McAllister v. Hawaiiana Management Company, Ltd.
Filing
280
ORDER DENYING AS MOOT DEFENDANTS' MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE, JUDGMENT NOTWITHSTANDING THE VERDICT; AND DENYING PLAINTIFF'S RENEWED 50(B) MOTION FOR JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE, JUDGME NT NOTWITHSTANDING THE VERDICT OR A REQUEST FOR A NEW TRIAL 274 . Signed by JUDGE ALAN C KAY on 01/11/2013. (eps)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
)
)
)
)
Plaintiff,
)
)
vs.
)
HAWAIIANA MANAGEMENT COMPANY, )
)
LTD.; AOAO ROYAL CAPITAL
)
PLAZA, Association of
)
Apartment Owners of Royal
)
Capital Plaza,
)
)
Defendants.
)
_____________________________ )
WILLIS C. McALLISTER,
Civ. No. 11-00056 ACK-KSC
ORDER DENYING AS MOOT DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER
OF LAW OR IN THE ALTERNATIVE, JUDGMENT NOTWITHSTANDING THE
VERDICT; AND DENYING PLAINTIFF’S RENEWED 50(B) MOTION FOR
JUDGMENT AS A MATTER OF LAW OR IN THE ALTERNATIVE, JUDGMENT
NOTWITHSTANDING THE VERDICT OR A REQUEST FOR A NEW TRIAL
BACKGROUND
Plaintiff Willis C. McAllister (“McAllister” or
“Plaintiff”), an African-American, proceeding pro se, filed suit
against defendants Hawaiiana Management Company, Ltd. (“HMC”) and
AOAO Royal Capital Plaza (“RCP”) alleging that Defendants
unlawfully discriminated and retaliated against Plaintiff and
created a hostile work environment in violation of Title VII of
-1-
the Civil Rights Act of 1964 and 42 U.S.C. § 1981 on the basis of
race.
(See generally Third Amended Compl., Doc. 62.)
On January 24, 2011, Plaintiff filed suit against
Defendants in the United States District Court for the District
of Hawaii.
(Doc. No. 1.)
The case was originally assigned to
Senior District Judge David Alan Ezra.
Plaintiff subsequently
filed an Amended Complaint on February 14, 2011.
(Doc. No. 9.)
On March 31, 2011, Plaintiff filed a Motion to Dismiss his Common
Law Tort Claims for Negligence.
(Doc. No. 15.)
Granted Plaintiff’s motion on May 13, 2011.
The Court
(Doc. No. 22.)
On
July 15, 2011, Plaintiff filed a Motion for Partial Summary
Judgment.
(Doc. No. 25.)
On August 24, 2011, the Court sua sponte dismissed the
Plaintiff’s Complaint without prejudice for failure to comply
with Federal Rule of Civil Procedure 8; denied without prejudice
Plaintiff’s Motion for Partial Summary Judgment as moot; and
denied without prejudice Plaintiff’s Motions to Strike various
Defendants’ declarations and exhibits. (Doc. No. 36.)
On September 23, 2011, Plaintiff filed a Second Amended
Complaint against Defendants.
(Doc. No. 38, the “SAC.”)
Defendant RCP subsequently filed a motion to dismiss based upon
statute of limitations grounds (Doc. No. 45), and Defendants
jointly filed a motion to dismiss based upon failure to comply
with Federal Rules of Civil Procedure 8 and 12(b)(6) (Doc. Nos.
-2-
39, 42.)
Plaintiff also filed a Motion for Summary Judgment on
December 2, 2011.
(Doc. No. 46.)
On January 30, 2012, the Court granted Defendant RCP’s
motion to dismiss as to Plaintiff’s Title VII claims based upon a
finding that Plaintiff’s Title VII claims against RCP did not
relate back to the original Complaint and that the claims
therefore were time-barred.
“January 30, 2012 Order.”)
(Doc. No. 61 at 15-16, hereinafter
The Court also granted in part and
denied in part Defendants’ motion to dismiss.
Id. at 16-28.
The
Court granted the motion to dismiss as to Plaintiff’s claims for
hostile work environment and intentional infliction of emotional
distress (“IIED”), with leave to amend; however the Court
concluded that Plaintiff had alleged claims for disparate
treatment and retaliation.
Id.1/
On February 27, 2012, Plaintiff filed his Third Amended
Complaint against Defendants (Doc. No. 62, hereinafter “TAC”).
Plaintiff asserted the following five causes of action in the
TAC: (1) hostile work environment - retaliation; (2) hostile work
environment - disparate treatment-race; (3) harassment based on
race/tangible action (vicarious liability); (4) hostile work
environment – harassment-race; and (5) intentional infliction of
1/
The Court also denied without prejudice Plaintiff’s
Motion for Summary Judgment, finding that ruling on the motion
was premature because the Court granted Plaintiff leave to amend
the SAC. Id. at 34.
-3-
emotional distress - race (IIED).
(TAC ¶¶ 5.1-5.5.)
On March
13, 2012, Defendants filed a Motion to Dismiss the TAC with
Prejudice, asserting that Plaintiff failed to correct the SAC’s
deficiencies.
(Doc. No. 72.)
On March 15, 2012, Defendant RCP
filed a Motion to Dismiss Plaintiff’s Claims Against Them With
Prejudice.
(Doc. No. 77.)
On May 31, 2012, the Court issued an Order (1) Granting
in Part and Denying in Part Defendants’ Motion to Dismiss, and
(2) Granting RCP’s Motion to Dismiss.
(Doc. No. 117.)
With
respect to Defendants’ joint Motion to Dismiss, the Court denied
the motion with respect to Plaintiff’s claim for hostile work
environment (id. at 13), however it granted the motion as to
Plaintiff’s IIED claim (id. at 14).
The Court granted RCP’s
motion to dismiss based upon a finding that Plaintiff’s Title VII
claims against RCP were time-barred because Plaintiff failed to
name RCP as a defendant until after the statutory period had
passed.
Id. at 19.
On June 15, 2012, Plaintiff filed a Motion for
Reconsideration of the Court’s May 31, 2012 Order that Dismissed
Plaintiff’s Title VII Claims against RCP.
