Mariano v. Liberty Dialysis-Hawaii, LLC et al
Filing
87
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 68 . Signed by JUDGE LESLIE E. KOBAYASHI on 2/11/2013. [Order follows hearing held 1/22/2013; minutes: 85 . Minute order granting Defendant's Motion for S ummary Judgment: doc no. 86 ] (afc)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 will be served by first class mail on February 12, 2013.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
LIBERTY DIALYSIS-HAWAII, LLC )
dba LIBERTY DIALYSIS; JOHN
)
)
DOES 1-10; JANE DOES 1-10;
DOE CORPORATIONS 1-10; and
)
)
DOE ENTITIES,
)
)
Defendants.
_____________________________ )
AILEEN MARIANO,
CIVIL NO. 11-00652 LEK-BMK
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Liberty Dialysis –
Hawaii, LLC doing business as Liberty Dialysis’ (“Liberty
Dialysis” or “Defendant”) Motion for Summary Judgment (“Motion”),
filed on September 27, 2012.
Plaintiff Aileen Mariano
(“Plaintiff”) filed her memorandum in opposition on December 27,
2012, and Defendant filed its reply on January 8, 2013.
matter came on for hearing on January 22, 2013.
This
Appearing on
behalf of Defendant were Barry Marr, Esq., and Megumi Sakae,
Esq., and appearing on behalf of Plaintiff were Scot Stuart
Brower, Esq., and David Mikonczyk, Esq.
After careful
consideration of the Motion, supporting and opposing memoranda,
and the relevant legal authority, Defendant’s Motion is HEREBY
GRANTED for the reasons set forth below.
BACKGROUND
Plaintiff filed a Third Amended Complaint (“Complaint”)
in the First Circuit Court of the State of Hawai‘i on August 12,
2011, which Defendant removed to this Court on October 26, 2011,
on the basis of diversity jurisdiction.
Plaintiff was employed
as a registered nurse with Liberty Dialysis on November 10, 2008,
and alleges that she was sexually harassed by a dialysis patient1
in violation of Haw. Rev. Stat. § 378 (Counts I, V), and that she
was retaliated against for complaining about the sexual
harassment to her supervisor and for filing a charge with the
Hawai‘i Civil Rights Commission (“HCRC”) (Count VIII).
She also
alleges claims for assault and battery (Counts II, V), negligent
and intentional infliction of emotional distress (“NIED” and
“IIED”) (Counts III, IV, V), failure to investigate (Count V),
“tort” (Count VI), tortious interference with prospective
economic advantage (“TIPEA”) (Count VII), and punitive damages
(Count IX).
Plaintiff alleges that a patient committed sexual
assault and battery, including touching the side of her breasts
and subjecting her to a hostile work environment, the last
incident occurring on November 19, 2008.
12.]
[Complaint at ¶¶ 11-
Plaintiff claims that when she told her employer, it took
no timely action to remedy the patient’s misconduct, refused to
1
The parties refer to the patient as “E” or “Patient E.”
2
transfer Plaintiff to a different shift, and insisted that she
continue to care for the patient.
[Id. at ¶¶ 13-17.]
Her
physician placed her on medical leave due to emotional distress
and she received psychological treatment.
I.
[Id. at ¶ 25.]
Defendant’s Motion
Defendant moves for summary judgment on all the claims
in Plaintiff’s Complaint on the grounds that: (1) her sexual
harassment claim fails because the conduct was not severe or
pervasive; (2) Defendant took immediate action once it became
aware of Plaintiff’s complaint against the patient; (3) Plaintiff
did not suffer any adverse employment action; and (4) her various
tort claims fail as a matter of law.
[Mem. in Supp. of Motion at
1-2.]
A.
Factual Background
Defendant provides dialysis treatment to patients who
generally require three treatments per week from two to five
hours long, and states that it is subject to federally mandated
regulations and the jurisdiction of the Centers for
Medicare/Medicaid Services (“CMS”).
It asserts that, because its
patients “are fragile and if they do not receive dialysis
treatment they will die,” [id. at 2,] it cannot involuntarily
transfer a patient from one of its facilities without satisfying
mandatory patient requirements.
[Id. at 3.]
3
According to Defendant, Plaintiff met Patient E for the
first time on November 10, 2008, when he was assigned as her
patient, and that his normal treatment schedule was Monday,
Wednesday, and Friday at 7:00 p.m.
November 10 was the only time
Plaintiff cared for Patient E as her assigned patient.
While she
was interviewing Plaintiff as part of the admissions process,
Patient E grinned at her “maliciously” and said, “blanket,
blanket” after Plaintiff had asked Patient E to bring a blanket
to his treatment.
As she was starting Patient E’s treatment,
Patient E touched Plaintiff’s covered arm three times, and she
asked him not to.
During his treatment, Patient E also called to
Plaintiff, “Aileen, Aileen, come here, why are you going away
from me.”
[Id. at 4-5 (citing Defendant’s Concise Statement of
Facts in Support (“CSOF”), Exh A. (Pl.’s 8/31/12 Dep. Tr.)).]
Defendant states that, after his treatment, Plaintiff took
Patient E to the lobby to show him the telephone when she saw him
unlatch his belt while looking at her and grinning, and claims
she believed Patient E meant he “wants to do an oral sex” and was
“really scared.”
[Id. at 5 (quoting Pl.’s 8/31/12 Dep. Tr. at
21).]
According to Defendant, on November 12, 2008, when
Patient E came in for his next dialysis treatment, Plaintiff
proceeded to complete his admissions process by taking his height
measurement, even though she was the Charge Nurse that day, not
4
his assigned nurse, and she could have assigned the task of
measuring Plaintiff’s height to a another nurse or a Hemo
Technician (“HT”).
[Id.]
