Kagawa v. First Hawaiian Bank/Bancwest Corporation et al
Filing
23
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS 6 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 5/4/11. ("For the reasons set forth above, the court GRANTS Defendants' motion to dismiss Count III , for gender discrimination, and Count IV, for age discrimination. The court grants the motion with leave to amend Counts III and IV, but leaves to the magistrate judge the decision of whether to permit amendment in the form of the proposed Amended Complaint that was filed with Kagawa's Motion for Leave of Court to Amend Complaint Pursuant to Fed. R. Civ. P. 15(a)(2). See ECF No. 19 (filed April 22, 2011). The court additionally DISMISSES, without prejudice, Individual Defendants Vivian A dams, Barbara Nitta, and Eliza Young. Finally, the court DENIES Defendants' motion to dismiss Count I, for disability discrimination.") (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
)
)
Plaintiff,
)
)
vs.
)
)
FIRST HAWAIIAN BANK/BANCWEST )
)
CORPORATION, as a domestic
)
profit corporation; VIVIAN
ADAMS, in her official
)
)
capacity as Senior Vice
President, Human Resources
)
Division, for FIRST HAWAIIAN )
)
BANK; BARBARA NITTA, in her
)
official capacity as Vice
)
President, Human Resources
Division, for FIRST HAWAIIAN )
)
BANK; ELIZA YOUNG, in her
official capacity as Manager )
)
of the Credit Services
)
Center, for FIRST HAWAIIAN
)
BANK; JOHN DOES 1-10; JANE
)
DOES 1-10; DOE CORPORATIONS
1-10; DOE PARTNERSHIPS 1-10; )
)
DOE UNINCORPORATED
)
ORGANIZATIONS 1-10; and DOE
)
GOVERNMENTAL AGENCIES 1-10,
)
)
Defendants.
_____________________________ )
KANDICE L.K. KAGAWA,
CIVIL NO. 11-00075 SOM/KSC
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANTS’ MOTION TO DISMISS
I.
INTRODUCTION.
First Hawaiian Bank (“Bank”) terminated longtime
employee Kandice Kagawa in March 2009 following a series of
events that originated in a conversation between Kagawa and
another employee at a bus stop after work.
Kagawa has sued the
Bank and three individuals, Vivian Adams, Barbara Nitta, and
Eliza Young (collectively, the “Individual Defendants”), alleging
disability discrimination under the Americans with Disabilities
Act of 1990, 42 U.S.C. §§ 12101-12213 (“ADA”), religious and
gender discrimination under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”), age
discrimination under the Age Discrimination in Employment Act of
1967, 29 U.S.C. §§ 621-634 (“ADEA”), and intentional infliction
of emotional distress.
Compl. ¶¶ 101-15, Exh. A to ECF No. 1.
Defendants move to dismiss Kagawa’s disability, gender, and age
discrimination claims against the Bank, as well as claims against
the Individual Defendants.
The court now grants the motion in
part, dismissing the Individual Defendants as well as Kagawa’s
gender and age discrimination claims against the Bank.
However,
concluding that Kagawa adequately alleges a claim for disability
discrimination against the Bank, the court declines to dismiss
that claim.
II.
RELEVANT FACTUAL BACKGROUND.
Kagawa alleges that she was hired by the Bank in 1989
and became a Senior Credit Analyst in the Bank’s Credit Services
Center Department in 2002.
Compl. ¶ 14.
Kagawa also apparently
headed the “vehicle industry team” for a period of time.
Compl. ¶ 41.
She is 45 years old.
See
Compl. ¶ 15.
Kagawa alleges that she is a mystic and hears God’s
voice directly.
Compl. ¶ 16.
For many years she led a prayer
2
group consisting of other Bank employees, a group she alleges the
Bank alternately accepted and criticized.
Compl. ¶¶ 18-39.
Kagawa alleges that, in January 2008, “a much younger
and less experienced” male employee was selected to replace her
as head of the vehicle industry team.
Compl. ¶¶ 41-44.
Kagawa alleges that, the following year, she had a
dream in which God told her that another Bank employee had
romantic feelings for her.
On March 9, 2009, she told the
employee about her dream when she saw him at a bus stop after
work.
Compl. ¶¶ 45-46.
