Cambron v. Starwood Vacation Ownership, Inc.

Filing 75

ORDER GRANTING DEFENDANT STARWOOD VACATION OWNERSHIP, INC.'S MOTION TO DISMISS THE AMENDED COMPLAINT FILED JANUARY 25, 2013 WITH PREJUDICE (ECF No. 69 ). Signed by JUDGE HELEN GILLMOR on 5/9/2013. ~ Defendant's Motion to D ismiss (ECF No. 69) is GRANTED. The Amended Complaint (ECF No. 66 ) is DISMISSED WITH PREJUDICE. The Clerk of the Court is ordered to close the case. (ecs, )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
Kenneth W. Cambron,
Plaintiff,
vs.
Starwood Vacation Ownership,
Inc.; and Starwood Hotels
Worldwide, Inc.,
Defendants.

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Civ. No. 11-00326 HG-KSC

ORDER GRANTING DEFENDANT STARWOOD VACATION OWNERSHIP, INC.’S
MOTION TO DISMISS THE AMENDED COMPLAINT FILED JANUARY 25, 2013
WITH PREJUDICE (ECF No. 69)
Plaintiff Kenneth W. Cambron has brought suit against his
former employer. He claims wrongful termination in violation of
public policy, breach of Hawaii’s whistleblower statute, and fraud.
Defendant moves to dismiss Plaintiff’s Amended Complaint,
filed on January 25, 2013.
On April 1, 2013, the Court held a hearing on the matter.
Defendant’s Motion to Dismiss the Amended Complaint (ECF No. 69) is
GRANTED WITH PREJUDICE.

1

PROCEDURAL HISTORY

On October 25, 2010, Plaintiff Kenneth W. Cambron, with the
assistance of Counsel, filed a Complaint in the Circuit Court of
the

Second

Circuit

for

the

State

of

Hawaii

against

Starwood

Vacation Ownership, Inc. (Notice of Removal Ex. A, ECF No. 1.)
On November 9, 2010, Plaintiff’s Counsel withdrew. Plaintiff
now appears pro se.
On April 21, 2011, Plaintiff served the Complaint on Defendant
Starwood Vacation Ownership, Inc.
On May 9, 2011, Defendant Starwood Vacation Ownership, Inc.
filed an Answer. (Notice of Removal Ex. B, ECF No. 1.)
On May 23, 2011, Defendant filed a Notice of Removal, removing
the action to the Federal District Court. (ECF No. 1.)
On August 28, 2011, Defendant filed a Motion for Judgment on
the Pleadings. (ECF No. 51.)
On October 29, 2012, a hearing was held on the Motion for
Judgment on the Pleadings. At the hearing, Plaintiff requested
leave to file an Amended Complaint. (ECF No. 62.)
On November 29, 2012, the Court issued a Minute Order granting
Defendant’s Motion for Judgment on the Pleadings. The Minute Order
also granted Plaintiff leave to file an Amended Complaint. (ECF No.
63.)

2

On December 18, 2012, the Court issued a Written Order,
providing the legal bases for the granting of the Defendant’s
Motion for Judgment on the Pleadings on November 29, 2012 and the
requirements for the Amended Complaint. (ECF No. 64.)
On January 25, 2013, Plaintiff filed an Amended Complaint,
naming Starwood Vacation Ownership, Inc. and

Starwood Hotels

Worldwide, Inc. as Defendants. (ECF No. 66.) The Amended Complaint
refers to Defendant Starwood Vacation Ownership, Inc. as “Starwood
Westin Vacation Ownership, Inc.” at various points. The Order uses
the “Starwood Vacation Ownership, Inc.” name. Defendant Starwood
Hotels Worldwide, Inc. is the parent company for Starwood Vacation
Ownership, Inc. There has been no filing indicating that Defendant
Starwood Hotels Worldwide, Inc. has been served.
On February 14, 2013, Defendant Starwood Vacation Ownership,
Inc. filed a Motion to Dismiss the Amended Complaint. (ECF No. 69.)
On March 4, 2013, Plaintiff filed an Opposition. (ECF No. 73.)
On April 1, 2013, the Court held a hearing on the Motion to
Dismiss. The Court granted the Motion, dismissing the action with
prejudice, with a written Order to follow. (ECF No. 74.)