Plaintiff filed an adverse event report (“AER”)
regarding Patient E’s behavior on November 10 and 12, 2011, which
stated in its entirety:
While I am taking [Patient E’s] height he touched
my shoulder and my back. He touched me many times
too when I admitted him 11/10/08. I already
warned him not to touch anybody but he did it
again today.
[Id. at 6 (citing Exh. B at 3 (11/12/08 AER).]
According to
Defendant, during her deposition on August 31, 2012, Plaintiff
testified that Patient E touched her shoulder and the back of her
breast.
Plaintiff finished the AER at 10:00 p.m. on November 12,
2011 and placed it in her supervisor, Clinical Manager Leonarda
Natividad’s in-tray at the nurses’ station, located in an open
area in the middle of the facility.
According to Natividad, the
AER was sandwiched between other materials in her in-box, such as
envelopes and magazines, and Natividad did not immediately see
the AER.
[Id. (citing Exh. N, Natividad Tr. at 25, 27, 33-35,
171).]
On November 19, 2008 Natividad informed Social Worker
Brent Auyong about Plaintiff’s AER.
Auyong Tr. 46-47).]
[Id. at 8 (citing Exh. P,
Auyong reached out to the Western Pacific
Renal Network (“Network 17”) – an agency contracted by the
5
government to work with CMS and local state departments of health
to oversee dialysis care and compliance with patients’ rights –
and explained the substance of Plaintiff’s AER.
Patient E had no
record of past behavioral issues, and Network 17 informed Auyong
that Liberty could not involuntarily discharge or transfer
Patient E, but directed Auyong to interview Patient E and to
consider a behavior contract so that, in the event of a
recurrence, it could proceed with an involuntary discharge or
transfer.
[Id. at 8-9 (citing Auyong Tr. 209-10, 213).]
Natividad and Auyong met with Patient E on November 19,
2008, and Patient E denied touching Plaintiff, but admitted to
loudly calling staff names.
According to Defendant, Natividad
credited Plaintiff’s AER, rather than Patient E, and explained to
Patient E that he would need to sign an agreement indicating that
if he behaved inappropriately, he could be discharged from the
facility.
After the meeting with Patient E, Auyong contacted
Network 17 regarding Patient E’s denial and was instructed to
enter into a behavioral contract with Patient E.
Network 17
further informed Auyong that in the event of an involuntary
discharge, Liberty must provide Patient E with thirty days’
notice.
[Id. at 9 (citing Auyong Tr. 136-37, 213-14, 228;
Natividad Tr. 80-82, 163-165).]
According to Defendant, due to a shortage of dialysis
facilities in Hawai‘i, involuntary discharges are rare because
6
patients cannot be abandoned.
Rather, Defendant can only
immediately and involuntarily discharge a patient when the
patient is deemed an imminent danger.
After speaking with
Network 17, Auyong began drafting the behavioral contract
(“Facility Agreement”), which Network 17 reviewed and approved.
[Id. at 10 (citing Natividad Tr. 88, 100-01; Auyong Tr. 21,
214-17, 229).]
On November 20, 2008, Natividad discussed Plaintiff’s
AER during the facility’s Continuous Quality Improvement (“CQI”)
meeting, attended by Auyong, the morning Charge Nurse
(Belen Llanes), Natividad, the medical director, and the
dietician.
During the CQI meeting, Natividad instructed Llanes
that Patient E was not to be assigned to Plaintiff.
Plaintiff
did not attend the meeting, but was later told by Llanes that
they discussed her complaint of sexual harassment.
[Id. (citing
Pl.’s Tr. 39-40; Natividad Tr. 9, 182-83).]
On Patient E’s next treatment day, November 21, 2008,
Natividad and Auyong met with Patient E, and he verbally agreed
not to touch Plaintiff and signed the Facility Agreement, in
which he agreed not to touch or make inappropriate comments to
any staff, person, patient, or visitor.
[Id. at 10-11 (citing
Natividad Tr. 102, 104; Exh. O (11/21/08 Facility Agreement);
Auyong Tr. 103, 217).]
Later that day, before Natividad had an
opportunity to update Plaintiff on the status of the
7
investigation into her AER, Natividad saw that the patient
schedule, which Natividad had the unit clerk post the week
before, had been changed in a manner that potentially resulted in
overtime for one of the HTs.
When Natividad reviewed the patient
schedule, she did not notice that it involved Patient E’s
schedule or connect it with Plaintiff’s AER, and, because she had
not been consulted about the change, she called the evening
Charge Nurse, Nancy Aglibot, and asked why the schedule had been
changed.
[Id. at 11 (citing Natividad Tr. 57-58, 180; Aglibot
Tr. 85; De Gula Tr. 71).]
Aglibot responded by directing Natividad to Plaintiff.
Natividad then asked Plaintiff about the changes she made to the
patient assignments.
Plaintiff responded by asking Natividad why
she had to take care of Patient E when he sexually harassed her.
[Id. (citing Natividad Tr. 57-58; Pl.’s Tr. 86-87).]
Natividad
explained to Plaintiff that she spoke to Patient E about his
behavior and that Patient E entered into a Facility Agreement in
which he agreed he would not act inappropriately.
Defendant
asserts that, during the November 21, 2008 conversation,
Plaintiff did not tell Natividad that Patient E touched her
breast.
Natividad left the patient assignments as revised by
Plaintiff, and Plaintiff did not treat Patient E on November 21,
2008.
[Id. at 11-12 (citing Natividad Tr. 73-74, 198; Aglibot
Tr. 104; Pl.’s Tr. 37, 88).]
8
On November 24, 2008, Plaintiff made a written
complaint with the Hawai‘i Nurses Association (“HNA”).
That same
day, she asked Natividad if she could change to the morning shift
to avoid Patient E.