(Doc. No. 120.)
On
July 31, 2012, the Court issued an Order Granting Plaintiff’s
Motion for Reconsideration, and accordingly denied RCP’s Motion
to Dismiss filed March 15, 2012.
(Doc. No. 138, at 10.)
-4-
On August 3, 2012, this case was reassigned from Senior
District Judge David Alan Ezra to this Court for all further
proceedings.
(Doc. No. 140.)
On September 4, 2012, Plaintiff filed two motions in
limine (Doc. Nos. 168, 169), and Defendants filed 10 (ten)
motions in limine (Doc. Nos. 151, 155-163).
On September 11,
2012, Plaintiff filed oppositions to all 10 (ten) of the
Defendants’ motions in limine (Doc. No. 193), and Defendants
filed oppositions to both of Plaintiff’s motions (Doc. Nos. 185,
186).
The Court heard argument on the motions in limine at the
final pretrial conference on October 11, 2012.
(Doc. No. 206.)
On October 22, 2012, the Court issued an Order Granting in Part
and Denying in Part Defendants’ Motions in Limine, and Granting
Plaintiff’s Motions in Limine.
(Doc. No. 229.)
On October 16, 2012, jury trial commenced on
Plaintiff’s claims, all brought pursuant to Title VII and 42
U.S.C. Section 1981: Disparate Treatment; Hostile Work
Environment/Harassment; and Retaliation.
Form at 3, 4, 6.)
(See Special Verdict
On October 31, 2012, after Plaintiff and
Defendants had rested, Defendants filed a Motion for Judgment as
a Matter of Law or in the Alternative, Judgment Notwithstanding
the Verdict. (Doc. No. 258.)
After hearing oral argument on the
motion, the Court reserved judgment and took the matter under
submission.
On November 1, 2012, Plaintiff filed an opposition
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to Defendants’ motion (Doc. No. 263), as well as his own Motion
for Judgment as a Matter of Law or in the Alternative Judgment
Notwithstanding the Verdict on his Vicarious Liability Claim.
(Doc. No. 262.)
The Court took Plaintiff’s motion under
submission at that time.
On November 5, 2012, after a 12-day jury trial, the
jury returned a verdict for Defendants on all claims.
The jury determined the liability of each Defendant
separately.
First, the jury considered Plaintiff’s claims
against Defendant RCP.
As to Plaintiff’s claims for Disparate
Treatment, the jury found that Plaintiff had not proved by a
preponderance of the evidence that Defendant RCP gave more
favorable treatment to similarly situated individuals outside
Plaintiff’s protected class.
Form at 3 (November 5, 2012).
See Defendant RCP’s Special Verdict
As to Plaintiff’s claims for
Hostile Work Environment - Harassment, the jury found that
Plaintiff had not proved by a preponderance of the evidence that
he was subjected to verbal or physical conduct of a racial nature
by a supervisor, co-employee, or third party.
See id. at 4.
Finally, as to Plaintiff’s claims for Retaliation, the jury found
that Plaintiff had not proved by a preponderance of the evidence
that he was subjected to an adverse employment action(s) because
of his complaints about being harassed or discriminated against
on account of his race and receiving disparate treatment because
of his race.
Id. at 7.
-6-
Next, the jury concluded that Defendant HMC was not
a“joint employer” with Defendant RCP, thereby finding in favor of
Defendant HMC on all counts.
See HMC Special Verdict Form, at 2
(November 5, 2012).
On November 5, 2012, the jury’s verdict in favor of
Defendants on all counts was read and filed in open Court. (See
Doc. No. 264.)
The jury was polled.
Following the jury’s
verdict, on November 5, 2012, the Court asked Plaintiff if he had
any further comments or argument with respect to his motion, at
which time Plaintiff stated that he did not have anything further
to add, other than ensuring that the Court noted his motion for
appeal purposes. In light of Plaintiff’s pro se status, on
November 9, 2012, the Court issued a Minute Order informing
Plaintiff that if he did not renew his motion pursuant to Federal
Rule of Civil Procedure 50(b) within 28 days from the date upon
which judgment was entered, Plaintiff would be precluded from
challenging the sufficiency of the evidence on appeal.
(See Doc.
No. 270.)2/
On November 14, 2012, the Clerk of Court entered a
judgment in favor of Defendants on all counts.
2/
(Doc. No. 273.)
See Nitko Holding Corp. v. Boujikian, 491 F.3d 1086,
1089 (9th Cir. 2007) (holding that the plaintiff had waived its
challenge to the sufficiency of evidence because it did not renew
its pre-verdict Rule 50(a) motion by filing a post-verdict Rule
50(b) motion, and therefore the Court of Appeals was precluded
from exercising its discretion to engage in even plain error
review).
-7-
On December 12, 2012, Plaintiff filed a timely Rule
50(b) Renewed Motion for Judgment as a Matter of Law or in the
Alternative, Judgment Notwithstanding the Verdict or a Request
for a New Trial.
(Doc. No. 274, hereinafter the “Motion.”)
December 19, 2012, Defendants filed a timely opposition.
No. 276, hereinafter the “Opposition.”)
Plaintiff filed a Reply.
On
(Doc.
On January 2, 2013,
(Doc. No. 277.)
The Court finds this
matter suitable for disposition without a hearing pursuant to
Local Rule 7.2(e).
STANDARD OF REVIEW
A. Motion for Judgment As a Matter of Law
Federal Rule of Civil Procedure 50 states, in relevant part:
(a) Judgment as a Matter of Law.
(1) In General. If a party has been fully heard on an issue
during a jury trial and the court finds that a reasonable jury
would not have a legally sufficient evidentiary basis to find
for the party on that issue, the court may:
(A) resolve the issue against the party; and
(B) grant a motion for judgment as a matter of law against
the party on a claim or defense that, under the
controlling law, can be maintained or defeated only with
a favorable finding on that issue.
