You v. Longs Drug Stores California LLC et al
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 26 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 3/27/13. "The court grants Defendants' motion for summary judgment. The Clerk of Court is directed to ent er judgment in favor of Defendants and to close this case." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TAMMY P. YOU,
LONGS DRUGS STORES
CALIFORNIA, LLC, d/b/a LONGS
DRUGS; THOMAS McKEOWN; JOHN
DOES 1 through 10; DOE
CORPORATIONS 1 through 10;
AND DOE UNINCORPORATED
PARTNERSHIPS 1 through 10,
CIVIL NO. 11-00530 SOM/RLP
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This removed case involves Plaintiff Tammy You’s claims
of employment discrimination and retaliation against her former
employer, Defendant Longs Drugs Stores California, LLC, and her
former supervisor, Thomas McKeown.
See Verified Complaint, ECF
You asserts that Defendants (1) discriminated against
her on the basis of race, sex, age, disability, and national
origin, in violation of federal and state law, and (2) retaliated
against her in violation of the Hawaii Whistleblower Protection
Act, section 378-62 of Hawaii Revised Statutes.
She also asserts
that McKeown intentionally inflicted emotional distress on her.
She seeks special, general, and punitive damages, plus costs and
Defendants now move for summary judgment on the ground
that each of You’s claims lacks merit.
See ECF Nos. 26.
court grants the motion.
You describes her race as “Hawaiian, Japanese, Korean,
white, and possibly Spanish.”
No. 27-2, PageID # 250.
Deposition of Tammy You at 20, ECF
Her national origin is American.
299, ECF No. 27-3, PageID # 403.
She believes that others
perceive her as “mixed race, local”.
PageID # 251.
Id. at 26, ECF No. 27-2,
You testified that she has no disability.
54, ECF No. 27-2, PageID # 267.
On June 27, 2010, Roy Matsuura, the manager of the
Longs store in Kaneohe, Hawaii, hired You and Lauren Kanda as
pharmacy service associates at that Longs location.
Depo. at 32, ECF No. 27-2, PageID #253; Declaration of Roy
Matsuura ¶ 2 (“I made the decision to hire Tammy You as a
pharmacy service associate in June 2010.”), ECF No. 27-34, PageID
You, who was born in 1967, is older than Kanda, who is in
her 20s and of Japanese descent.
Declaration of Tammy P. You
¶ 17, ECF No. 31-1, PageID #822; You Depo. at 5, ECF No. 27-2,
PageID # 249.
You and Kanda began working the overnight shift on
August 1, 2010, when the store was scheduled to offer twentyfour-hour service.
You Depo. at 31, ECF No. 27-2, PageID # 252.
You and Kanda were in a “special training program” designed to
prepare them for the overnight shift by August 1, 2010.
McKeown is the head pharmacist at the Longs store in
Declaration of Thomas McKeown ¶ 1, ECF No. 27-31,
PageID # 797.
Thirty-six years old when You was hired, McKeown
is of Caucasian and Japanese descent, and considers himself
“local American” and “mixed local.”
McKeown Decl. ¶¶ 2, 4.
You says Defendants treated Kanda more favorably than
Specifically, You says that Kanda received more overtime
work, was not reprimanded when she was late, and was allowed to
make up time when she was late.
You, on the other hand, was
reprimanded and not allowed to make up time when she was late.
You Decl. ¶¶ 11, 13, ECF No. 31-1, PageID # 819.
You also says
that someone at Longs manipulated attendance records.
Decl. ¶ 11, ECF No. 31-1, PageID # 819 (“There are numerous
instances where I signed in and then the employer changed the
time records to make it look like I was late or took too much
time for lunch or whatever they wanted to prove in changing my
Although You says that she does not have a disability,
she claims that Defendants treated her as if she had a learning
You Depo. at 302, ECF No. 27-3, PageID # 406.
You alleges that, on or around July 2010, McKeown asked
her how many times she had dispensed a particular drug.
Depo. 32-33, 36-41, ECF No. 27-2, PageID #s 253-60.
You says she
did not understand why McKeown sought such information, and told
him, “You’re stressing me out.”
Id. at 36, ECF No. 27-2, PageID
McKeown recalls having asked You about dispensing the
generic form of Flonase.
McKeown says that he wanted to make
sure that You “was familiar with the names of common drugs
dispensed from the pharmacy.”
You Decl. ¶¶ 10-11, 13, ECF No.
27-31, PageID #s 798-99.
According to You, in response to her statement that
McKeown was stressing her out, McKeown asked her to go upstairs
so they could speak, then said, “You’re not qualified for
Who do you think you are?
Other people have been
waiting for their chance to be in pharmacy.
Why do you think
Pl. Dep. 44, ECF No. 36-1, PageID # 878.
says McKeown also told her, “You need to self-identify and
Id. at 45.
You interpreted this statement to mean, “You
check your national origin.
Who are people going to believe?
The Hawaiian or the Japanese?”
Id. at 45-46.
McKeown did not
expressly refer to national origin; You concedes that he only
said, “Look into yourself and see.
You’re not qualified.”
He also allegedly said, “You need to go home, decide what
you’re going to do.
Don’t come back to pharmacy.”
ECF No. 27-2, PageID # 266.
Id. at 51,
During this exchange, You expressed her concern
regarding getting enough training before the August 1 deadline.
She alleges that McKeown replied, “Don’t worry about it.
On September 5, 2010, You contacted the Longs ethics
line to report that she was being harassed on the basis of race,
age, and intelligence, and that she had been denied training that
other employees received.
She complained that McKeown only
showed her things once and chastised her for not writing things
She also complained that McKeown reprimanded her for using
the word “yea” instead of “yes” in front of a customer and pushed
her with a basket to make her move faster.
PageID # 781.
See ECF No. 27-22,
In connection with the basket incident, You
explained that, during her “production” training, she had seen a
basket of prescription drug bottles.
She initially characterized
McKeown as having “shoved” her with that basket, but later said
that, when she refrained from touching the basket because she did
not know what her trainer expected her to do with it, McKeown
pushed it toward her without a word, causing the basket to touch
her below her breast.
See You Depo. at 144, ECF No. 27-2.
You complains that McKeown viewed her as having a slow
learning curve and was therefore unwilling to provide training to
Id. at 197-98.
Although You’s charge of discrimination
stated under penalty of perjury that McKeown made derogatory
comments about her “learning curve,” see ECF No. 27-27, You
conceded in her deposition that McKeown never expressly commented
that her learning curve was holding her back.
You Depo. at 206.
Instead, McKeown told her that she should write things down and
that she was not 100% yet.
Id. at 205 and 303.
You appears to
have interpreted the “write things down” comment as meaning “Your
learning curve is holding you back.
You can’t be trained.”
Asked what training she had not received, You’s reply
was only that she had not felt fully trained.
236, ECF No. 42-3, PageID # 952.
See You Depo. at
It appears that You had
received about 20 types of training and may have failed to
complete only the on-job training, although she did receive two
days of on-job training.
Id. at 233-36.
You testified that her
records incorrectly reflected that she had, in fact, completed
the on-job training.