According to Plaintiff, Natividad told
Plaintiff she could not switch her to the first shift permanently
because a traveling nurse already had that shift, but offered to
move Patient E to the morning shift.
There were no morning
treatments available, however, and Natividad switched Patient E
to a 12:00 p.m. to 3:00 p.m. treatment time, resulting in a halfhour overlap in which Plaintiff and Patient E were in the
facility at the same time, while Patient E completed his
treatment and Plaintiff began her shift at 2:30 p.m.
[Id. at 12
(citing Pl.’s Tr. 28, 37-38, 64, 79).]
On November 25, 2008, Plaintiff’s union representative
informed Plaintiff that he spoke with Defendant and that Patient
E would no longer be her patient.
On November 25, Plaintiff went
out on a medical leave of absence and did not return to work at
Liberty Dialysis.
Plaintiff’s union did not file a grievance.
On December 11, 2008, Plaintiff submitted a work injury report
and filed a Workers’ Compensation (“WC”) claim on January 8,
2009.
[Id. at 13 (citing Pl.’s Tr. 26-27, 42-43, 71, 90).]
On December 10, 2008, HT Digna De Gula reported to
Natividad that Patient E, while hooked up to the dialysis
machine, used his foot to touch De Gula’s buttock.
9
De Gula
reported the incident within minutes by hand-delivering an AER to
Natividad.
Almost immediately after being handed the AER,
Natividad and Auyong confronted Patient E, who claimed he was
only trying to get De Gula’s attention.
[Id. at 13-14 (citing
Natividad Tr. 109-10; De Gula Tr. 30-31, 44-45, 96-97, 105-06,
109).]
Network 17 informed Auyong that it would be difficult
to involuntarily discharge Patient E because of the limited
number of dialysis clinics in Hawai‘i and it did not want him to
be abandoned.
With Network 17’s approval, Defendant asked
Patient E to transfer out of the Leeward facility, and he agreed.
[Id. at 14 (citing De Gula Tr. 97, 107-08. Natividad Tr. 142;
Auyong Tr. 223-27, 230).]
Patient E transferred to the Waipahu
facility, and passed away on July 19, 2010.
[Id. (citing
Natividad Decl. at ¶ 3; Whaley Tr. 150; Pl.’s Tr. 117).]
On July 27, 2009, Plaintiff sent Maryann Whaley, Human
Resources Director, a letter claiming she had requested an
“accommodation no less than three times” for the alleged sexual
harassment, but that Liberty “refused these requests.”
[Id.;
Defendant’s CSOF, Exh. I (7/27/09 Letter); Pl.’s Tr. 97.]
Plaintiff testified during her deposition that the three
accommodation requests referenced in her July 27 letter were (1)
an April 6, 2009 bid to transfer to the Waipahu Clinic,
(2) a May 8, 2009 conversation with the Waipahu facility Clinical
10
Manager Emilyn Ramones, and (3) a May 26, 2009 letter to Whaley.
[Id. at 14-15 (citing Pl.’s Tr. 98, 105).]
According to
Defendant, despite having withdrawn her transfer bid and her
continuing “off duty” status, approximately one month before she
was released to modified duty, Plaintiff wrote to Whaley to
“reiterate” her alleged transfer request on May 26, 2009.
At
that time, Defendant had not awarded Plaintiff a transfer because
she had withdrawn her bid.
[Id. at 15-16 (citing Whaley Tr. 151,
159; Auyong Tr. 229).]
Plaintiff filed a WC claim relating to her interactions
with Patient E, and a hearing was held before Hawaii’s Department
of Labor and Industrial Relations, Disability Compensation
Division (“DCD”) on June 23, 2009.
On July 20, 2009, the DCD
concluded that Plaintiff did not sustain an injury arising out of
and in the course of her employment, and denied Plaintiff’s WC
claim (“7/20/09 Decision”).
[Id. at 16-17 (citing Exh. C
(6/30/11 Settlement Agreement); Exh. D (7/20/09 Decision); Pl.’s
Tr. 58-59).]
Defendant notes that by September 2009, Plaintiff
stopped receiving psychiatric treatment because she did not
believe she needed it any longer.
44-45, 138).]
[Id. at 18 (citing Pl.’s Tr.
On or about September 21, 2009, Plaintiff moved to
California, where she had a job with another employer, where she
continues to be employed.
[Id. at 17.]
11
B.
Discrimination and Harassment (Counts I and V)
Defendant argues that Plaintiff cannot maintain claims
for sex discrimination or harassment because Patient E’s behavior
was neither severe nor pervasive.
It argues that courts have
consistently dismissed harassment claims based upon much more
egregious behavior than that alleged by Plaintiff.
(citing cases).]
[Id. at 20-21
Next, Defendant argues that, once it became
aware of Plaintiff’s AER, it took immediate remedial action.
Last, Defendant argues that Plaintiff’s discrimination and
harassment claims are barred by res judicata because the same
issues were adjudicated in her WC claim before the DCD.
C.
Retaliation (Count VIII)
Defendant argues that Plaintiff’s retaliation claim
fails because there is no direct evidence of retaliation and
Plaintiff cannot make a prima facia case because she did not
suffer an adverse employment action.
Defendant asserts that none
of the following allegations amount to an adverse employment
action: (1) being “forced” to provide care to Patient E;
(2) “chastising” her for changing the patient assignments on
November 21; and (3) Defendant’s decision not to discharge
Patient E from the Waipahu facility so she could work there.
[Id. at 28-29.]
It further argues that there is no causal link
between any adverse employment action and Plaintiff’s protected
activity.
Defendant claims it set forth legitimate, non12
retaliatory reasons for its conduct, and that Plaintiff cannot
establish pretext.
D.
[Id. at 31-32.]
