Lalau v. City and County of Honolulu et al
Filing
77
ORDER GRANTING IN PART, DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 30 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/28/13. " For the reasons stated above, to the extent Lalau asserts hostile work environm ent or retaliation claims in Counts I, II, and III, the court grants summary judgment to the City on those claims. Summary judgment is also granted in favor of the City on the WPA claim asserted in Count IV. With respect to Count V, the court gran ts summary judgment to the City with respect to the portion of Count V that asserts an IIED claim in connection with the hostile work environment, retaliation, or whistleblowing asserted in Counts I, II, III, and IV. Summary judgment is denied with respect to all other claims. This order leaves for trial the portions of Counts I, II, and III that assert disparate treatment, and the portion of Count V that asserts IIED relating to disparate treatment. Lalau concedes that he may not r ecover punitive damages against the City, and his prayer for punitive damages is deemed withdrawn." (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
)
)
)
Plaintiffs,
)
)
vs.
)
CITY AND COUNTY OF HONOLULU, )
)
et al.,
)
)
Defendants.
_____________________________ )
ELLIS F. LALAU,
CIVIL NO. 11-268 SOM/RLP
ORDER GRANTING IN PART,
DENYING IN PART DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING IN PART, DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
In this employment discrimination case, Plaintiff Ellis
Lalau is suing the City and County of Honolulu (the “City”) in
connection with having been allegedly demoted, excluded from
training and meetings, investigated, and placed on administrative
leave from the Honolulu Liquor Commission.
claims against the City.
Lalau asserts five
Count I asserts national origin
discrimination in violation of Title VII.
Count II asserts a
claim under the Age Discrimination in Employment Act (“ADEA”).
Count III asserts a state-law employment discrimination claim
pursuant to section 378-2 of Hawaii Revised Statutes.
Count IV
asserts a state-law whistleblower claim pursuant to section 37862 of Hawaii Revised Statutes.
Finally, Count V asserts a common
law claim for intentional infliction of emotional distress
(“IIED”).
The City now moves to dismiss Laulau’s claims on the
grounds that Laulau has failed to prosecute the case.
alternative, the City moves for summary judgment.
In the
This court
declines to dismiss the case for failure to prosecute.
After
having earlier expressed its inclination to grant summary
judgment to the City on all claims, the court, having heard oral
argument, having further reviewed the written materials submitted
to it, and having done further legal research, now concludes that
questions of fact preclude summary judgment on several claims.
Summary judgment is granted in the City’s favor on only the
following:
1.
The portions of the Title VII, ADEA, and section
378-2 claims asserting or a hostile work environment or
retaliation.
2.
The entirety of Count IV.
3.
The portions of Count V asserting emotional
distress relating to a hostile work environment, retaliation, or
whistleblowing.
In all other respects, the summary judgment motion is
denied.
II.
BACKGROUND.
Lalau is a Samoan male over the age of forty.
See
Charge of Discrimination, Exh. M to Defendants’ Concise Statement
of Facts (“DCSF”), ECF No. 31-19.
2
He began working for the
Honolulu Liquor Commission as a liquor investigator in March
2007.
Id.
The parties agree that Lalau was temporarily assigned
to fill the position of acting supervisor on December 12, 2007.
See DCSF ¶ 5; Plaintiff’s Concise Statement of Facts (“PCSF”)
¶ 5, ECF No. 47.
Then, on March 26, 2008, Liquor Inspector Jude
Remotigue complained that Lalau had belittled him and created a
hostile work environment.
DCSF ¶ 7; PCSF ¶ 7.
The parties agree
that shortly thereafter, in April 2008, Lalau ceased to be an
acting supervisor and returned to being an investigator.
However, the parties disagree as to the reason for that change in
position.
The City says that the term of Lalau’s temporary
assignment simply ended.
Lalau contends that he was removed from
his temporary assignment “in retaliation,” because he was “about
to report misconduct by Jeff Smith, other supervisors, and coemployees,” and because he “refused to falsify” Daily Activity
Reports, which Lalau alleges Chief Investigator Jeffrey Smith had
directed him to do.
DCSF ¶¶ 9, 10; Dec. of Ellis V. Lalau ¶¶ 5,
10, ECF No. 47-2.
According to Lalau, in the period immediately following
his return to being an investigator, he “was constantly harassed
by Smith and [Admininstrator Dewey] Kim” and “excluded from
meetings.”
Lalau says that he “was accused of falsifying
reports” and of “covering up for liquor establishments,” and “was
3
threatened with polygraphs and future investigations.”
Lalau ¶ 11.
Dec. of
Lalau specifically recalls that, on June 16, 2008,
Smith told him that he could no longer participate in the Cancer
Research Center of Hawaii’s program because he had missed a
meeting, even though other investigators who had missed meetings
had allegedly not been excluded from the program.
Id. ¶ 14.
In mid-June 2008, Lalau asked Smith to reinstate him as
a supervisor.
Lalau says that Smith responded by saying that the
supervisory position would be going to “a younger guy as I was
too old anyway.”
statement.
Id. ¶ 11.
Smith denies having made any such
Dec. of Jeffrey Smith ¶ 35, ECF No. 31-16.
Administrator Kim notes that, at the time Lalau was removed from
the supervisory position, Lalau “was 41 years old,” which was
younger than either Smith or Kim, and was “the youngest person in
a supervisory capacity.”
Declaration of Dewey Kim
¶¶ 36-37.
Lalau further says that, on June 19, 2008, “Smith and
Kim stated that they needed to make the office safe from me
because I was just a typical Samoan.”
denies having made such a statement.
Dec. of Lalau ¶ 13.
Dec. of Smith ¶ 39.
Smith
With
respect to whether Kim made such a statement, the court notes
that the reference in Lalau’s declaration to Kim’s having made
such a statement himself is at odds with the allegation, made
under penalty of perjury, in Lalau’s administrative Charge of
4
Discrimination, which states, “Smith told Administrator Dewey Kim
that he needed to make the office safe from me because I was
Samoan and I was a ‘typical Samoan.’” See Exhibit M, ECF No. 3119.
This discrepancy may reflect on Lalau’s credibility at
trial, but it is not material to the court’s ruling here.
While not directly addressing the allegation that he
himself made the statement, Kim denies that Smith made the
statement to him and asserts that he would not have tolerated
such a statement from Smith and that he himself harbors no
animosity toward Samoans:
40. Plaintiff bases his claim of racial
basis on the allegation that, in mid-June,
Smith supposedly told me that “he needed to
make the office safe from [Plaintiff] because
Plaintiff was Samoan and a ‘typical Samoan’.”
41.
to me.
Smith never made such a statement
. . . . .
45. If Smith had made such a derogatory
statement, I would have considered it
inappropriate, and would have counseled him
about it.
46. I do not harbor any prejudice
against, or animosity towards, Samoans and as
Administrator took affirmative actions to
hire more Polynesians at the Liquor
Commission, including Samoans.
Dec. of Kim ¶¶ 40, 41, 45-46.
There is an additional inconsistency relating to what
was said about Lalau’s Samoan background.
5
In a letter dated July
29, 2008, to the City’s Director of Budget and Fiscal Services,
Mary Pat Waterhouse, Lalau said that Smith had made “public
comments around me that he ‘needs to make this place (Honolulu
Liquor Commission Office) safe from me because I placed Remotigue
in a hostile working environment.’”
ECF No. 47-3.