See id. at 127.
You does not specifically
identify any training that another employee received that she did
According to You, Kanda was trained first, then McKeown
wanted Kanda to train You.
See id. at 248.
You observed Kanda
For example, although You eventually did
“production,” Kanda did it first.
See id. at 244.
that Kanda was allowed to progress faster because she was younger
and “Japanese-looking,” not based on competency.
See id. at 241.
In her Verified Complaint, You says that, on October
10, 2010, she reported to the Longs ethics line that she was
being retaliated against because of her earlier contact with the
Verified Complaint ¶ 22.
The retaliation You was
referring to came in the form of “Coaching and Counseling Forms”
stating that You had placed a prescription on the wrong shelf and
had sent a prescription to the out-of-stock queue even though the
item prescribed was in-stock.
PageID #s 783-786.
See ECF Nos. 27-23 and 27-24,
These forms were signed by You and her
supervisor, pharmacist Rona Nuesca.
You claims that Nuesca
counseled her at McKeown’s direction on false grounds.
Depo. at 98, 254, ECF Nos. 27-2 and 27-3.
You does not contest
the accuracy of the write-ups and was not demoted as a result of
the alleged errors.
Id. at 255-57.
According to the Verified Complaint, You spoke with the
Longs employee relations office on October 26, 2010, and was told
that her ethics complaint was closed with no finding of
See Verified Complaint ¶ 25, ECF No. 6-3.
On December 3, 2010, You filed a Charge of
Discrimination (“Charge”) with the Hawaii Civil Rights Commission
(“HCRC”) and the United Stated Equal Employment Opportunity
Commission (“EEOC”), alleging that Defendants had discriminated
against her on the basis of sex, national origin, retaliation,
age, and disability.
See ECF No. 27-27.
The charge alleges that
the discrimination began on June 28, 2010, and last occurred on
November 23, 2010.
The Charge states:
On June 28, 2010, I was hired by the abovenamed employer. My current job title is
Pharmacy Service Associate.
Since my hire, Lead Pharmacist Thomas Mckeown
[sic] (Asian/White male, age 30’s) has
subjected me to disparate treatment and
harassment. Mckeown failed to provide me
with adequate training and job assignments.
He has also made derogatory comments to me
and in front of co-workers about my “learning
curve” to perform my job duties. On one
occasion, McKeown intentionally hit me with a
black basket used for patient’s prescriptions
and has repeatedly threatened to discharge
me. On the other hand, McKeown has provided
a similarly situated employee Lauren Kanda
(younger Asian-Japanese female, 20's)
adequate training and job assignments.
In September 2010, I complained to Respondent
about McKeown’s discriminatory behavior and
my training. During the investigation of my
complaint, Mckeown [sic] directed a female
Night Pharmacist (Rona Nuenes [sic]) to issue
me an unwarranted written warning.
Subsequently, I complained to Respondent
about retaliation. I do not believe
Respondent took appropriate, corrective
action with respect to my complaints because
they were both dismissed.
ECF No. 27-27, PageID # 791.
Longs has a policy regarding the sale of
pseudoephedrine (“PSE”), a component used in the illegal
manufacture of methamphetamine.
Longs uses a “MethCheck”
procedure to enforce limits on sales of PSE products.
requires every pharmacy service associate to scan the PSE product
and enter the customer’s identification information into the
The MethCheck system then looks up the customer’s
records and tells the employee whether the customer has exceeded
See You Depo. at 166-67, ECF No. 27-2, PageID # 166-
You acknowledged that she received training from Longs on
the PSE limits, as well as the company’s policy and procedure
governing PSE sales.
See id. at 163, 176.
You knew that
“Failure to comply with CVS company policy and the law regarding
sales of restricted products [would] have numerous potential
outcomes, including disciplinary action, including termination of
employment . . . .”
Id. at 183-84.
You admits that, on May 22, 2011, she sold LoratadineD, a generic form of Claritin-D and a regulated PSE product,
without obtaining customer identification and in violation of
See You Depo. at 261-66, 273, ECF No. 27-3.
tried to scan the product, but because it would not scan
properly, she manually looked up the price of the item, then
entered the item into the register as a “taxable item” with the
Id. at 265.
Because You entered the item
as a “taxable item,” it did not trigger the MethCheck procedure.
Id. at 269.
She admitted that this act violated company policy,
as well as federal guidelines. Id. at 271-72.
You said that she
did not know whether the customer had exceeded his limit for PSEs
when she sold him the Loratadine-D.
Id. at 270.
On May 25, 2011, the EEOC issued You a “right to sue”
notice, with a determination that it was unable to conclude that
Defendants had violated anti-discrimination laws.
On June 28, 2011, the Hawai`i Civil Rights Commission
also issued You a “Notice of Dismissal and Right to Sue” letter.
See Complaint, Ex. 3.
On May 27, 2011, two days after the EEOC had issued its
right-to-sue letter and about one month before the HCRC had
issued its right-to-sue letter, the Kaneohe Long’s store manager,
Roy Matsuura, terminated You based on her violation on May 22,
See Matsuura Decl. ¶ 4;1 You Depo. at
2011, of the PSE policy.
282, ECF No. 27-3.
According to Matsuura, You’s “selling [of]
the PSE without obtaining proper identification” was the sole
reason You was terminated.
Matsuura Decl. ¶ 5.
There is no
dispute that You’s termination was not raised in her December 3,
2010, Charge to the EEOC or the HCRC.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a) (2010).
See Addisu v. Fred Meyer, Inc., 198
F.3d 1130, 1134 (9th Cir. 2000).
The movants must support their
Matsuura was the person who had initially hired You as a
pharmacy service associate. Id. ¶ 2.
position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c).
One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.
See id. at 323.
A moving party without the
ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., Inc., 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 file
that it believes demonstrate the absence of any genuine issue of
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).
“When the moving party has carried its burden
under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.
At least some “‘significant
probative evidence tending to support the complaint’” must be
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)).
See Addisu, 198 F.3d at 1134 (“A
scintilla of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
“[I]f the factual context makes the non-moving
party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”
Cal. Arch’l Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
Accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.
T.W. Elec. Serv.,
Inferences may be drawn from underlying
facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
When “direct evidence” produced by the moving party
conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
You’s Verified Complaint asserts claims against Longs
for violations of Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3
(Counts I and IV); the Americans with Disabilities Act, 42 U.S.C.
§§ 12112 and 12132 (Count II); the Age Discrimination in
Employment Act, 29 U.S.C. § 623 (Count III); and section 378-2 of
Hawaii Revised Statutes (Count V).
The Verified Complaint
asserts that Longs and McKeown violated the Hawaii Whistleblower
Protection Act, section 378-62 of Hawaii Revised Statutes
(Count VI), but You has withdrawn that claim with respect to
McKeown and is proceeding in Count VI only against Longs.
also asserts an intentional infliction of emotional distress
claim against McKeown (Count VII).
Disparate Treatment Claims.
Title VII of the Civil Rights Act of 1964 forbids
employment discrimination based on “race, color, religion, sex,
or national origin.”