BACKGROUND

In the Amended Complaint, Plaintiff Kenneth W. Cambron alleges
that Defendant Starwood Vacation Ownership, Inc. is liable for

3

wrongful termination of his employment in violation of public
policy

(Count

I),

violation

of

the

Hawaii

Whistleblowers’

Protection Act (Count II), and fraud and conspiracy to defraud to
prevent a finding of liability (Count III). (Am. Compl., Jan. 25,
2013, ECF No. 66.) The dispute arises from an alleged assault
against Cambron, committed by his former supervisor at Starwood
Vacation Ownership, Inc., David DiBerardino.
Defendant Starwood Vacation Ownership, Inc. (“Starwood”) is a
company that develops and sells time-shares. Cambron first worked
at Starwood on Maui as a vacation time-share salesperson from April
2003

until

June

2005.

He

was

directly

supervised

by

David

DiBerardino during that time. (Am. Compl., Factual Allegations at
¶¶ 2-3.)
In August 2006, Cambron resumed working for Starwood on Maui.
DiBerardino was working at a different Starwood office, in a
higher-level position, at that time. (Id. at ¶ 4.)
In January 2009, DiBerardino returned to the Maui office,
where Cambron was working. (Id. at ¶ 5.)
Soon after DiBerardino’s return to the Maui office, Cambron
alleges that DiBerardino assaulted him twice: first on January 20,
2009 and again on January 22, 2009. Cambron claims that both
incidents occurred at work. (Id. at ¶¶ 6-9.)
Cambron states that he reported the assaults to the Manager of
Starwood’s

Human

Resources

Department,

4

Rosella

Guardisone,

on

February 2, 2009. Cambron claims that, per Guardisone’s request, he
e-mailed her an account of the incidents the next day. (Id. at
¶ 10.)
According to Cambron, he sought medical help at Doctors on
Call, first on February 2, 2009 and again on February 18, 2012.
According to Plaintiff, on his second visit the Doctor told him to
remain off work and to file a workers’ compensation claim. (Id. at
¶¶ 12-13.)
Cambron alleges that the Doctor unlawfully tampered with his
medical records. (Id. at ¶ 13.) The Amended Complaint does not
allege how the Doctor’s purported misconduct is connected to the
claims against Starwood.
Cambron states that, around February 26, 2009, he hired an
attorney to bring suit against DiBerardino and Starwood for assault
and battery and wrongful termination. He claims that his attorney
drafted a letter for him to send to Starwood. The letter allegedly
stated that requiring Cambron to work with DiBerardino would create
a hostile work environment and that the issue needed to be resolved
for Cambron to return to work. (Id. at ¶ 15.) It is unclear if
Cambron ever delivered the letter.
On March 11, 2009, Cambron met with the Jay C. Carpenter,
Director of Starwood’s Human Resources Department, and Guardisone,
to discuss his employment options. Cambron claims he was informed
that

DiBerardino

was

going

to

5

remain

in

his

same

position.

According to Cambron, he was told that if he was uncomfortable
working for DiBerardino, he could resign, or they could potentially
arrange a severance agreement. The parties determined that the
Starwood Human Resources Department would prepare a Severance
Agreement. (Id. at ¶

17.)

On March 16, Carpenter, the Human Resources Director, mailed
Cambron the Severance Agreement. (Id. at 18.)
On the same day, Cambron filed charges for assault and battery
against DiBerardino in Hawaii State Court. Cambron claims that,
against his wishes, Defendant Starwood Vacation Ownership, Inc. was
not named as a co-defendant. (Id. at ¶ 19.)
On March 31, 2009, Human Resources Director Carpenter e-mailed
Cambron asking if he intended to accept the Severance Agreement.
The e-mail explained that the severance offer included a release of
all claims against Starwood and DiBerardino. It also explained that
the severance offer would expire on April 6, 2009. The e-mail
indicated that if Cambron did not accept the severance offer, he
was expected to return to work on April 7, 2009.(Id. at ¶
Cambron

claims

that

around

April

3,

2009,

his

20.)
attorney

composed a Letter of Resignation, stating that Cambron was quitting
his position. Cambron says he was told to deliver the Letter by the
April 6, 2009 Starwood deadline. According to Cambron, he chose not
to deliver the Letter because he had a doctor’s note excusing him
from work. (Id. at ¶ 23.)