Without
saying that Smith had actually used the word “Samoan,” the letter
continues with the following parenthetical:
made due to my ethnic background).”
“(I felt comment was
At trial, it may be critical
to the factfinder to determine whether there was an express
reference to Lalau as a “typical Samoan” or whether, without
hearing the word “Samoan,” Lalau was justified in “feeling” that
the comment related to his “ethnic background.”
This court need
not resolve this matter and instead views the evidence in the
light most favorable to Lalau, which means that the court accepts
the version more damaging to the City (i.e., the version in which
Lalau says that he was referred to as a “typical Samoan” from
whom the office needed to be made safe).
In July 2008, following an internal investigation,
Lalau received a Notice of Disciplinary Action that contained a
written warning for having violated the Honolulu Liquor
Commission’s standards of conduct in his interactions with
Remotigue.
See DCSF at Exhibit C, ECF No. 31-10.
Lalau says
that, a few days later, Smith told him that he could no longer
6
participate in firearms training because he had missed a day,
“when in fact I had never missed a day.”
Id. ¶ 16.
Smith and Kim deny that Lalau was excluded from
training.
They attribute any lack of training to Lalau’s own
decision not to take advantage of training opportunities.
They
refer to a training opportunity on Maui in September 2008, which
they say Lalau declined because he planned to attend a football
game on the mainland.
¶¶ 46-50.
Dec. of Kim ¶¶ 51-57; Dec. of Smith
Kim also says that, while Lalau did attend training in
Kona, Lalau declined to attend training in California in 2008,
citing childcare issues.
Dec. of Kim ¶ 55.
Smith and Kim say
that the only training Lalau was not allowed to participate in
was a firearms training session in late July 2008.
Russell Yap,
a Liquor Control Investigator I at the time of the events in
question, was present for that training.
He says that, because
Lalau “appeared to be upset, agitated and accusatory,” the
firearms instructor and Yap, “[o]ut of concern for the safety of
the other individuals participating in the exercise, . . .
recommended that Plaintiff not participate in the live fire
training.”
Dec. of Russell Yap ¶¶ 34-36.
that recommendation.
Smith concurred in
Dec. of Smith ¶¶ 43-45.
Kim reports having held a meeting on July 29, 2008,
that Kim says Lalau “burst” into “uninvited.”
Kim says he was
meeting with three investigators and their temporary supervisor
7
“to share with them positive feedback [he] had received about
their performance while training in California.”
He says he had
not invited Lalau or other investigators to that meeting “[g]iven
the subject nature of the meeting.”
Dec. of Kim ¶¶ 64-66.
Lalau, on the other hand, told Mary Pat Waterhouse that everyone
else who was at work that day was “in or headed to” the meeting.
ECF. No. 47-3.
Kim says that Lalau demanded to know why he had
not been invited to attend the meeting and that, when Kim
explained that the meeting concerned training in California that
Lalau had not participated in, Lalau accused him of threatening
Lalau, told secretaries that they had to be Lalau’s witnesses,
and called the police.
Kim denies having threatened Lalau and
says that the police determined that there had been no
threatening conduct.
Id. ¶¶ 70-76.
That same day, Lalau submitted letters to the Liquor
Commission Board and to Waterhouse, the City’s Director of Budget
and Fiscal Services, asserting that he had been subjected to a
hostile work environment.
About two weeks later, Lalau was
placed on administrative leave and “was officially charged and
placed under investigation for performance of duty, absence of
duty, and falsifying” Daily Activity Reports.
17-18, 21.
Dec. of Lalau ¶¶
Lalau apparently remained on administrative leave
until June 29, 2010.
According to Lalau, the charges against him
were dismissed after having been “allowed to languish for 22
8
months.”
See letter from Lalau to Honolulu Liquor Commission
dated Sept. 24, 2010, ECF No. 47-4; letter from Lalau to
Commissioners dated June 1, 2011, ECF No. 47-5.
On September 3, 2008, Lalau filed his Charge of
Discrimination with the Hawaii Civil Rights Commission (“HCRC”).
A box on the charge form that provided for simultaneous
presentation of the charge to the EEOC was checked.
See Kaulia
v. County of Maui, 504 F. Supp. 2d 969, 985-86 (D. Haw.
2007)(noting that Hawaii is a deferral state with a worksharing
agreement between the EEOC and HCRC).
The charge alleged
national origin and age discrimination, as well as retaliation.
ECF No. 31-19.
On July 14, 2010, a Notice of Suit Rights was
mailed to him by the EEOC.
ECF No. 31-20.
Compl. ¶ 41.
Nothing
in the record establishes that Lalau received a separate Right to
Sue Notice from the HCRC, which is required before a lawsuit
asserting a section 378-2 claim may be filed.
Stat. §§ 368-11, 368-12.
See Haw. Rev.
However, because there is no dispute
that Lalau submitted a charge to the HCRC, and because the City
does not contend on the present motion that Lalau failed to
exhaust his administrative remedies with respect to his section
378-2 claims, this court proceeds here on the assumption that
Lalau received a Right To Sue Notice from the HCRC.
Lalau filed suit in state court on October 10, 2010,
but did not serve the Complaint on the City.
9
Lalau then filed
his First Amended Complaint on January 31, 2011, which was served
on the City on April 11, 2011.
this court on April 21, 2011.
The City removed the action to
See Notice of Removal of Civil
Action, ECF No. 1.
III.
THE COURT DECLINES TO DISMISS THIS ACTION FOR FAILURE
TO PROSECUTE.
The City seeks dismissal of this action based on what
it says is Lalau’s failure to prosecute this action.
Rule 41(b)
of the Federal Rules of Civil Procedure provides for a motion to
dismiss if a plaintiff “fails to prosecute or to comply with
these rules or a court order.”
“Dismissal is a harsh penalty and
is to be imposed only in extreme circumstances.”
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986).
Henderson v.
A court must weigh
several factors in determining whether to dismiss for lack of
prosecution: “(1) the public’s interest in expeditious resolution
of litigation; (2) the court’s need to manage its docket; (3) the
risk of prejudice to the defendants; (4) the public policy
favoring disposition of cases on their merits and (5) the
availability of less drastic sanctions.”
Id.
The first factor (the public’s interest in expeditious
resolution of litigation) weighs in favor of dismissal.
This
lawsuit commenced in state court in October 2010, and it has been
nearly two years since the case was removed to this court.
The second factor (the court’s need to manage its
docket) is neutral, as the record does not indicate that the
10
court’s management of its docket has been thwarted.
Of course,
the more quickly a case progresses, the better from a case
management point of view, and deadlines have undeniably been
extended and trial continued.
Still, trial is set for next
month, and the City does not show that that schedule is not
within the normal range.
With respect to the third factor (the risk of prejudice
to the City), the City points to a delay in service of the First
Amended Complaint.
Lalau can hardly complain that the delays
were caused by lack of knowledge of where to serve the City, a
matter no doubt known to Lalau or his counsel before this lawsuit
even began, or easily ascertained.
that the delay was unreasonable.
That does not mean, however,
Indeed, because the record is
devoid of evidence going to the reasons for that delay, the court
is unable to label the delay unreasonable.
support dismissal.
Delay alone will not
“A dismissal for lack of prosecution must be
supported by a showing of unreasonable delay.”
Id. (emphasis
added).
Also in connection with the third factor, the City
complains that Lalau did not respond to discovery requests for
months, and that this delay “forced” the City to file the present
motion “without the benefit of discovery.”