42 U.S.C. § 2000e–2(a).
The Americans with
Disabilities Act similarly prohibits discrimination against
qualified individuals with disabilities.
42 U.S.C. § 12112(a)
(“No covered entity shall discriminate against a qualified
individual on the basis of disability in regard to job
application procedures, the hiring, advancement, or discharge of
employees, employee compensation, job training, and other terms,
conditions, and privileges of employment.”).
protects persons who are regarded as disabled.
The ADA also
§ 12101(1)(C); 29 C.F.R. § 1630.2(l).
See 42 U.S.C.
The Age Discrimination in
Employment Act, 29 U.S.C. § 623, prohibits discrimination based
Hawaii law similarly 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
Haw. Rev. Stat. § 378-2.
A plaintiff asserting disparate treatment may prove
that claim in two ways.
First, the plaintiff may apply the
burden-shifting analysis set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
See Raytheon Co. v. Hernandez, 540
U.S. 44, 51-55 (2003) (applying McDonnell Douglas burden shifting
framework to disparate treatment claim asserted under § 12112(a)
of the ADA); Shelley v. Green, 666 F.3d 599, 607-08 (9th Cir.
2012) (noting that the McDonnell Douglas burden shifting
framework applies when evaluating ADEA claims on 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 (D. Haw. 2000) (applying federal
standard 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) she belongs to a protected class; (2) she performed according
to his employer’s expectations; (3) she suffered an adverse
employment action;2 and (4) similarly situated individuals
outside of her protected class were treated more favorably.
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
You identifies the alleged adverse employment actions she
suffered in paragraph 16 of her declaration. See ECF No. 31-1.
Of the 11 so-called adverse employment actions, You clarified at
the hearing that she is no longer claiming paragraphs 16(j) and
(k) as adverse employment actions. See You Decl. ¶¶ 16(j)
(“Probably the reason that I was late for work so many times is
that I was afraid to go there because of the hostile work
environment caused by Defendant McKeown and others.”) and (k)
(“When Lauren Kanda was late, she was able to make up her time so
that she was not underpaid but I was not.”).
a prima facie case for summary judgment is minimal.
v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).
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 reason” for its
(9th Cir. 2007).
Noyes v. Kelly Servs., 488 F.3d 1163, 1168
“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
Second, a plaintiff may prove disparate treatment by
producing direct or circumstantial evidence demonstrating that a
discriminatory reason more likely than not motivated the
See Surrell, 518 F.3d at 1105.
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 of bona fides of the
employer’s articulated reason for its employment decision.”
Cordova v. State Farm Insurance Companies, 124 F.3d 1145, 1149
(9th Cir. 1997) (quotation marks and citation omitted).
You Failed to Exhaust Her Disparate Treatment
Claims Based on Her Termination, Being Blamed
for Someone Else’s Errors, the Changing of
Her Time Records, and Failure to be Paid
In preparing for the hearing on the motion for summary
judgment, this court became concerned that You had not
administratively exhausted certain claims.
The court therefore
asked You in its normal prehearing inclinations procedure to come
to the hearing on the motion for summary judgment prepared to
discuss how she had administratively exhausted her claims.
ECF No. 35.
At the hearing, You stated that she had not
administratively exhausted the purported adverse employment
actions set forth in paragraphs 16(a) to (e) of her declaration:
(a) I was fired which is the worst punishment
(b) I was blamed for the meth check error
when Pharmacist Nuesca assisted me and she
was not fired.
(c) Defendant McKeown had Ms. Nuesca blame me
for her own error earlier.
(d) The employer changed my time records, and
not Lauren Kanda.
(e) I was not paid overtime but Lauren Kanda
ECF No. 31-1.
You claimed to have been excused from the
exhaustion requirements because filing a charge based on them
would have been futile.
Title VII, the ADEA, the ADA, and section 378-2 of the
Hawaii Revised Statutes all require a plaintiff to have exhausted
administrative remedies before filing a civil action against an
employer who has allegedly discriminated against the employer.
“Title VII contains several distinct filing
requirements which a claimant must comply with in bringing a
Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 as
amended by, 815 F.2d 570 (9th Cir. 1987).
To file a claim under
Title VII, a plaintiff must file a complaint with the EEOC within
180 days of the last discriminatory act.
See Bouman v. Block,
940 F.2d 1211, 1219 (9th Cir. 1991) (citing 42 U.S.C. § 2000e5(e)).
Moreover, a Title VII action must “be filed within ninety
days from the issuance of the right to sue letter by the EEOC.”
Valenzuela, 801 F.2d at 1172 (citing 42 U.S.C. § 2000e-5(f)(1)).
Like Title VII, the ADEA requires exhaustion of claims
by nonfederal employees.
See 29 U.S.C. § 626(d)(1); Limongelli
v. Postmaster General of United States, 707 F.2d 368, 372 (9th
Cir. 1983) (per curiam) (“This incident was not encompassed in
his earlier EEOC charge.
He did not exhaust his administrative
remedies under ADEA and therefore cannot look to the courts for
relief.”); but see 29 U.S.C. § 633a (Nondiscrimination on account
of age in Federal Government employment).
The ADA also contains an exhaustion requirement.
U.S.C. 12117(a) (“The powers, remedies, and procedures set forth
in sections 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9 of
this title shall be the powers, remedies, and procedures this
subchapter provides to the Commission, to the Attorney General,
or to any person alleging discrimination on the basis of
disability in violation of any provision of this chapter, or
regulations promulgated under section 12116 of this title,
concerning employment.”); Henderson v. Alexander & Baldwin, Inc.,
2007 WL 4145233, *3 (D. Haw. November 20, 2007) (requiring
exhaustion of administrative remedies for ADA claims).
Chapter 368 governs the procedure by which
administrative complaints of discrimination under Part I of
chapter 378 are filed.
See Haw. Rev. Stat. §§ 378-4; 368-11.
particular, section 368-11 requires complaints alleging unlawful
discrimination in violation of part I of chapter 378, sections
378-1 to 378-10 of Hawaii Revised Statutes, to be filed with the
HCRC within 180 days of either the occurrence of the alleged
discrimination or the last occurrence in a pattern of ongoing
See Sam Teague, Ltd. v. Hawai`i Civil
Rights Comm’n, 89 Haw. 269, 276, 971 P.2d 1104, 1111 (1999).3
Section 378-3(10) excepts sexual harassment claims from the
rubric of chapter 368. See Furukawa v. Honolulu Zoological
Soc’y, 936 P.2d 643, 655 (Haw. 1997). The legislature created
the exception for sexual harassment claims in recognition of the
fact “‘that victims of sexual harassment [are] often so
traumatized by the occurrence’ that they might fail to file with
the [Hawaii Civil Rights] commission within 180 days.” Id.
Here, there is no evidence that You’s termination related to
sexual harassment. The record reflects only that Matsuura
You’s charge of discrimination of November 29, 2010,
did not complain about her termination, Nuesca’s errors, any
changing of You’s time records, or any failure to pay overtime.
See ECF No. 1-2.
