Clemmons v. Hawaii Medical Services Association et al

Filing 112

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF'S CLAIMS IN COUNTS I, II, AND III OF THE COMPLAINT 51 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/29/11. ("The clerk of the court is directed t o enter judgment pursuant to this order and to close the case.") (emt, )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
ROBERT M. CLEMMONS,

)
)
Plaintiff,
)
)
vs.
)
)
HAWAII MEDICAL SERVICES
)
ASSOCIATION, a Hawaii
)
corporation, KUHIO MEDICAL
)
CENTER, a Hawaii corporation, )
HAWAII FAMILY MEDICAL
)
CENTERS, a Hawaii
)
corporation, INTEGRATED
)
SERVICES, INC., a Hawaii
)
corporation, DIANE KENT, and )
DOES 1-20,
)
)
Defendants.
)
_____________________________ )

CIVIL. NO. 10-00513 SOM/BMK
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
AS TO PLAINTIFF’S CLAIMS IN
COUNTS I, II, AND III OF THE
COMPLAINT

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AS TO
PLAINTIFF’S CLAIMS IN COUNTS I, II, AND III OF THE COMPLAINT
I.

INTRODUCTION.
On September 2, 2010, Plaintiff Robert M. Clemmons

(“Clemmons”) filed a complaint against Defendants Hawaii Medical
Services Association (“HMSA”), Kuhio Medical Center (“KMC”),
Hawaii Family Medical Centers (“HFMC”), Integrated Services, Inc.
(“ISI”), and Diane Kent (“Kent”) (collectively “Defendants”),1
alleging gender and race discrimination under Title VII of the

1

Defendants Kent and KMC were previously dismissed from
this action. See Order Granting Defs.’ Mot. To (1) Dismiss Pl.’s
Compl. Against Diane Kent, (2) Dismiss Count IV, And (2) Strike
Para. 69 And 70 Of The Compl., Jan. 28, 2011, ECF No. 32 (“Order
Granting Motion to Dismiss”).
1

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title
VII”), breach of contract, and negligence.

Clemmons alleges that

the staff at KMC discriminated against him because of his gender
and race and that he suffered retaliation because of complaints
he made to supervisors.

Conversely, Defendants contend that

Clemmons cannot prove a prima facie case of discrimination and
that Clemmons was terminated because of patient complaints and a
breach of patient confidentiality.
The court previously dismissed Clemmons’s claim for
negligence and struck references in his Complaint to age and
national origin discrimination.
Dismiss, ECF No. 32.

See Order Granting Motion to

Defendants now move for summary judgment

against Clemmons on all remaining claims.

For the reasons

discussed herein, the motion is GRANTED.
II.

BACKGROUND FACTS.
Clemmons is a Caucasian male who was 55 years old at

the time he resigned in lieu of being fired in 2009.

Beginning

in August 1993, Clemmons was employed by HFMC at KMC on the
island of Kauai, State of Hawaii.

See Compl. ¶ 2, ECF No. 1.

HFMC is a wholly owned ISI subsidiary.
HMSA subsidiary.

ISI is a wholly owned

Clemmons alleges that he was constructively

discharged on or about April 8, 2009.

Id. at ¶¶ 1-2, 24.

Clemmons suffers from macular degeneration in both
eyes.

Id. at ¶ 4.

This disability, he alleges, did not impair

2

his ability to perform his duties.

Id.

Clemmons alleges that, while employed at KMC as a
radiology technician, he was “subjected to constant verbal
harassment and derogatory comments” from female, nonwhite clinic
staff regarding his gender, race, marital status, and disability.
Id. at ¶ 2.

He also alleges that he was treated differently by

being required to perform menial tasks not requested of female
employees, such as cleaning up bathroom messes or carrying boxes
from a manager’s car.

Id.

Clemmons alleges that he nevertheless

received regular salary increases and favorable employment
reviews until Kent became his manager.

Id. at ¶ 13.

According to Clemmons, upon becoming his manager at
some unstated time, Kent “increased the pattern of discriminatory
conduct.”

Id. at ¶ 2.

Clemmons alleges that Kent reduced

Clemmons’s scheduled annual pay raise even though there was no
problem with his employment, while not reducing female, nonwhite
employees’ pay raises.

Id. at ¶ 20.

Clemmons alleges that Kent

denied pay to Clemmons for overtime work, altered his overtime
cards, and made it difficult in various other ways for him to
obtain overtime, while not doing the same to female, nonwhite
employees.

Id. at ¶ 21.
Clemmons says that Kent told him in front of other

employees that he was not as smart or experienced as the female,
nonwhite employees and that he would always be an outsider.

3

Id.

at ¶ 2.

He alleges that Kent also made derogatory remarks in

front of employees and patients about Clemmons’s disability, his
ability to see, and the effect of his disability on his ability
to work.

Id. at ¶ 23.

According to Clemmons, Kent told him to

“come up to our level,” which he interpreted to mean the level of
nonwhites.

See Decl. of Robert M. Clemmons In Supp. Of His Opp’n

To Def.’s Mot. For Summ. J. (“Clemmons Decl.”) ¶ 20, ECF No. 93.
Clemmons alleges that Kent sexually harassed him by
making inappropriate comments regarding his marital status and
his wife and by sitting uncomfortably close to him.
ECF No. 1.

Compl. ¶ 22,

For example, he alleges that Kent “jealous[ly] . . .

degrad[ed] him for politely saying goodbye to a departing female
intern.”

Id. at ¶ 26.
According to Clemmons, he complained to HMSA management

about Kent’s inappropriate conduct.

He alleges that Kent

retaliated by excluding him from company activities, falsely
accusing him of sexually harassing female patients, and,
ultimately, setting Clemmons up so he would be forced to resign.
Id. at ¶¶ 2-3, 25.
Clemmons alleges that he complained about Muriah
Aquino, the head nurse, who was also supervised by Kent.
Clemmons stated that on March 20, 2009, Aquino yelled at him in
front of two patients that his “eyes are junk” and that he “mixed
up the patient orders again[.]”

See Clemmons Decl. at ¶ 31, ECF

4

No. 93.

Clemmons then complained to Kent about Aquino’s

behavior, but Kent allegedly took no action.

Id.

Clemmons filed

a complaint with the State of Hawaii Regulated Industries
Complaint Office (“RICO”), which looked into the matter but was
unable to assist because his complaint did not involve a
violation of licensing laws.
ECF No. 95-3.

See Exhibit “6" to Clemmons Decl.,

The RICO investigator noted that Clemmons had not

filed a complaint with Kent or KMC and suggested that he might
want to consider filing a complaint with KMC.

Id.

Two complaints by patients about Clemmons preceded his
termination.

On January 5, 2009, a female patient complained

that Clemmons had made her uncomfortable by taking an excessive
amount of time feeling her chest area, then asking her “how[]
[she got] that body” and if she practiced yoga.