(2) Motion. A motion for judgment as a matter of law may be
made at any time before the case is submitted to the jury. The
motion must specify the judgment sought and the law and facts
that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative Motion for a New
Trial. If the court does not grant a motion for judgment as a
matter of law made under Rule 50(a), the court is considered to
-8-
have submitted the action to the jury subject to the court's
later deciding the legal questions raised by the motion. No later
than 28 days after the entry of judgment—or if the motion
addresses a jury issue not decided by a verdict, no later than 28
days after the jury was discharged—the movant may file a renewed
motion for judgment as a matter of law and may include an
alternative or joint request for a new trial under Rule 59. In
ruling on the renewed motion, the court may:
(1) allow judgment on the verdict, if the jury returned a
verdict;
(2) order a new trial; or
(3) direct the entry of judgment as a matter of law.
Fed. R. Civ. P. 50(a) and (b).
Judgment as a matter of law is
authorized only when a jury's verdict is not supported by
substantial evidence.
See Mockler v. Multnomah County, 140 F.3d
808, 815, n. 8 (9th Cir. 1998).
“‘Substantial evidence is such
relevant evidence as reasonable minds might accept as adequate to
support a conclusion even if it is possible to draw two
inconsistent conclusions from the evidence.’”
Gilbrook v. City
of Westminster, 177 F.3d 839, 856 (9th Cir. 1999) (citation
omitted).
“[T]he standard for granting summary judgment ‘mirrors'
the standard for judgment as a matter of law, such that ‘the
inquiry under each is the same.’”
Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 150 (2000) (citation omitted).
Thus,
in deciding whether judgment as a matter of law is warranted, the
Court may not assess the credibility of witnesses and must draw
all reasonable inferences in the nonmovant's favor.
-9-
Bell, 341
F.3d at 865.
The Court “may not substitute its view of the
evidence for that of the jury.”
Johnson v. Paradise Valley
Unified Sch. Dist., 251 F.3d 1222, 1227 (9th Cir. 2001); see also
Harvey v. Office of Banks & Real Estate, 377 F.3d 698, 707 (7th
Cir. 2004) (“Our job at this stage is not to determine whether
the jury believed the right people, but only to assure that it
was presented with a legally sufficient basis to support the
verdict.”).
The Ninth Circuit “strictly adhere[s] to the
requirements of Rule 50(b), which prohibit a party from moving
for judgment as a matter of law after the jury's verdict unless
that motion was first presented at the close of evidence.”
Image
Technical Servs., Inc. v. Eastman Kodak Co., 125 F.3d 1195, 1212
(9th Cir. 1997).
If a party fails to make a motion for judgment
as a matter of law under Rule 50(a) before the case is submitted
to the jury, “a party cannot question the sufficiency of the
evidence either before the district court ... or on appeal.”
Cabrales v. County of Los Angeles, 864 F.2d 1454, 1459 (9th Cir.
1988) (emphasis omitted), vacated on other grounds, 490 U.S. 1087
(1989).
Moreover, when a party fails to renew its pre-verdict
Rule 50(a) motion by filing a post-verdict Rule 50(b), it waives
any challenge to the sufficiency of the evidence on appeal, even
plain error review.
See Nitco Holding Corp. v. Boujikian, 491
F.3d 1086, 1089-90 (9th Cir. 2007) (citing Unitherm Food Sys.,
Inc. v. Swift-Eckrich, Inc., 546 U.S. 394 (2006)).
-10-
B.
Motion for a New Trial
A motion for a new trial is governed by Federal Rule of
Civil Procedure 59, which provides that after a jury trial,
“[t]he court may, on motion, grant a new trial on all or some of
the issues—and to any party ... for any reason for which a new
trial has heretofore been granted in an action at law in federal
court.”
Fed. R. Civ. P. 59(a).
“Rule 59 does not specify the grounds on which a motion
for a new trial may be granted.”
Zhang v. Am. Gem Seafoods,
Inc., 339 F.3d 1020, 1035 (9th Cir. 2003).
Instead, the Court is
“bound by those grounds that have been historically recognized.”
Id.
“Historically recognized grounds include, but are not
limited to, claims ‘that the verdict is against the weight of the
evidence, that the damages are excessive, or that, for other
reasons, the trial was not fair to the party moving.’”
Molski v.
M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (citation
omitted).
In ruling on a motion for a new trial, “the district
court has ‘the duty to weigh the evidence as the court saw it,
and to set aside the verdict of the jury, even though supported
by substantial evidence, where, in the court's conscientious
opinion, the verdict is contrary to the clear weight of the
evidence.’”
Id. (citation omitted and alterations).
In other words, in most cases, the judge should accept
the findings of the jury; however, if the judge is left with the
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definite and firm conviction that a mistake has been committed,
he may grant a new trial:
On the one hand, the trial judge does not sit to approve
miscarriages of justice. His power to set aside the verdict
is supported by clear precedent at common law and, far from
being a denigration or a usurpation of jury trial, has long
been regarded as an integral part of trial by jury as we
know it. On the other hand, a decent respect for the
collective wisdom of the jury, and for the function
entrusted to it in our system, certainly suggests that in
most cases the judge should accept the findings of the jury,
regardless of his own doubts in the matter.... If, having
given full respect to the jury's findings, the judge on the
entire evidence is left with the definite and firm
conviction that a mistake has been committed, it is to be
expected that he will grant a new trial.
Landes Constr. Co. v. Royal Bank of Canada, 833 F.2d 1365,
1371–72 (9th Cir. 1987) (internal quotation and citations
omitted).
“The judge can weigh evidence and assess the
credibility of witnesses, and need not view the evidence from the
perspective most favorable to the prevailing party.”
1371.
Id. at
But “the court is not justified in granting a new trial
‘merely because it might have come to a different result from
that reached by the jury.’”
Roy v. Volkswagen of America, Inc.,
896 F.2d 1174, 1176 (9th Cir. 1990) (citation omitted).
A district court's decision on a motion for new trial
is reviewed for abuse of discretion.
115 F.3d 676, 680 (9th Cir. 1997).
-12-
EEOC v. Pape Lift, Inc.,
DISCUSSION
A.