Clearly, the charge of discrimination could not
have complained about You’s termination or Nuesca’s MethCheck
errors, as those events did not happen until months later, in May
You failed to exhaust her administrative remedies with
respect to her termination, Nuesca’s errors, the changing of
You’s time records, and any failure to pay overtime, to the
extent You seeks relief in connection with those events in Counts
I and IV (Title VII, 42 U.S.C. §§ 2000e-2 and 2000e-3), Count II
(ADA, 42 U.S.C. §§ 12112 and 12132), Count III (ADEA, 29 U.S.C. §
623), and Count V (section 378-2 of Hawaii Revised Statutes).
You presents the court with no law applicable to the
present case that excuses exhaustion on the basis of futility.
You’s citation to Leorna v. United States Department of
State, 105 F.3d 548 (9th Cir. 1997), is unavailing because that
case did not involve any statutory exhaustion requirement.
employee in that case was a federal employee suing the Department
of State under the Rehabilitation Act, not under any of the
statutes in issue in the present case, all of which have
statutory exhaustion requirements.
The exhaustion in issue in
terminated You for selling PSE in violation of Long’s policy when
she failed to use the MethCheck system.
that case involved following the procedures of the agency the
employee was suing, not of the EEOC.
Id. at 550.
Circuit noted, “Where, as in the present case, exhaustion of
administrative remedies is not specifically required by statute,
application of the exhaustion doctrine is within the sound
discretion of the court. . . . We will not disturb the district
court’s determination of whether exhaustion is required unless
there has been a clear abuse of discretion.”
Similarly distinguishable from the present case is
Harris v. Attorney General of the United States, 657 F. Supp. 2d
1 (D.D.C. 2009), on which You also relies.
That was a case
brought by an independent contractor under Title VII.
threshold issue was whether the independent contractor was an
“employee” covered by Title VII.
Once the district court
determined that the independent contractor was an employee, it
turned to the independent contractor’s failure to exhaust the
EEOC’s administrative remedies.
There was no dispute that the
EEOC would have refused to examine the independent contractor's
claim based on the EEOC’s contrary determination that the
independent contractor was not an employee.
On that record, the
district court excused the independent contractor’s failure to
The court’s reference to futility in that case
concerned the EEOC’s undeniable identification of what the EEOC
considered to be a jurisdictional bar to administrative
consideration of the claim.
The court was not referring to any
assumption or speculation that the EEOC would have done a
less-than-thorough investigation or would have failed to find
discrimination when discrimination actually existed.
was looking at the claimant’s proven inability to even get
through the EEOC's front door.
This is a far cry from You's
speculation about the quality of what the EEOC would have done if
presented with new claims.
What You advocates is not an approach
addressed by Harris.
None of the cases You reads as excusing exhaustion on
futility grounds addresses the kind of speculative merits-based
argument You makes.
You’s argument that it would have been
futile for her to return to the EEOC or HCRC with new claims,
including her wrongful termination claim, because the result
would inevitably have been a “no cause” finding is not supported
by anything in the record.
You is acting as if a mere assertion
of futility excuses exhaustion.
The difference between the futility that You asserts
and the futility found by the courts in the decisions that You
cites is highlighted by her reference to Albano v.
Schering-Plough Corp., 912 F.2d 384 (9th Cir. 1990).
employee in that case, asserting age discrimination, filed a
“failure to promote” charge with the EEOC.
The employee then
sought to add a “constructive discharge” claim to that charge.
The EEOC refused to allow the amendment and assured the employee
that the existing charge encompassed the “constructive discharge”
claim, even though, as the Ninth Circuit noted, “We have
previously held that a constructive discharge claim is not like
or reasonably related to a charge of discrimination in
Id. at 385 (citing Ong. V. Cleland, 642 F.2d 316,
320 (9th Cir. 1981)).
Concluding that the EEOC had not properly
processed the timely filed charge and citing equitable
considerations, the Ninth Circuit allowed the unexhausted
“constructive discharge” claim to proceed in court on the ground
that the EEOC’s failure to follow its own rules had prevented
Although the Ninth Circuit likened an improper
refusal by the EEOC to amend a charge to an inadequate
investigation by the EEOC, both involving violations of the
EEOC’s obligations, the Ninth Circuit was clearly relying on the
factual record before it, not on mere supposition that the EEOC
would refuse to satisfy its obligations.
By contrast, You
presents nothing even approaching the record that the court had
This court does not reach the legal question of what
circumstances might excuse an employee in You’s position from
complying with statutory exhaustion requirements based on
If the court were to reach that legal question, it
would surely be troubled by the inapplicability of the cases that
You relies on.
This kind of concern would echo concerns other
courts have noted in similar situations.
See, e.g., Woodward v.
Salazar, 731 F. Supp. 2d 1178, 1192-93 (D.N.M. 2010) (noting a
plaintiff’s failure to cite authority that Title VII allows
futility to excuse exhaustion); Murphy v. West, 945 F. Supp. 874,
876 (D. Md. 1996), aff'd on other grounds, 172 F.3d 863 (4th Cir.
1999) (“Plaintiffs have cited no case authority for their
extraordinary proposition, and my own research has not located
any substantial support for the creation of a ‘futility’
exception to the Title VII exhaustion requirement, and certainly
no support for the assertion that the administrative process may
be disregarded in its entirety.”).
But You’s problem is far more
You makes no showing that anything was futile!
the absence of some such showing, the law of futility is
Nor may this court read those claims that You did
exhaust as encompassing the unexhausted claims.
In B.K.B. v.
Maui Police Department, 276 F.3d 1091, 1100 (9th Cir. 2002), the
Ninth Circuit noted that “[a]llegations of discrimination not
included in the plaintiff’s administrative charge may not be
considered by a federal court unless the new claims are like or
reasonably related to the allegations contained in the EEOC
(Quotation marks and citations omitted.)
In determining whether a plaintiff has
exhausted allegations that she did not
specify in her administrative charge, it is
appropriate to consider such factors as the
alleged basis of the discrimination, dates of
discriminatory acts specified within the
charge, perpetrators of discrimination named
in the charge, and any locations at which
discrimination is alleged to have occurred.
In addition, the court should consider
plaintiff’s civil claims to be reasonably
related to allegations in the charge to the
extent that those claims are consistent with
the plaintiff’s original theory of the case.
You’s administrative charge complained that McKeown
subjected her “to disparate treatment and harassment.”
27-27, PageID # 791.
You said that McKeown:
failed to provide me with adequate training
and job assignments. He has also made
derogatory comments to me and in front of coworkers about my “learning curve” to perform
my job duties. On one occasion, McKeown
intentionally hit me with a black basket used
for patient’s prescriptions and has
repeatedly threatened to discharge me. On
the other hand, McKeown has provided a
similarly situated employee Lauren Kanda
(younger Asian-Japanese female, 20’s)
adequate training and job assignments.
In September 2010, I complained to Respondent
about McKeown’s discriminatory behavior and
my training. During the investigation of my
complaint, Mckeown [sic] directed a female
Night Pharmacist (Rona Nuenes [sic]) to issue
me an unwarranted written warning.
Subsequently, I complained to Respondent
about retaliation. I do not believe
Respondent took appropriate, corrective
action with respect to my complaints because
they were both dismissed.