See Defs. Hawaii

Medical Service Association, Hawaii Family Medical Centers, And
Integrated Services, Inc.’s Mot. For Summ. J. As To Pl.’s Claims
In Counts I, II And III Of The Compl. 3, Aug. 17, 2011, ECF No.
51 (“Motion”).

After the examination, Clemmons allegedly

approached her in the waiting room, asked her again about her
body, and asked her if she was married.

Id. at 3-4.

HMSA’s

human resources department investigated that incident and
credited the patient’s account over Clemmons’s account.
4.

Id. at

Defendants gave Clemmons a warning on February 26, 2009, and

implemented a new policy requiring Clemmons to present female

5

patients with a flyer explaining the x-ray procedure and
requiring the presence of a female employee if necessary.

See

Clemmons Decl. at ¶ 28, ECF No. 93.
On March 23, 2009, a second female patient complained
to Defendants about Clemmons.

The patient claimed that when she

hesitated to undress for an x-ray, Clemmons “went ballistic” and
See Motion at 5, ECF No. 51.

ran in and out of the x-ray room.

Clemmons claimed that he sought assistance from female employees
to chaperone the x-ray in accordance with the new policy.
Clemmons Decl. at ¶ 33, ECF No. 93.

The patient became

uncomfortable and left without completing her x-ray.
at 5-6, ECF No. 51.

See

See Motion

Shortly thereafter, Clemmons reviewed the

patient’s personal records to retrieve her telephone number and
called her home to provide his version of the events.

Id. at 6.

Defendants say that the patient became scared and disturbed and
notified them on April 2, 2009.

Id.

Defendants again

investigated the complaint and concluded that Clemmons had
engaged in inappropriate behavior, including violating the
patient’s privacy.

Id. at 6-7.

Clemmons claimed that he

believed that he accessed the records for a proper business
purpose.

Id. at 7.

Citing the complaints, the assessment that

the inappropriate behavior was likely to continue, and Clemmons’s
failure to accept any responsibility for the events, HMSA decided
to terminate Clemmons’s employment.

6

Id. at 7-8.

On April 8,

2009, Clemmons was told that he would be terminated as a result
of the incident(s), or that he could resign.
resigned.

Id. at 8.

Clemmons

Id.
Clemmons asserts claims for racial and gender

discrimination in violation of Title VII.
No. 1.

Compl. ¶¶ 30-48, ECF

Additionally, Clemmons asserts common law claims for

breach of contract and promissory estoppel.

Id. at ¶¶ 49-60.

Clemmons seeks a declaratory judgment and an injunction granting
reinstatement, as well as back pay, benefits, compensatory
damages, punitive damages, and attorneys’ fees.
III.

Id. at 20.

STANDARD OF REVIEW.
Summary judgment shall be granted when “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.”
R. Civ. P. 56(a) (2010).

Fed.

See Addisu v. Fred Meyer, Inc., 198

F.3d 1130, 1134 (9th Cir. 2000).

The movants must support their

position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce

7

admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See id. at 323.

A moving party without the

ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., 210 F.3d 1099,
1102 (9th Cir. 2000).
The burden initially falls upon 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 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co., Ltd. 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

8

for trial.”
omitted).

T.W. Elec. Serv., Inc., 809 F.2d at 630 (quotation

At least some “‘significant probative evidence tending

to support the complaint’” must be produced.

Id. (quoting First

Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290
(1968)).

See Addisu, 198 F.3d at 1134 (“A scintilla of evidence

or evidence that is merely colorable or not significantly
probative does not present a genuine issue of material fact.”).
“[I]f the factual context makes the non-moving party’s claim
implausible, that party must come forward with more persuasive
evidence than would otherwise be necessary to show that there is
a genuine issue for trial.”

Cal. Arch’l Bldg. Prods., Inc. v.

Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)
(citing Matsushita Elec. Indus. Co., 475 U.S. at 587).

Accord

Addisu, 198 F.3d at 1134 (“There must be enough doubt for a
‘reasonable trier of fact’ to find for plaintiffs in order to
defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.

T.W. Elec. Serv.,

Inferences may be drawn from underlying

facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
Id.

When “direct evidence” produced by the moving party

conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the

9

evidence set forth by the nonmoving party with respect to that
fact.”
IV.

Id.
ANALYSIS.
Clemmons’s remaining claims allege (1) race

discrimination under Title VII, (2) gender discrimination under
Title VII, and (3) breach of contract and/or promissory estoppel.
Because Clemmons fails to make the requisite factual showing to
support his claims, the court grants summary judgment in favor of
Defendants.
A.

Clemmons’s Claims Of Discrimination Based On
Occurrences Before March 10, 2009, Are TimeBarred.

Before considering Clemmons’s substantive claims, the
court addresses Defendants’ argument that the statute of
limitations bars any claims arising out of events that occurred
over 300 days before the filing of the charge with the Equal
Employment Opportunity Commission (“EEOC”) and Hawaii Civil
Rights Commission (“HCRC”).

“Title VII contains several distinct

filing requirements which a claimant must comply with in bringing
a civil action.”

Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172

(9th Cir. 1986), as amended by 815 F.2d 570 (9th Cir. 1987).

A

plaintiff must first exhaust administrative remedies before
bringing a Title VII claim in this court.
States, 255 F.3d 704, 707 (9th Cir. 2001).
by filing a charge with the EEOC.

10

Sommatino v. United
A plaintiff does this

When a person also files a

charge with a state or local agency, the EEOC charge must be
filed “within three hundred days after the alleged unlawful
employment practice occurred.”

42 U.S.C. § 2000e-5(e)(1) (2009).

See EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000)
(“Although ordinarily the administrative charge must be filed
within 180 days of the alleged unlawful employment practice, the
deadline is extended to 300 days if the charge is initially filed
with a state agency that enforces its own anti-discrimination
laws.”).

This period is not jurisdictional; instead, it is a

statute of limitations.

See Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 393 (1982) (“We hold 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.”).
Clemmons filed his charge with the EEOC and the HCRC on
or around January 4, 2010.2

See Compl. ¶ 16.

before January 4, 2010, is March 10, 2009.

2

Three hundred days

Accordingly, any

Defendants note that although the charges were filed
on January 4, 2010, the charge filed with the EEOC was signed on
December 30, 2009 and December 29, 2009. Defendants appear to
give Clemmons the benefit of the doubt by counting back 300 days
from the earlier of the signing dates. See Motion at 10-11, ECF
No. 51. However, following the plain language of 42 U.S.C.
§ 2000e-5(e)(1), the court uses the filing date as the operative
date. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
108 (2002) (in interpreting Title VII law, the courts’ “most
salient source for guidance is the statutory text”).
11

“alleged unlawful employment practice” occurring before March 10,
2009, is time-barred.
In their motion, Defendants identify the adverse
actions (other than his termination) alleged by Clemmons during
his deposition testimony: (1) he was told to carry heavier
objects; (2) he was told to change the water; and (3) he was told
to “[c]lean up that mess, meaning when the toilet backs up.”
Motion at 11, 12 n.6, ECF No. 51.