30-1.
Motion at 4, ECF No.
The City does not indicate why it did not seek to compel
discovery responses under Rule 37 of the Federal Rules of Civil
11
Procedure.
Moreover, while the court certainly understands that
a deposition is likely to be more efficient and more
comprehensive if the deposing party has discovery responses in
hand, nothing prevented the City from noticing any deposition.
Having not availed itself of remedies available to it that might
have alleviated any prejudice, the City is not persuasive in
contending that the risk of prejudice weighs in its favor.
At
best, the City cites Henderson for the proposition that
unreasonable delay creates a presumption of injury to the
defense.
See id.
However, even assuming that not answering
discovery requests for months is necessarily unreasonable,
unreasonable delay does not always require dismissal.
Fosburg, 706 F.2d 916, 919 n.2 (9th Cir. 1983).
See Mir v.
That is, while
unreasonable delay creates a presumption of prejudice, such
presumed prejudice, even unrebutted, does not compel a court to
dismiss an action.
The fourth factor (the public policy favoring
disposition on the merits) clearly would not be served by
dismissal for failure to prosecute.
As to the fifth factor (the availability of less
drastic sanctions), an obviously lesser sanction is strict
enforcement of deadlines that have passed, meaning that Lalau
must proceed without the benefit of information that more
diligent prosecution of this case would have provided.
12
The above factors do not all fall on the same side of
the scale, but, considered in combination, weigh against
dismissal.
The court denies the motion to dismiss for failure to
prosecute and turns to the City’s alternative request for summary
judgment.
IV.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the pleadings,
the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of
law.”
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.
U.S. 317, 323-24 (1986).
Celotex Corp. v. Catrett, 477
Accordingly, “[o]nly admissible
evidence may be considered in deciding a motion for summary
judgment.”
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975,
988 (9th Cir. 2006).
Summary judgment must be granted against a
party that fails to demonstrate facts to establish what will be
an essential element at trial.
See Celotex, 477 U.S. at 323.
A
moving party has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party
to identify for the court “those portions of the materials on
13
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); accord Miller, 454 F.3d at 987.
“A fact is material if it could affect the outcome of the suit
under the governing substantive law.”
Miller, 454 F.3d at 987.
When the moving party fails to carry its initial burden
of production, “the nonmoving party has no obligation to produce
anything.”
In such a case, the nonmoving party may defeat the
motion for summary judgment without producing anything.
Fire, 210 F.3d at 1102-03.
Nissan
On the other hand, when the moving
party meets its initial burden on a summary judgment motion, the
“burden then shifts to the nonmoving party to establish, beyond
the pleadings, that there is a genuine issue for trial.”
454 F.3d at 987.
Miller,
This means that the nonmoving party “must do
more than simply show that there is some metaphysical doubt as to
the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986) (footnote omitted).
The
nonmoving party may not rely on the mere allegations in the
pleadings and instead “must set forth specific facts showing that
there is a genuine issue for trial.”
Porter v. Cal. Dep’t of
Corr., 419 F.3d 885, 891 (9th Cir. 2005) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)).
“A genuine
dispute arises if the evidence is such that a reasonable jury
14
could return a verdict for the nonmoving party.”
California v.
Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred
Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) (“There must be
enough doubt for a ‘reasonable trier of fact’ to find for
plaintiffs in order to defeat the summary judgment motion.”).
On a summary judgment motion, “the nonmoving party’s
evidence is to be believed, and all justifiable inferences are to
be drawn in that party’s favor.”
Miller, 454 F.3d at 988
(quotation marks and brackets omitted).
V.
ANALYSIS OF SUMMARY JUDGMENT ISSUES.
A.
Lalau Provides Evidence of National Origin and Age
Discrimination.
1.
Lalau Need Not Use the McDonnell Douglas
Framework.
In Count I, Lalau, who is Samoan, alleges that the City
discriminated against him on the basis of his national origin in
violation of Title VII of the Civil Rights Act of 1964.
Title
VII prohibits employment discrimination based on “race, color,
religion, sex, or national origin.”
42 U.S.C. § 2000e–2(a).
In Count II, Lalau asserts that the City discriminated
him on the basis of his age, in violation of the ADEA.
The ADEA
makes it unlawful to discriminate in employment against any
individual who is at least 40 years old “because of such
individual’s age.”
29 U.S.C. § 623; Coleman v. Quaker Oats Co.,
232 F.3d 1271, 1281 (9th Cir. 2000).
15
In Count III, Lalau asserts employment discrimination
by the City in violation of the state-law analogues to Title VII
and the ADEA.
Section 378-2 of Hawaii Revised Statutes prohibits
discrimination based on “race, sex, including gender identity or
expression, sexual orientation, age, religion, color, ancestry,
disability, marital status, arrest and court record, or domestic
or sexual violence victim status.”
Haw. Rev. Stat. § 378-2.
This court treats the Title VII claim of national origin
discrimination as analogous to a section 378-2 claim of
discrimination based on race or ancestry.
For that reason, the
court in this order sometimes refers to national origin
discrimination under both Title VII and section 378-2 as a kind
of shorthand intended to include race or ancestry discrimination
under section 378-2.
In Counts I, II, and III, Lalau is clearly asserting
disparate treatment by the City.
Lalau suffered disparate
treatment if he was “singled out and treated less favorably than
others similarly situated on account of” his national origin or
race.
See Gay v. Waiters’ & Dairy Lunchmen’s Union, 694 F.2d
531, 537 (9th Cir. 1982).
A plaintiff who asserts disparate
treatment in employment may prove that he has a triable claim in
either of two ways.
First, the plaintiff may apply the burden-shifting
analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
16
792 (1973).
This analysis applies equally to claims brought
under Title VII, the ADEA, and section 378-2.
See Shelley v.
Green, 666 F.3d 599, 607-08 (9th Cir. 2012) (noting that the
McDonnell Douglas burden-shifting framework applies to ADEA
claims evaluated in the context of a summary judgment motion);
Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1103 (9th Cir.
2008) (applying McDonnell Douglas burden-shifting framework to
Title VII case); Shoppe v. Gucci Am., Inc., 94 Haw. 368, 378, 14
P.3d 1049, 1059 (2000) (applying federal analysis to claims under
section 378-2).
Under the McDonnell Douglas framework, a plaintiff must
establish a prima facie case of discrimination by showing that
(1) he belongs to a protected class; (2) he performed according
to his employer’s expectations; (3) he suffered an adverse
employment action; and (4) similarly situated individuals outside
of his protected class were treated more favorably.
See
Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116 (9th Cir.
2009); Chuang v. Univ. of Cal. Davis Bd. of Trustees, 225 F.3d
1115 (9th Cir. 2000).
The degree of proof required to establish a
prima facie case for summary judgment is minimal.
See Coghlan v.
Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).
Under the McDonnell Douglas framework, once a plaintiff
succeeds in presenting a prima facie case, the burden shifts to
the defendant to articulate a “legitimate, nondiscriminatory
17
reason” for its employment decision.
F.3d 1163, 1168 (9th Cir. 2007).
Noyes v. Kelly Servs., 488
“Should the defendant carry its
burden, the burden then shifts back to the plaintiff to raise a
triable issue of fact that the defendant’s proffered reason was a
pretext for unlawful discrimination.”
Id.