The Kaneohe Long’s store manager, Roy Matsuura, says he
terminated You for having violated Long’s PSE policy by selling
Loratadine-D to a customer without using the MethCheck system.
See Matsuura Decl. ¶ 4; You Depo. at 282, ECF No. 27-3.
had no involvement with the termination.
You’s termination is
not like or reasonably related to the allegations contained in
the EEOC charge.
See B.K.B. v. Maui Police Department, 276 F.3d
at 1100; see generally Albano, 912 F.2d at 385 (noting that a
“constructive discharge” claim is not like or reasonably related
to a “failure to promote” claim).
The same holds true for the
claims concerning the MethCheck procedures, changing of time
records, and failure to pay overtime.
Notably, You does not even
attempt to relate those claims to any specific exhausted claim.
Remaining Disparate Treatment Claims.
You asserts race, sex, and national origin
discrimination in violation of Title VII (Count I), “regarded as
disabled” discrimination in violation of the ADA (Count II), age
discrimination in violation of the ADEA (Count III), and race,
sex, age, ancestry, and disability discrimination in violation of
section 378-2 of Hawaii Revised Statutes (Count V).
above, these claims are all analyzed similarly.
At the hearing on the present motion, You agreed that
the McDonnell Douglas burden-shifting framework should be applied
to these claims.
Under that framework, to prevail on a disparate
treatment claim, You must establish a prima facie case of
discrimination by showing that (1) she belongs to a protected
class, (2) she was qualified for her position, (3) she was
subject to an adverse employment action, and (4) similarly
situated individuals outside her protected class were treated
See Davis v. Team Elec. Co., 520 F.3d 1080, 1089
(9th Cir. 2008).
No Valid Sex or National Origin
Discrimination Claim Is Asserted in
Count I or Count V.
You fails to demonstrate a prima facie case of sex
discrimination because she fails to identify any similarly
situated person outside of her protected class who was treated
Because You fails to demonstrate that any male
was treated more favorably than she was, the disparate treatment
sex discrimination claims asserted in Counts I and V fail.
most, You says that a floater pharmacist named Jeremy was catered
to by McKeown.
See You Depo. at 299, ECF No. 27-2.
fails to establish that Jeremy was similarly situated to her or
treated better than she was with respect to the circumstances on
which her claims are based.
And, as she concedes in her
deposition, McKeown treated everyone badly, including men.
Similarly, the national origin claim asserted in
Count I fails, as You does not allege that a person from a
different country (or perceived as being from a different
country) than You was treated more favorably.
See, e.g., 29
C.F.R. ¶ 1601.1 (defining “national origin discrimination”
“broadly as including, but not limited to, the denial of equal
employment opportunity because of an individual’s, or his or her
ancestor’s, place of origin; or because an individual has the
physical, cultural or linguistic characteristics of a national
No Valid Disability Discrimination Claim
Is Asserted in Count II or Count V.
You claims to have suffered an adverse employment
action based on being perceived as having a disability.
asserts that Longs violated the ADA, which was enacted to
eliminate barriers that prevent disabled individuals from fully
participating in society.
Kirkingburg v. Albertson’s, Inc., 143
F.3d 1228, 1231 (9th Cir. 1998), rev’d on other grounds, 527 U.S.
Count V similarly asserts disability discrimination
under Hawaii law.
The court considers these claims together, as
the analyses under the statutes are essentially the same.
Beaulieu v. Northrop Grumman Corp., 161 F. Supp. 2d 1135, 1142
n.1 (D. Haw. 2000) (“The Court will consider the claims under the
ADA and HRS § 378-2 together, as the Hawaii Supreme Court looks
to Federal Law to interpret state employment discrimination
law.”) (citing Bradley v. Harcourt, Brace & Co., 104 F.3d 267,
271 (9th Cir. 1996), and Furukawa v. Honolulu Zoological Soc., 85
Haw. 7, 13, 936 P.2d 643 (1997)).
The ADA prohibits employers from discriminating
“against a qualified individual with a disability because of the
disability of such individual.”
Bradley, 104 F.3d at 271
(quoting 42 U.S.C. § 12112(a)).
The ADA defines “disability” as
“a physical or mental impairment that substantially limits one or
more major life activities of such individual.”
It also includes “being regarded as having such
42 U.S.C. § 12102(1)(C).
purposes, a limitation “must be severe or, in other words,
substantial when compared to the ability of the average person in
the general population.”
McAlindin v. County of San Diego, 192
F.3d 1226, 1235 (9th Cir. 1999) (quotation marks and citation
omitted); 29 C.F.R. § 1630.2(g) (“Being regarded as having such
an impairment . . . means that the individual has been subjected
to an action prohibited by the ADA as amended because of an
actual or perceived impairment that is not both ‘transitory and
minor.’”); 29 C.F.R. § 1630.2(l)(1) (except when an impairment is
transitory and minor, “an individual is ‘regarded as having such
an impairment’ if the individual is subjected to a prohibited
action because of an actual or perceived physical or mental
impairment, whether or not that impairment substantially limits,
or is perceived to substantially limit, a major life activity”).
You says she was regarded as having a learning
disability because she was told that she was not 100% and that
she needed to write things down.
See You Depo. at 303, ECF No.
You concedes that McKeown did not actually tell her that
she had a “slow learning curve.”
Id. at 206.
You submits no
other evidence concerning the nature and extent of any perceived
You thus fails to identify any qualifying
perceived disability for purposes of her ADA claim.
being told you are not 100% and that you need to write things
down is insufficient to establish that Longs or McKeown regarded
her as having a mental disability for purposes of the ADA.
submits no evidence raising a question of fact regarding whether
Longs or McKeown thought she had a mental impairment.
You Has No Valid Disparate Treatment
Claims With Respect to Race, Ancestry,
You stated at the hearing that she was not relying on
the supposed adverse employment actions articulated in paragraphs
16(j) and (k) of her declaration.
Those paragraphs stated:
(j) Probably the reason that I was late
for work so many times is that I was afraid
to go there because of the hostile work
environment caused by Defendant McKeown and
(k) When Lauren Kanda was late, she was
able to make up her time so that she was not
underpaid but I was.
ECF No. 31-1.
Because You did not exhaust her administrative remedies
with respect to the alleged adverse employment actions set forth
in paragraphs 16(a) to (e) of her declaration, and because she
withdrew the alleged adverse employment actions set forth in
paragraphs 16(j) to (k) of her declaration, the only remaining
alleged adverse employment actions You advances are contained in
paragraphs 16(f) to (i) of You’s declaration:
(f) I was belittled and criticized by my
employer’s pharmacists but Lauren Kanda was
(g) Defendant McKeown tried to make me
quit by providing a hostile work environment
or work place.
(h) I was not fully trained but the
employer and Mr. McKeown made it look like I
(i) Mr. McKeown made me nervous at work
but did not do that to Lauren Kanda.
ECF No. 31-1.
An “adverse employment action” is an action that is
“materially adverse” to a reasonable employee or job applicant.
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(internal quotations omitted).