However, Clemmons admitted

that these events occurred prior to February 26, 2009.

See Pl.

Dep. at 259:14-260:1, July 26, 2011, attached as Exhibit “A” to
Defs.’s Concise Statement Of Facts In Support Of Mot. For Summ.
J., Aug. 17, 2011, ECF No. 52-2.

These events, having occurred

prior to March 10, 2009, are beyond the 300-day statute of
limitations and may not be the bases of Clemmons’s claims in this
case.
The court is unpersuaded by Clemmons’s argument that
ongoing harassment saves his untimely claims.

First, the court

notes that Clemmons does not contest that these alleged adverse
actions would otherwise be barred by the statute of limitations.
Second, Clemmons still does not allege any adverse action that
falls within the 300-day period prior to the filing of this
charge with the EEOC and HCRC.

Third, Clemmons’s assertion of a

hostile work environment does not meet the test for establishing
a prima facie claim.

Notably, he does not allege ongoing

12

“unlawful employment practices” within the 300-day period that
evidence a hostile work environment.3

See Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101 (2002).
As noted by the United States Supreme Court in Morgan,
“[p]rovided that an act contributing to the claim occurs within
the filing period, the entire time period of the hostile
environment may be considered by a court for the purposes of
determining liability.”

Id. at 117.

In that case, an African-

American railroad worker brought suit against his employer for
racial discrimination.

With respect to his claims for “discrete

discriminatory acts,” the Supreme Court held that they “are not
actionable if time barred, even when they are related to acts
allegedly in timely filed charges. . . . The charge, therefore,
must be filed within the 180- or 300-day time period after the
discrete discriminatory act occurred.”

Id. at 113.

However,

with regard to a hostile environment claim, which is “composed of
a series of separate acts that collectively constitute one
‘unlawful employment practice,’” id. at 117 (citing 42 U.S.C.
§ 2000e-5(e)(1)), the unlawful employment practice “occurs over a
series of days or perhaps years and, in direct contrast to

3

This is not to say that Clemmons could not possibly
establish a claim for hostile work environment. However, the
Complaint, while asserting gender discrimination, does not
expressly describe the workplace as a hostile environment.
Moreover, the record at this time does not reflect the factors
necessary to establish a hostile work environment.
13

discrete acts, a single act of harassment may not be actionable
on its own.”

Id. at 115 (citing Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)).

So long as one act that is a part of

the continuing harassment falls within the 300-day period, all
acts constituting the “unlawful employment practice” may be
considered by the court.
4

Id. at 117.4

The Supreme Court expounded upon this distinction:

The following scenarios illustrate our
point: (1) Acts on days 1–400 create a
hostile work environment. The employee files
the charge on day 401. Can the employee
recover for that part of the hostile work
environment that occurred in the first 100
days? (2) Acts contribute to a hostile
environment on days 1–100 and on day 401, but
there are no acts between days 101–400. Can
the act occurring on day 401 pull the other
acts in for the purposes of liability? In
truth, all other things being equal, there is
little difference between the two scenarios
as a hostile environment constitutes one
“unlawful employment practice” and it does
not matter whether nothing occurred within
the intervening 301 days so long as each act
is part of the whole. Nor, if sufficient
activity occurred by day 100 to make out a
claim, does it matter that the employee knows
on that day that an actionable claim
happened; on day 401 all incidents are still
part of the same claim. On the other hand,
if an act on day 401 had no relation to the
acts between days 1–100, or for some other
reason, such as certain intervening action by
the employer, was no longer part of the same
hostile environment claim, then the employee
cannot recover for the previous acts, at
least not by reference to the day 401 act.
Morgan, 536 U.S. at 118.
14

In this case, even reading the Complaint as including a
hostile work environment claim, the court determines that the
claim is barred by the applicable statute of limitations.
Clemmons conceded in his deposition that the alleged harassment
concluded by 2004, over five years prior to the filing of
Clemmons’s charge with the EEOC and HCRC.
259:14-260:1, ECF No. 52-2.

See Pl. Dep. at

While Clemmons’s counsel argues that

he was subjected to snide remarks and teasing after that time, he
fails to provide admissible evidence of harassment occurring
during the limitation period.
At the hearing on the subject motion, Clemmons argued
that, even if the sexual harassment ceased in 2004, retaliatory
harassment started around that time.

When prompted by the court

to identify any form of retaliation before March 10, 2009, that
was not time-barred, Clemmons’s counsel pointed to (1) statements
from co-workers that he was “not as good as [they] are,” which he
believed implicated his sex and race,5 (2) “outbursts” in 2007

5

The court assumes that counsel is referencing Kent’s
alleged statement that Clemmons needs to “come up to [their]
level,” which he interpreted as being “racially motivated.” See
Pl. Dep. at 241:5-9, 260:21-22, ECF No. 52-2. Although Clemmons
stated in his declaration that Kent would “[say] this every time
[he] complained,” he fails to provide any specific dates or
circumstances. See Clemmons Decl. at ¶ 20, ECF No. 93. In his
deposition, Clemmons testified that Kent made this comment right
before he called Defendants’ employee hotline, which was in 2005.
See Pl. Dep. at 56:15-21, 241:16-20, ECF No. 52-2. The other
perceived racially motivated statement, that Clemmons was a
“haole,” was last made in January 2009. See id. at 262:23-263:6.
15

and 2009 by Aquino regarding his eyesight, (3) Aquino’s flirting
with a male nurse and calling him “honey” in 2007, and (4) Kent’s
alleged whiting out of his overtime records in 2007.

With the

exception of Aquino’s alleged outburst on March 20, 2009,
discussed below, these acts occurred before March 10, 2009.6
Clemmons needs to provide more than just a scintilla of evidence
or evidence that is merely colorable to avoid summary judgment.
He does not adequately link any of the events occurring before
March 10, 2009, to any subsequent retaliation, such that the
different events could be deemed one unlawful employment
practice.

Indeed, Clemmons does not show that the identified

events were retaliatory at all such that, tied to more recent
events, they could together be deemed what he calls “retaliatory
harassment.”

In light of his failure to meet his burden of tying

otherwise time-barred events to a timely retaliation claim, the
court determines that events before March 10, 2009, may not serve
as the basis for Clemmons’s claims, as any such claims are timebarred.

6

Clemmons also refers to ongoing harassment regarding
his disability between 2006 and 2009. However, the only
disability-related actions he identifies are one instance of
allegedly being told that his eyes were “junk” on March 20, 2009,
and unspecified instances during which co-workers laughed at him.
Given the vagueness of the laughter incidents, Clemmons does not
establish harassment based on disability that allows him to reach
back further than March 10, 2009.
16

B.