Assault and Battery (Counts II, V)
Defendant argues that it cannot be liable for assault
and battery, and that Plaintiff’s Complaint is devoid of any
agency-type theories of liability holding it liable for the acts
of Patient E, a customer (not an employee or agent of any kind),
and non-party to this action.
E.
[Id. at 33.]
Negligence Claims (Counts III, V)
Defendant next argues that Plaintiff’s negligence
claims are barred by worker’s compensation laws.
F.
[Id. at 34.]
Tort Claims (Counts III, IV, V, VI, and VII)
Defendant also argues that Counts III and V, along with
Counts IV, VI, and VII, are all based in tort and are preempted
by Plaintiff’s statutory discrimination claims.
Further, to the
extent Plaintiff’s “tort” claim (Count VI) is a claim for prima
facie tort, Defendant argues that such a claim is not recognized
in Hawai‘i and should be dismissed on that additional basis.
[Id. at 35 (citing Metzer Contracting Co. LLC et al. v. Elle
Stephens, et al., Civ. No. 07-00261 LEK, 2009 U.S. Dist. LEXIS
32956 (D. Hawai‘i Apr. 17, 2009)).]
G.
Intentional Infliction of Emotional Distress (Count IV)
Defendant urges dismissal of Plaintiff’s IIED claim
because the conduct identified, even if true, does not amount to
13
extreme or outrageous conduct.
H.
[Id. at 35-36.]
Tortious Interference With Prospective Economic
Advantage (Count VII)
Defendant argues that Plaintiff’s TIPEA claim can only
be brought against a third party who is not party to the
relationship that has suffered interference.
Defendant states
that this claim fails because Plaintiff has not alleged any
prospective economic advantage with any third party in her
Complaint.
I.
[Id. at 37-38.]
Punitive Damages (Count IX)
Defendant argues that Plaintiff is not entitled to
punitive damages because its conduct was not egregious or
outrageous, and that it took reasonable steps to resolve
Plaintiff’s complaint regarding Patient E.
II.
[Id. at 38-39.]
Plaintiff’s Memorandum in Opposition
Plaintiff argues in her opposition that there are
genuine issues of material fact which preclude summary judgment.
[Mem. in Opp. at 1-2.]
Plaintiff argues that, under Hawai‘i law,
a single severe act can be enough to establish a harassment
claim, and that whether harassing conduct was “severe and
pervasive” under state law is distinct from federal law analysis.
[Id. at 2-3 (citing Arquero v. Hilton Hawaiian Village, LLC, 104
Hawai‘i 423, 91 P.3d 505 (2004)).]
She notes that an employer may be liable for non-
14
employee harassment of its employees if the employer knew or
should have been aware of the harassment and failed to take
appropriate corrective action.
[Id. at 3 (citing Folkerson v.
Circus Circus Enters., Inc., 107 F.3d 756 (9th Cir. 1997).]
Plaintiff argues that Natividad acknowledged that
Plaintiff had been harassed, that the workplace was not safe for
her, and that Natividad had been negligent in handling
Plaintiff’s sexual harassment claim.
[Id. at 4.]
Plaintiff
asserts that Defendant did not take immediate corrective action,
and should have interviewed her the day following Plaintiff’s
submission of her AER.
She also argues that Defendant should
have provided security to protect her from Patient E, and
assigned her to a morning shift when Patient E would not have
been at the facility.
[Id. at 6-7.]
She maintains that her sexual harassment claim is not
barred by res judicata, and that Defendant’s argument to the
contrary is a breach of the parties’ settlement agreement.
[Id.
at 9.]
With respect to her retaliation claim, Plaintiff argues
that she was excluded from the monthly CQI meeting on
November 20, 2008, held by Natividad to discuss her complaints,
and that exclusion from meetings is a sufficient adverse
employment action.
She further argues that Natividad was hostile
and intimidating toward her, which also constituted retaliation.
15
[Id. at 10-11.]
As to her assault and battery claims, Plaintiff argues
that Defendant had the authority, power, and duty to control
Patient E’s conduct to Plaintiff, and that Defendant knew or
should have known of the assaults.
Plaintiff argues that
Defendant owed her a duty to protect her from a customer’s
assaults.
[Id. at 11.]
She argues that her state tort claims are not barred by
the worker’s compensation exclusivity provision, and that claims
for sexual harassment, sexual assault, and infliction of
emotional distress are not barred by Haw. Rev. Stat. § 386-5.
She also argues that whether Defendant’s conduct was sufficiently
outrageous is a question of fact for the jury.
[Id. at 12-13.]
Plaintiff concedes that Defendant is entitled to
summary judgment on her TIPEA claim (Count VII) and that she
cannot state a stand-alone claim for punitive damages (Count IX).
She maintains that she is entitled to punitive damages as a
remedy.
[Id. at 14.]
III. Defendant’s Reply
In its reply, Defendant maintains that Plaintiff cannot
establish a prima facie case of discrimination or retaliation.
Defendant acknowledges that it had a duty to prevent further
misconduct by Patient E, but argues that it fulfilled this duty
by accepting as true Plaintiff’s allegations against Patient E;
16
confronting Patient E with the allegations; and requiring Patient
E to agree that if he engaged in further misconduct he would be
discharged from the facility or transferred. [Reply at 1-2.]
It argues that the alleged harassment Plaintiff
reported consists of isolated events: (1) on 11/10/08, Patient E
touched Plaintiff “many times” (three times on the arm over
clothing); and (2) on 11/12/08 Patient E touched Plaintiff’s
shoulder and back.
Defendant contends that, even assuming the
alleged conduct rose to the level of sexual harassment, it is
shielded from liability because it performed an adequate
investigation and took appropriate remedial steps to end the
harassment.
It states that an employer need not act
instantaneously, but need only act in a reasonably prompt manner
to respond to the employee’s complaint.