6

It is Cambron’s position that Carpenter was aware that Cambron
was too injured to work. (Id. at ¶ 22.)
On April 8, 2009, Cambron claims he received another e-mail
from Human Resources Director Carpenter, stating that if Cambron
did not return to work or communicate about his employment by April
10,

2009,

his

termination

would

be

considered

a

voluntary

separation for job abandonment. (Id. at ¶ 24.)
Cambron represents that, on April 11, 2009, one day after the
Severance

Agreement

expired,

he

delivered

the

Letter

of

Resignation, unsigned. (Id. at ¶ 25.)
Cambron was terminated on April 10, 2009.1 (Id. at ¶ 26.)
Cambron alleges the following causes of action: (1) Wrongful
Termination in Violation of Public Policy; (2) Violation of the
Hawaii Whistleblowers’ Protection Act, Haw. Rev. Stat. §

378-62;

and (3) Fraud and Conspiracy to Defraud. (Id. at pgs. 11-15.)
Defendant Starwood Vacation Ownership, Inc. moves to dismiss
the Amended Complaint for failure to state a claim.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows dismissal
where a complaint fails “to state a claim upon which relief can be

1

Cambron points out that the documents regarding his
COBRA coverage show that he was terminated on April 9, 2009. (Am.
Compl. at ¶ 26.) The discrepancy is not material.
7

granted.”

The complaint must contain “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed.
R. Civ. P. Rule 8(a)(2).
When considering a Rule 12(b)(6) motion to dismiss, the Court
must presume all allegations of material fact to be true and draw
all reasonable inferences in favor of the non-moving party. Pareto
v.

F.D.I.C.,

139

F.3d

696,

699

(9th

Cir.

1998).

Conclusory

allegations of law and unwarranted inferences are insufficient to
defeat a motion to dismiss. Id.

The Court need not accept as true

allegations that contradict matters properly subject to judicial
notice or allegations contradicting the exhibits attached to the
complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
In Bell Atlantic Corporation v. Twombly the Supreme Court
stated

that

Rule

“requires

more

recitation

of

8

than
the

of

the

labels

elements

Federal
and
of

Rules

of

conclusions,
a

cause

of

Civil
and

a

action,”

Procedure
formulaic
and

that

“[f]actual allegations must be enough to raise a right to relief
above the speculative level.” 550 U.S. 544, 555 (2007).
In Ashcroft v. Iqbal the Supreme Court clarified that the
principles announced in Twombly are applicable in all civil cases.
556 U.S. 662 (2009).

The Court stated that “the pleading standard

Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-

8

harmed-me-accusation.”
555).

Id. at 678 (quoting Twombly, 550 U.S. at

A complaint survives a motion to dismiss when it contains

sufficient factual matter, accepted as true, to state a claim for
relief that is plausible on its face.

Id. (quoting Twombly, 550

U.S. at 570).
A claim is facially plausible when the factual content of the
complaint allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged. Iqbal, 556 U.S.
at 678. The plausibility standard does not require probability, but
it requires “more than a sheer possibility that a defendant has
acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). A
complaint that pleads facts that are “merely consistent with” a
defendant’s liability “stops short of the line between possibility
and plausibility of ‘entitlement to relief.’” Id. (quoting Twombly,
550 U.S. at 557).

ANALYSIS

Plaintiff Kenneth W. Cambron alleges three causes of action
against his former employer, Defendant Starwood Vacation
Ownership, Inc: (1) Wrongful Termination in Violation of Public
Policy; (2) violation of Hawaii’s Whistleblowers’ Protection Act;
and (3) fraud and conspiracy to defraud. (Am. Compl. at pgs. 1115, ECF No. 66.)

9

Defendant Starwood Vacation Ownership, Inc. moves to dismiss
the action for failure to state a claim. (ECF No. 69.)

I.

WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY CLAIM

A.

Parnar v. Americana Hotels, Inc.: Wrongful Termination in
Violation of Public Policy Under Hawaii Law

Hawaii common law provides a cause of action for at-will
employees who are wrongfully discharged in violation of a “clear
mandate of public policy.” Parnar v. Americana Hotels, Inc., 652
P.2d 625, 631 (1982). Such claims for wrongful termination in
violation of public policy are often called “Parnar claims” because
the Hawaii Supreme Court first recognized the cause of action in
Parnar

v.

Americana

Hotels,

Inc.,

652

P.2d

625

(1982).