Second, a plaintiff may opt not to rely on the
McDonnell Douglas framework at all in responding to a summary
judgment motion.
He may instead respond by producing evidence
demonstrating that a discriminatory reason more likely than not
motivated his employer.
See Surrell, 518 F.3d at 1105; McGinest
v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir. 2004)(a
plaintiff responding to a summary judgment motion may “proceed by
using the McDonnell Douglas framework, or alternatively, may
simply produce direct or circumstantial evidence demonstrating
that a discriminatory reason more likely than not motivated” the
employer).
When a comment is not a “stray remark,” even if the
employer has a legitimate, nondiscriminatory reason for taking an
adverse employment action, the plaintiff “will necessarily have
raised a genuine issue of material fact with respect to the
legitimacy or bona fides of the employer’s articulated reason for
its employment decision.”
Cordova v. State Farm Ins. Co., 124
F.3d 1145, 1149 (9th Cir. 1997) (quotation marks and citation
omitted).
18
In its moving papers, the City relies primarily on the
McDonnell Douglas burden-shifting framework, arguing that Lalau
cannot meet his initial burden under that framework of making out
a prima facie case.
But Lalau eschews the McDonnell Douglas
framework and opts to go directly to producing evidence that the
City likely acted for a discriminatory reason.
Lalau’s approach
is clearly permitted.
“[A]lthough the McDonnell Douglas burden shifting
framework is a useful ‘tool to assist plaintiffs at the summary
judgment stage so that they may reach trial,’ ‘nothing compels the
parties to invoke the McDonnell Douglas presumption.’”
McGinest,
360 F.3d at 1122 (quoting Costa v. Desert Palace, 299 F.3d 838,
855 (9th Cir. 2002)(en banc), aff’d, 539 U.S. 90 (2002)).
2.
Lalau’s Evidence of National Origin and Age
Discrimination Is Sufficient To Preclude
Summary Judgment.
The evidence that Lalau produces to show that a
discriminatory reason more likely than not motivated the City is
as thin as it could be.
That evidence may end up being too thin
to support a verdict at trial.
But even that slight evidence is
sufficient to defeat the City’s summary judgment motion.
The evidence going to national origin discrimination
consists of a single alleged comment.
The comment, allegedly made
by Smith and/or Kim on June 19, 2008, reportedly referred to a
19
need “to make the office safe” from Lalau because Lalau was “a
typical Samoan.”
See Dec. of Lalau ¶ 13.
Similarly, the evidence going to age discrimination
consists of a single comment.
Lalau says that, in mid-June 2008,
he asked to be reinstated as a supervisor, but that Smith told him
that the supervisory position would be going to “a younger guy as
I was too old anyway.”
Smith and Kim were the very individuals responsible for
ending Lalau’s assignment as an acting supervisor.1
Although the
separate comments were both allegedly made after Lalau was removed
from his position as acting supervisor in April 2008, it is
reasonable to infer that comments made about Lalau’s being Samoan
or being too old in June 2008 reflected the attitudes Smith and
Kim had when Lalau lost his supervisory position.
See Cordova,
124 F.3d at 1149 (statements made after an employer decided not to
1
The City says, “Smith and Kim were responsible for both
Plaintiff’s hiring and alleged discrimination.” Motion at 16.
The City’s statement relates to its argument that it is entitled
to the benefit of the “same actor” inference. Motion at 16. The
Ninth Circuit has stated, “We therefore hold that where the same
actor is responsible for both the hiring and the firing of a
discrimination plaintiff, and both actions occur within a short
period of time, a strong inference arises that there was no
discriminatory motive.” Bradley v. Harcourt, Brace & Co., 104
F.3d 267, 270-71 (9th Cir. 1996). As to the Ninth Circuit’s
reference to a “a short period of time,” this court notes that
Bradley involved a gap of a year between the plaintiff’s hiring
and firing, although there were extensions of the probationary
period in the interim. Lalau lost his supervisory position about
a year after he was hired. However, the “same actor” inference
is rebuttable, see id., and Lalau attests to post-hiring comments
by Smith and/or Kim about national origin and age.
20
hire the plaintiff could be evidence that discrimination
influenced the decision).
Two matters merit emphasis here.
First, Lalau’s inability to identify more than a single
comment relating to his being Samoan and a single comment relating
to his age is not fatal to his claims of national origin
discrimination and age discrimination.
The Ninth Circuit has
noted, “[I]n this circuit, we have repeatedly held that a single
discriminatory comment by a plaintiff’s supervisor or
decisionmaker is sufficient to preclude summary judgment for the
employer.”
Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d 1027,
1039 (9th Cir. 2005).
“Where, as here, the person who exhibited
discriminatory animus influenced or participated in the
decisionmaking process, a reasonable factfinder could conclude
that the animus affected the employment decision.”
Id. 1039-40.
Such evidence is “sufficient to overcome summary judgment.”
at 1040 n.5.
Id.
Accord Metoyer v. Chassman, 504 F.3d 919, 937 (9th
Cir. 2007).
Relying on a supervisor’s discriminatory single comment
is consistent with “the importance of zealously guarding an
employee’s right to a full trial, since discrimination claims are
frequently difficult to prove without a full airing of the
evidence and an opportunity to evaluate the credibility of the
witnesses.”
McGinest, 360 F.3d at 1112.
21
If this court were to
grant summary judgment too readily, it would “run[] the risk of
providing a protective shield for discriminatory behavior that our
society has determined must be extirpated.”
Id.
Of course, this
court is not here suggesting that the City has actually engaged in
discriminatory behavior.
This court is only determining that it
cannot, on the present record, determine that the City is entitled
to judgment in its favor on the disparate treatment claims under
Title VII, the ADEA, and section 378-2.
The second matter that bears noting is that the comments
are direct evidence of discriminatory animus toward Samoans and
older workers.
“Direct evidence is evidence which, if believed,
proves the fact without inference or presumption.”
Brown v. E.
Miss. Elec. Power Ass’n, 989 F.2d 858, 861 (9th Cir. 1993).
The
alleged comment about needing to make the office “safe” from Lalau
because he is a “typical Samoan” reflects a belief that Samoans
typically present some form of danger to others.
Assuming Smith
and/or Kim actually made the comment, which they dispute, it
requires no inference that Smith and/or Kim had a negative
attitude toward Samoans; the comment itself illustrates such an
attitude.
By contrast, if, contrary to what Kim says in his
declaration, no Samoans had been hired, that would be
circumstantial, not direct, evidence of a discriminatory mindset.
It is the direct indication of bias in the alleged
comments that prevents them from being relegated to “stray
22
remarks” that are insufficient to sustain a plaintiff’s claim.
See Chuang, 225 F.3d at 1128(noting that direct evidence of
discriminatory motive need not be substantial and may be “very
little” to create a triable issue).
A supervisor’s comment that
patently reveals a discriminatory mindset is not “stray” in the
context of an employment discrimination action.
Indeed, the
comment need not even be made in the direct context of an adverse
employment decision to establish discrimination.
See Reeves v.
Sanderson Plumbing Prod., Inc., 530 U.S. 133, 153 (2000).
Of course, direct evidence that Smith and Kim had a
discriminatory mindset toward Samoans is not necessarily the same
as direct evidence that Smith and Kim subjected Lalau to any
adverse employment action because of that discriminatory mindset.
One adverse employment action identified by Lalau is his alleged
demotion from the acting supervisor position, an action the City
says reflected only the temporary nature of his initial assignment
to that position.