Defendants’ Motion for Judgment as a Matter of Law or
Alternatively, for Judgment Notwithstanding the Verdict
In light of the jury’s verdict in favor of Defendants
on all counts, the Court hereby DENIES AS MOOT Defendants’ Motion
for Judgment as a Matter of Law or Alternatively, for Judgment
Notwithstanding the Verdict.3/
B.
Plaintiff’s Renewed Motion for Judgment as a Matter of Law
or Alternatively, for Judgment Notwithstanding the Verdict
or a Request for a New Trial
In his Motion, Plaintiff sets forth two central
challenges to the jury’s verdict:
(1) there was sufficient
evidence of a joint employer relationship between the defendants;
and (2) evidence at trial showed continuing disparate treatment
violations, harassment and retaliation in a hostile work
environment, which culminated in an adverse/tangible vicarious
liability action on August 6, 2009.
3/
(Motion at 2, 8.)
The Court also deems Plaintiff’s Rule 50(a) Motion for
Judgment as a Matter of Law or in the Alternative, Judgment
Notwithstanding the Verdict on his Vicarious Liability Claim
(Doc. No. 262) to be moot in light of Plaintiff’s December 12,
2012 filing of his Renewed Rule 50(b) Motion (Doc. No. 274).
Further, the Court observes that the parties’ request for
judgment notwithstanding the verdict (“JNOV”) actually refers to
outdated terminology. JNOV has been replaced as a renewal of the
motion for judgment as a matter of law (“RJMOL”) pursuant to Fed.
R. Civ. P. 50. See, e.g., The Vollrath Co. v. Sammi Corp., 9
F.3d 1455, 1458 n.2 (9th Cir. 1993). Accordingly, the Court
addresses the parties’ request for JNOV herein by way of its
detailed discussion of a Rule 50(b) RJMOL.
-13-
Generally, Defendants respond that Plaintiff’s Motion raises no
new arguments, is frivolous, and simply regurgitates the
arguments made and previously rejected by the jury, arguing that
the jury’s verdict was “the only reasonable conclusion that could
be reached given the exhibits introduced and testimony elicited
during this three week trial.”
(Opposition at 3, 7.)
In essence, Plaintiff’s argument at trial was that he
was subjected to disparate treatment and a hostile work
environment due to his race, and was also retaliated against when
Defendants terminated him based upon a protected activity.
Defendants’ central argument was that Plaintiff was terminated
based upon gross misconduct, including insubordination, bad
attitude, and multiple confrontations with homeowners, residents,
and employees at RCP.
Defendants also asserted that “Plaintiff
was often hostile during the trial and frequently exhibited
bursts of anger to the witnesses and Defendants’ counsel.
He
even acted contrary to this Court’s instructions during the
trial, which only highlighted his insubordination, which is,
ironically, one of the primary reasons” for his termination.4/
(Opposition at 10.)
The Court will address Plaintiffs’ two central
arguments in the order in which he presents them in his Motion.
4/
The Court observes that during the 12-day jury trial,
Plaintiff repeatedly raised his voice and exhibited anger and
outbursts toward multiple witnesses as well as defense counsel in
the presence of the jury.
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1.
Evidence of Joint Employer Relationship
In support of his argument that the Court should
overturn the jury’s verdict, Plaintiff first relies upon a docket
entry wherein the Court purportedly granted Plaintiff’s motion
requesting that the Defendants be treated as Joint Employers.
(Motion at 2, citing Doc. No. 255.)
Plaintiff also asserts that
he presented “substantial, unrebutted, direct and indirect
evidence, during trial that showed (by the preponderance of the
evidence), that HMC and RCP were Joint Employers.”
Id. at 3.
For example, Plaintiff contends that the evidence adduced at
trial showed that Defendants utilized the same Human Resources
Department, Employee Benefits Department, and Payroll Processing
Department, as well as explicitly representing themselves jointly
on various internal business forms and documents.
Id.
Further,
Plaintiff asserts that there is overwhelming unrebutted
documentary evidence as well as testimony establishing that
Hawaiiana employee Ralph Ahles was an “integral part of the
management decisions at RCP (hiring and firing) . . . .”
4-5.
Id. at
Plaintiff also argues that Ralph Ahles “approved Howard
Isono’s decision to terminate the Plaintiff . . . .”
5/
Id. at 4.5/
In his Reply, Plaintiff reargues the alleged failure of
Howard Isono and Ralph Ahles to investigate various complaints,
as well as rearguing other allegations of discrimination and
disparate treatment, all of which were testified to by Plaintiff,
as well as Larry Blanko, Howard Isono, and Ralph Ahles; with the
jury considering all such testimony and assessing the credibility
of the witnesses, and evidently accepting the testimony of
(continued...)
-15-
Defendants respond that the testimony and documentary
evidence presented at trial support a finding that Defendants RCP
and Hawaiiana were not in fact joint employers of Plaintiff.
For
example, Defendants argue, Ralph Ahles testified that: (i)
Plaintiff was a RCP employee, not a Hawaiiana employee; (ii) Mr.
Ahles, a Hawaiiana employee, was not involved in Defendant RCP’s
day-to-day activities; (iii) Larry Blanko and Howard Isono, not
Ralph Ahles, supervised Plaintiff; and (iv) although Ralph Ahles
managed Howard Isono, it was Isono’s duty to handle the hiring
and firing of RCP employees, including Plaintiff.
(Opposition at
13.)
The Ninth Circuit Court of Appeals has held, and the
Court’s Jury Instruction No. 24 provided, that “[t]wo or more
employers may be considered ‘joint employers' if both employers
control the terms and conditions of employment of the employee.”
E.E.O.C. v. Pacific Maritime Ass'n, 351 F.3d 1270, 1275 (9th Cir.
2003) (internal quotation marks omitted).
Moreover, “[n]umerous
courts have considered the key to joint employment to be the
right to hire, supervise and fire employees.”
Id. at 1277
(citations omitted).
Further, the Court observes that its October 30, 2012
Minute Order contained a clerical error stating that the Court
had granted Plaintiff’s motion requesting that the Defendants be
5/
(...continued)
witnesses other than Plaintiff. (See generally Reply.)