An

employee’s termination raises a colorable Parnar claim when the
employer’s

conduct

conflicts

with

the

text

or

purpose

of

a

constitutional, statutory, or regulatory provision or scheme. Id.
The

Ninth

Circuit

Court

of

Appeals

interpreted

Hawaii’s

jurisprudence for a wrongful termination claim under Parnar in
Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002).
The Villarimo case was an appeal from a grant of summary judgment
of a Hawaii wrongful termination claim in violation of public
policy. The Court of Appeals held that there are three requirements
for bringing an actionable Parnar claim for wrongful termination in
violation of public policy. First, the employee’s discharge must
10

violate a clear mandate of public policy. Second, the cause of
action is limited to certain protected activities. Such activities
include refusing to commit an unlawful act, performing an important
public obligation, or exercising a statutory right or privilege.
Third, there must be evidence of a causal connection between the
termination and the protected action. Id. at 1067 (citing various
Hawaii Supreme Court cases).
Parnar claims are generally not recognized as separate claims
when they are based on a public policy created by a statute with
its own remedy. Ross v. Stouffer Hotel Co., 879 P.2d 1037, 1047
(1994); Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122, 1140-41 (D.
Haw. 2008). In the absence of a clear expression of legislative
intent to the contrary, the existence of a statutory remedy bars
the Parnar claim. Takaki v. Allied Machinery Corp., 951 P.2d 507,
514 (Haw. 1998).

B.

Plaintiff’s Claim for Wrongful Termination

Cambron’s wrongful termination claim in his Amended Complaint
provides the following points as the basis of his claim:
1.

Defendant offered him a Severance Agreement.

2.

Defendant specified that acceptance of
Agreement required Cambron to release
DiBerardino from all liability.

3.

Defendant terminated Cambron on April 9, 2009 for job
abandonment while Cambron was on medical leave, with a
doctor’s approval.

11

the Severance
Starwood and

4.

The wrongful termination caused Cambron and his family to
suffer various damages.

(Am. Compl., First Cause of Action at pg. 11, ECF No. 66.)
Plaintiff alleges that his termination gives rise to a Parnar
claim, because he was assaulted at work by DiBerardino, resulting in
him being unable to work.

C.

Plaintiff Fails
Termination

to

State

a

Claim

for

Wrongful

The allegations of the Amended Complaint are insufficient to
support a Parnar wrongful discharge claim.
A Parnar wrongful discharge claim, by definition, requires the
termination of the employee by the employer. Villarimo, 281 F.3d at
1067. Voluntary abandonment cannot support a claim for wrongful
termination in violation of public policy. Guitron v. Wells Fargo
Bank, N.A., No. C-10-3461-CW, 2012 WL 2708517, at *23 (N.D. Cal.
July 6, 2012); Busiere v. Providence Health Sys.-Oregon, No. 05-630PK, 2006 WL 3827460, at *15. (D. Or. Dec. 22, 2006).
In Guitron, No. C-10-3461-CW, 2012 WL 2708517, a plaintiff
alleged that she was terminated in violation of California common
law, which shares the same relevant requirements as a Parnar claim.
The plaintiff alleged that she was fired when she was told to turn
over her keys and the employer had her escorted off the premises.
Subsequently, the employer informed the plaintiff, via an e-mail and
a letter, that she had been placed on administrative leave and

12

remained an employee of the company. Id. at *4. The letter from the
employer warned the plaintiff that she would be deemed to have
voluntarily resigned if she failed to attend a meeting that had been
arranged to discuss her return to work. The plaintiff e-mailed the
employer that she would not be returning to work because she had
already been terminated. Id. at *5. The court dismissed the wrongful
termination claim, because the facts showed that the plaintiff
abandoned her job. Id. at *23. A wrongful discharge claim must be
predicated on an actual discharge, not abandonment. Id.; see also
White v. State, 929 P.2d 396, 408 (Wash. 1997).
Cambron’s allegations, taken as true, show that he abandoned
his job.

Cambron did not appear at work after the end of January

2009. On March 16, 2009, Starwood offered Cambron the choice of
employment or a Severance Agreement. The severance offer expired on
April 6, 2009. The Starwood Human Resources Director, Jay Carpenter,
e-mailed Cambron twice, having failed to hear from Cambron about his
intentions with respect to his employment. On March 31, 2009,
Carpenter e-mailed Cambron to remind him of the April 6, 2009
expiration date for the severance offer. The e-mail also stated that
Cambron was expected to return to work by April 7, 2009, if he did
not accept the severance offer by its expiration date. Cambron did
not respond in any manner.
On

April

8,

2009,

Carpenter

informed

Cambron

that

his

termination would be processed as a voluntary separation for job
abandonment if he did not communicate with Starwood, or return to
13

work by April 10, 2009. Cambron did not respond by that time.
Cambron’s

failure

to

respond

in

any

manner

constituted

job

abandonment. Job abandonment does not support a Parnar claim.
Cambron’s Parnar wrongful discharge claim also fails to allege
a causal connection between Cambron’s alleged termination and a
protected

activity.