Clemmons Fails To Raise Any Genuine Dispute Of
Material Fact As To His Claim For Race And Gender
Discrimination.

Title VII makes it illegal for an employer “to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.”

42 U.S.C. § 2000e-2(a)(1) (1991).

To prevail

on his Title VII claims, Clemmons must satisfy the three-step,
burden-shifting test laid out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973).
First, Clemmons bears the initial burden of
establishing a prima facie case of race or gender discrimination
by a preponderance of the evidence.

This may be done by showing

(1) that Clemmons belongs to a protected class; (2) that he was
performing according to his employer’s legitimate expectations,
(3) that he suffered an adverse employment action, and (4) that
other employees not in his protected class with qualifications
similar to his own were treated more favorably.

Goodwin v. Hunt

Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998) (citing
McDonnell Douglas Corp., 411 U.S. at 802; Sischo-Nownejad v.
Merced Cmty. Coll. Dist., 934 F.2d 1104, 1109 n.7 (9th Cir.
1991)).
Second, if Clemmons establishes his prima facie case,

17

“the burden then shift[s] to the defendant to articulate
nondiscriminatory reasons for the allegedly discriminatory
conduct.”

Goodwin, 150 F.3d at 1220.

Defendants do not need to

carry their burden by a preponderance of the evidence; they need
only give a clear explanation of a nondiscriminatory reason for
their actions.

See Tex. Dep't of Cmty. Affairs v. Burdine, 450

U.S. 248, 257 (1981) (so long as the employer’s explanation is
“clear and reasonably specific,” it need only “articulate--not
prove--a legitimate, nondiscriminatory reason for his action”).
Finally, if Defendants present a nondiscriminatory
reason for their conduct, Clemmons must be given a full and fair
opportunity to demonstrate by competent evidence that the reasons
articulated by Defendants are in fact a pretext for or a coverup
of their discriminatory decision.

See Burdine, 450 U.S. at 253;

McDonnell Douglas Corp., 411 U.S. at 802-05; Lam v. Univ. of
Haw., 40 F.3d 1551, 1559 (9th Cir 1994).

Clemmons at all times

retains the ultimate burden of persuading the trier of fact that
Defendants intentionally discriminated against him.

See Burdine,

450 U.S. at 253 (citing Bd. of Trustees of Keene State Coll. v.
Sweeny, 439 U.S. 24, 25 n.2 (1978)).
1.

Clemmons Fails To Make Out A Prima Facie Case
For Race And Gender Discrimination.

Under Title VII, a prima facie case has four elements.
Under the first prong, Clemmons must prove that he is a
member of a protected class.

Although asserting claims for race
18

and gender discrimination, Clemmons attempts to satisfy this
prong by arguing that his disability places him in a protected
class.

See Pl. Robert M. Clemmons’ Opp’n To Def. Hawaii Family

Medical Centers, And Integrated Services, Inc.’s Mot. For Summ.
J. As To Counts I, II, And III Of The Compl. at 15, ECF No. 87
(“Opposition”).

Although this may be true, Clemmons’s protected

status relating to his disability is irrelevant to his claims for
race and gender discrimination.7

The court nevertheless

recognizes that Caucasian males, whether a part of the minority
or majority, are a protected class under Title VII.

Aragon v.

Republic Silver State Disposal Inc., 292 F.3d 654, 659 (9th Cir.
2002) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273, 278-79 (1976)).
Under the second prong, Clemmons must show that he
performed his job adequately or satisfactorily.

Defendants offer

five reasons that he cannot do this:
(1) Clemmons allegedly had a history of
misconduct towards female employees at KMC;

7

Although Clemmons makes numerous passing references
to his disability, including in his Complaint, he does not
actually assert a disability discrimination claim in that
pleading. Indeed, the Complaint refers to Title VII but not to
the Americans with Disabilities Act, even though the box for
disability discrimination was checked on Clemmons’s EEOC charge.
Questioned during his deposition, Clemmons testified that he was
bringing gender and race discrimination claims in his first and
second causes of action. Pl. Dep. at 274, 289, ECF No. 52-2.
Because Clemmons does not point to anything in the record
constituting a disability discrimination claim, the court does
not consider the merits of any disability discrimination claim.
19

(2) Clemmons was written up in connection
with a patient’s complaint that Clemmons
spent an inordinate amount of time checking
her chest area and made inappropriate
comments about her body;
(3) Less than a month later, another female
patient complained about Clemmons’s behavior
to KMC management;
(4) Clemmons allegedly violated that
patient’s privacy by obtaining her personal
telephone number from her confidential
medical records; and
(5) Clemmons allegedly refused, and still
refuses, to take any responsibility for
making either patient feel uncomfortable by
his actions.
Motion at 15-16, ECF No. 51.

Clemmons offers no specific facts

rebutting the above but points to “his length of service, his
skills and other evidence” as showing that there is at least a
question of fact as to whether he “performed his job in a
competent manner.”

See Opposition at 16-17, ECF No. 87.

The court does not consider as evidence of Clemmons’s
purported failure to perform his job satisfactorily the two
patient complaints that Defendants relied on in offering him a
chance to resign.

If allegedly improper acts underlying an

alleged termination were allowed to satisfy this prong, the test
“would be rendered superfluous in the current scenario and many
other similar employment discrimination cases. . . . [T]he intent
behind this particular prong is to ensure that the employee was
otherwise qualified for the position of employment as it relates

20

to the actual performance of necessary duties and the skills
required for the position.”

Hawn v. Exec. Jet Mgmt., Inc., 546

F. Supp. 2d 703, 717 (D. Ariz. 2008).

As it turns out, this

court need not determine whether Clemmons satisfies the second
prong of a discrimination claim because there is another prong
that he clearly does not satisfy.
It is not the third prong that is problematic.

The

parties agree for purposes of this motion that Clemmons suffered
an adverse employment action.
The problem lies with the fourth prong, which requires
Clemmons to show that other similarly situated employees not in
the same class were treated more favorably.

To satisfy this

prong for his race discrimination claim, Clemmons must show that
non-Caucasian employees who were engaged in similar conduct were
treated more favorably.

To satisfy this prong for his gender

discrimination claim, he must show that female employees engaged
in similar conduct were treated more favorably.

Similarly

situated employees must “have similar jobs and display similar
conduct.”

Vasquez v. County of L.A., 349 F.3d 634, 641 (9th Cir.

2003).
As Defendants point out in their motion and reply,
Clemmons has conceded that he is unable to point to similarly
situated individuals outside his class who were treated more
favorably.