-16-
treated as Joint Employers during the October 30, 2012 conference
with the parties.
(See Doc. No. 255) This error was later
rectified in a January 4, 2013 Amended Minute Order stating that
in fact the Court ruled that the issue of joint employers was a
question of fact for the jury.
(Doc. No. 277.)
Moreover, the
transcript of Court proceedings on October 30, 2012 clearly
establishes that the Court did not grant the motion after careful
consideration of the parties’ arguments and the evidence
presented thus far at trial.6/
During the Court’s meeting with
the parties on October 30, 2012 outside the presence of the jury,
the Court also informed Plaintiff that it would provide a jury
instruction from the Eleventh Circuit Court of Appeals setting
forth the standard for joint employer relationship.
1-3:9 - 1-3:12.)
(See id. at
The Special Verdict Form for Defendant
Hawaiiana further substantiates the Court’s clear ruling to
submit this question to the jury, as the first question is:
Question No. 1: Has the Plaintiff proven by a preponderance of
the evidence that Hawaiiana Management Company was a joint
employer of Plaintiff?
(Doc. No. 265, at 3.)
The jury had been provided with the
following agreed-upon jury instruction prior to answering “no”:
6/
See Tr. Vol. 1-1:10 - 1-3:25 (“Considering those matters
I do think that is a fact determination to be made by the jury.”)
-17-
Jury Instruction No. 24
It is not always clear under the law whether a person is an
"employee" or not, or who the "employer" is. Some people, for
example, perform services for others while remaining self
employed as independent contractors. Others are clearly
"employees," but a question may arise as to who the employer is;
and, in some instances, an employee may have joint employers,
that is, more than one employer at the same time.
So, a preliminary issue for your decision in this instance
is the question whether the Plaintiff was an "employee" of the
Defendant, AOAO Royal Capitol Plaza as well as, perhaps, an
employee of Defendant, Hawaiiana Management Company.
You should resolve this question in light of the economic
realities of the entire relationship between the parties, and
should consider each of the following factors to the extent you
find that a particular factor is applicable to the case:
(1) the nature and degree of control of the employee, and
who exercises that control;
(2) the degree of supervision, direct or indirect of the
employee's work, and who exercises that supervision;
(3) who exercises the power to determine the employee's pay
rate or method of payment;
(4) who has the right, directly or indirectly, to hire,
fire, or modify the employment conditions of the employee;
(5) who is responsible for the preparation of the payroll
and the payment of wages;
(6) who made the investment in equipment and facilities used
by the employee;
(7) who has the opportunity for profit and loss;
(8) the permanency and exclusivity of the employment;
(9) the degree of skill required to do the job;
(10) the ownership of the property or facilities where the
employee works; and
(11) the performance of a specialty job within the
production line integral to the business.
Consideration of all of the circumstances surrounding the
work relationship is essential, and no one factor is
determinative. Nevertheless, the extent of the right to hire and
fire and control the means and manner of the worker's performance
is the most important factor.
(Doc. No. 279, at 26-27)
This clearly establishes that the Court
found the issue of joint employership to be a question of fact
for the jury, and both parties were made aware of this ruling
during the October 30, 2012 hearing and during trial.
-18-
The Court also concludes that substantial evidence was
set forth at trial that Defendants were not, in fact, joint
employers of Plaintiff.
See Gilbrook, 177 F.3d at 856.
At
trial, witness Ralph Ahles testified that he was hired by
Defendant Hawaiiana in April 2007.
Mr. Ahles further testified
that Hawaianna works with approximately 500 associations, however
employees of those associations are not Hawaiiana employees.
He also stated that in his role as Property Manager, Mr. Ahles
served in an administrative capacity for associations including
Defendant RCP, pursuant to which Mr. Ahles would review hiring
and firing decisions to make sure the actions were in accordance
with the applicable rules, and mainly to ensure that such a
decision was in line with the financial budget.
Significantly,
Mr. Ahles also stated that Mr. Isono had the authority to
terminate Plaintiff.
Mr. Blanko corroborated this testimony,
stating that it was Mr. Isono who fired Plaintiff.
Additionally,
Mr. Ahles testified that he was aware that Plaintiff was fired by
Howard Isono, and cited insubordination, failure to follow
orders, and Plaintiff’s attitude as the grounds for termination.
The Court observes that in light of the jury’s finding
of no liability with respect to Defendant RCP, the issue of
Defendant Hawaiiana’s joint employer status is moot.
In any
case, even if the jury had found Defendant RCP liable for
violations of Title VII and/or Section 1981, the Court
nevertheless concludes that the jury’s finding of no joint
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employer relationship is supported by substantial evidence.
The
Court acknowledges that Plaintiff presented some evidence of a
potential joint employer relationship between Defendants RCP and
Hawaiiana at trial, such as Ralph Ahles’ review of Howard Isono’s
decision to terminate Plaintiff, and the fact that the Hawaiiana
logo appeared on the Personnel Action Form pursuant to which
Plaintiff was terminated.
(See Motion, Ex. 10.)
However, as
discussed above, Defendants presented strong evidence that
Hawaiiana was not a joint employer.
The Court concludes that
Plaintiff is not entitled to judgment as a matter of law pursuant
to Rule 50(b) with respect to the jury’s finding of no joint
employer relationship.
The Court concludes that the jury’s
verdict was supported by substantial evidence.
Accordingly, the
Court finds that Plaintiff has not set forth a sufficient basis
to overturn the jury’s verdict with respect to their finding that
Defendants Hawaiiana and RCP were joint employers of Plaintiff.
See Mockler, 140 F.3d at 815; see also Bell, 341 F.3d at 865.
For similar reasons, the Court concludes that a new
trial is not warranted with respect to the issue of Defendants’
joint employer relationship.
The Court finds that the verdict is
not against the weight of the evidence, nor was the trial unfair
to Plaintiff.
See Molski, 481 F.3d at 729.
In fact, the Court
permitted Plaintiff to examine witnesses and present his case at
length, including to personally testify for three days, and
permitted Plaintiff to introduce virtually all of his exhibits.
