Inc., 94
Hawai‘i 368, 387, 14 P.3d 1049, 1068 (2000)).
At the May 16, 2011 hearing on the Motion, Plaintiff’s
counsel conceded that the conduct at issue was not sufficiently
outrageous or extreme to support a claim for intentional
infliction of emotional distress.

The Court agrees and therefore

GRANTS Defendants’ Motion as to Count III.
IV.

Race, Color, and Age Discrimination (Count I)
The Court follows the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), as to
Plaintiff’s Title VII discrimination claims.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed.2d 668 (1973), provides a
“useful tool at the summary judgment stage” in
addressing Title VII claims. See McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).
Under this framework, Plaintiff has the initial
burden to establish a prima facie case of
discrimination. E.E.O.C. v. Boeing Co., 577 F.3d
1044, 1049 (9th Cir. 2009) (citation and quotation
omitted). “The requisite degree of proof
necessary to establish a prima facie case for
Title VII . . . on summary judgment is minimal and
does not even need to rise to the level of a
preponderance of the evidence.” Cordova v. State
Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.
1997) (citation omitted).
25

Hughes v. Mayoral, 721 F. Supp. 2d 947, 957-58 (D. Hawai‘i 2010).
A prima facie case under McDonnell Douglas requires a
plaintiff to offer proof that: (1) he belongs to a protected
class; (2) he performed his job adequately or satisfactorily;
(3) he suffered an adverse employment action; and (4) other
similarly situated employees who do not belong to the same
protected class were treated differently.

McDonnell Douglas, 411

U.S. at 802; Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1028 (9th Cir. 2006); Noyes v. Kelly Servs., 488 F.3d 1163,
1168 (9th Cir. 2007).
After a plaintiff establishes a prima facie
showing of discrimination, the burden under the
McDonnell Douglas framework shifts to a defendant
to put forward a legitimate, non-discriminatory
reason for its actions. McDonnell Douglas Corp.,
411 U.S. at 802, 93 S. Ct. 1817. A defendant’s
burden to articulate some legitimate,
nondiscriminatory reason for the challenged action
is merely a burden of production, not persuasion.
Chuang v. Univ. of Cal. Davis Bd. of Trs., 225
F.3d 1115, 1123-24 (9th Cir. 2000). If a
defendant puts forth a legitimate,
nondiscriminatory reason, the burden shifts back
to the plaintiff to show that the given reason is
merely pretext for a discriminatory motive.
Boeing Co., 577 F.3d at 1049 (citation and
quotation omitted).
Hughes, 721 F. Supp. 2d at 957-58.
“[A] plaintiff’s burden is much less at the prima facie
stage than at the pretext stage.”

Hawn v. Exec. Jet Mgmt., Inc.,

615 F.3d 1151, 1158 (9th Cir. 2010).

That is, circumstantial

evidence of pretext must be specific and substantial, see

26

Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1163
(9th Cir. 2009), and a plaintiff must do more than merely deny
the credibility of the defendant’s proffered reason.

See Schuler

v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir. 1986).

“A

plaintiff can show pretext directly, by showing that
discrimination [or retaliation] more likely motivated the
employer, or indirectly, by showing that the employer's
explanation is unworthy of credence.”

Vasquez v. Cnty. of Los

Angeles, 349 F.3d 634, 641 (9th Cir. 2003); see also Coghlan v.
Am. Seafoods Co., 413 F.3d 1090, 1094–95 (9th Cir. 2005).
“Direct evidence typically consists of clearly sexist, racist, or
similarly discriminatory [or retaliatory] statements or actions
by the employer.”

Coghlan, 349 F.3d at 1095.

Circumstantial

evidence requires an additional inferential step to demonstrate
discrimination.

Id.

Despite this “useful tool” of the McDonnell
Douglas framework, there is nothing that “compels
the parties to invoke the McDonnell Douglas
presumption.” McGinest, 360 F.3d at 1122. “When
responding to a summary judgment motion . . . [the
plaintiff] may proceed by using the McDonnell
Douglas framework, or alternatively, may simply
produce direct or circumstantial evidence
demonstrating that a discriminatory reason more
likely than not motivated [the employer].”
Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
2007) (quoting McGinest, 360 F.3d at 1122). If
the plaintiff submits direct or circumstantial
evidence, “a triable issue as to the actual
motivation of the employer is created even if the
evidence is not substantial.” Id. (quoting Godwin
v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
Cir. 1998)).
27

Hughes, 721 F. Supp. 2d at 957-58.
The same general framework applies for both Plaintiff’s
Title VII and Hawai‘i state law discrimination claims.