See Motion at 16, ECF No. 51; Defs.’ Reply Mem. In

21

Supp. Of Mot. For Summ. J. As To Pl.’s Claims In Counts I, II And
III Of The Compl. Filed Aug. 17, 2011 14, Dec. 5, 2011, ECF No.
108.

Aside from restating the law, Clemmons also fails to

provide any indication of a comparative analysis in his
opposition or any facts that create a genuine dispute in this
regard. See Opposition at 22-25, ECF No. 87.8
At the hearing on this motion, Clemmons offered Aquino.
Clemmons essentially claims that when Aquino complained about his
conduct, Defendants took no adverse action against her, while he
says he was terminated for complaining about Aquino’s actions.
Clemmons fails to analyze how he and Aquino were similarly
situated, other than to state that both he and Aquino were
supervised by Kent.

In fact, Aquino was his supervisor, so it is

difficult to see how she could have been “similarly situated.”
Clemmons also referred to three or four other nurses as
similarly situated employees, but failed to provide sufficient
detail or specific evidence from which it could be concluded that
they were similarly situated or treated more favorably.
Ultimately, Clemmons has offered no specific examples of

8

Clemmons states that “[t]he question in this case of
whether there were similarly situated employees is a difficult
one [since] Mr. Clemmons was, for all intent[s] and purpose[s],
the only white, the only male, and only one of two older
employees.” Opposition at 23, ECF No. 87. Clemmons appears to
think that the proper analysis compares two similar employees of
the same class, i.e., that he must compare himself to another
Caucasian male. This is not what is required under the fourth
prong. See Aragon, 292 F.3d at 660.
22

similarly situated employees being treated more favorably.
Accordingly, Clemmons fails to make out a prima facie case of
race or gender discrimination.
2.

Defendants Have Articulated Clearly A
Nondiscriminatory Reason For Their Adverse
Action Against Clemmons.

Even assuming Clemmons did make out a prima facie case
for discrimination, Defendants rebut the presumption in favor of
Clemmons by articulating clearly a number of nondiscriminatory
reasons for what was, in effect, their termination of Clemmons.
The standard Defendants must meet is low:
The defendant need not persuade the court
that it was actually motivated by the
proffered reasons. It is sufficient if the
defendant’s evidence raises a genuine issue
of fact as to whether it discriminated
against the plaintiff. To accomplish this,
the defendant must clearly set forth, through
the introduction of admissible evidence, the
reasons for the [adverse action]. The
explanation provided must be legally
sufficient to justify a judgment for the
defendant. If the defendant carries the
burden of production, the presumption raised
by the prima facie case is rebutted . . . .
Burdine, 450 U.S. at 254-55 (internal citations omitted).

This

burden is “satisfied if [the employer] simply ‘explains what he
has done’ or ‘produc[es] evidence of legitimate nondiscriminatory
reasons.’” Id. at 256 (quoting Sweeny, 439 U.S. at 25, n.2).
Defendants’ explanation need only allow the court to rationally
conclude that the adverse action was

nondiscriminatory.

See id.

at 257 (“We have stated consistently that the employee’s prima
23

facie case of discrimination will be rebutted if the employer
articulates lawful reasons for the action; that is, to satisfy
this intermediate burden, the employer need only produce
admissible evidence which would allow the trier of fact
rationally to conclude that the employment decisions had not been
motivated by discriminatory animus.”).
Defendants have produced admissible evidence
demonstrating that Clemmons was terminated for reasons unrelated
to his race or gender.

See Motion at 17-21, ECF No. 51.

Two

patient complaints--one also allegedly involving a breach of a
patient’s privacy--closely preceding Clemmons’s termination are
legally sufficient explanations for the adverse action.

On

January 5, 2009, a patient complained to Defendants that Clemmons
made her uncomfortable by allegedly taking an excessive amount of
time feeling her chest area, then later repeatedly asking her
about “how[] [she got] that body.”

HMSA’s human resources

department investigated the incident and found the patient’s
account more credible than Clemmons’s account.

Defendants issued

Clemmons a warning on February 26, 2009, and implemented a new
policy regarding his interaction with female patients.
Subsequently, on March 23, 2009, Defendants received a
complaint against Clemmons from another female patient.

The

patient claimed that Clemmons “went ballistic” when she hesitated
to remove certain clothing for an x-ray.

24

The patient became

uncomfortable and left the facility without completing her x-ray.
Approximately a week later, Clemmons got her home telephone
number from her file and called her to explain his version of
events.

The patient became uncomfortable and notified Defendants

on April 2, 2009.

Defendants again investigated the patient’s

complaints and concluded that Clemmons had engaged in
unacceptable behavior, including violating patient privacy.
Based on their conclusion that Clemmons’s inappropriate behavior
was likely to continue, Defendants say they decided to terminate
Clemmons, but he accepted their offer to resign in lieu of
termination on April 8, 2009.

See Motion at 3-8, ECF No. 51.

The above explanation offered by Defendants, supported
by declarations and complaint reports, is sufficient to satisfy
Defendants’ burden of proof.

See Burdine, 450 U.S. at 256.

Accordingly, the burden shifts back to Clemmons to prove by a
preponderance of the evidence that Defendants’ explanation was a
mere pretext for discriminatory action.
3.

Clemmons Fails To Establish Pretext With
Respect To The Adverse Action.

Clemmons does not satisfy his burden of establishing
that Defendants’ explanation was a mere pretext for what he
claims was discriminatory action.

Clemmons “may succeed in this

either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of
25

credence.”

See Burdine, 450 U.S. at 256 (citing McDonnell

Douglas Corp., 411 U.S. at 804-05).
Clemmons does not directly refute Defendants’
explanation of a nondiscriminatory reason for his termination.
Rather, Clemmons appears to suggest that his assertion that “he
was referred to as an outsider, too blind to do his job, making
mistakes because of his vision, and an inferior employee
relegated to maintenance man[]” suffices as “direct or
circumstantial” evidence that establishes pretext.

See

Opposition at 26, ECF No. 87.
Clemmons’s arguments are unavailing.

First, as noted

above, Clemmons does not state a disability discrimination claim.
Clemmons fails to offer any specific “direct or circumstantial”
evidence to support his argument for pretext related to either
gender or race discrimination.

Even if the court were to accept

his allegations, he has offered no specific evidence that raises
an issue of triable fact.

At the hearing on the present motion,

Clemmons pointed to his complaint to Kent regarding Aquino just
days before he was terminated.

This is not direct evidence of

pretext, and Clemmons has failed to produce anything more than
conjecture that his complaint about Aquino was related to his
termination.
In examining the level of proof of pretext required,
the Ninth Circuit distinguishes between direct and circumstantial

26

evidence.

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

Cir. 2007), and Goodwin, 150 F.3d at 1221, the Ninth Circuit
states: “When the plaintiff offers direct evidence of
discriminatory motive, a triable issue as to the actual
motivation of the employer is created even if the evidence is not
substantial.”