She says that, back at work, she was
informed by Defendant Young (a manager) and another supervisor
that the other employee felt harassed by Kagawa’s comments.
Compl. ¶ 48.
Kagawa met with the other employee and the two
supervisors, allegedly to “tell her side of the story.”
¶¶ 51-53.
excused.
Compl.
The other employee asked to leave the meeting and was
Compl. ¶¶ 54, 58.
2009, Young met with Kagawa.
The following day, on March 12,
Compl. ¶¶ 60-65.
Young allegedly
directed Kagawa to have no contact with the other employee, told
Kagawa “that her actions during the meeting of March 11, 2009
were threatening to [the two supervisors],” and ordered Kagawa to
seek counseling within ten days, under threat of termination.
Compl. ¶¶ 60-61, 65.
Kagawa says she received a formal
counseling sheet containing notes written by her manager, but she
did not have time to read it that day.
3
Compl. ¶¶ 66, 79, 87.
Later that day, Defendants Adams and Nitta, of the
Bank’s Human Resources Department, met with Kagawa.
¶¶ 68-79.
Compl.
Kagawa alleges that Adams and Nitta asked her what had
happened, but Kagawa “chose not to tell them at this point
because she knew everything would not be justly taken after how
she had previously been dealt with by both her manager and
supervisor.”
Compl. ¶ 69.
According to Kagawa, Adams and Nitta
instructed Kagawa to read the Bank’s sexual harassment policies,
told her to make an appointment with employee counseling
services, then placed Kagawa on administrative leave.
Compl.
¶¶ 72-79.
Kagawa alleges that she attended a counseling session
on March 19, 2009.
Compl. ¶¶ 81-83.
Kagawa says the counselor
had the counseling sheet that had been prepared by Kagawa’s
manager.
Compl. ¶ 86.
Following the counseling session, the
counselor allegedly instructed Kagawa to see a doctor.
¶¶ 88, 90.
Compl.
Kagawa alleges that she refused because she was not
willing to pay for the appointment.
terminated Kagawa on March 26, 2009.
Compl. ¶¶ 90-91.
Compl. ¶¶ 93-97.
The Bank
While she
was being fired, Kagawa was allegedly told that, “In looking at
everything and based on a conversation with the counselor, we
have no choice.”
Compl. ¶ 97 (internal alterations omitted).
Two weeks after the counseling session, Kagawa
allegedly read for the first time the counseling sheet that had
4
been prepared by her manager.
Compl. ¶ 87.
It stated that
Kagawa “hears a voice” and would do whatever the voice told her
to do.
Id.
However, Kagawa alleges, the counseling sheet failed
to explain that Kagawa believed she was a mystic and could hear
God’s voice.
Id.
Instead, Kagawa read the counseling sheet as
implying that Kagawa heard “just any voice” like “some insane
person.”
Id.
On December 10, 2009, Kagawa filed a charge alleging
age, gender, disability, and religious discrimination, with the
Hawaii Civil Rights Commission (“HCRC”) and the Equal Employment
Opportunity Commission (“EEOC”).
Compl. ¶ 100.
After obtaining
a notice of right to sue, she filed the present action.
III.
STANDARD.
Rule 12(b)(6) of the Federal Rules of Civil Procedure
provides for dismissal of a complaint, or a claim therein, when a
claimant fails “to state a claim upon which relief can be
granted.”
Dismissal under Rule 12(b)(6) may be based on either:
(1) lack of a cognizable legal theory; or (2) insufficient facts
under a cognizable legal theory.
Balistreri v. Pacifica Police
Dep’t, 901 F.2d 696, 699 (9th Cir. 1988) (citing Robertson v.
Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.
1984)).
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
5
claim to relief that is plausible on its face.’
“That is, a
plaintiff must “plead[] factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
Ashcroft v. Iqbal, __ U.S. __, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556, 570 (2007); see Evanns v. AT&T Corp., 229 F.3d
837, 839 (9th Cir. 2000).
To survive this challenge, a
plaintiff’s “factual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all
the allegations in the complaint are true even if doubtful in
fact.”
Twombly, 550 U.S. at 555 (2007) (internal quotation marks
omitted); accord Iqbal, 129 S. Ct. at 1949 (“the pleading
standard Rule 8 announces does not require ‘detailed factual
allegations,’ but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation”).