See

Schefke v. Reliable Collection Agency, Ltd., 96 Hawai‘i 408, 426,
32 P.3d 52, 70 (2001); Villiarimo v. Aloha Island Air, Inc., 281
F.3d 1054, 1064 (9th Cir. 2002) (recognizing that Hawai‘i courts
use the McDonnell Douglas framework in analyzing analogous state
law claims).

Accordingly, the Court provides a single framework

and analysis for these claims.
Defendants argue that Plaintiff has not met his burden
of establishing a prima facie case of discrimination because he
cannot show that Jones Group treated similarly situated younger,
non-Black employees more favorably.

The Court disagrees.

There

is some evidence that another similarly situated employee who did
not belong to the same protected class was treated differently.
For example, Plaintiff states that, on January 20, 2008, he was
written up and sent home from work by Assistant Manager Claire
Neyra for being inappropriately dressed.

[Khufu Decl. ¶ 21.]

Plaintiff claims that another employee, “Rob” (a Caucasian in his
twenties), was “allowed to wear shirts with labeling on them but
I was not.

I was written up for no reason.”

[Id. at ¶ 22.]

For

the purposes of summary judgment, the Court finds that Plaintiff
has satisfied the minimal requirement necessary to establish a
prima facie case.

See Cordova, 124 F.3d at 1148 (“The requisite

28

degree of proof necessary to establish a prima facie case for
Title VII . . . on summary judgment is minimal and does not even
need to rise to the level of a preponderance of the evidence.”
(citation omitted)).
Defendants assert a legitimate, non-discriminatory
reason for Plaintiff’s termination, namely, his repeated failure
to work when scheduled or call the store prior to such absences
(i.e., “no call, no show”).

Plaintiff’s termination did not

result from violations recorded on the Associate Progressive
Counseling forms or other work-place issues.

The burden then

shifts to Plaintiff to demonstrate that this proffered
explanation is pretextual.
Defendants argue that Poulin, the Human Resources
Manager who made the ultimate decision to terminate Plaintiff,
did not consider Plaintiff’s race, color or age when making the
decision.

Plaintiff, however, argues that he was “set up” to not

be able to show up for work, as evidenced by his managers’
“underlying racially motivated actions in creating the scenario
to terminate Plaintiff.”

[Mem. in Opp. at 5.]

Plaintiff relies

on the Supreme Court’s recent decision in Staub v. Proctor Hosp.,
131 S. Ct. 1186 (2011).
In Staub, the Supreme Court considered the
circumstances under which an employer may be held liable for the
discriminatory animus of an employee who influenced, but did not

29

make, the ultimate adverse employment decision.

This is

sometimes referred to as “cat’s paw” liability.

See Poland v.

Chertoff, 494 F.3d 1174, 1182-83 (9th Cir. 2007); EEOC v. BAI
Coca-Cola Bottling Co. of Los Angeles, 450 F.3d 476, 486 (10th
Cir. 2006) (“A biased low-level supervisor with no disciplinary
authority might effectuate the termination of an employee from a
protected class by recommending discharge or by selectively
reporting or even fabricating information in communications with
the formal decision maker.”).

Staub held that, where an employee

performs an act motivated by discriminatory animus intending to
cause an adverse employment decision, the employer will be liable
if that act is a proximate cause of the eventual adverse
employment decision.

131 S. Ct. at 1194.

Here, Defendants argue that there is no evidence that
any supervisor was motivated by unlawful animus, like race or age
discrimination, so the theory in Staub does not apply.

There is,

however, some evidence – albeit slight – of conduct by
Plaintiff’s supervisors that raises an issue of fact regarding
unlawful animus.

For example, Plaintiff states that in November

2007, he “was instructed by Santiago to tell a black male who had
requested an employment application that she was not available
and that he would be wasting his time by filling ou[t] the
application.”

[Khufu Decl. ¶ 13.]

Plaintiff argues that there

is evidence of Santiago’s bias during his initial application and

30

hiring, although she made no statement explicitly referencing
Plaintiff’s race, color, or age.

Santiago’s alleged statement

discouraging Samuelsson from hiring Plaintiff, coupled with
Plaintiff’s assertion that Samuelsson told him that Defendants
did not normally hire black men of his age, could support an
inference of unlawful animus.

Further, Santiago was responsible

for preparing the work schedule that conflicted with Plaintiff’s
Spring Semester schedule, and which eventually led to his
termination for violation of the attendance policy.
Plaintiff also argues that there is an issue of fact
regarding when Santiago created the schedule.

According to

Santiago, she prepared the store schedules for January 2008, and
likely posted them sometime in December 2007.
15.]

[Santiago Decl. ¶

Plaintiff claims that Santiago prepared and posted weekly

schedules the week prior to the next work week.
16.]