[Id. at 10-11.]
Defendant notes that Plaintiff’s opposition does not
address its arguments regarding her claims for assault and
battery against a corporation (Counts II, V), or that her tort
claims are preempted by statute (Counts III, IV, V, VI, and VII).
[Id. at 18-19.]
It argues that Plaintiff’s NIED (Count III) and
IIED (Count IV) claims fail because she presents no evidence of
any physical injury, or specific facts showing outrageous
conduct.
[Id. at 19.]
STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a
17
party is entitled to summary judgment “if 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.”
DISCUSSION
I.
Counts I and V - Sex Discrimination
In construing discrimination claims brought under Haw.
Rev. Stat. § 378-2, Hawai‘i courts look “to the interpretations
of analogous federal laws by the federal courts for guidance”.
Shoppe v. Gucci Am., 94 Hawai`i 368, 377, 14 P.3d 1049, 1058
(2000) (citing Furukawa v. Honolulu Zoological Soc’y, 85 Hawai‘i
7, 13, 936 P.2d 643, 649 (1997)).
The Court notes that the
Hawai‘i Supreme Court has held that, in interpreting § 378–2,
federal case law interpreting Title VII is persuasive, but not
controlling.
Arquero v. Hilton Hawaiian Village LLC, 104 Hawai‘i
423, 429–30, 91 P.3d 505, 511–12 (2004).
In order to establish a sexual harassment claim
pursuant to Haw. Rev. Stat. § 378-2, a plaintiff must show that:
(1) he or she was subjected to sexual advances,
requests for sexual favors, or other verbal or
physical conduct or visual forms of harassment of
a sexual nature; (2) the conduct was unwelcome;
(3) the conduct was severe or pervasive; (4) the
conduct had the purpose or effect of either: (a)
unreasonably interfering with the claimant’s work
performance, or (b) creating an intimidating,
hostile, or offensive work environment; (5) the
claimant actually perceived the conduct as having
such purpose or effect; and (6) the claimant’s
perception was objectively reasonable to a person
of the claimant’s gender in the same position as
the claimant.
18
Nelson v. Univ. of Haw., 97 Hawai‘i 376, 390, 38 P.3d 95, 109
(2001).
With regard to the third element of the claim, the
required showing of severity or seriousness varies inversely with
the pervasiveness or frequency of the conduct.
“For example, a
single severe act can be enough to establish a claim, and
multiple incidents, each of which may not be severe when
considered individually, can be enough to establish a claim when
evaluated collectively.”
Arquero, 104 Hawai‘i at 428, 91 P.3d at
510 (quoting Nelson, 97 Hawai‘i at 390-91, 38 P.3d at 109-10
(2000)).
Here, Plaintiff reported to Defendant in the AER that
on two occasions Patient E “touched my shoulder and my back.
touched me many times too when I admitted him 11/10/08.
He
I
already warned him not to touch anybody but he did it again
today.”
[Def.’s Exh. B at 3 (11/12/08 AER).]
She did not inform
Defendant that Patient E touched the back of her breast, made a
crude gesture with his belt buckle, or verbally harassed her, as
alleged in her Complaint and at her deposition.
“[A]n employer
cannot be held liable for misconduct of which it is unaware.”
Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001).
With
respect to the conduct that she did report, it does not appear to
rise to the severe or pervasive level required to maintain a
claim under Haw. Rev. Stat. ¶ 378-2.
19
In evaluating a sexual harassment claim on summary
judgment, the Court must “look at the record as a whole and at
the totality of the circumstances, such as the nature of the
sexual advances and the context in which the alleged incidents
occurred.”
omitted).
Nelson, 97 Hawai‘i at 391, 38 P.3d at 110 (quotations
The allegations that Patient E touched her shoulder
and arm do not appear to amount to sexual assault, as was the
case in Arquero.
Patient E’s conduct, while offensive, does not
appear to have been objectively severe or pervasive enough to
unreasonably interfere with Plaintiff’s work performance or
create an intimidating, hostile, or offensive work environment
under the law.
510-514.
See Arquero, 104 Hawai‘i at 428-432, 91 P.3d at
Moreover, even if the conduct was sufficiently severe
or pervasive, the Court concludes that Defendant took appropriate
remedial action.
Under Hawai‘i law,
[a]n employer may be responsible for the acts of
non-employees, with respect to sexual harassment
of employees at the workplace, where the employer
knows or should have known of the conduct and
fails to take immediate and appropriate corrective
action. In reviewing these cases, the [HCRC] will
consider the extent of the employer’s control and
any other legal responsibility which the employer
may have with respect to the conduct of the
non-employees.
Haw. Admin. R. § 12-46-109(e).
Here, Defendant became aware of Plaintiff’s
November 12, 2008 AER on or around November 17, 2008, when
20
Natividad read and processed Plaintiff’s report.
The Court notes
that Defendant credited Plaintiff’s account, rather than
interviewing her immediately.
Thereafter, Auyong contacted
Network 17, met with Patient E on November 19, and told him he
would need to sign a behavioral contract.
On November 20, 2008,
Natividad directed Llenes not to assign Patient E to Plaintiff.
On November 21, 2008, Defendant entered into the Facility
Agreement with Patient E in which he agreed that if he engaged in
inappropriate behavior, he would be discharged or transferred.
On November 24, 2008, Defendant agreed with HNA not to assign
Plaintiff to Patient E, and switched Patient E’s schedule so
that, at most, Plaintiff and Patient E would be in the same
facility for half-an-hour on days their schedules overlapped.
There are no allegations that Plaintiff was forced to care for or
come into direct contact with Patient E after Defendant became
aware of Patient E’s conduct toward Plaintiff.
Even viewing the facts in the light most favorable to
Plaintiff, the Court concludes that Defendant’s response was
reasonable and adequate under the circumstances on this case.