(Emphasis added.)

Clemmons ignores the express

limitation to direct evidence and says, “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 Goodwin at 1221).”

at 26-27, ECF No. 87 (emphasis added).

Opposition

Goodwin made it clear

that more is required when the evidence is purely circumstantial:
In those cases where direct evidence is
unavailable, however, the plaintiff may come
forward with circumstantial evidence that
tends to show that the employer’s proffered
motives were not the actual motives because
they are inconsistent or otherwise not
believable. Such evidence of “pretense” must
be “specific” and “substantial” in order to
create a triable issue with respect to
whether the employer intended to discriminate
on the basis of sex.
Goodwin, 150 F.3d at 1222 (citations omitted) (emphasis added).
This distinction was the focus in Goodwin.

The Ninth Circuit was

attempting to reconcile the “apparently differing standards” for
a plaintiff’s burden of proof based on the type of evidence
presented by the plaintiff.

See id. at 1221.

Clemmons has provided no direct evidence of pretext.

27

Cf. id. (direct evidence of women receiving “Barbie doll kits”
with sex toys, exclusion of women from company trips, and
derogatory statements toward women by executives).

Although

Clemmons has offered some circumstantial evidence, it does not
meet the necessary standard for creating a triable issue of fact,
as it is neither “specific” nor “substantial.”

Cf. id. at 1222

(indirect evidence through comparison of plaintiffs’ credentials
and evaluations with another candidate’s similar credentials and
poor evaluations).

The evidence before this court is that the

decision to terminate Clemmons’s employment was made by Human
Resources’ personnel and Vice-President Caryn Ireland’s
supervisor, concurring in Ireland’s recommendation.
of Caryn Ireland ¶ 7, ECF No. 52-8.

Declaration

There is no evidence that

any of the people involved harbored any racial- or gender-based
reason to fire Clemmons.

As Clemmons fails to rebut Defendants’

nondiscriminatory explanation for his termination, he fails to
create a triable issue of fact with respect to his discrimination
claims.

Defendants’ motion for summary judgment as to Counts I

and II is granted.
C.

Summary Judgment On Clemmons’s Purported
Retaliation Claim Is Warranted.

Although Clemmons refers to retaliation in his
Complaint, he did not actually plead a cause of action for
retaliation against Defendants.

Even reading the Complaint

liberally and making appropriate allowances for pleading
28

alternative claims, the court finds his Complaint extremely
confusing on the retaliation issue.

Clemmons appears to be

alleging in the first instance that Kent retaliated against him.
See, e.g., Compl. ¶ 25, ECF No. 1 (“After Mr. Clemmons complained
to HMSA, HFMC, KMC and ISI administrators regarding Ms. Kent’s
actions, Ms. Kent unlawfully retaliated against him . . . . Ms.
Kent also . . . accused him of sexual harassment in retaliation
for his complaints against her . . . .”); id. at ¶ 32 (referring
to Kent’s “retaliating against him for his complaints of unlawful
harassment and discrimination”).

Clemmons appears to be alleging

in the second instance that HMSA and HFMC either acquiesced in or
ratified Kent’s actions or themselves retaliated against him for
complaining about Kent.

See, e.g., id. at ¶ 28.

Even if

Clemmons could be said to have pled a retaliation claim, he
cannot proceed on that theory.
Title VII provides that an employer may not
“discriminate against any of his employees or applicants for
employment . . . because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
subchapter.”

42 U.S.C. § 2000e-3(a) (1972).

To make out a prima facie case of retaliation, Clemmons
must prove by a preponderance of the evidence that (1) he engaged

29

in a protected activity; (2) he was subjected to an adverse
employment action; and (3) a causal link exists between the
protected activity and the adverse action.

See Ray v. Henderson,

217 F.3d 1234, 1240 (9th Cir. 2000); Nidds v. Schindler Elevator
Corp., 113 F.3d 912, 919 (9th Cir. 1996).

As with a Title VII

discrimination claim, if Clemmons makes out a prima facie case of
retaliation, the burden then shifts to Defendants to articulate a
legitimate nondiscriminatory reason for their decision.

If

Defendants meet their burden, Clemmons bears the ultimate burden
of demonstrating that the reason given was “merely a pretext for
a discriminatory motive.”

See Ray, 217 F.3d at 1240.

The most obvious failing in Clemmons’s purported
retaliation claim is the total absence of any evidence of
pretext.

Even if Clemmons is complaining that HMSA and HFMC

should have disciplined Kent, not Clemmons, and that the failure
to discipline Kent while terminating Clemmons was retaliatory,
Clemmons shows no link evidencing pretext between his termination
and Kent’s alleged sexual harassment or comments of several years
earlier.

To the extent Clemmons is complaining that he was

really fired in retaliation for having complained about Aquino
just a few days before he was fired, then Clemmons must provide
evidence of a connection.
proximity in time.

He provides none, noting only the

If this were all that the law required,

pretext issues would nearly always proceed to trial.

30

As the law

requires more, Clemmons cannot proceed to trial on any
retaliation claim.
D.

Clemmons Fails To Raise Any Genuine Dispute Of
Material Fact As To His Claim For Breach Of
Contract.

Clemmons’s third cause of action is for breach of
contract and/or promissory estoppel.
contract language is a matter of law.

The interpretation of
United States ex rel. IBM

Corp. v. Hartford Fire Ins. Co., 112 F. Supp. 2d 1023, 1033 (D.
Haw. 2000).
Clemmons alleges that HMSA breached its contract to
treat him fairly and investigate his claims of discrimination.
The Complaint alleges that HMSA distributed material to
its employees that guaranteed that employees would be treated
fairly:
50. Defendant HMSA disseminated express
and written statements of employment
policies, practices and procedures which it
provided to all employees including Mr.
Clemmons.
51. Defendant HMSA represented both
orally and in writing that it would treat
employees in a specific, fair, and equitable
manner. Specifically, Defendant HMSA
promulgated a policy that employees would be
treated fairly with regard to sexual
harassment, complaints, retaliation, wages
and discipline, among others.
52. Further, Defendant HMSA expressly
and impliedly represented that it would
investigate allegations of sexual harassment
and misconduct originally raised by Mr.
Clemmons in a fair, impartial and
31

nondiscriminatory manner.
53. Defendant HMSA promulgated these
policies and procedures and made these
representations in such a manner as to
manifest its willingness to enter into a
bargain with its employees, including Mr.
Clemmons.
Compl. ¶¶ 50-53, ECF No. 1.

Clemmons alleges that “HMSA breached

its contract with Mr. Clemmons by its failure to follow its own
practices, policies and procedures with regard to the terms and
conditions of Mr. Clemmons’ employment as set forth herein.”
at ¶ 55, ECF No. 1.

Id.

Clemmons further alleges that “Defendants

used a progressive disciplinary policy which implies a contract
with Plaintiff.