The Ninth Circuit has explained
that an “adverse employment action” is one that “materially
affects the compensation, terms, conditions, or privileges of
Davis, 520 F.3d at 1089.
An “adverse employment
action exists” when the employer’s actions are harmful to the
point that they could dissuade a reasonable worker from making or
supporting a charge of discrimination.
White, 548 U.S. at 68.
Normally, “petty slights, minor annoyances, and simple lack of
good manners” will not deter a reasonable worker from making a
charge of discrimination, id., while termination, dissemination
of a negative employment reference, issuance of an undeserved
performance review, and refusal to consider a plaintiff for a
(9th Cir. 2000).
Brooks v. City of San Mateo, 229 F.3d 917, 928-29
Accord Shoppe v. Gucci Am., Inc., 94 Haw. 368,
378, 14 P.3d 1049, 1059 (2000) (noting that an adverse employment
action would include a discharge).
The Ninth Circuit defines “adverse employment actions”
broadly, not limiting them to actions such as discharges,
transfers, or demotions.
1118 (9th Cir. 2002).
See Lyons v. England, 307 F.3d 1092,
Instead, the Ninth Circuit says, adverse
employment actions may include lateral transfers, unfavorable job
references, and changes in work schedules, but not “every
offensive utterance by co-workers, because offensive statements
by co-workers do not reasonably deter employees from engaging in
Ray, 217 F.3d at 1243.
In a Title VII case, the Ninth Circuit adopted the
EEOC’s guidelines for what an adverse employment action is,
ruling that an adverse employment action is any adverse treatment
that “is reasonably likely to deter the charging party or others
from engaging in protected activity.”
Ray v. Henderson, 217 F.3d
1234, 1242-43 (9th Cir. 2000); accord Elvig v. Calvin
Presbyterian Church, 375 F.3d 951, 965 (9th Cir. 2004); see also
Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007) (applying
same test to ADEA retaliation claim); Pardi v. Kaiser Found.
Hosp., 389 F.3d 840, 850 (9th Cir. 2004) (applying same test to
ADA retaliation claim).
To the extent You claims lack of training and a hostile
work environment constituted adverse employment actions, see You
Decl. ¶¶ 16(g) and (h), You appears to be referring to the same
In her deposition, You was asked for the basis of her
alleged hostile work environment assertion.
You responded that
her age was used against her as an excuse not to teach her and to
keep her from training.
See You Depo. at 306.
ECF No. 42-4.
With respect to training, You concedes that she
received extensive training and that it was only on-job training
that she did not complete.
You says that she did not feel
trained and that, although she eventually was trained in most
things, Kanda was trained first and then asked to train You.
does not contend that training one person first was avoidable.
Her complaint rather was that she was not selected as the first
Nor does You contend that, when asked to train You,
Kanda failed to convey what Kanda had learned.
The record is
insufficient to establish that the manner in which You was
trained was “reasonably likely to deter the charging party or
others from engaging in protected activity.”
Ray, 217 F.3d at
Given the state of the record, the lack of training
asserted by You is not an adverse employment action.
That McKeown may have made You nervous, by itself, is
also insufficient to constitute an adverse employment action.
Being nervous is a subjective feeling, not an action taken by an
This does not mean that knowingly causing another
person to be uncomfortable can never be an adverse employment
But You fails to establish that McKeown made her
uncomfortable out of some discriminatory animus on his part.
For example, while complaining that McKeown criticized
her and that this is an adverse employment action, see You Decl.
¶ 16(f), ECF No. 31-1, You does not provide evidence that allows
the court to draw even the inference that the criticism flowed
from such an animus.
The criticism concerned You’s attendance.
See You Decl. ¶¶ 5, 13.
You does not clarify what was said about
her attendance, but she may be referring to an attendance warning
she received in May of 2011.
ECF No. 27-30.
See Corrective Notification Form,
This warning told You that, if she violated the
attendance policy (and earned a full point) before July 24, 2011,
she would be terminated.
an absence to 1 point.
Tardiness amounted to ½ point, and
See You Depo. at 107, ECF No. 27-2.
Yamashiro, a Longs assistant store manager, said that the written
warning issued to You about her attendance erroneously assigned
her a point, making You appear more at risk of termination than
See Declaration of Guy Yamashiro ¶ 4, ECF No. 27-33;
see also You Depo. at 308.
The court need not determine whether the written
attendance warning (or what You referred to as “criticism”) was
“reasonably likely to deter the charging party or others from
engaging in protected activity.”
Ray, 217 F.3d at 1242-43.
warning did not occur until May 13, 2011.
See ECF No. 27-30.
You did not administratively exhaust this attendance claim when
she submitted her charges to the EEOC and HCRC in late 2010.
ECF No. 27-27.
Even if the court considers as “criticism” the writeups You received on October 10, 2010, regarding placing a
prescription on the wrong shelf and erroneously sending another
prescription to the out-of-stock queue, see ECF Nos. 27-23 and
27-24, no discrimination is shown because You fails to
demonstrate that a similarly situated employee with similar
conduct was spared such a warning or comparable action.
Because You fails to specifically identify other
“criticisms” that were “reasonably likely to deter [a] charging
party or others from engaging in protected activity,” Ray, 217
F.3d at 1242-43, summary judgment is granted in favor of
Defendants on the disparate impact claims based on race,
ancestry, and age asserted in Counts I and V of the Verified
There is No Viable Retaliation Claim.
Count IV of the Verified Complaint asserts retaliation
in violation of 42 U.S.C. § 2000e-3.
For You to establish a
prima facie case of such retaliation, she must show that: (1) she
engaged in protected activity; (2) she was thereafter subjected
to an adverse employment action; and (3) there is a causal link
exists between the protected activity and the adverse action.
See Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994);
Gonsalves v. Nissan Motor Co., 100 Haw. 149, 58 P.3d 1196, 1207
The degree of proof required to make out a prima facie
case is “minimal.”
See Cordovo v. State Farm Ins. Cos., 124 F.3d
1145, 1148 (9th Cir. 1997).
If a plaintiff establishes a prima
facie retaliation claim, the burden shifts to the defendant to
articulate a legitimate nondiscriminatory reason for its
See McDonnell Douglas, 411 U.S. at 802 (1973).
defendant articulates such a reason, the plaintiff bears the
ultimate burden of demonstrating that the reason was merely a
pretext for a discriminatory motive.
You claims to have suffered retaliation because she
filed ethics complaints when she was “written up” for her
attendance and when she was fired.
Id. at 307-08.
administratively exhaust either of these claims.
You did not
You has no viable retaliation claim in Count IV.
There is No Viable Whistleblowing Claim.
Count VI asserts that Longs violated the Hawaii
Whistleblower Protection Act, section 378-62 of Hawaii Revised
Statutes, which states:
An employer shall not discharge, threaten, or
otherwise discriminate against an employee
regarding the employee’s compensation, terms,
conditions, location, or privileges of
(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
(A) A law, rule, ordinance, or
regulation, adopted pursuant to law of this
State, a political subdivision of this State,
or the United States; or
(B) A contract executed by the State, a
political subdivision of the State, or the
unless the employee knows that the report is false; or
(2) An employee is requested by a public body
to participate in an investigation, hearing,
or inquiry held by that public body, or a
In her deposition, You indicated that her Whistleblower
Protection Act claim is the same as the retaliation claim
asserted in Count IV, just asserted under a different statute.