Under Rule 12(b)(6), the court’s review is generally
limited to the contents of the complaint.
See Marder v. Lopez,
450 F.3d 445, 448 (9th Cir. 2006); Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
All allegations of
material fact are taken as true and construed in the light most
favorable to the nonmoving party.
1068, 1072 (9th Cir. 2005).
See Knievel v. ESPN, 393 F.3d
Conclusory allegations and
unwarranted inferences, however, are insufficient to defeat a
motion to dismiss.
See Sanders v. Brown, 504 F.3d 903, 910 (9th
6
Cir. 2007); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973
(9th Cir. 2004).
IV.
ANALYSIS.
A.
Kagawa Sufficiently Alleges a Claim for Disability
Discrimination (Count I).
Employees may invoke the protections of the ADA against
discrimination by their employer in “hiring, advancement, or
discharge,” among other areas.
See 42 U.S.C. § 12112(a).
To
state a prima facie case of employment discrimination under the
ADA, a plaintiff must allege that: (1) she is “disabled” pursuant
to the ADA; (2) she is a qualified individual, able to perform
the essential functions of the job, with or without reasonable
accommodation; and (3) she suffered an adverse employment action
because of her disability.
See Zivkovic v. S. Cal. Edison Co.,
302 F.3d 1080, 1090 (9th Cir. 2002); Nunes v. Wal-Mart Stores,
Inc., 164 F.3d 1243, 1246 (9th Cir. 1999); see also 42 U.S.C.
§ 12111(8)-(9) (defining “qualified individual” and “reasonable
accommodation”).
Defendants argue that Kagawa fails to state a
plausible claim for disability discrimination because she fails
to allege that she was disabled or regarded as disabled, and
because she fails to allege a connection between the alleged
disability and an adverse action.
See Mot. at 10-13.
As the
court concludes that Kagawa’s disability discrimination claim is
not suitable for adjudication on a motion to dismiss, the court
denies Defendants’ motion to dismiss this claim.
7
The ADA defines a “disability” as: (1) a physical or
mental impairment that substantially limits one or more of the
major life activities of an individual; (2) a record of such an
impairment; or (3) being regarded as having such an impairment.
42 U.S.C. § 12102(1).
One is “regarded as” having an impairment
“if the individual establishes that he or she has been subjected
to an action prohibited under this chapter because of an actual
or perceived physical or mental impairment whether or not the
impairment limits or is perceived to limit a major life
activity.”
42 U.S.C. § 12102(3)(A).
Although “mental
impairment” is not defined in the ADA, the ADA regulations
recognize this phrase as including “[a]ny mental or psychological
disorder, such as . . . emotional or mental illness.”
29 C.F.R.
§ 1630.2(h)(2); Josephs v. Pac. Bell, 443 F.3d 1050, 1062-63 (9th
Cir. 2006); see also Thompson v. Holy Family Hosp., 121 F.3d 537,
541 n.3 (9th Cir. 1997) (“the perception that an employee suffers
from a disabling psychiatric condition would disqualify the
employee from a broad range of jobs”).
In Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir.
1996), for example, a former employee sued his employer under the
ADA, alleging that he had been terminated because he had a
disability or, alternatively, because he was regarded as
disabled.
Id. at 365.
After the employer received complaints
from his coworkers regarding the plaintiff’s “aberrational
8
behavior,” the employer put the plaintiff on leave and ultimately
fired him.
See id. at 366.
To support his claim that the
employer regarded him as disabled, the plaintiff presented
evidence that, during a meeting called to discuss the plaintiff’s
behavior, a manager asked the plaintiff if he was having any
“problems.”
Id.
At another meeting, the manager strongly
encouraged the plaintiff to seek counseling.
Id.
Finally, the
plaintiff presented evidence that the employer had doctors’
reports that diagnosed the plaintiff with depression, anxiety,
and stress.
See id.
Reversing the district court’s grant of
summary judgment in favor of the employer, the Ninth Circuit held
that this evidence presented an issue of material fact as to
whether the employer regarded the plaintiff as disabled.
This is a close case.
Id.
However, given the reasoning in
Holihan–-and keeping in mind that this case is merely at the
pleading stage--the court concludes that Kagawa has sufficiently
alleged that the Bank regarded her as disabled.