Defendants contracted with Plaintiff to provide

him a harassment- and discrimination-free workplace by providing
Plaintiff with written policies and requiring that he read and
acknowledge anti-harassment and anti-discrimination policies.”
Opposition at 28, ECF No. 87.
Clemmons cites to Kamaka v. Goodsill Anderson Quinn &
Stifel, 117 Haw. 92, 176 P.3d 91 (2008), and Shoppe v. Gucci Am.,
Inc., 94 Haw. 368, 14 P.3d 1049 (2000), for the proposition that
“if an employer issues policy statements or rules, in a manual or
otherwise, and, by its language or by the employer’s actions,
encourages reliance thereon, the employer cannot be free to only
selectively abide by it.”

Opposition at 28, ECF No. 87.

However, Kamaka, Shoppe, and a related line of Hawaii cases that
support this principle are concerned with implicit promises of
32

job security, not with a general promise to be fair.

See, e.g.,

Kamaka, 117 Haw. at 119, 176 P.3d at 118 (concerned with whether
employee handbook changed at-will employment); Shoppe, 94 Haw. at
385, 14 P.3d at 1066 (same); Kinoshita v. Canadian Pac. Airlines,
Ltd., 68 Haw. 594, 724 P.2d 110 (1986) (concerned with policies
regarding job security and reliance thereon).

The court finds no

authority that an employee handbook or manual promising that an
employer will treat employees fairly constitutes an enforceable
contract.

See Boteilho v. Boteilho, 58 Haw. 40, 42, 564 P.2d

144, 146 (1977) (to be enforceable, a contract must be certain
and definite as to its essential terms).
Clemmons appears to be relying on two provisions in
claiming breach of contract:
C. Sexual Harassment
The Company expects all employees to be
treated with professional respect and
courtesy. ISI/HFMC prohibits any form of
sexual harassment in the workplace, whether
by a supervisor, manager, co-worker, or any
other employee or consultant. Those who
engage in sexual harassment will be subject
to corrective action up to and including
termination.
. . . .
XIII. REPORTING VIOLATIONS
All employees are obligated to report actual
or suspected violations of this Code of
Business Conduct (See Exhibit A) or any other
conduct that appears to be inappropriate or
constitutes misconduct, to their immediate
supervisor or manager, or the Compliance and
Ethics Officer. There will be no retaliation
against any employee for reporting an actual
33

or suspected violation of this Code or other
irregularity in good faith.
Code of Business Conduct, Pl. Dep. Ex. 5 at 13, ECF No. 52-3.
Even if these provisions were enforceable contractual
provisions, a matter this court does not here rule on, they would
not, without more than Clemmons has provided to the court,
support a breach of contract claim.

In citing the sexual

harassment provision, Clemmons appears to be arguing that he had
a right to have Kent fired.

But the provision is clearly aimed

as a warning at alleged harassers, not as an enforceable promise
to alleged victims that their alleged tormentors will be fired!
In citing the “Reporting Violations” provision, Clemmons appears
to be arguing that he had a contractual right not to be
retaliated against.

As discussed earlier in this order, he does

not have a viable Title VII claim that he was retaliated against.
Even recognizing that the elements of a breach of contract claim
differ from the elements of a Title VII claim, the court
concludes that Clemmons does not show how he could establish a
breach of the “Reporting Violations” provision in the Code of
Business Conduct.

That is, while using the word “retaliatory” to

describe certain actions, he provides no actual evidence that the
actions were retaliatory.

If he cannot establish retaliation at

all, he cannot have a viable claim for breach of contract based
on retaliation.
Notably, Kamaka, cited by Clemmons, is inapplicable
34

here.

In Kamaka, the Hawaii Supreme Court stated, “This court

has never recognized an ‘implied promise of fair treatment’ as a
means for altering the at-will status of an employment
relationship.”
n.28.

Kamaka, 117 Haw. at 119 n.28, 176 P.3d at 118

The Hawaii Supreme Court reviewed the employee handbook

and concluded that the procedure for employee evaluation “could
not support a finding that the manual contained a specific
termination procedure thereby altering Kamaka’s at-will status.”
Id. at 121, 176 P.3d at 120.9
Clemmons has conceded that he was an at-will employee,
see Motion at 22-23, ECF No. 51, and provides no further
authority in his opposition to the contrary, other than the antiharassment and anti-discrimination policies.
29, ECF No. 87.

See Opposition at

Clemmons’s acknowledgement is consistent with

the employment application he signed.

The application explained

that he was an at-will employee and that handbooks did not change
the nature of the at-will employment: “Statements made in
handbooks or other policy documents are not guarantees or
contracts of employment.”

Hawaii Medical Service Association And

Subsidiaries Application For Employment, Pl. Dep. Ex. 1 at 4, ECF

9

“Under the at-will employment doctrine, an employer
may terminate an at-will employee at any time for good cause, bad
cause, or no cause.” Gonsalves v. Nissan Motor Corp. In Haw.,
Ltd., 100 Haw. 149, 172, 58 P.3d 1196, 1219 (2002) (citation
omitted).
35

No. 52-3.10
Given the applicable law and the record before the
court, the court grants summary judgment to Defendants as to the
breach of contract claim.
E.

Clemmons Fails To Raise Any Genuine Dispute Of
Material Fact As To His Claim For Promissory
Estoppel.

Clemmons alleges that Defendants breached numerous
promises on which he relied.

The court grants summary judgment

in favor of Defendants on this claim.
In Hawaii, “[a] promissory estoppel may arise as an
application of the general principle of equitable estoppel to
certain situations where a promise has been made, even though
without consideration, if it was intended that the promise be
relied upon and was in fact relied upon, and a refusal to enforce
it would be virtually to sanction the perpetration of fraud or
result in other injustice.”

In re Herrick, 82 Haw. 329, 337, 922

P.2d 942, 950 (Haw. 1996).
The elements of a promissory estoppel claim are: “(1)
There must be a promise; (2) The promisor must, at the time he or
she made the promise, foresee that the promisee would rely upon
10

The Hawaii Supreme Court has stated, “To protect
against claims of breach of implied contract based on employee
handbooks, employers may use ‘disclaimers expressly stating that
the handbook or manual is not a contract and does not alter the
employment at-will relationship.’” Gonsalves, 100 Haw. at 166,
58 P.3d at 1213.
36

the promise (foreseeability); (3) The promisee does in fact rely
upon the promisor's promise; and (4) Enforcement of the promise
is necessary to avoid injustice.”

Id. at 337-38, 922 P.2d at

950-51.
Defendants identify seven alleged promises made to
Clemmons and analyze each.

See Motion at 27-28, ECF No. 51.

Clemmons does not attempt to refute any of their arguments,
instead saying generally, “There is a fundamental injustice in
refusing to enforce the promises of a workplace free from sexual
harassment, retaliation, and discrimination.”