See You Depo. at 312, ECF No. 27-3.
Longs argues that, to the extent the Whistleblower
Protection Act claim complains of the same unexhausted wrongful
termination retaliation claim, You should not be allowed to
circumvent the exhaustion requirement and assert a Whistleblower
Protection Act claim.
Although that argument has some intuitive
appeal, the legislature did not expressly require that
administrative remedies be exhausted before the filing of a
Whistleblower Protection Act claim in court.
The court therefore
questions the appropriateness of reading such a requirement into
The court recognizes that, in Linville v. State of
Hawaii, 874 F. Supp. 1095, 1104 n.4 (D. Haw. 1994), Judge Alan C.
Kay noted that a section 378-62 claim had to be administratively
Judge Kay did not, however, contend that there was an
express statutory exhaustion requirement.
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.
Because the Whistleblowers’
Protection Act claim is based on section 378-62, located in
part V of chapter 378, rather than section 378-2, no statutory
language gives the HCRC jurisdiction over a section 378-62 claim,
and it is unclear what statutory language could be read to make
section 368-11(c)’s exhaustion requirements applicable.
Reading an exhaustion requirement into section 378-62
would mean placing before the HCRC claims far removed from those
it has administrative expertise in.
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
area of concern.
The same could be said with respect to an
employee who was suspended after reporting that taxable income
was being concealed.
It is not clear why 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 all
whistleblower claims is appropriate.
The court remains troubled even if Longs is envisioning
an exhaustion requirement only for whistleblower claims that
implicate section 378-2(1) categories and therefore mirror
retaliation claims falling under section 378-2(2), which require
In that event, Longs is not only asking the court to
read an exhaustion requirement into section 378-62, Longs is then
asking the court to apply exceptions to that implied requirement.
The court would be forced to examine every whistleblower claim to
see if it fell under the implied exhaustion requirement or under
Requiring exhaustion with the HCRC of section 378-62
claims would also be inconsistent with the reasoning of Judge
David Alan Ezra’s decision 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.
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, it makes no sense to say that a plaintiff
must exhaust those administrative processes before filing a
section 378-62 claim.
To do so would, in many cases, cause the
two-year limitation period in section 378-63 to run.
Having detailed its concerns about requiring exhaustion
for section 378-62 claims, this court is fortunately able to
leave an actual decision on that issue for another day.
Regardless of whether You did or did not need to exhaust her
Whistleblower Protection Act claim, it fails on the merits.
court has noted that the Whistleblower Protection Act does not
explicitly define the elements of a claim under section 378-62.
However, three elements can be extrapolated from its language:
First, there must be a showing that the
employee engaged in protected conduct as it
is 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).
You fails to demonstrate any causal connection between
(a) any action she took that she says was protected (i.e.,
either her complaint about McKeown to the ethics line on
September 5, 2010, or her filing of administrative charges on
December 3, 2010), and (b) any conduct by her employer that she
might identify as retaliatory (i.e., either her attendance write
up in May 2011 or her termination on May 27, 2011).
With respect to the termination, there is no dispute
that You sold PSE without using the MethCheck system.
there any dispute that Matsuura, the store manager, terminated
You or that Matsuura says he did so because You violated company
policy by failing to use the MethCheck system.
You does not show
that Matsuura even knew about the ethics line complaint.
he did, the more than eight months between the ethics line
complaint and You’s termination make it difficult to infer
Causation may be inferred when an adverse employment
action occurred “fairly soon after the employee’s protected
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1065 (9th Cir. 2002).
“Causation sufficient to establish
the . . . [causal link] element of the prima facie case may be
inferred from circumstantial evidence, such as the employer’s
knowledge that the plaintiff engaged in protected activities and
the proximity in time between the protected action and the
allegedly retaliatory employment decision.”
Yartzoff v. Thomas,
809 F.2d 1371, 1376 (9th Cir. 1987).
As this court has noted, a “temporal distance of
several months makes a causal link more difficult to prove; a
distance of five years severely undermines it.”
Stucky v. State
of Haw., Dept. of Educ., 2007 WL 602105, *5 (D. Haw. Feb. 15,
2007); compare Nidds v. Schindler Elevator Corp., 113 F.3d 912,
919 (9th Cir. 1996) (four-month period between protected activity
and layoff was sufficiently close to satisfy the “causal link”
prong), and Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.
1987) (three-month period sufficient to infer causation), with
Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir. 2003) (no
causal inference possible when nine months separated the
protected activity from the adverse employment action).
Some years after the Ninth Circuit decided Nidds and
Yartzoff, the Supreme Court observed in Clark County School
District v. Breeden, 532 U.S. 268, 273 (2001), that the requisite
“temporal proximity must be ‘very close.’”
Breeden cites with
approval cases from the Seventh and Tenth Circuit Courts of
Appeal holding that three- and four-month periods do not support
an inference of causation.
More recently, the Ninth Circuit has cautioned courts
against engaging in a “mechanical inquiry into the amount of time
between the speech and alleged retaliatory action.”
N. Central Counties Consortium, 605 F.3d 740, 751 (9th Cir.
There is no “bright line” rule providing that any
particular period is always too long or always short enough to
support an inference.
See Coszalter v. City of Salem, 320 F.3d
968, 977-78 (9th Cir. 2003).
With respect to the alleged
retaliation in the form of her termination, You simply fails to
present any evidence raising a question of fact as to whether she
was terminated in retaliation for her complaints.
from the eight-month gap, You presents no evidence that the
person who fired her even knew about her complaints.
Similarly, with respect to the attendance write up, not
only did much time elapse between the write up and the ethics
line complaints, You fails to demonstrate that the person who
wrote her up for attendance (Miyashiro, according to You) even
knew about those complaints.
See You Depo. at 308, ECF No. 27-3.
Moreover, although Longs admits to having improperly assigned You
points for tardiness on August 25 and September 3, 2010, see
Declaration of Guy Yamashiro ¶ 4, ECF No. 27-33, both of those
mistakes preceded You’s ethics line complaint of September 5,
The erroneous assignment of points therefore could not
have been in retaliation for any ethics line complaint.
the attendance warning in May 2011, that occurred nearly six
months after You filed administrative charges and eight months
after her ethics line complaints.
These time gaps, coupled with
the other circumstances noted above, cut against inferring the
causal link necessary for You’s Whistleblower Protection Act
claim to survive.
You Has No Viable Hostile Work Environment Claim
Based on Age.
Count III of the Verified Complaint asserts a hostile
work environment in violation of the ADEA.
The Ninth Circuit has
recognized hostile work environment claims asserted under the
See Sisho-Nownejad v. Merced Comty. Coll. Dist., 934 F.2d
1104, 1109 (9th Cir. 1991), overruled on other grounds as stated
in Dominguez-Curry v. Nevada Transportation Dept., 424 F.3d 1027,
1041 (9th Cir. 2005).