The court views this dispute about why Lalau
lost his supervisory position as a matter for the jury to resolve,
but for purposes of this motion, views the facts in Lalau’s favor.
Lalau also claims to have been excluded from meetings and denied
training, including firearms training, and to have been subjected
to investigations that caused him to be placed on administrative
23
leave.2
The connection between the direct evidence of
discriminatory mindset and any adverse employment action is
circumstantial, not direct.
Such evidence includes the relatively
short period separating the “typical Samoan” comment from Lalau’s
loss of the supervisory position.
It also includes the alleged
exclusion of Lalau from meetings.
One might see that alleged
exclusion as an indication that Smith and Kim preferred not to
associate with Lalau and to wall him off from opportunities to
advance.
Assuming a jury found that Smith and Kim made the
alleged “typical Samoan” comment, the jury could also find from
the circumstantial evidence that their distaste for Samoans
influenced actions they took affecting the conditions of Lalau’s
employment.
In differentiating between direct and circumstantial
evidence, this court is engaging in an exercise not uncommon to
courts and parties in employment discrimination cases.
2
See, e.g.,
Some of the things Lalau complains about may not rise to
the level of adverse employment actions. For example, the record
does not include enough information for the court to understand
whether participation in the Cancer Research Center of Hawaii
program was an employment benefit or unrelated to the conditions
of employment. It is similarly unclear whether the alleged
exclusion from the meeting of July 29, 2008, was an adverse
employment action. Lalau presents no detail as to what important
or necessary information or fellowship he might have been
deprived of by the alleged exclusion. Because the City’s motion
does not dispute that Lalau did suffer an adverse employment
action and does not attempt to narrow the events qualifying as
adverse employment actions, the court does not here parse the
allegations to determine which events do qualify.
24
McGinest, 360 F.3d at 1122 (“The parties debate at length the
question of whether McGinest adduced direct or circumstantial
evidence of discrimination, and the relevance of the resolution of
this question to the proper analytical framework by which a
disparate treatment claim is evaluated.”).
Such efforts flow from
concern that the applicable standard be applied in evaluating the
evidence.
The Ninth Circuit has said that, when a plaintiff opts
not to rely on the McDonnell Douglas framework but instead to
produce evidence that an employer likely acted for a
discriminatory reason, it does not matter whether the
direct or circumstantial.
evidence is
Thus, in McGinest, the Ninth Circuit
said, “In Costa, the Supreme Court held that circumstantial and
direct evidence should be treated alike, noting: ‘Circumstantial
evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.’”
1122.
360 F.3d at
However, the Ninth Circuit has also said that “[o]ur
circuit has not clearly resolved” whether, when evidence of
discriminatory animus is circumstantial, the evidence must be
“specific” and “substantial,” a standard inapplicable to direct
evidence.
Davis v. Team Elec. Co., 520 F.3d 1080, 1091 (9th Cir.
2008).
After the Supreme Court decided Costa in 2002, the Ninth
Circuit, in Cornwell v. Electra Central Credit Union, 439 F.3d
1018, 1030 (9th Cir. 2006), said that “in the context of summary
25
judgment, Title VII does not require a disparate treatment
plaintiff relying on circumstantial evidence to produce more, or
better, evidence than a plaintiff who relies on direct evidence.”
But in other post-Costa cases, the Ninth Circuit required
circumstantial evidence of pretext to be “specific” and
“substantial.”
Davis, 520 F.3d at 1091 n.6 (citing Dominguez-
Curry v. Nev. Transp. Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005),
as an example of a case in which the higher standard was
required).
Thus, when a plaintiff’s evidence is circumstantial, a
court may have to determine whether the evidence is specific and
substantial.
Lalau’s evidence of national origin discrimination is a
hybrid.
He has direct evidence of discriminatory animus but
circumstantial evidence that the animus influenced an adverse
employment action.
Even if a hybrid is treated as entirely
circumstantial, Lalau offers evidence from which a jury could
infer that animus toward Samoans influenced the City’s actions.
In so concluding, this court relies heavily on Davis.
In Davis, the employer argued that comments the
plaintiff was relying on to show pretext were not actually
evidence of pretext.
The pretext analysis under the McDonnell
Douglas framework has much in common with analysis of evidence a
plaintiff offers to show that an employer probably acted for a
discriminatory reason.
See McGinest, 360 F.3d at 1113 (noting the
26
parallel and stating that “it is not particularly significant”
whether a plaintiff is seeking to show pretext under the McDonnell
Douglas framework or relying on direct or circumstantial evidence
of discriminatory intent).
Accordingly, this court finds the
discussion in Davis about the pretext evidence instructive here.
The employer in Davis argued that certain comments were
not direct evidence of pretext, noting that, among other things,
they were not clearly sexist, insulting, humiliating,
intimidating, derogatory, or threatening.
The Ninth Circuit said,
“This is not an unreasonable interpretation of the comments, but
it would also be reasonable for a jury to infer otherwise.”
F.3d at 1092 n.7.
520
The court went on to say, “If the statements
are not direct evidence of pretext, they are at the least
circumstantial evidence from which a jury could infer pretext.”
Id.
The court then immediately quoted Dominguez-Curry for the
proposition that “a single discriminatory comment by a plaintiff’s
supervisor or decisionmaker is sufficient to preclude summary
judgment for the employer.”
Id.
Because this discussion in Davis
is very near to a discussion about the confusion over whether
“specific” and “substantial” circumstantial evidence is required,
it appears to this court that the Ninth Circuit’s point was that,
even if a plaintiff is relying on circumstantial evidence, a
single discriminatory comment will pass the “specific and
substantial” standard if it is made by the plaintiff’s supervisor
27
or by a person who makes a decision as to an adverse employment
action.
Treating Lalau’s evidence relating to national origin
discrimination as “specific” and “substantial,” this court
concludes that Lalau raises questions of fact as to his claims of
disparate treatment based on national origin in violation of Title
VII and section 378-2.
The City’s request that summary judgment
be entered in its favor on those claims is therefore denied.
With respect to the claims of disparate treatment based
on age, the evidence is entirely direct.
The alleged comment
about age not only reflected a negative attitude toward older
workers, it indicated an intent to fill Lalau’s former supervisory
position with a younger person because Lalau was simply “too old.”
The alleged comment was very much like an alleged comment
addressed by the Ninth Circuit in Dominguez-Curry, 424 F.3d at 1038-39.
The comment in that case was a statement that a
decisionmaker intended to hire a man to fill a position that the
plaintiff, a woman, had applied for.
The Ninth Circuit said the
comment “cannot be deemed ambiguous,” even though the plaintiff
could not provide “specifics” about when the comment was made.
The lack of detail might affect a jury’s credibility
determination, but “[a]s long as a reasonable factfinder could
conclude that discrimination occurred, summary judgment must be
denied.”
Id. at 1039.
28
This court therefore also denies summary judgment as to
the claims of disparate treatment based on age brought under the
ADEA and section 378-2.
B.
Lalau May Not Proceed with a Hostile Work
Environment Claim.
In opposing the City’s motion, Lalau mentions but does
not elaborate on a “hostile work environment.”
It is not clear
whether he is asserting a hostile work environment under Title
VII, the ADEA, or section 378-2.
Nor does the First Amended
Complaint contain factual allegations that support a hostile work
environment claim under any of those statutes.