See

Villarimo,

281

F.3d

at

1067-68.

In

Villarimo, two plaintiffs brought Parnar claims against their former
employer, alleging that they were terminated in retaliation for
making complaints about the employer. The Ninth Circuit Court of
Appeals upheld the grant of summary judgment denying the Parnar
claims. The evidence showed that the plaintiffs were actually
terminated

for

misconduct,

and

not

in

retaliation

for

making

complaints.
Cambron’s

unwillingness

to

accept

the

Severance

Agreement

because it released DiBerardino and Starwood from liability did not
cause his termination. Cambron’s Amended Complaint states that
Starwood specifically offered him an opportunity to return to work.
Cambron’s termination was caused by his failure to return to work,
or otherwise communicate with Starwood about his intentions with
respect to the Severance Agreement or his continued employment at
Starwood.

14

D.

Plaintiff’s Wrongful Termination Claim Cannot Be
Based on His Claim of Inability to Work Due to His
Injury

Plaintiff alleges that his termination violated public policy
because he was unable to work due to the injuries he sustained from
DiBerardino’s assault.
The Hawaii Supreme Court held in Takaki, 951 P.2d at 513-14,
that a Parnar claim for wrongful discharge in violation of public
policy may not be based on work-injury related discharges. Parnar
claims can only be maintained in a “narrow class of cases” where the
judicially created wrongful discharge action is needed to effectuate
the public policy at stake. Ross v. Stouffer Hotel Co., 879 P.2d
1037, 1047 (1994). If a statutory or regulatory provision evidencing
a public policy provides a remedy for the wrongful discharge,
“provision of a further remedy under the public policy exception is
unnecessary.” Id.
The public policy against terminating an employee because of a
work injury is evidenced in Haw. Rev. Stat. § 378-32. The statute
provides:
It shall be unlawful for any employer to
suspend, discharge, or discriminate against any
of the employer's employees . . . [s]olely
because the employee has suffered a work injury
which arose out of and in the course of the
employee's employment with the employer and
which is compensable under chapter 386 unless
the employee is no longer capable of performing
the employee's work as a result of the work

15

injury and the employer has no other available
work
which
the
employee
is
capable
of
performing.
Haw. Rev. Stat. § 378-32(a)(2).
The remedy for a wrongful discharge due to a work injury is
found in Haw. Rev. Stat. § 378-35, which provides for a hearing
before the Hawaii Department of Labor and Industrial Relations to
determine the appropriate remedy. In Takaki, the Hawaii Supreme
Court held that the remedy in Haw. Rev. Stat. § 378-35 was the
exclusive

remedy

available

for

termination

for

a

work-related

injury. Takaki, 951 P.2d at 513-14.
Defendant’s Motion to Dismiss, as to the wrongful discharge in
violation of public policy claim (Count I), is GRANTED.

II.

HAWAII WHISTLEBLOWERS’ PROTECTION ACT CLAIM

Cambron brings a claim against Starwood, pursuant to Hawaii’s
Whistleblowers’ Protection Act, Haw. Rev. Stat. § 378-62. Cambron
claims that Starwood retaliated against him for: (1) threatening to
report Starwood to the Department of Commerce and Consumer Affairs
for including false information in its promotional materials in
April

2007

and

(2)

accusing

DiBerardino

of

improper

business

practices in November 2008. (Am. Compl. at pgs. 12-14, ECF No. 66.)

16

A.

Hawaii’s Whistleblowers’ Protection Act

Hawaii’s Whistleblowers’ Protection Act (“Whistleblowers’ Act”)
prohibits an employer for retaliating against an employee who
engages in certain protected activities. The Whistleblowers’ Act
provides:
An employer shall not discharge, threaten, or
otherwise discriminate against an employee
regarding the employee's compensation, terms,
conditions,
location,
or
privileges
of
employment because:
(1) The employee, or a person acting on behalf
of 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) A law, rule, ordinance, or regulation,
adopted pursuant to law of this State, a
political subdivision of this State, or the
United States . . .
unless the employee knows that the report is
false.
Haw. Rev. Stat. § 378-62.
To establish a prima facie case for retaliation under the
Whistleblowers’ Act, the plaintiff must prove that (1) he engaged in
a protected activity, (2) he was subjected to an adverse employment
action, and (3) the adverse employment action resulted because of
the participation in the protected activity. See Griffin v. JTSI,
Inc., 654 F.Supp.2d 1122, 1130-32 (D. Haw. 2008)(citing Crosby v.
State Dep’t of Budget & Fin., 876 P.2d 1300, 1310 (Haw. 1994)).