To establish the existence of a hostile
work environment based on her age, You must demonstrate that
(1) she was subjected to verbal or physical conduct based on age,
(2) this conduct was unwelcome, and (3) this conduct was
sufficiently severe or pervasive to alter the conditions of her
employment and to create an abusive working environment.
Freitag v. Ayers, 468 F.3d 528, 539 (9th Cir. 2006); Hardage v.
CBS Broadcasting, Inc., 427 F.3d 1177, 1187 (9th Cir. 2005).
be actionable, the environment must be both objectively and
When determining whether an environment
was sufficiently hostile or abusive, courts examine all of the
circumstances, including the frequency of the discriminatory
conduct, its severity, whether it was physically threatening or
humiliating, and whether it unreasonably interfered with an
employee’s work performance.
See Faragher v. City of Boca Raton,
524 U.S. 775, 787-88 (1998).
Simple teasing, offhand comments,
and isolated incidents (unless extremely serious) do not amount
to discriminatory changes in the terms and conditions of
Id. at 788.
In her deposition, You explained that she was asserting
a hostile work environment claim because her age was used as an
excuse not to teach or train her.
See You Depo. at 306, ECF No.
You fails to present any evidence that age was indeed the
reason she was allegedly not trained.
You only speculates that
Kanda was better trained because Kanda was younger.
given the extent of the training that You did receive, the record
does not suggest discriminatory conduct that was so severe or
pervasive that it altered the conditions of You’s employment and
created an abusive working environment.
Summary judgment is
granted in favor of Defendants on the age-based hostile work
You Has No Viable Claim for Intentional Infliction
of Emotional Distress.
Count VII of the Verified Complaint asserts that
McKeown intentionally inflicted emotional distress on You.
claim is not being asserted against Longs.
Under Hawaii law, an intentional infliction of
emotional distress (“IIED”) claim requires a plaintiff to
establish that: (1) the act that caused the harm was intentional
or reckless; (2) the act was outrageous; and (3) the act caused
extreme emotional distress to another.
Young v. Allstate Ins.
Co., 119 Haw. 403, 429, 198 P.3d 666, 692 (2008).
An IIED claim
“requires conduct exceeding all bounds usually tolerated by
decent society and which is of a nature especially calculated to
cause, and does cause, mental distress of a very serious kind.”
Hac v. Univ. of Haw., 102 Haw. 92, 106, 73 P.3d 46, 60 (2003)
An “outrageous” act is one “without just
cause or excuse and beyond all bounds of decency” such that upon
hearing the facts of a case “average members of our community
might indeed exclaim, ‘Outrageous.’”
429–30, 198 P.3d at 692–93.
See Young, 119 Haw. at
“The question whether the actions of
the alleged tortfeasor are unreasonable or outrageous is for the
court in the first instance, although where reasonable people may
differ on that question it should be left to the jury.”
429, 198 P.3d at 692.
McKeown initially argues that he is entitled to summary
judgment based on worker’s compensation exclusivity, as set forth
in section 386-5 of Hawaii Revised Statutes.
That argument is
Section 386-5 provides:
The rights and remedies herein granted to an
employee or the employee’s dependents on
account of a work injury suffered by the
employee shall exclude all other liability of
the employer to the employee, the employee's
legal representative, spouse, dependents,
next of kin, or anyone else entitled to
recover damages from the employer, at common
law or otherwise, on account of the injury,
except for sexual harassment or sexual
assault and infliction of emotional distress
or invasion of privacy related thereto, in
which case a civil action may also be
As noted by McKeown, the Intermediate Court of Appeals
for the State of Hawaii (“ICA”), in Yang v. Abercrombie and Fitch
Stores, 128 Haw. 173, 284 P.3d 946 (2012), has recently examined
worker’s compensation exclusivity with respect to claims asserted
against an employer for injuries allegedly caused by the willful
acts of other employees acting in the course and scope of their
In that case, the ICA determined that the claims
against the employer were barred by the exclusivity provision.
See id. at 183, 284 P.3d at 956.
However, McKeown has failed to establish that he is
You’s employer (as opposed to her supervisor) for purposes of
The Hawaii Supreme Court has recognized that a
supervisor may have “co-employee” (not employer) liability for
“wilful and wanton conduct” under section 386-8 of Hawaii Revised
See Iddings v. Mee-Lee, 82 Haw. 1, 21, 919 P.2d 263,
In relevant part, section 386-8 of Hawaii Revised
Statutes provides that “[a]nother employee of the same employer
shall not be relieved of his [or her] liability as a third party,
if the personal injury is caused by his [or her] wilful and
McKeown’s reliance on Yang is therefore
McKeown makes another argument that fares better.
moves for summary judgment on the ground that his alleged actions
were not sufficiently “outrageous” to support an IIED claim.
You’s Opposition does not respond to this argument.
Even if the
court considers every act by McKeown that You complains of, those
acts collectively are insufficient as a matter of law to amount
McKeown allegedly favored Kanda over You.
trained Kanda first and then asked Kanda to train You.
allegedly allowed Kanda to work overtime while not assigning
overtime shifts to You.
While these alleged actions may well
have distressed You, the court has not been pointed to any
evidence indicating that McKeown’s conduct was outrageous.
for example, McKeown considered Kanda more capable or quicker
than You, it was not outrageous for him to select Kanda to be
trained first or to be assigned additional work.
The court is
not, of course, finding that McKeown did indeed favor Kanda on
Instead, the court is noting that You does
not meet her burden of showing some basis on which a jury could
find the training or overtime actions outrageous, as opposed to
You also complains that McKeown allowed Kanda to make
up time when she was late, while not allowing You to do the same.
You provides no detail indicating that she and Kanda were late
for the same reasons or with the same frequency.
absence of context precludes a finding of outrageousness on this
You has the burden on the present motion of showing some
She does not meet that burden with respect to
making up time.
McKeown supposedly “stressed out” You when he asked her
how many times she had dispensed a particular drug.
He says he
asked because he wanted to make sure she knew the generic names
of common drugs that the pharmacy dispensed.
He then allegedly
told her in a subsequent meeting upstairs that she was not
qualified to work in the pharmacy and that she should “selfidentify and check.”
When You complained about getting
insufficient training, McKeown allegedly told her, “Don’t worry
You says McKeown only showed her things
once and told her that she should write things down and that she
was not 100% yet.
Divorced from the discrimination claims, which
the court is not allowing to proceed, these alleged comments,
while unpleasant to hear, are in the nature of a supervisor’s
A supervisor is not outrageous just because his
evaluation is unfavorable.
Finally, You says McKeown reprimanded her for saying
“yea” instead of “yes,” and once pushed a pharmacy basket toward
her when she did not know what to do with it, causing the basket
to make contact with her.
She does not allege that she was
These acts are not beyond all decency and
would not make an average member of society exclaim,
See Young, 119 Haw. at 429–30, 198 P.3d at 692–93.
The court grants Defendants’ motion for summary
The Clerk of Court is directed to enter judgment in
favor of Defendants and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 27, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
You v. Longs Drug Stores California, LLC, Civ. No. 11-00530 SOM/RLP; ORDER GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
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