Even if Lalau is
indeed making a hostile work environment claim, the court grants
summary judgment to the City in that regard.
The employment discrimination statutes under which Lalau
proceeds recognize claims that an employee was subjected to a
hostile work environment.
See, e.g., Harris v. Forklift Sys. 510
U.S. 17, 21-22 (1993) (hostile work environment claim cognizable
under Title VII), Sischo-Nownejad v. Merced Cmty Coll. Dist., 934
F.2d 1104, 1109 (9th Cir. 1991) (hostile work environment claim
cognizable under ADEA); Nelson v. Univ. of Haw., 97 Haw. 376, 38
P.d 3d 95, 106 (2001) (hostile work environment claim cognizable
under section 378-2).
A plaintiff claiming to have been subjected to a hostile
work environment must show that the “workplace was permeated with
discriminatory intimidation that was sufficiently severe or
29
pervasive to alter the conditions of . . . employment and create
an abusive working environment.”
F.3d 917, 923 (9th Cir. 2000).
Brooks v. City of San Mateo, 229
The showing must satisfy both
subjective and objective requirements; that is, the plaintiff must
show that the plaintiff perceived the work environment to be
hostile, and that a reasonable person in the plaintiff’s position
would have perceived it as hostile.
Id.
The plaintiff must also
prove that the hostility related to something prohibited by the
applicable employment discrimination statute.
Thus, for example,
a plaintiff claiming to have been subjected to a work environment
that was hostile because it was permeated with sexually harassing
comments or conduct must show that the harassment occurred
“because of” the plaintiff’s sex.
Id.; Nichols v. Azteca Rest.
Enter., 256 F.3d 864, 874 (9th Cir. 2001).
As noted earlier in the present order, Lalau reports a
single comment relating to his national origin, and a single
comment relating to his age.
While such evidence may support a
disparate treatment claim, it is too sparse to support a claim
that the workplace was “permeated” with hostility sufficiently
“severe” or “pervasive” to alter the conditions of his employment.
The court notes that Lalau repeatedly refers in his
declaration to having been subjected to a “hostile work
environment.”
He appears to use that term very loosely to include
30
any situation involving hostility or aggression, not just
situations relating to national origin or age.
For example, in his declaration, Lalau says, “From
December 2007, the end of my probationary period, I began vocally
expressing concern that Smith and Kim were creating a hostile work
environment.
I also expressed concern regarding Smith’s
mismanagement within the office, namely that he was encouraging me
falsify the DAR.”
Dec. of Lalau ¶ 19.
December 2007 was about
half a year before the alleged comments about Samoans and age.
There is no evidence that Lalau was subjected to anything in the
workplace relating to being Samoan or 40 or older beginning in
December 2007.
He also describes correspondence he sent as having
“complain[ed] of a hostile work environment.”
Id. ¶ 21.
In the
letter he sent to Waterhouse on July 29, 2008, he does indeed use
the term “hostile work environment.”
He also includes a reference
to the single comment that he felt “was made due to my ethnic
background.”
See letter from Lalau to Mary Pat Waterhouse dated
July 29, 2008, ECF No. 47-3.
However, Lalau also refers to the
accusation that he himself had “placed Remotigue in a hostile
working environment” when he allegedly “yelled at him.”
There is
no evidence that Lalau’s interactions with Remotigue were
influenced by Remotigue’s race, sex, national origin, age, or
other protected characteristic, or that Lalau was accused of
31
having discriminated against Remotigue on any such basis.
Lalau’s
letter says that Kim swore at him, and on one occasion “got off of
his chair and came at me and I felt intimidated, frightened and
harassed by his conduct.”
The letter concludes by saying that
Smith and Kim “have placed me in an extremely hostile working
environment.”
The overall sense one gets from the letter is that,
for Lalau, “hostile work environment” is not a term of art
restricted to contexts involving discrimination based on a
protected characteristic.
Because, notwithstanding Lalau’s use of the term
“hostile work environment,” Lalau provides no evidence
establishing that his workplace was permeated with discriminatory
intimidation relating to his national origin or his age, summary
judgment is granted to the City with respect to any “hostile work
environment” claims he may have been trying to assert under Title
VII, the ADEA, or section 378-2.
C.
Summary Judgment is Granted in Favor of the City
with Respect to Lalau’s Retaliation Claims.
In Counts I, II, and III, Lalau also asserts that the
City retaliated against him in violation of law.
Title VII makes
it unlawful for an employer to retaliate against an employee on
the basis of the employee’s opposition to practices or actions
prohibited by Title VII.
See 42 U.S.C. § 2000e-3(a).
The ADEA
similarly protects from retaliation an employee who has opposed
age discrimination, or participated in investigations,
32
proceedings, or litigation concerning age discrimination.
U.S.C. § 626(d).
See 29
Similarly, section 378-2(2) makes it unlawful
for an employer to “discharge, expel, or otherwise discriminate
against any individual because the individual has opposed any
practice forbidden by this part or has filed a complaint,
testified, or assisted in any proceeding respecting the
discriminatory practices prohibited by this part.”
Stat. § 378-2(2).
See Haw. Rev.
That is, these retaliation provisions relate to
retaliation against an employee who has engaged in some protected
activity designed to address discrimination in the areas
identified in Title VII, the ADEA, or section 378-2.
Retaliation would be shown by evidence that Lalau
engaged in protected activity, that he was thereafter subjected to
an adverse employment action, and that there is a causal link
between the protected activity and the adverse employment
activity.
See Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th
Cir. 1994).
Lalau does not meet the requirement that he show at
least some evidence going to each of those elements.
First, the protected activity must be protected by the
statutes Lalau sues under.
Lalau instead assumes that any report
of wrongdoing, even wrongdoing that falls outside of what Title
VII, the ADEA, and section 378-2 prohibit, supports a retaliation
claim under Title VII, the ADEA, and section 378-2.
mistaken.
33
He is
Lalau’s error shows up in the way he defines what
triggered the alleged retaliation against him.
For example, he
says, “I was removed from the temporary assignment in retaliation
because I was about to report misconduct by Jeff Smith, other
supervisors, and co-employees; and because I refused to falsify
the DAR.”
Dec. Of Lalau ¶ 10.
Lalau repeats this assertion in
his memorandum opposing the present motion, saying, “Plaintiff was
removed from the T/A assignment in retaliation for engaging in
protected activity–namely that Plaintiff was about to report Smith
for misconduct, e.g. falsifying DAR, corruption, issuance of bogus
citations to liquor establishments, and Smith knew it.”
at 6, ECF No. 46.
Opp. Memo
Even if Lalau’s demotion was retaliatory, the
retaliation allegedly related to his intent to report misconduct
unrelated to his national origin or his age.
Because neither
Title VII, the ADEA, nor section 378-2 protects an employee from
being retaliated against for preparing to report bogus citations
or falsification of a business record like a “DAR,” Lalau’s
statement does not come close to satisfying the first element of
his retaliation claim.
Similarly, even though Lalau says that he began “vocally
expressing concern that Smith and Kim were creating a hostile work
environment” beginning in December 2007, see Dec. of Lalau ¶ 19,
that “hostile work environment,” as noted earlier in this order,
was not hostile in December 2007 because of national origin
34
discrimination or age discrimination.
The first evidence of such
discrimination that Lalau reports being aware of were the comments
allegedly made in June 2008.
Lalau could not have complained
about or reported national origin discrimination or age
discrimination before the comments were made.