-20-
For these reasons, the Court concludes that Plaintiff is not
entitled to a new trial pursuant to Fed. R. Civ. P. 59.
B.
1.
Plaintiff’s Substantive Claims
Disparate Treatment (Title VII & Section 1981)
The prima facie elements of a disparate treatment claim
under Title VII and Section 1981 are: (1) membership by a
plaintiff in a protected class; (2) satisfaction by the plaintiff
of the qualifications for the position in issue; (3) an adverse
employment action; and (4) more favorable treatment of similarly
situated individuals outside the plaintiff’s protected class.
Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008).
Defendants conceded that Plaintiff is a member of a protected
class, and that he satisfied the qualifications for his position
as a Security Officer.
(See RCP Special Verdict Form at 3.)
After a twelve-day trial, the jury determined that
although an adverse employment action(s) had occurred, Plaintiff
failed to prove by a preponderance of the evidence that Defendant
RCP gave more favorable treatment to similarly situated
individuals outside Plaintiff’s protected class.
Special Verdict Form at 3.)
(See RCP
Accordingly, the jury found in favor
of Defendant RCP with respect to Plaintiff’s disparate treatment
claim.
Plaintiff argues, among other things, that he presented
evidence at trial establishing the following: Larry Blanko
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singled out Plaintiff and held him to a higher standard of work
than his similarly situated co-workers by virtue of a “sham”
promotion to Assistant Supervisor (Motion at 8-9, 18); Howard
Isono created a new rule that only applied to Plaintiff,
requiring Plaintiff to discuss differences between Plaintiff and
Isono on a face-to-face basis (id. at 15); Mr. Isono reprimanded
Plaintiff for making personal comments in his shift reports but
did not reprimand Plaintiff’s coworkers for the same behavior
(id. at 16); and Mr. Blanko reported Plaintiff’s alleged
errors/omissions and failure to follow protocol with respect to a
lost and found wallet, but failed to report Plaintiff’s coworker
Irvin Fujita, a non-African American security guard, for his
alleged similar violations (id. at 25).
Defendants respond that the evidence presented at trial
did not support a finding that Defendant RCP gave more favorable
treatment to similarly situated individuals outside Plaintiff’s
protected class.
For example, Larry Blanko testified that he
never held Plaintiff to a higher work standard than other RCP
employees, and never treated any RCP employee – including Irvin
Fujita - more favorably than Plaintiff.
(Opposition at 9.)
Howard Isono testified that he never treated Plaintiff
differently because of his race, and terminated Plaintiff
because, among other things, he was insubordinate, too aggressive
in enforcing house rules, exercised bad judgment, exhibited poor
communications skills with owners, tenants, guests, fellow
-22-
employees and supervisors, and refused to change his behavior
even after repeated warnings to do so.
Id. at 12.
Ralph Ahles
testified that he had no knowledge that Plaintiff was treated
differently from other RCP employees on the basis of his race.
Id. at 14.
Although Plaintiff stated that he planned to contact
Ahles regarding the alleged discrimination; Ahles testified that
Plaintiff never followed up prior to being terminated,
notwithstanding Ahles having invited Plaintiff to meet with him
concerning Plaintiff’s claims.
(Opposition at 20.)7/
Significantly, all three of these witnesses also testified that
they never made any racist comments against Plaintiff, a fact
that Plaintiff admitted at trial.
Id. at 9, 12, 14.8/
The
exhibits admitted at trial further substantiate the testimony of
7/
See also Plaintiff’s Ex. 31, June 22, 2009 Incident
Report, wherein Plaintiff stated he was going to call Ahles but
never followed through.
8/
The Court further observes that Plaintiff also testified
that he was not subjected to verbal or physical conduct of a
racial nature by any of his coworkers. With respect to third
parties, Plaintiff testified to one occasion on which one tenant
(Kelly Okumura) subjected Plaintiff to verbal conduct of a racial
nature while Plaintiff was inside the tenant’s apartment pursuant
to his duties as a security officer. However, the Court finds
that the jury could have reasonably rejected this testimony, in
light of the fact that there was no corroborating testimony or
documentary evidence supporting Plaintiff’s statement, and
witness Wade Okumura testified to the contrary. Moreover,
isolated and sporadic instances in which offensive language is
used, including racial epithets, are by themselves insufficient
to constitute a racially hostile work environment. See Cooper v.
Cate, Civ. No. 10-899 AWI DLB, 2012 WL 1669353, at *6 (E.D. Cal.
May 11, 2012) (citing Faragher, 524 U.S. at 788; Harris v.
Forklift Sys., 510 U.S. 17, 21 (1996)).
-23-
Mr. Blanko, Mr. Isono and Mr. Ahles.9/
Plaintiff, on the other
hand, “complain[ed] that all of the complaining parties were
‘lying racists.’”
(Opposition at 10.)
The Court concludes that the jury was presented with a
legally sufficient basis to support the verdict in favor of
Defendants with respect to Plaintiff’s Disparate Treatment claim.
See, e.g., Harvey, 377 F.3d at 707.
Although Plaintiff testified
that he was held to a higher standard than his similarly situated
coworkers and subjected to disparate treatment, his testimony
stood uncorroborated by the sworn statements of other witnesses
at trial, as well as the documentary evidence.
On the other
hand, as described above, Defendants elicited testimony that
Plaintiff was never subjected to disparate treatment from three
separate witnesses.
The Court concludes that the jury’s verdict
with respect to Plaintiff’s Disparate Treatment claim was
supported by substantial evidence.
See Mockler, 140 F.3d at 815.
For similar reasons, the Court concludes that a new trial on the
issue of Disparate Treatment is not warranted because the verdict
9/
See, e.g., May 7, 2009 letter from Isono to Plaintiff
(Motion Ex. 4); June 22, 2009 letter from Isono to Plaintiff
(Motion Ex. 5), corroborating Mr. Isono’s testimony that he
provided warning to Plaintiff of the need to change his behavior
in order to save Plaintiff’s job. See also August 5, 2009 letter
from Kelly Okumura, wherein homeowner Okumura described
Plaintiff’s behavior as “rude,” “condescending,” and
“unprofessional.” Plaintiff presented no evidence that any of
his similarly situated coworkers received any similar complaints
from homeowners and were met with different treatment from Mr.