17

The term “adverse action” is construed liberally to include
various forms of retaliation, not only termination of employment.
See Crosby, 876 P.2d at 1309-10. The employee must show that his or
her protected activity was the “substantial or motivating factor”
for the adverse action. Griffin, 654 F.Supp.2d at 1131-32. A court
may infer a causal connection between a protected activity and a
retaliatory action when there is proximity in time between the two.
Id.

B.

Cambron Fails to Identify an Adverse Employment Action

A plaintiff bringing a Whistleblowers’ Act claim must show an
adverse employment action that affected his or her “compensation,
terms, conditions, location, or privileges of employment.” Crosby,
876 P.2d at 1309-10. An adverse employment action is generally one
that affects pay or status. Black v. Correa, No. 07-00299-DAE-LEK,
2008 WL 3845230, at *11-12 (D.Haw. Aug. 18, 2008)(applying Title VII
jurisprudence to a Hawaii Whistleblowers’ Act claim).
Starwood did not terminate Cambron. Cambron, as discussed
above, abandoned his employment by failing to return to work or
communicate

with

Starwood

about

his

intentions

regarding

his

employment. There was not a termination of Plaintiff’s employment at
Starwood so it cannot be construed as an adverse employment action.
Cambron’s statements in the Amended Complaint make it difficult
to discern any adverse employment action that Cambron believes can

18

support his Whistleblowers’ Act claim. The difficulty is due, at
least in part, to internal inconsistencies2 and fragmented sentences
in the Amended Complaint. It is clear, however, that Cambron claims
to have learned about adverse employment actions against him in June
2009,

approximately

three

months

after

he

had

abandoned

his

employment at Starwood. (Am. Compl., 2d Cause of Action at ¶ 4, ECF
No. 66.)
It appears that Cambron believes that a notation from June 2007
in

his

Starwood

Human

Resources

file

constitutes

an

adverse

employment action. There is no indication that Cambron’s employment
was adversely impacted by the notation. It only became known to
Cambron after he abandoned his employment. The notation is not an
adverse

employment

action

that

can

support

Plaintiff’s

Whistleblowers’ Act claim. A claim alleging that the June 2007
notations constituted retaliation would also run afoul of the twoyear statute of limitations for Whistleblowers’ Act claims. Lopes v.
Kapiolani Med. Ctr. for Women & Children, 410 F. Supp. 2d 939, 952
(D. Haw. 2005). The statute of limitations, which runs from the date
of the adverse action, would have expired before the filing of this
action. Id.
Cambron also alleges that Starwood made efforts to “cover up”
the assault by DiBerardino. (Am. Compl. at pg 14, ECF No. 66.) The
2

One paragraph of the Amended Complaint inconsistently
states that an incident occurred on April 27, 2009. (Am. Compl.,
2d Cause of Action at ¶ 4.) The surrounding events purportedly
occurred in 2007.
19

allegation lacks specificity and is not an adverse employment action
under the Whistleblowers’ Act. It does not allege an adverse impact
on a term or condition of Cambron’s employment. Crosby, 876 P.2d at
1309-10.
Cambron’s failure to identify an adverse employment action bars
his Whistleblowers’ Act claim.

B.

Cambron’s Purportedly Protected Activities Are Attenuated
from the Allegations in the Amended Complaint About
Improper Actions by Starwood

Cambron’s

Whistleblowers’

Act

claim

also

fails

because

Cambron’s actions, which allegedly caused retaliation by Starwood,
are attenuated from the claimed retaliation in the Amended Complaint
about Starwood.
A plaintiff bringing a Whistleblowers’ Act claim must show that
his or her protected activity was the “substantial or motivating
factor” for the employer’s challenged action. Griffin, 654 F.Supp.2d
at 1131-32.
Cambron’s April 2007 threat to report Starwood’s use of false
promotional material is distant in time from the claims at issue,
which occurred in 2009. There is no causal connection between the
alleged April 2007 conflict between Starwood and Plaintiff and his
the action before the Court. See Griffin, 654 F.Supp.2d at 1131-32
(temporal proximity may be used to determine if a causal connection
exists).