First, the
Complaint alleges that the Bank ordered Kagawa to go to
counseling or else be fired.
See Compl. ¶¶ 61, 65.
Second,
Kagawa alleges that her manager’s report, given to the counselor
(assumed to be the Bank’s agent for purposes of this motion),
stated that Kagawa “hears a voice” and would do whatever the
voice told her to do.
Compl. ¶ 87.
Kagawa alleges that this
report was misleading because it failed to explain that Kagawa
9
believed she was a mystic and could hear God’s voice.
Id.
Instead, Kagawa not unreasonably inferred, the report’s
implication was that Kagawa heard “just any voice” like “some
insane person.”
Id.
Third, the counselor instructed Kagawa to
see a doctor, which the court understands to mean a psychiatrist
or psychologist.
Compl. ¶¶ 88, 90.
These facts, taken together,
plausibly allege that the Bank regarded Kagawa as having some
kind of mental illness.
Defendants cite out-of-circuit authority for the
proposition “that requiring an employee to submit to a medical or
psychological evaluation does not by itself establish that an
employer regards the individual as disabled.”
See Reply at 9
(citing caselaw from the Third, Sixth, and Eighth Circuits, as
well as the Middle District of North Carolina).
While it may be
that an allegation about the referral to the counselor, standing
alone, would not be tantamount to an allegation that the Bank
regarded Kagawa as disabled, this case involves additional
allegations, discussed above, that support Kagawa’s claim.
Compl. ¶¶ 87, 88, 90.
See
Cf. Holihan, 87 F.3d at 366 (counseling
referral, considered in conjunction with other evidence, created
genuine issue of material fact as to whether employer regarded
employee as disabled).
Kagawa also sufficiently alleges that she suffered
adverse employment action because of a perceived disability.
10
Specifically, Kagawa alleges that the Bank fired her shortly
after she refused to see the doctor to whom the counselor had
referred her, and that the Bank indicated that the termination
was based on the counselor’s feedback.
Compl. ¶¶ 91-97.
The
termination plainly represents an adverse employment action.
See
Board of County Comm’rs v. Umbehr, 518 U.S. 668, 675 (1996);
Lakeside-Scott v. Multnomah County, 556 F.3d 797, 803 (9th Cir.
2009).
To be sure, Kagawa will have to produce evidence in
support of the above allegations, as well as the other elements
of her prima facie case, to defeat an eventual motion for summary
judgment.
She will likely also have to refute the Bank’s
argument that there was a legitimate nondiscriminatory reason for
her termination–-namely, that she had allegedly threatened other
employees.
See Reply at 9-10.
But those are issues not
appropriate for resolution on a motion to dismiss.
The motion is
denied as to Count I.
B.
Kagawa’s Claims of Gender Discrimination (Count
III) and Age Discrimination (Count IV) Are
Untimely.
Defendants argue that Kagawa’s loss of her supervisory
position to a younger, male employee in January 2008 does not
give rise to a timely gender or age discrimination claim because
Kagawa filed her EEOC charge more than 300 days after the alleged
January 2008 discrimination took place.
11
See Mot. at 7-10.
Kagawa does not dispute that the charge was untimely as to this
event, but nevertheless argues that her gender and age
discrimination claims should stand because the events surrounding
her termination provide the basis of a timely claim.
20.
Opp. at 18-
Given the state of the present record, the court does not
agree.
Title VII and the ADEA both require that an aggrieved
party file a charge with the EEOC within 300 days of the
allegedly unlawful practice to preserve a claim for a subsequent
civil suit.
See 42 U.S.C. § 2000e-5(e)(1) (Title VII); 29 U.S.C.
§ 626(d) (ADEA).
In this case, Kagawa alleges that her demotion
from her position as head of the vehicle industry team in favor
of a younger, male employee occurred in January 2008, but that
she did not file a charge with the HCRC and EEOC until December
2009, nearly two years later.
Compl. ¶¶ 13, 41-44, 100.
To the
extent Kagawa’s claims of gender and age discrimination stem from
activity in January 2008, the EEOC charge was untimely as to
those events.
To the extent Kagawa contends that the charge was
timely filed based on her termination in March 2009, Opp. at 1820, the allegations of the Complaint cannot survive Defendants’
motion to dismiss.