Blanko or Mr. Isono.
-24-
is not contrary to the clear weight of the evidence.
See Molski,
481 F.3d at 729.
2.
Hostile Workplace - Race (Title VII & Section 1981)
To establish a prima facie case for a Title VII hostile
workplace claim premised upon race, a plaintiff must establish:
(1) that he was subjected to verbal or physical conduct of a
racial or sexual nature; (2) that the conduct was unwelcome; and
(3) that the conduct was sufficiently severe or pervasive to
alter the conditions of the plaintiff's employment and create an
abusive work environment.
Vasquez v. County of Los Angeles, 349
F.3d 634, 642 (9th Cir. 2003).
Following deliberations, the jury concluded that
Plaintiff failed to show by a preponderance of the evidence that
he was subjected to verbal or physical conduct of a racial nature
by a supervisor, co-employee or third party.
Verdict form at 4.)
(See RCP Special
Consequently, the jury found in favor of
Defendant RCP with respect to Plaintiff’s hostile work
environment claim.
The Court concludes that the jury was provided with
more than sufficient evidence to support their verdict throughout
the 12 days of testimony and presentation of documentary
evidence.
Larry Blanko and Howard Isono both testified that they
never subjected Plaintiff to verbal or physical conduct of a
racial nature, a fact that Plaintiff corroborated during his
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testimony.10/
(Opposition at 9, 12, 14.)
Mr. Blanko testified
that Plaintiff was in fact fired for insubordination, failure to
use discretion, being overly aggressive in enforcing house rules
(including personal references in his shift reports), and acting
in an unprofessional manner.
(Id. at 10.)
Mr. Isono
characterized Plaintiff’s behavior as very confrontational and
defiant, and stated that in spite of Isono’s counseling sessions
with Plaintiff as well as written reprimand, Plaintiff continued
to engage in gross misconduct, warranting his termination on
August 6, 2009.
(Id. at 11.)
Isono had received complaints
about Plaintiff from three tenants or homeowners at RCP, stating
that Plaintiff was too aggressive, rude, and extremely
unprofessional.
(Id. at 11-12.)
In fact, the only admissible evidence that Plaintiff
was subjected to verbal or physical conduct of a racial nature
was Plaintiff’s own statements that RCP resident Kelly Okumura
uttered a racial epithet in Plaintiff’s presence while he was in
her apartment.
This statement was not substantiated by any other
witness or any documentary evidence whatsoever.11/
The Court concludes that the jury’s verdict with
10/
Although Plaintiff acknowledged that there was no racial
discrimination expressed by the words of Mr. Blanko or Mr. Isono,
he contended that the alleged racial discrimination was by way of
his treatment as an employee of RCP.
11/
In fact, Kelly Okumura’s husband, Wade, who was
subpoenaed to testify at trial, denied that his wife made any
racist comments to Plaintiff. (See Opposition at 15.)
-26-
respect to Plaintiff’s Disparate Treatment claim was supported by
substantial evidence.
Accordingly, Plaintiff is not entitled to
judgment as a matter of law with respect to his Hostile Work
Environment claim.
See Mockler, 140 F.3d at 815.
The Court further concludes that Plaintiff is not
entitled to a new trial.
The jury heard testimony from three
separate credible witnesses (namely, Blanko, Isono, and Ahles)
that Plaintiff was not subjected to verbal or physical conduct of
a racial nature by any of them.
The only evidence supporting
this claim was Plaintiff’s own testimony with respect to Kelly
Okumura, an assertion that was not corroborated by any other
witnesses or documents.
Further, Plaintiff was provided with an
opportunity to examine witnesses and present his case with
virtually no time limits, and the Court admitted almost all of
Plaintiff’s exhibits.
For these reasons, the Court concludes
that a new trial is not warranted pursuant to Fed. R. Civ. P. 59.
3.
Retaliation (Title VII & Section 1981)
To state a claim for retaliation under Title VII and
Section 1981, a plaintiff must establish that: (1) the employee
engaged in a protected activity; (2) he suffered an adverse
employment action; and (3) there was a causal link between the
protected activity and the adverse employment decision.
Davis,
520 F.3d at 1094.
The jury found that although Plaintiff showed by a
-27-
preponderance of the evidence that he engaged in an activity
protected under federal law (that is, complaining that he was
harassed or discriminated against because of his race), and that
he suffered an adverse employment action(s), Plaintiff failed to
establish by a preponderance of the evidence that he was
subjected to the adverse employment action(s) because of his
complaints about being harassed or discriminated against on
account of his race and receiving disparate treatment because of
his race.
(See RCP Special Verdict Form at 7.)
Therefore, the
jury found in favor of Defendant RCP with respect to Plaintiff’s
claim for retaliation.
Plaintiff asserts that he is entitled to judgment as a
matter of law or a new trial with respect to his Retaliation
claim based upon evidence that, among other things: management
investigated the complaints of harassment made by non-African
American coworkers Ron Sexton, Moe Paglinawan, and Irvin Fujita,
however they failed to investigate Plaintiff’s complaints (Motion
at 12); Howard Isono began to write a series of uninvestigated
allegations against Plaintiff within 24 hours of Plaintiff’s
complaint about Isono’s hostility and harassment toward Plaintiff
(id. at 13); Howard Isono’s June 22, 2009 letter was a
retaliation for Plaintiff’s recent complaints about Isono’s
racial bias toward him (id. at 21); and after Plaintiff’s August
4, 2009 harassment complaint, Plaintiff was fired two days later
(id. at 29).
-28-
Defendants respond that the evidence at trial did not
support a finding of retaliation.
The Court concurs.
For
example, as Defendants assert, Larry Blanko testified that he
never retaliated against Plaintiff regarding any alleged
concealed tape recordings of Plaintiff’s conversations, nor did
he retaliate against Plaintiff after an incident involving a lost
wallet.
(Opposition at 9.)