[Khufu Decl. ¶

Plaintiff also argues that, from January 10, 2008 when he

notified Neyra, Defendants had actual notice that his work
schedule conflicted with school and that he would not be able to
work on those days, but that Defendants made no effort to
accommodate him, when they did accommodate other employees.
Plaintiff claims that, when he asked why he was being scheduled
for closing times, he was not given an explanation, and that
other employees “received the work/hours they wanted.

Brown had

a second job and Defendants’ man[a]gers worked around Brown’s

31

schedule to accommodate her, but would not do the same for me.”
[Khufu Decl. ¶¶ 27-28.]
The Court is mindful that Defendants presented
compelling evidence that other similarly situated employees not
of Plaintiff’s race or age were also terminated for violating the
attendance policy.

The Court, however, must consider the

additional evidence presented by Plaintiff that he was “set up”
to violate the attendance policy based on unlawful animus by his
supervisors.

Thus, although Poulin made the decision to

terminate Plaintiff based on violations of the attendance policy,
and without any discriminatory intent, that decision may have
been made in reliance on factors affected by Plaintiff’s
supervisors’ unlawful animus.

See Galdamez v. Potter, 415 F.3d

1015, 1026 n.9 (9th Cir. 2005) (“Title VII may still be violated
where the ultimate decision-maker, lacking individual
discriminatory intent, takes an adverse employment action in
reliance on factors affected by another decision-maker’s
discriminatory animus.”).

“The degree to which [the final

decision maker’s] decisions were based on his own independent
investigation is a question of fact.”

Long v. Eastfield College,

88 F.3d 300, 307 (5th Cir. 1996).
On summary judgment, “the nonmoving party’s evidence is
to be believed, and all justifiable inferences are to be drawn in
that party’s favor.”

Miller v. Glenn Miller Prods., Inc., 454

32

F.3d 975, 988 (9th Cir. 2006).

Viewing the facts in the light

most favorable to Plaintiff, the Court concludes that a
combination of factors, any of which judged alone would be less
than compelling, provides sufficient evidence that would allow a
reasonable jury to conclude that Defendants’ proffered reason for
terminating Plaintiff was a pretext for discrimination, or “that
a discriminatory reason more likely than not motivated [the
employer].”

Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.

2007) (citation and quotation omitted).

Moreover, “a triable

issue as to the actual motivation of the employer is created even
if the evidence is not substantial.”

Id. (quoting Godwin v. Hunt

Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)).

Thus, the

Court finds that a genuine issue of material fact exists with
regard to Count I, Plaintiff’s claim for discrimination based on
race, color, and age.

Defendants’ Motion is therefore DENIED as

to Count I.
V.

Plaintiff’s Economic Damages
Finally, Defendants assert that Plaintiff’s economic

damages are limited to $4,800.

After he was terminated by Jones

Group, Plaintiff worked at Banana Republic in Waikiki, where he
earned ten dollars per hour for thirty hours per week, from June
2008 to January 2009, when the store closed.

[Kee Decl., Exh. K,

Plaintiff’s Answers to Interrogatories, at ¶¶ 9, 11.]

Plaintiff

did not seek work after that because he was a full-time student.

33

[Id. at ¶ 11.]
While a plaintiff has a duty to use reasonable
diligence in finding other suitable employment, the employer has
the burden of proving the plaintiff’s failure to mitigate
damages.

See Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497

(9th Cir. 1995).

Plaintiff offered no argument in his memorandum

in opposition regarding his failure to mitigate.

At the May 16,

2011 hearing, Plaintiff did not contest Defendants’ assertions
that he failed to use reasonable diligence in seeking
substantially equivalent employment and that his economic damages
were limited to $4,800.

The Court therefore GRANTS Defendants’

Motion with respect to Plaintiff’s failure to mitigate damages,
and concludes that Plaintiff’s damages for lost wages are limited
to no more than $4,800.
CONCLUSION
On the basis of the foregoing, Defendants JAG Footwear,
Accessories and Retail Corporation, formerly known as Jones
Retail Corporation, and The Jones Group Inc., formerly known as
Jones Apparel Group, Inc.’s Motion for Summary Judgment, filed on
March 8, 2011, is HEREBY GRANTED IN PART AND DENIED IN PART as
follows:
1.

The Motion is DENIED as to Count I;

2.

The Motion is GRANTED as to Counts II, III, and IV; and

3.

The Motion is GRANTED with respect to Plaintiff’s

34

failure to mitigate damages, and Plaintiff’s damages
for lost wages are limited to no more than $4,800.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, May 31, 2011.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

SEBREN KHUFU V. JONES RETAIL CORPORATION, ET AL; CIVIL NO. 1000262 LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

35