20

The

November

2008

conflict,

in

which

Cambron

accused

DiBerardino of improper business practices, is closer in time to the
claims at issue. (Am. Compl. at pgs. 13-14, ECF No. 66.) It is,
however, similarly attenuated from Starwood’s actions that are
before the Court. Cambron claims he received a congratulatory letter
for being a “Top Team Manager” two days after the conflict with
DiBerardino. Such commendation undermines the suggestion that an
adverse employment action was taken in response to the conflict. It
is possible a causal connection could exist between the November
2008 conflict and the January 2009 assault by DiBerardino. The
assault, however, is not an adverse employment actions protected by
the Whistleblowers’ Act. See Black, 2008 WL 3845230, at *11-12 (an
adverse employment action is one that affects pay, status, or
otherwise impacts the terms or conditions of employment).
Defendant’s Motion to Dismiss, as to the Whistleblowers’ Act
claim (Count II), is GRANTED.

III. FRAUD AND CONSPIRACY CLAIM

Plaintiff appears to be attempting to allege two theories of
fraud by Starwood. The fraud claims were not present in the original
Complaint.
and

omitted

Cambron claims Starwood “created fraudulent documents”
damaging

evidence

in

21

an

April

28,

2011

Workers’

Compensation proceeding before the Hawaii Department of Labor and
Industrial Relations.

A.

The Workers’ Compensation Statute Bars Plaintiff’s Fraud
and Conspiracy to Defraud Claims with Respect to His
Application for Workers’ Compensation Benefits

The Court lacks jurisdiction to hear Plaintiff’s attempted
articulation

of

a

fraud

claim

that

relates

to

the

workers’

compensation hearing before the Hawaii Department of Labor and
Industrial Relations. The Hawaii Workers’ Compensation Law provides
a cause of action and remedy for fraudulent “acts or omissions
committed by any person who intentionally or knowingly acts or omits
to act so as to . . . deny benefits.” Haw. Rev. Stat. § 386-98(a).
Such

activity

includes

presenting

false

information

on

an

application, making a false claim for denial of a health benefit,
misrepresenting
document,

or

a

material

making

false

fact,

falsifying

statement

to

or

concealing

discourage

an

a

injured

employee from claiming benefits or pursuing a workers’ compensation
claim. Id.
The exclusive civil remedy for such a violation is filing a
complaint with the director of the Hawaii Department of Labor and
Industrial Relations. Haw. Rev. Stat. §

386-98(f). The director of

the Hawaii Department of Labor and Industrial Relations has original
jurisdiction over the claim, with appellate jurisdiction granted to

22

the director of the appellate board, and then the Hawaii Supreme
Court. Haw. Rev. Stat. §§

386-73, 386-77 and 386-88.

The Court lacks jurisdiction over Plaintiff’s fraud claims
regarding his application for workers’ compensation.

B.

Plaintiff’s Second Fraud Allegation is that Starwood Acted
Wrongfully in the State Court Action Brought By Cambron
Against DiBerardino

Cambron appears to be raising a claim for fraud in connection
with an assault and battery suit that he filed against DiBerardino
in the Hawaii State Court, Second Judicial Circuit (Cv. No. 09-10206) in March 2009. On December 27, 2012, the State Court granted
DiBerardino’s motion to enforce a settlement agreement ending the
case. Judgment was entered on February 12, 2013.
A cause of action for fraud requires a showing that: (1) false
representations were made by a defendant, (2) with knowledge of
their falsity, (3) in contemplation of a plaintiff's reliance upon
the false representations, and (4) actual reliance by the plaintiff.
Shoppe v. Gucci Am., Inc., 14 P.3d 1049, 1067 (Haw. 2000). The
allegedly false representation must relate to a past or existing
material fact. TSA Int'l Ltd. v. Shimizu Corp., 990 P.2d 713, 725
(Haw. 1999)(emphasis added). A plaintiff suing in fraud must show
that he or she suffered a definite and ascertainable pecuniary loss.
Exotics Hawaii-Kona, Inc. v. E.I. Du Pont De Nemours & Co., 172 P.3d
1021, 1036 (Haw. 2007).
23

Cambron claims that Starwood failed to introduce various pieces
of evidence and created fraudulent documents in connection with a
deposition of a member of the Starwood Human Resources Department in
the State Court assault case. (Am. Compl., Factual Allegations at ¶¶
28-29, ECF No. 66.) The lack of particularity of his fraud claim
extends to who was deposed, what was said, and the effects of the
alleged

misrepresentations.

