Kepilino v. State of Hawaii, Department of Transporation et al
ORDER STRIKING DECLARATIONS FILED SEPTEMBER 8, 2013; ORDER GRANTING MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT STATE OF HAWAII, DEPARTMENT OF TRANSPORTATION re 65 , 79 , 81 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/29/13. "Summary judgment is granted in favor of HDOT on Claim II of the Second Amended Complaint. This order leaves for further adjudication Counts IV and V (section 378-2 claims against Defendants Dau and Livermore), which have been stayed pendin g the Hawaii Supreme Court's issuance of a decision in Lales v. Wholesale Motors Company, 127 Haw. 412, 279 P.3d 77 (Ct. App. 2012) (unpublished), cert. granted, 2012 WL 4801373 (Haw. Oct. 9, 2012). The parties are directed to p romptly inform this court when the Hawaii Supreme Court decides Lales." (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
JESSICA L. KEPILINO,
STATE OF HAWAII, DEPARTMENT
OF TRANSPORTATION; GLENN
OKIMOTO in his Official
Capacity; RICHARD LIVERMORE
in his Official and
Individual Capacity; LISA DAU )
in her Official and
Individual Capacity; and JOHN )
DOES 1-5; JANE DOES 1-5; DOE )
Government Agencies 1-5, DOE )
CIVIL NO. 12-00066 SOM-BMK
ORDER STRIKING DECLARATIONS
FILED SEPTEMBER 8, 2013;
ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT FILED BY
DEFENDANT STATE OF HAWAII,
DEPARTMENT OF TRANSPORTATION
ORDER STRIKING DECLARATIONS FILED SEPTEMBER 8, 2013;
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANT
STATE OF HAWAII, DEPARTMENT OF TRANSPORTATION
Plaintiff Jessica Kepilino is suing her employer,
Defendant State of Hawaii Department of Transportation (“HDOT”),
as well as Defendants HDOT Director Glenn Okimoto, supervisor
Richard Livermore, and supervisor Lisa Dau (collectively,
“Defendants”), for alleged employment discrimination and
retaliation in violation of the Americans with Disabilities Act
(“ADA”), Title VII of the Civil Rights Act, the Equal Protection
Clause, and section 378-2 of Hawaii Revised Statutes.
On June 19, 2013, the court dismissed most of the
claims asserted in this case.
The court stayed claims brought
under section 378-2 of Hawaii Revised Statutes against
individuals in their individual capacities, pending a decision by
the Hawaii Supreme Court as to whether such claims are
The only other claim remaining for adjudication,
Claim II of the Second Amended Complaint, was asserted under
Title VII, alleging retaliation against Kepilino for her
testimony in an administrative hearing.
Because that testimony
was in a hearing pertaining to unemployment insurance, not Title
VII, Kepilino fails to demonstrate that Title VII’s antiretaliation provision is applicable.
judgment is granted in favor of Defendants on Claim II of the
Second Amended Complaint.
In its order of June 19, 2013, this court ruled that,
putting aside the stayed claims asserted against individuals
under chapter 378 of Hawaii Revised Statutes, the only claim
remaining for adjudication in this case was the “portion of Count
II against the HDOT that asserts Title VII retaliation relating
to Kepilino’s testimony on behalf of another Title VII
See ECF No. 64 at 22-23, PageID #s 508-09.
In relevant part, Paragraphs 47 to 48 of the Second
Amended Complaint assert a violation of Title VII’s antiretaliation provision based on what Kepilino says was retaliation
arising out of her testimony “as a witness at an Administrative
Hearing in support of a Plaintiff who had filed a Title VII and
ADA lawsuit against HDOT.”
See ECF No. 12, PageID # 89.
In an answer to an interrogatory asking for the facts
supporting Claim II, Kepilino indicated: “January 8, 2010, I
testified under oath as a witness on behalf of a former OCR
worker Elizabeth Motoyama.”
See ECF No. 77-7, PageID # 1139.
her deposition, Kepilino clarified that this testimony occurred
at the Department of Labor and Industrial Relations and related
to unemployment insurance, not to a Title VII claim.