See Arquero, 104 Hawai‘i at 433, 91 P.3d at 515 (recognizing
“that there may be situations in which a court could conclude
that an employer’s response was sufficient as a matter of law”).
Moreover, in this particular context, Defendant’s response was
reasonable in light of its relationships with its dialysis
21
patient and Network 17, as well as its employees.
See id. at 433
n.14, 91 P.3d at 515 n.14 (stating that courts “must balance the
victim’s rights, the employer’s rights, and the alleged
harasser’s rights.
If our rule were to call for excessive
discipline, employers would inevitably face claims from the other
direction of violations of due process rights and wrongful
termination.” (quoting Adler v. Wal–Mart Stores, Inc., 144 F.3d
664, 677 (10th Cir. 1998))).
In light of the foregoing, the
Court GRANTS the Motion as to Plaintiff’s sex discrimination
claims based on sexual harassment.2
II.
Retaliation (Count VIII)
To sustain her retaliation claim under
federal and state law, Plaintiff must show by
preponderance of the evidence that (1) she was
involved in a protected activity opposing an
unlawful employment practice; (2) that [defendant]
took an adverse personnel action against her; and
(3) there is a causal link between the protected
activity and the adverse action. Freitag v.
Ayers, 468 F.3d 528, 541 (9th Cir. 2006); McGinest
v. GTE Serv. Corp., 360 F.3d 1103, 1124 (9th Cir.
2004); Vasquez v. County of L.A., 349 F.3d 636,
646 (9th Cir. 2003); Schefke v. Reliable
Collection Agency, Ltd., 96 Haw. 408, 426, 32 P.3d
52, 70 (2001). Plaintiff’s failure to offer
evidence establishing one of these elements will
be fatal to her claim. See Lyons, 307 F.3d at
1113.
Finazzo v. Hawaiian Airlines, Civil No. 05-00524 JMS/LEK, 2007 WL
2668711, at *14 (D. Hawai‘i Sept. 7, 2007).
2
The Court does not reach Defendant’s argument that it is
entitled to summary judgment on these claims on the basis of res
judicata.
22
Here, Plaintiff did not suffer any sufficiently adverse
employment action for reporting Patient E’s offensive conduct.
Plaintiff was not assigned by Defendant to care for Patient E
after she submitted her AER, and she was allowed to change her
schedule despite Natividad’s concerns about employees earning
overtime.
Plaintiff withdrew her bid to be transferred to the
Waipahu clinic, and Defendant attempted to keep her and Patient E
from coming into further contact.
To the extent she alleges that
she was excluded from a scheduled monthly CQI meeting on
November 20, 2008, she testified that the meeting was a monthly
meeting with the social worker, charge nurse, clinical manager,
doctor, and dietician to discussion current issues and
improvement of care.
[Pl.’s Tr. 39-40.]
The evidence does not
show that she attended such meetings previously, or that she was
excluded because she complained about Patient E’s conduct.
None
of the conduct alleged materially altered the terms and
conditions of Plaintiff’s employment.
The Motion is GRANTED as
to Plaintiff’s retaliation claim.
III. Assault and Battery (Counts II, V)
A person commits the common law tort of
assault if he or she acts with intent to cause
another a nonconsensual harmful or offensive
contact or apprehension thereof, and the other
person apprehends imminent contact. Garcia v.
United States, 826 F.2d 806, 810 n. 9 (9th Cir.
1987); Burrows v. Hawaiian Trust Co., 49 Haw. 351,
360, 417 P.2d 816, 821 (1966) (“Consent is a
defense to assault and battery cases as well as to
others, unless the consent is against the policy
23
of the law”); Restatement (Second) of Torts § 21
(1965) (“An actor is subject to liability to
another for assault if (a) he acts intending to
cause a harmful or offensive contact with the
person of the other or a third person, or an
imminent apprehension of such a contact, and (b)
the other is thereby put in such imminent
apprehension”).
A person commits the common law tort of
battery if he or she acts with intent to cause a
nonconsensual harmful or offensive contact, or
apprehension thereof, and the contact occurs.
Garcia, 826 F.2d at 810 n. 9; Ozaki v. Association
of Apartment Owners of Discovery Bay, 87 Hawai‘i
273, 289, 954 P.2d 652, 668 (Ct. App.) (stating
that a battery is an unlawful touching of another
person without his or her consent), aff’d in part
and rev’d in part on other grounds, 87 Hawai‘i
265, 954 P.2d 644 (1998); Burrows, 49 Haw. at 360,
417 P.2d at 821; Restatement (Second) of Torts §
18 (1965) (“An actor is subject to liability to
another for battery if (a) he acts intending to
cause a harmful or offensive contact with the
person of the other or a third person, or an
imminent apprehension of such a contact, and (b)
an offensive contact with the person of the other
directly or indirectly results”).
Mukaida v. Haw., 159 F. Supp. 2d 1211, 1223 (D. Hawai‘i 2001).
Plaintiff does not contest that Defendant is a
corporate entity and cannot be liable for intentional torts
committed by a non-employee.
See Holloway v. Ameristar Casino
St. Charles, Inc., No. 4:07 CV 218 DDN, 2010 WL 148441, at * 7
(E.D. Mo. Jan. 12, 2010) (“‘A corporation, on its own, cannot
commit an assault or battery.’
As a result, the ‘sole manner in
which a [corporation] could be held liable for an assault and
battery would be through some agent or employee.’” (quoting
Presley v. Cent. Terminal Co., 142 S.W.2d 799, 803 (Mo. Ct. App.
24
1940)).
It is undisputed that Patient E was not Defendant’s
agent or employee.