Cambron

alleged

fraudulence

impacted

somehow

generally
his

claims

assault

that

suit

the

against

DiBerardino in State Court.
The Amended Complaint does not contain a fraud claim stated
with particularity as required by Rule 9(b) of the Federal Rules of
Civil Procedure.
Defendant’s Motion to Dismiss, as to the Fraud and Conspiracy
Claim (Count III), is GRANTED.

IV.

DISMISSAL WITH PREJUDICE OF ALL CLAIMS

A.

Dismissal with Prejudice

Pursuant to Federal Rule of Civil Procedure 15(a), a court
should grant leave to amend a complaint “unless amendment would
cause prejudice to the opposing party, is sought in bad faith, is
futile, or creates undue delay.” Johnson v. Mammoth Recreations,
Inc., 975 F.2d 604, 607 (9th Cir. 1992). The liberal amendment
policy provided in Rule 15(a) is based on the intended purpose of

24

the

Rule:

facilitating

decisions

on

the

merits

instead

of

on

technicalities or pleadings. In re Morris, 383 F.3d 891, 894 (9th
Cir. 2004). Dismissal with prejudice is appropriate only when the
complaint cannot be saved by amendment. Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Cambron filed the Complaint in this action on October 25, 2010
in State Court. Cambron attempted to file an Amended Complaint in
State Court on June 2, 2011, but the case had already been removed
to Federal Court. (ECF No. 62.) At the scheduling conference on July
14, 2011, the Magistrate Judge informed Cambron that the Amended
Complaint was not part of the federal record and he would need to
request leave to amend the Complaint in Federal Court. The Rule 16
Scheduling Order established a December 16, 2011 deadline for
amending pleadings. Plaintiff did not move to amend the Complaint
until almost ten months later on October 5, 2012, in his Opposition
to Defendant’s Motion for Judgment on the Pleadings. (ECF No. 57.)
In recognition of Plaintiff’s pro se status, on November 29,
2012, the Court granted Cambron leave to file an Amended Complaint,
despite the extreme delay. (ECF No. 63.)
The Amended Complaint, similar to the initial Complaint, fails
to allege a viable claim. Allowing further amendment would be
futile.
The

causes

of

action

against

Defendant

Ownership, Inc. are DISMISSED WITH PREJUDICE.

25

Starwood

Vacation

B.

Dismissal of Claims Against Starwood Hotels Worldwide,
Inc.

The Amended Complaint (ECF No. 66), filed on January 25, 2013,
added Starwood Hotels Worldwide, Inc. as a Defendant in the action.
There has been no filing indicating that Starwood Hotels Worldwide,
Inc. has been served.
Starwood Hotels Worldwide, Inc. has not appeared. They are the
parent company for Defendant Starwood Vacation Ownership, Inc, the
moving party on the Motion before the Court.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
may dismiss an action with prejudice as to a party who has not been
served, answered, or appeared, if that party is similarly situated
to the party moving to dismiss the action. Abagnin v. AMVAC Chemical
Corp., 545 F.3d 733, 742-43 (9th Cir. 2008). The dismissal may be
made without giving the plaintiff notice or an opportunity to
respond if a plaintiff “cannot possibly win relief.” See Sparling v.
Hoffman Construction Co., 864 F.2d 635, 638 (9th Cir. 1981); Omar v.
Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987).
The Amended Complaint does not mention a specific theory for
bringing suit against Starwood Hotels Worldwide, Inc. It appears
that the action against Starwood Hotels Worldwide, Inc. is based on
a theory of liability for the claims against Starwood Vacation
Ownership, Inc. as a parent of Starwood Hotels Worldwide, Inc.
Plaintiff “cannot possibly win relief” against Starwood Hotels
26

Worldwide, Inc. for the reasons set forth for dismissal of the
claims against its subsidiary, Starwood Vacation Ownership, Inc.
The causes of action against Defendants Starwood Vacation
Ownership, Inc. and Starwood Hotels Worldwide, Inc. are DISMISSED
WITH PREJUDICE.

CONCLUSION

Defendant’s Motion to Dismiss (ECF No. 69) is GRANTED. The
Amended Complaint (ECF No. 66) is DISMISSED WITH PREJUDICE.
The Clerk of the Court is ordered to close the case.
Dated:

May 09, 2013, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Kenneth W. Cambron v. Starwood Vacation Ownership, Inc. and Starwood
Hotels Worldwide, Inc.; Civil No. 11-00326 HG-KSC; ORDER GRANTING

27

DEFENDANT STARWOOD VACATION OWNERSHIP INC.’S MOTION TO DISMISS THE
AMENDED COMPLAINT FILED JANUARY 25, 2013 (DOC. 69).

28