Further, Blanko stated that the
reason for Plaintiff’s termination was insubordination, failure
to use discretion, being overly aggressive in enforcing house
rules, and acting in an unprofessional manner.
Id. at 10.
Howard Isono also testified that he never retaliated against
plaintiff, stating that Plaintiff’s termination was based upon
his gross misconduct.
Id. at 12.
Isono stated that he did in
fact investigate the owners’ complaints against Plaintiff, as
well as Plaintiff’s complaints against the owners.
Id.
Moreover, Isono gave Plaintiff at least two written warnings
providing additional opportunities for Plaintiff to correct his
actions and keep his job.12/
Additionally, Ralph Ahles testified
that he had no knowledge of Blanko or Isono ever retaliating
against Plaintiff.
12/
(Opposition at 14.)
The documents admitted
See May 7, 2009 letter from Isono to Plaintiff,
Plaintiff’s Ex. 4 (reprimanding Plaintiff for his failure to use
good judgment and providing Plaintiff with an opportunity to
change his behavior); see also June 22, 2009 letter from Isono to
Plaintiff, Plaintiff’s Ex. 5 (providing Plaintiff with final
notice regarding Plaintiff’s insubordination and Isono’s
investigation of complaints against Plaintiff).
-29-
at trial also failed to causally connect Plaintiff’s prior
complaints of harassment or discrimination to Plaintiff’s
eventual termination, or to any other alleged adverse employment
action taken against Plaintiff.13/
Letters from residents such as
Kelly Okumura corroborated Howard Isono’s characterization of
Plaintiff’s behavior as unprofessional.
(See August 5, 2009
letter from Okumura to Plaintiff, Motion at Ex. 9.)
The Court concludes that the jury’s verdict in favor of
Defendants with respect to Retaliation is supported by
substantial evidence, and accordingly judgment as a matter of law
is inappropriate.
Civ. P. 50(b).
See Mockler, 140 F.3d at 815; see also Fed. R.
Larry Blanko and Howard Isono both testified that
they did not retaliate against Plaintiff by subjecting him to an
adverse employment action following his complaints of harassment
and discrimination.
Moreover, the documentary evidence supports
the jury’s verdict.14/
Nor is a new trial warranted.
As an initial matter, as
described above, Plaintiff was given an abundance of
opportunities to present his case with virtually no limitations,
13/
See, e.g., August 6, 2009 letter from Isono to Plaintiff,
Motion at Ex. 1 (stating that Plaintiff was terminated for gross
misconduct, insubordination, multiple confrontations with
tenants, poor judgment, and failure to meet the expectations of
RCP employees.)
14/
The Court also observes that Plaintiff’s own comportment
in the presence of the jury included repeated outbursts and
confrontational behavior toward witnesses and defense counsel.
-30-
and was allowed to admit almost all of his exhibits into
evidence.
Further, the Court finds that the jury’s verdict is
not against the weight of the evidence, and the Court is
certainly not left with a “definite and firm conviction that a
mistake has been committed.”
See Landes, 833 F.2d at 1371-72.
For these reasons, the Court accepts the collective wisdom of the
jury, and will not disturb the decision they reached after
carefully deliberating following twelve days of trial.
In sum, substantial evidence supports the jury's
findings that Plaintiff failed to prove any of his three claims
brought pursuant to Title VII and Section 1981 against both
Defendant RCP and Defendant Hawaiiana.
Defendants presented
specific and substantial evidence, which formed a legally
sufficient basis for a reasonable jury to find in favor of
Defendants.
See, e.g., Casumpang v. Int’l Longshore & Warehouse
Union, Local 142, 411 F. Supp. 2d 1201, 1211 (D. Haw. 2005).
Accordingly, the Court will not substitute its view of the
evidence for that of the jury, as “[o]ur job at this stage is not
to determine whether the jury believed the right people, but only
to assure that it was presented with a legally sufficient basis
to support the verdict.”
Harvey, 377 F.3d at 707.
The Court
finds that no miscarriage of justice will result from the denial
of Plaintiffs' motion.
Wiles v. Dep’t of Educ., 592 F. Supp. 2d
1176, 1199 (D. Haw. Dec. 19, 2008).
The Court also declines to grant Plaintiff a new trial.
-31-
The Court observes that Plaintiff was provided with ample
opportunities to present his case as a pro se litigant.
After
Plaintiff’s exhaustive direct and cross examinations of the trial
witnesses, some lasting for more than two days, Plaintiff was
permitted to testify for three days.
Moreover, after Plaintiff
rested his case without presenting any evidence of damages, the
Court alerted Plaintiff to this mistake and permitted Plaintiff
to re-open his case in order to establish damages.
Following
this allowance, Plaintiff set forth almost no proof of damages
sustained from Defendants’ alleged violations of Title VII and
Section 1981.
Plaintiff has failed to establish that the jury
committed a mistake with respect to its verdict in favor of
Defendants.
Accordingly, Plaintiff is not entitled to a new
trial pursuant to Rule 59.
CONCLUSION
For the foregoing reasons, the Court:
(1) DENIES AS
MOOT Defendants’ Motion for Judgment as a Matter of Law Or In The
Alternative, Judgment Notwithstanding The Verdict; and (2) DENIES
Plaintiff’s
Renewed 50(b) Motion for Judgment as a Matter of Law
or in the Alternative, Judgment Notwithstanding the Verdict or a
Request for a New Trial.
-32-
IT IS SO ORDERED.
DATED:
Honolulu, Hawai#i, January 11, 2013.
________________________________
Alan C. Kay
Sr. United States District Judge
Willis C. McAllister v. Hawaiiana Management Company, Ltd.; AOAO Royal Capital
Plaza, Association of Apartment Owners of Royal Capital Plaza;, Civ. No. 056
ACK-KSC: Order Denying as Moot Defendants’ Motion for Judgment as a Matter of
Law or in the Alternative, Judgment Notwithstanding the Verdict; and Denying
Plaintiff’s Renewed 50(b) Motion for Judgment as a Matter of Law or in the
Alternative, Judgment Notwithstanding the Verdict or a Request for a New
Trial.
-33-
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