Plaintiff argues that Defendant owed her a
duty to protect her from its customer’s assaults [Mem. in Opp. at
11,] but such a claim sounds in negligence, and Plaintiff offers
no legal authority for maintaining her intentional tort claims
against Defendant here.
The Motion is GRANTED as to Plaintiff’s
claims for assault and battery.
IV.
Negligence (Counts III and V)
Defendant argues that Plaintiff’s claims sounding in
negligence are barred by workers’ compensation law, which states:
The rights and remedies herein granted to an
employee . . . on account of a work injury
suffered by the employee shall exclude all other
liability of the employer to the employee . . . 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
brought.
Haw. Rev. Stat. § 386–5.
Generally, § 386–5 “serves to bar a
civil action for physical and emotional damages resulting from
work-related injuries and accidents.”
Furukawa v. Honolulu
Zoological Society, 85 Hawai‘i 7, 16–19, 936 P.2d 643, 652–55
(1997).
In keeping with the statute’s plain language, courts
have enforced the exclusivity provision to bar common law
negligence claims for both physical and psychic injuries
resulting from workplace conduct.
25
See, e.g., Antoku v. Hawaiian
Elec. Co., 266 F. Supp. 2d 1233, 1236-37 (D. Hawai‘i 2003)
(holding that § 386-5 bars claims for negligent supervision,
negligent training, failure to prevent discrimination, failure to
investigate and remedy discrimination, and negligence, in
employee’s discrimination suit).
To the extent Plaintiff’s
claims sound in negligence, they are barred by Haw. Rev. Stat.
§ 386-5.
The Court notes that claims for NIED arising out of
sexual harassment or sexual assault are not barred under § 386–5.
See, e.g., Kamaka v. Goodsill Anderson Quinn & Stifel, 117
Hawai`i 92, 109, 176 P.3d 91, 108 (2008) (“[A] claim for
emotional distress, that does not arise out of sexual harassment
or sexual assault . . . is, pursuant to HRS § 386–5, barred.”);
Luzon v. Atlas Ins. Agency, Inc., 284 F. Supp. 2d 1261, 1263 (D.
Hawai‘i 2003) (“Under Hawaii law, claims for negligent infliction
of emotional distress are barred by Haw. Rev. Stat. § 386-5,
unless the claims relate to sexual harassment or assault.”).
This district court, however, has recognized that not
all NIED claims in cases involving allegations of sexual
harassment fall within the statute’s exception.
In Clemmons v.
Hawaii Medical Services Ass’n, 273 F.R.D. 653, 658-59 (D. Hawai‘i
2011), Chief United States District Judge Susan Oki Mollway
explained as follows:
Although section 386–5 does contain a limited
exception allowing civil claims for “sexual
26
harassment or sexual assault and infliction of
emotional distress or invasion of privacy related
thereto,” that exception is inapplicable
here. . . . In construing the sexual harassment
exception, this court’s duty is to ascertain the
legislature’s intent, “which is to be obtained
primarily from the language contained in the
statute itself.” See Nelson, 97 Hawai‘i at 393,
38 P.3d at 112 (quoting Korsak v. Hawaii
Permanente Med. Group, 94 Hawai‘i 297, 303, 12
P.3d 1238, 1244 (2000)). . . . [Plaintiff] is not
basing his negligence claim on a respondeat
superior theory. Rather than seeking to hold his
employer liable for [co-worker’s] alleged conduct,
[plaintiff] claims breaches of independent duties
to supervise and train employees and to handle
investigations of sexual harassment properly. As
such claims are clearly separable from actual
sexual harassment, they fall far outside the plain
language of the sexual harassment exception to the
exclusivity provision. Cf. Nelson, 97 Hawai‘i at
395, 38 P.3d at 114 (explaining that a negligent
infliction of emotional distress cause of action
“related to” a sexual harassment claim because
both were “premised on the same conduct”).
. . . .
As discussed above, this judge reads the plain
language of the sexual harassment provision as
exempting sexual harassment itself from chapter
386’s exclusivity, not as exempting the
distinguishable situation involving negligent
training about sexual harassment. Moreover, the
legislative history of the 1992 amendment that
added the sexual harassment language to section
386–5 does not reflect an intent by the
legislature to permit all claims “intertwined”
with sexual harassment. See Black [v. City &
Cnty. of Honolulu, 112 F. Supp. 2d 1041,] 1048 (D.
Hawai‘i 2000)].
(Emphasis added.)
Cf. Black v. City & Cnty. of Honolulu, 112 F.
Supp. 2d 1041, 1048 (D. Hawai‘i 2000) (“Where the plaintiff
asserts that her employer’s negligence resulted in sexual
27
harassment, the negligence is not actionable but for the
intentional harassment.
Such negligence claims are so
intertwined with sexual harassment that they must be considered a
species of the injury for which the legislature carved out an
exception in the 1992 amendment.
They are therefore exempt from
the bar of the exclusivity provision.” (emphasis added)).
In Clemmons, the plaintiff alleged defendants owed him
a duty to prevent other employees from harming him, and that
those defendants breached their duty of care by failing to train
co-workers to refrain from discriminating against him, failing to
train and supervise co-workers, and failing to adequately
investigate sexual harassment complaints.
Id. at 657-58.
Here,
as in Clemmons, Plaintiff claims breaches of independent duties
to supervise and train employees and to handle investigations of
sexual harassment properly.
In Plaintiff’s Count III NIED claim,
she alleges that Defendant’s negligent misconduct in the handling
of her complaints of sexual harassment caused her “to become
unable to adequately cope with the mental stress caused by the
circumstances of the case.”
[Complaint at ¶¶ 37-38.]
This Court
agrees with the reasoning in Clemmons, and concludes that here,
as in Clemmons, Plaintiff’s NIED claims “are clearly separable
from actual sexual harassment, they fall far outside the plain
language of the sexual harassment exception to the exclusivity
provision.”