That is precisely
why, in his memorandum opposing the City’s summary judgment
motion, Lalau identifies the protected activity that triggered the
alleged retaliation by the City as his “voicing concern and
questioning the validity of citations issued to licensed
premises.”
Opp. Memo at 9, ECF No. 46.
Once again, such activity
is not protected by Title VII, the ADEA, or section 378-2.
In terms of timing, the only City action identified by
Lalau that has a remote possibility of having been retaliatory is
the charge against him of August 13, 2008, which was accompanied
by an investigation and his administrative leave designation.
The
charge issued, and the investigation and leave did indeed begin,
after the discriminatory comments were allegedly made.
However,
even if timing does not render it impossible for administrative
leave to have been imposed in retaliation for protected activity,
the record does not permit the inference or conclusion that the
retaliation related to Lalau’s reporting of or opposition to
national origin discrimination or age discrimination.
At most, Lalau points to having been placed on
administrative leave about two weeks after he sent a letter to
35
Waterhouse, Director of Budget and Fiscal Services, on July 29,
2008.
That is the letter, discussed earlier, that referred to a
“hostile working environment” and included the following
parenthetical comment: “(I felt comment was made due to my ethnic
background).”
ECF No. 47-3.
Nothing in that letter relates to
age discrimination, so application of the ADEA’s retaliation
provisions could not possibly be based on that letter.
The
court has read and reread this letter in an attempt to fairly
evaluate the impact of that parenthetical.
The result is that the
court concludes that nothing in the record establishes a causal
link between the letter and the imposition of administrative leave
or any related adverse employment action.
In the first place, there is no evidence that Smith and
Kim saw the letter before Lalau was placed on administrative leave
in August 2008.
They could not have retaliated in response to
something they did not know about.
In the second place, the letter accuses them directly
and forcefully of so many offensive, aggressive, and unjustified
acts that it cannot be presumed without evidence that they zeroed
in on the parenthetical or retaliated against Lalau based on the
parenthetical.
Throughout the letter, Lalau purports to quote
Smith and Kim making objectionable comments.
By contrast, the
letter does not report that Smith or Kim made any express comment
about Lalau’s national origin.
The parenthetical only describes
36
Lalau’s feeling, not their utterances on the subject. What Smith
actually said is reported by Lalau immediately before the
parenthetical: “Mr. Smith has made public comments around me that
he ‘needs to make this place (Honolulu Liquor Commission Office)
safe from me because I placed Remotigue in a hostile working
environment.’” The only connection between this alleged statement
and national origin is Lalau’s parenthetical about his feeling.
Added to the clear focus of the letter on matters other
than Lalau’s Samoan background, the use of parentheses serves to
diminish the impact of the reference to Lalau’s ethnic background.
The reference appears as an aside, not as a request to a higher
authority to root out discrimination.
Even if the letter’s
addressee should have read the letter as complaining about
discrimination against Samoans, Lalau gives the court no reason to
think that any retaliation by Smith and Kim was triggered by their
reaction to being depicted as prejudiced against Samoans.
Conspicuously absent from the letter is the kind of
direct evidence the court relied on in analyzing the disparate
treatment claims.
That is, Lalau does not quote Smith as having
said that he had to make the office safe because Lalau was a
“typical Samoan.”
The court notes this omission not in the
interest of distinguishing direct evidence from circumstantial
evidence, but rather because the retaliation provisions of Title
VII and section 378-2 require a plaintiff to show not only that he
37
opposed discrimination (in this case, based on national origin) or
participated in some way in a proceeding addressing such
discrimination, but also that the protected activity caused the
employer to punish the plaintiff.
The court’s concern is
therefore about how the letter was perceived by Smith and Kim, not
about how someone seeking to address all of Lalau’s concerns might
have reacted.
Just as Lalau gives the court no evidence
indicating that Smith and Kim even knew about the letter before
the allegedly retaliatory imposition of administrative leave,
Lalau gives the court no evidence of any connection between the
letter and the alleged retaliation.
The manner in which “ethnic background” is mentioned
makes it ancillary to Lalau’s complaint that Smith was making
decisions “while the investigation was still ongoing.”
Lalau’s
real point is that “He made his own judgment and found me guilty
before the verdict was actually handed down.”
Lalau may have had
multiple purposes for sending the letter, and combining a
discrimination complaint with complaints about other matters does
not nullify the discrimination complaint that a careful reader
might discern from the letter.
But the court still requires some
evidence that the parenthetical triggered a vengeful response from
the employer. Lalau appears to be assuming from mere chronology
that he shows causation.
Especially given the parenthetical
presentation, the cursory nature of Lalau’s reference to his
38
ethnic background, and the absence of evidence that Smith and Kim
knew about the letter, chronology alone does not suffice to create
a triable issue as to causation of retaliatory acts.
The court grants summary judgment to the City with
respect to Lalau’s retaliation claims.
D.
Lalau’s WPA Claim Fails.
Count IV alleges that the City violated Hawaii’s
Whistleblowers’ Protection Act (“WPA”).
The WPA prohibits an
employer from discriminating against an employee because the
employee “reports or is about to report to the employer, or
reports or is about to report to a public body, verbally or in
writing, a violation or a suspected violation of . . . [a] law,
rule, ordinance, or regulation, adopted pursuant to law of this
State, a political subdivision of this State, or the United
States.”
See Haw. Rev. Stat. § 378-62.
The City asserts that this claim cannot proceed because
it cannot reasonably be asserted that the WPA claim was exhausted.
In contending that exhaustion of administrative remedies was
required, the City relies on Judge Alan Kay’s conclusion in
Linville v. Hawai`i, 874 F. Supp. 1095, 1104 n.4 (D. Haw. 1994),
that the WPA is subject to an exhaustion requirement, and that a
plaintiff must obtain a Right To Sue Notice from the HCRC before
asserting a WPA claim in court.
The attraction of this conclusion
is that it recognizes the relationship between a retaliation claim
39
under section 378-2(2) and a WPA claim.
Requiring a WPA plaintiff
to go to the HCRC to exhaust administrative remedies prevents a
plaintiff who has failed to exhaust a retaliation claim under
section 378-2(2) from escaping that failure by simply
redesignating his retaliation claim as one under the WPA and
filing it in court without ever going to the HCRC.
The court nevertheless recognizes that requiring
exhaustion for a WPA claim raises some troubling issues.
First,
no statute expressly requires a WPA claim to be exhausted.
Section 368-11(a) of Hawaii Revised Statutes gives the HCRC
jurisdiction over claims of discrimination asserted under part I
of chapter 378, which includes sections 378-1 to 378-10.
Section
368-11(c) requires a complaint of discrimination under section
378-2 to be filed with the HCRC within 180 days of the unlawful
discriminatory practice or the last occurrence in a pattern of
ongoing discrimination.
part of
The WPA is in section 378-62, which is
part V of chapter 378.
No statutory language gives the
HCRC jurisdiction over claims brought under section 378-62 or any
other part of part V.
It is unclear what statutory language could
be read to make section 368-11(c)’s exhaustion requirements
applicable to the WPA.
There is, in addition, a practical problem with reading
an exhaustion requirement into the WPA.
The WPA protects all
whistleblowers, not just whistleblowers asserting violations of
40
employment discrimination laws.
The HCRC’s jurisdiction and
expertise relate to employment discrimination, not to all laws
that might be the subject of whistleblowing.