Kagawa’s allegations that gender and age
discrimination caused her termination lack facial plausibility.
See Iqbal, 129 S. Ct. at 1949.
Kagawa alleges no actions or
12
words from the Bank suggesting that she was terminated because
she was a woman or because she was 45 years old.
Kagawa does not
allege that she discussed her gender or her age with the
counselor, or that the counselor’s report touched on Kagawa’s
gender or her age.
Nor does Kagawa allege that the Bank sought
to replace her with a male or a younger person.
In short,
nothing in the allegations surrounding Kagawa’s termination puts
Defendants on notice that they are being sued for gender or age
discrimination.
See Twombly, 550 U.S. at 555 (noting that Rule
8(a)(2)’s requirement of a short and plain statement of the claim
showing that the pleader is entitled to relief is intended to
give a defendant fair notice of what the claim is and the grounds
on which it rests); William O. Gilley Enters. v. Atl. Richfield
Co., 588 F.3d 659, 667 (9th Cir. 2009) (same).
Citing Lam v. University of Hawaii, 40 F.3d 1551 (9th
Cir. 1994), Kagawa argued at the hearing that the court’s
conclusion represents an overly narrow view of Title VII’s
requirements.
Kagawa argued that presence of a viable disability
discrimination claim, as well as what she considers to be a
previous instance of gender and age discrimination in 2008,
should suffice to sustain a gender and age discrimination claim
based on her termination.
This argument is unpersuasive.
In Lam, the district court granted partial summary
judgment in favor of the defendant employer on an Asian woman
13
employee’s race and gender discrimination claims based on, inter
alia, evidence that the employer had favorably considered both an
Asian man and a white woman for the position sought by the
employee.
1554-55.
Id. at 1561.
The Ninth Circuit reversed.
Id. at
Instead of viewing race and sex bias independently, the
court held, “it is necessary to determine whether the employer
discriminates on the basis of that combination of factors.”
Id.
In other words, just because the defendant was interested in a
white man and an Asian woman did not mean the defendant could not
have harbored prejudice against Asian women.
See id.
Nothing in Lam supports Kagawa’s assertion that she
does not need to allege facts supporting a timely gender and age
discrimination claim to survive a motion to dismiss.
Indeed, the
Ninth Circuit stressed the importance of examining evidence of
discrimination on the basis of multiple factors when a plaintiff
brings a claim for a combination form of discrimination.
at 1562.
See id.
The Lam court described in detail the various pieces of
evidence offered by the employee in support of her claim that the
employer had discriminated against her based on her race and
gender, including discriminatory comments and actions taken by a
member of the employer’s hiring committee, as well as the
employer’s decision to vest near total control over hiring in
that committee.
See id. at 1555-57, 1560.
Here, by contrast,
Kagawa’s claim of discrimination in her termination based on
14
gender and age is supported by no factual allegation at all, and
allowing the claims to go forward without such allegations would
render the pleading requirements for Title VII claims
meaningless.
C.
Lam does not require such a result.
The Individual Defendants Are Dismissed.
As discussed at the hearing, Kagawa has agreed to
dismiss Adams, Nitta, and Young from the suit.
(minutes of hearing).
See ECF No. 21
There being no opposition to dismissal,
the Individual Defendants are dismissed from this lawsuit.
V.
CONCLUSION.
For the reasons set forth above, the court GRANTS
Defendants’ motion to dismiss Count III, for gender
discrimination, and Count IV, for age discrimination.
The court
grants the motion with leave to amend Counts III and IV, but
leaves to the magistrate judge the decision of whether to permit
amendment in the form of the proposed Amended Complaint that was
filed with Kagawa’s Motion for Leave of Court to Amend Complaint
Pursuant to Fed. R. Civ. P. 15(a)(2).
April 22, 2011).
See ECF No. 19 (filed
The court additionally DISMISSES, without
prejudice, Individual Defendants Vivian Adams, Barbara Nitta, and
Eliza Young.
Finally, the court DENIES Defendants’ motion to
dismiss Count I, for disability discrimination.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, May 4, 2011
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Kagawa v. First Hawaiian Bank/Bancwest Corp.; Civil No. 11-00075 SOM/KSC; ORDER
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
16
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