Clemmons, 273 F.R.D. at 658.
28
The Court concludes
that Plaintiff’s NIED claims are barred by Haw. Rev. Stat. §
386-5.
The Motion is GRANTED as to Plaintiff’s negligence
claims.
V.
Tort Claims (Counts VI and VII)
Plaintiff’s “tort” claim (Count VI) alleges that
Defendant unreasonably failed to provide Plaintiff with a nonhostile work environment, and was otherwise unreasonable in its
care and treatment of Plaintiff during her employment.
[Complaint at ¶¶ 46-51.]
In her opposition, Plaintiff does not
clarify the basis for this count, or explain how it differs from
her other common law claims.
To the extent Plaintiff seeks to
allege a prima facie tort claim, such a claim is not recognized
in Hawai‘i under facts similar to these.
See Metzer Contracting
Co., LLC v. Stephens, Civ. No. 07-00261 LEK, 2009 WL 1046666 (D.
Hawai‘i Apr. 17, 2009).
The Motion is GRANTED as to Count VI.
Plaintiff acknowledges that her TIPEA claim (Count VII)
does not allege interference with any prospective economic
advantage with a third party, and that Defendant cannot interfere
with its own relationship with Plaintiff.
The Motion is GRANTED
as to Count VII.
VI.
Intentional Infliction of Emotional Distress (Count IV)
Plaintiff alleges that Defendant’s misconduct “in
condoning sexual harassment, assaults and discrimination against
Plaintiff because of her sex constitutes outrageous, intentional
29
conduct which caused [her] physical and psychological injury and
severe emotional distress and anxiety.”
[Complaint ¶ 40.]
“The elements of the tort of intentional infliction of
emotional distress are 1) that the act allegedly causing the harm
was intentional or reckless, 2) that the act was outrageous, and
3) that the act caused 4) extreme emotional distress to another.”
Hac v. Univ. of Haw., 102 Hawai‘i 92, 106-07, 73 P.3d 46, 60-61
(2003) (adopting IIED standard from Restatement (Second) of
Torts).
In explaining the type of “outrageous” conduct
that makes a claim for intentional infliction of
emotional distress actionable, the Restatement
(Second) of Torts states:
It has not been enough that the defendant has
acted with an intent which is tortious or
even criminal, or that he has intended to
inflict emotional distress, or even that his
conduct has been characterized by “malice,”
or a degree of aggravation which would
entitle the plaintiff to punitive damages for
another tort. Liability has been found only
where the conduct has been so outrageous in
character, and so extreme in degree, as to go
beyond all bounds of decency, and to be
regarded as atrocious, and utterly
intolerable in a civilized community.
Generally, the case is one in which the
recitation of the facts to an average member
of the community would arouse his resentment
against the actor, and lead him to exclaim,
“Outrageous!”
Ross v. Stouffer Hotel Co. (Hawai‘i) Ltd., Inc., 76 Hawai‘i 454,
465 n.12, 879 P.2d 1037, 1048 n.12 (1994) (quoting Restatement
(Second) of Torts § 46, cmt. d. (1965)).
30
“The question whether
the actions of the alleged tortfeasor are . . . outrageous is for
the court in the first instance, although where reasonable
persons may differ on that question it should be left to the
jury.”
Nagata v. Quest Diagnostics Inc., 303 F. Supp. 2d 1121,
1127 (D. Hawai‘i 2004) (citing Shoppe v. Gucci Am., Inc., 94
Hawai‘i 368, 387, 14 P.3d 1049, 1068 (2000)).
Hawaii’s definition of outrageous conduct
creates a very high standard of conduct in the
employment context. See Ross v. Stouffer Hotel
Co., 76 Hawai‘i 454, 879 P.2d 1037, 1048 (Haw.
1994) (granting summary judgment for employer on
employee’s IIED claim); Ingle v. Liberty House,
Inc., Civil No. 94–0787(3), 1995 WL 757746, at *4
(Haw. Cir. Ct. Oct. 12, 1995) (noting, “In Ross,
the Hawaii Supreme Court recently has set an
extremely high, standard for such a claim in the
employment context[.]”).
Ho-Ching v. City & Cnty. of Honolulu, CV. No. 07–00237 DAE–KSC,
2009 WL 1227871, at *12 (D. Hawai‘i Apr. 29, 2009).
Even when viewed in the light most favorable to
Plaintiff, the evidence does not demonstrate conduct that was
outrageous.
Plaintiff’s allegations that Defendant did not do
enough to protect her from Patient E and failed to properly
investigate her complaints of sexual harassment do not amount to
behavior that is arguably beyond all bounds of decency.
Cf.
Weaver v. A–American Storage Mgmt. Co., Civil No. 10–00600
JMS–KSC, 2011 WL 97651, at *8 (D. Hawai‘i Jan. 12, 2011)
(“Intentionally discriminating against an employee based on race,
terminating him after only a few weeks in violation of federal
31
and state law, evicting him, taking his residence and car,
forcing him to remove his belongings to the street, and later
giving false information to prospective employers could
constitute ‘outrageous’ conduct for purposes of IIED.”).
The
Motion is GRANTED as to Plaintiff’s IIED claim.
VII. Punitive Damages
The Court finds that Defendant is entitled to summary
judgment on all of Plaintiff’s claims, and, because there are no
remaining claims, the Court does not reach the issue of punitive
damages.
CONCLUSION
On the basis of the foregoing, Defendant Liberty
Dialysis – Hawaii, LLC’s Motion for Summary Judgment, filed on
September 27, 2012, is HEREBY GRANTED.
The Clerk’s Office is
directed to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 11, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
AILEEN MARIANO V. LIBERTY DIALYSIS; CIVIL NO. 11-00652 LEK-RLP;
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
32
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