For example, an
employee fired for blowing the whistle on an employer’s illegal
dumping of hazardous waste would have a claim far outside the
HCRC’s normal areas of concern.
The same could be said with
respect to an employee who was suspended after reporting that an
employer was concealing taxable income.
It is hard to see the
rationale for requiring exhaustion with the HCRC not only of
claims relating to violations of part I of chapter 378, including
section 378-2, but also of whistleblower claims unrelated to the
forms of discrimination listed in part I.
The court’s concern is not alleviated even if the City
is assuming that the exhaustion requirement is limited to WPA
claims that implicate a section 378-2 category.
Admittedly, such
WPA claims would mirror retaliation claims falling under section
378-2(2), which would have to be exhausted.
However, limiting WPA
exhaustion to claims relating to section 378-2 issues would
require even more interpolation with respect to existing statutory
language.
The court would not only have to read into Hawaii
Revised Statutes an exhaustion requirement for WPA claims, it
would have to then create exceptions to that implied requirement.
Every WPA claim would then have to be dissected to determine
whether exhaustion was or was not required.
41
Requiring exhaustion with the HCRC of section 378-62
claims would also be inconsistent with Judge David Ezra’s
reasoning in Lesane v. Hawaiian Airlines, 75 F. Supp. 2d 1113 (D.
Haw. 1999).
In Lesane, the court held that Title VII’s and
chapter 378’s administrative processes do not toll the limitation
period for a section 378-62 claim.
Id. at 1125.
If the filing of
charges with the EEOC or HCRC does not toll the limitations period
for filing a whistleblower’s claim under section 378-62, a WPA
plaintiff who must exhaust administrative remedies is in a very
difficult position.
Exhausting administrative processes before
filing a section 378-62 claim might risk running afoul of the twoyear statute of limitations in section 378-63.
Fortunately for this court, while it has set forth
matters of concern relating to requiring exhaustion for section
378-62 claims, it need not here actually decide whether exhaustion
is required.
Lalau’s WPA claim fails without regard to any
exhaustion requirement because it was not timely filed in court.
A WPA claim must be brought within two years.
See Haw.
Rev. Stat. § 378-63 (“A person who alleges a violation of this
part may bring a civil action for appropriate injunctive relief,
or actual damages, or both within two years after the occurrence
of the alleged violation of this part.”).
The City notes that,
even without section 378-63, a two-year limitation period would
likely apply.
See Linville, 874 F. Supp. at 1104 (applying the
42
general tort limitation period of two years set forth in Haw. Rev.
Stat. § 657-7 to a WPA claim); Silva v. City & County of Honolulu,
115 Haw. 1, 165 P.3d 247 (2007)(discussing the effect of Haw. Rev.
Stat. § 46-72 on the limitation period for tort claims against the
City and concluding that the claims were governed by Haw. Rev.
Stat. § 657-7).
Lalau originally filed this action in state court on
January 31, 2011.
The last adverse action that Lalau identifies
as relevant to this lawsuit was taken against him by the City on
August 13, 2008.
First Amended Complaint ¶ 29.
two years after that date to file suit.
He took more than
The WPA claim was
therefore time-barred.
Lalau argues that the limitations period should be
tolled while his related retaliation claims were being exhausted.
But Lalau’s WPA claim is independent of any retaliation claim
under Title VII, the ADEA, or section 378-2.
Moreover, this court
rules in this very order that Lalau has no viable retaliation
claim under Title VII, the ADEA, or section 378-2.
Even if not time-barred, the WPA claim fails because
Lalau does not provide sufficient evidence to proceed to trial on
his WPA claim.
While the WPA does not explicitly set forth the
elements of a claim under section 378-62, three elements can be
extrapolated from its language:
First, there must be a showing that the
employee engaged in protected conduct as it is
43
defined by the HWPA. Second, the employer is
required to take some adverse action against
the employee. Third, there must be a causal
connection between the alleged retaliation and
the whistleblowing. In other words, to meet
the causal connection requirement, the
employer’s challenged action must have been
taken because the employee engaged in
protected conduct.
Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122, 1130-31 (D. Haw.
2008) (citations, quotation marks, and alterations omitted).
Even
assuming there is no dispute that Lalau has a triable issue as to
the first factor, he makes no showing that there is a triable
issue of fact with respect to the third factor, which is
causation.
As the court noted in discussing Lalau’s retaliation
claims, Lalau does not provide evidence of a causal link between
any protected activity and any allegedly retaliatory act.
E.
The Part of Lalau’s IIED Claim Based on Matters No
Long in Issue Fails.
Count V alleges that the City’s actions “constituted
intentional infliction of severe emotional distress.”
To state a
claim for IIED, Lalau must show “1) that the act allegedly causing
the harm was intentional or reckless, 2) that the act was
outrageous, and 3) that the act caused 4) extreme emotional
distress to another.”
Hac v. Univ. of Hawaii, 102 Haw. 92, 106-
07, 73 P.3d 45, 60-61 (2003).
To the extent the court disposes of claims in this
order, Lalau may not base an IIED claim on those claims.
Thus,
Lalau may not proceed with an IIED claim asserting, for example,
44
an injury based on the City’s purported retaliation in violation
of the ADEA, as summary judgment is granted to the City on the
ADEA retaliation claim.
The court permits Lalau to proceed with only the portion
of Count V relating to matters that remain to be tried.
Evidence relating to the first two elements of an IIED
claim will mirror (or supplement) the evidence required for Lalau
to prevail on his remaining claims.
With respect to the last two
elements, Lalau describes experiencing “migraine headaches, lack
of sleep, constant worry, depression, [and] lack of sexual
intimacy.”
Id.
Lalau attributes these symptoms to the
uncertainty surrounding his future employment, which he blames on
the City’s treatment of him.
Thus, he answered the City’s
interrogatory question, “Please describe any and all mental or
emotional injuries to your person resulting from the events
complained of in your Complaint,” as follows: “Constantly stressed
out due to being worried all the time because I do not know my
future with the [L]iquor [C]ommission.
Being out on leave for
nearly 34 months without knowing your future takes a toll
mentally.
I am depressed.”
Lalau’s Ex. 7 at 10.
Lalau makes a showing sufficient to allow him to try his
IIED claim to the extent it is tied to substantive claims that
survive the present motion.
45
VI.
CONCLUSION.
For the reasons stated above, to the extent Lalau
asserts hostile work environment or retaliation claims in Counts
I, II, and III, the court grants summary judgment to the City on
those claims.
Summary judgment is also granted in favor of the
City on the WPA claim asserted in Count IV.
With respect to Count V, the court grants summary
judgment to the City with respect to the portion of Count V that
asserts an IIED claim in connection with the hostile work
environment, retaliation, or whistleblowing asserted in Counts I,
II, III, and IV.
Summary judgment is denied with respect to all
other claims.
This order leaves for trial the portions of Counts I,
II, and III that assert disparate treatment, and the portion of
Count V that asserts IIED relating to disparate treatment.
Lalau concedes that he may not recover punitive damages
against the City, and his prayer for punitive damages is deemed
withdrawn.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 28, 2013.
/s/ Susan Oki Mollway
SUSAN OKI MOLLWAY
CHIEF UNITED STATES DISTRICT JUDGE
Ellis F. Lalau v. City and County of Honolulu; Civil No. 11-00268 SOM/RLP; ORDER GRANTING
IN PART, DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
46
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?