Opposition at 30,

ECF No. 87.
1.

Kent’s Alleged Statement That Clemmons’s Job
Was Not In Danger.

Clemmons says that Kent assured him that his job was
secure.

This is not a promise that must be enforced to prevent

injustice.

In fact, enforcement of this promise would be

contrary to public policy.

In Gonsalves, the Hawaii Supreme

Court held that a promise made by a company executive to an
employee that he would retain his job regardless of the findings
of a sexual harassment investigation was “unenforceable, and
[plaintiff] is unable to maintain a claim for promissory estoppel
as a matter of public policy.”
P.3d at 1213.

Gonsalves, 100 Haw. at 166, 58

Enforcement of such a promise would hinder the

employer’s ability to appropriately respond to misconduct by its
employees.

Id.

Moreover, Clemmons has admitted that he did not
37

believe Kent’s assertion relating to his job security.

See

Motion at 31-32, ECF No. 51; Pl. Dep. at 292:9-11, ECF No. 52-2.
As Clemmons could not have justifiably relied on a statement he
did not believe, this court does not enforce any promise
regarding his job security.
2.

Kent’s Alleged Statement That Clemmons Was
Not Being Targeted.

Clemmons says Kent told him that he was not being
targeted.

This is not the type of clear and definite promise for

which Clemmons can seek relief under a theory of promissory
estoppel.

A “promise” is “a manifestation of intention to act or

refrain from acting in a specified way, so made as to justify a
promisee in understanding that a commitment has been made. . . .
[A] promisor manifests an intention if he believes or has reason
to believe that the promisee will infer that intention from his
words or conduct.”

Kahale v. ADT Auto. Servs., Inc., 2 F. Supp.

2d 1295, 1301 (D. Haw. 1998) (internal citation and quotation
marks omitted).

Kent’s statement is not a promise about future

events, but a reassurance about past events.

Clemmons admits

that Kent’s statement arose when Clemmons “report[ed] to her
feeling that [he] was being targeted,” and that Kent “was
commenting on these events that [he] had brought to her.”
Dep. at 306:8-13, ECF No. 52-2.

Pl.

Clemmons does not identify a

specific promise about future events in this regard.
Additionally, there is no indication that Clemmons relied on
38

Kent’s statements, as Clemmons has testified that he “couldn’t
believe anything [Kent] said anymore.”
3.

Id. at 108:23-25.

HMSA’s Alleged Invitation To Clemmons To A
Party Recognizing His 15 Years Of Service.

Clemmons says HMSA invited him to a celebration of his
15 years of service.
promise.

Clemmons says this alleged invitation was a

Id. at 307:20-21.

There is no evidence that HMSA broke

this alleged promise; it appears that Clemmons could not attend
because of work responsibilities.

Id. at 307:8-10.

He admits

that he asked Kent for permission to attend, then did not raise
the matter again.

Id. at 307:11.

Even if this were a promise,

enforcing it is not essential to prevent injustice.
4.

Kent’s Alleged Statement That She Would Wait
For Clemmons Before Starting Monthly Staff
Meetings.

Clemmons says that Kent promised to wait for him before
starting staff meetings.

A court enforces a promise where “a

refusal to enforce it would be virtually to sanction the
perpetuation of fraud or result in other injustice.”

In re

Herrick, 82 Haw. at 337, 922 P.2d at 950 (quoting Motonaga v.
Ishimaru, 38 Haw. 158, 163 (Haw. Terr. 1948)).

Starting meetings

before all arrive hardly seems akin to fraud or injustice.
most, Clemmons felt left out of the loop.
312:14, ECF No. 52-2.

At

See Pl. Dep. at 309:2-

Furthermore, as noted above, as Clemmons

testified that he no longer believed anything Kent said, he
appears not to have relied on her alleged promise.
39

Id. at

108:23-25, ECF No. 52-2.
5.

Alleged Promise Of A 3% Annual Pay Raise.

Clemmons testified that he believed that because his
retirement benefit statement “assumed” a 3% annual increase, he
was promised those raises.

See id. at 313:8-11.

However, an

“assumed” pay raise for the sake of a calculation is not a clear,
definite promise made by any Defendant.

Clemmons’s position

would keep employers from providing retirement benefits
projections!

To the extent Clemmons relied on the projection,

his reliance was unjustified.
6.

Alleged Assurance That Clemmons Was Not In
Trouble For Being Backed Up With Work.

Like Clemmons’s claim that Defendants promised that he
was not being targeted, any promise that Clemmons was not in
trouble for being backed up with work is too vague to be an
actionable promise.
7.

See Kahale, 2 F. Supp. 2d at 1301.
Drug Company Representative’s Alleged Promise
To Bring Clemmons Lunch.

The final alleged promise, that Clemmons was denied
lunch as promised by a drug company representative, is clearly
not a promise by Defendants.

Clemmons acknowledges that the

promise was made by a drug company representative not employed by
any Defendant.

Id. at 304:16-17.

Clemmons appears to blame

Kent, because “she was standing right next to him with a
smile[,]” id. at 304:12-15, but the court fails to see how her

40

presence is relevant.

Moreover, it can hardly be said that the

enforcement of a promise of a free lunch is necessary to prevent
an injustice.
8.

Additional Statements.

Clemmons makes passing reference in his opposition to
other alleged statements not mentioned in his Complaint as part
of his promissory estoppel claim: “Mr. Clemmons was a member of
the clinic, yet was excluded from the meetings, his civil rights
were violated when he was called names and made fun of for his
disability.

Mr. Clemmons was promised that his complaints would

be investigated in a fair manner.
ridiculed.”

Yet when he complained, he was

Opposition at 30, ECF No. 87.

No promise is

discernible in alleged statements that (1) excluded Clemmons from
meetings, (2) violated his civil rights, and (3) called him
names.

Even Clemmons’s reference to a promise to investigate his

complaints does not include sufficient detail to support a
promissory estoppel claim.

If Clemmons is merely repackaging his

argument that the employee handbook created a promise, Clemmons’s
claim is uncognizable for the reasons detailed earlier in this
order.

Nor does Clemmons indicate how or when he detrimentally

relied on the alleged promise.

Did he rely on it when he first

started working for Defendants?

If so, how would he have been

better off had he not relied on it?

There is too little

presented to the court to permit this allegation to support the

41

claim.
V.

CONCLUSION.
For the foregoing reasons, the court GRANTS Defendants’

motion for summary judgment.

The clerk of the court is directed

to enter judgment pursuant to this order and to close the case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 29, 2011.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Clemmons v. Hawaii Medical Services Association, et al., Civ. No. 10-00513
SOM/BMK; Order Granting Defendants’ Motion For Summary Judgment As To
Plaintiff’s Claims In Counts I, II And III Of The Complaint.

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