65-11, PageID # 719-20.
See ECF No.
Kepilino explained that the unemployment
insurance hearings officer had asked her about the mailroom
Asked at her deposition whether she had testified
about anything else, Kepilino said, “No. That was it.”
PageID # 721.
Elizabeth Motoyama says that, at the administrative
hearing on January 8, 2010, concerning Motoyama’s unemployment
insurance appeal, Kepilino additionally testified that Motoyama
had not disrupted operations at her office or in the mailroom.
See Declaration of Elizabeth-Ann Motoyama ¶ 21, ECF No. 74-10.
Motoyama says that Kepilino helped to prove that the reasons
given for her termination were false and that Motoyama was
therefore eligible for unemployment insurance benefits.
Motoyama appears to have received an administrative decision
stating that “employer has not provided sufficient evidence that
there was any willful misconduct on your part.”
See Motoyama v.
Hawaii Dep’t of Transp., 864 F. Supp. 2d 965, 983 n.15.
The unemployment insurance proceeding was not the only
time Motoyama had sought relief.
In 2009, Motoyama had filed
charges of discrimination with the Hawaii Civil Rights Commission
(“HCRC”) and the Equal Employment Opportunity Commission
Motoyama alleged that, as a Civil Rights Specialist
for HDOT, she had been discriminated against in violation of the
Americans with Disabilities Act.
She complained that HDOT and
its employees had retaliated against her because she had helped
another employee file an EEOC charge based on an alleged Title
Motoyama explained that, on March 4, 2009, she
had been placed on administrative leave with pay based on
complaints that she had been “disruptive.”
See Charge of
Discrimination, March 11, 2009, filed in Civ. No. 10-00464
ACK/RLP as ECF No. 81-24, as amended on Aug. 28, 2009, ECF No.
The same day, Motoyama filed a separate charge of
discrimination with the HCRC and EEOC, complaining that she had
been discharged via a letter dated August 18, 2009, for having
allegedly filed false complaints.
See Charge of Discrimination,
Aug. 28, 2009, filed in Civ. No. 10-00464 ACK/RLP as ECF No. 8130, PageID # 1541.
Motoyama thereafter received right-to-sue letters and
filed a Complaint in the United States District Court for the
District of Hawaii based on the charges of discrimination.
Motoyama v. State of Hawaii, Civ. No. 10-00464 ACK/RLP.
Ultimately, Judge Alan C. Kay granted summary judgment in favor
of Defendants in an order of March 29, 2012.
Supp. 2d 965 (D. Haw. 2012).
See id., 864 F.
To the extent Motoyama was claiming
that she had been retaliated against because she had helped
another employee file a civil rights complaint with the EEOC,
Judge Kay noted that Motoyama was not engaging in activity
protected by Title VII.
Instead, she was simply doing her job,
which involved the intake and investigation of employee
Id., at 978-80.
To the extent Motoyama argued that she had participated
in a protected activity by filing her own EEOC charges, Judge Kay
ruled that she had not shown any causal connection between that
participation and her administrative leave and subsequent
With respect to the administrative leave of March
2009, Judge Kay reasoned that Motoyama had already been the
subject of complaints at the time she filed her March 2009 EEOC
See id. at 982.
With respect to Motoyama’s termination,
Judge Kay reasoned that she had received a letter indicating that
she was being terminated in August 2009, but did not file her
EEOC charge until September 2009.
Accordingly, the termination
could not have been based on the September 2009 EEOC charge.
On September 8, 2013, the day before the hearing on the
present motion for summary judgment, Kepilino filed her own
supplemental declaration as well as a supplemental declaration by
Kepilino’s supplemental declaration indicates that, at
Motoyama’s unemployment insurance hearing, Kepilino testified,
that, because Motoyama had not engaged in misconduct in the
mailroom, Kepilino had challenged the false reasons the State had
given for having terminated Motoyama.
See Second Declaration of
Jessica L. Kepilino ¶ 1, ECF No. 79-1.
declaration indicates that, at her unemployment insurance
hearing, Kepilino testified that Motoyama had not been disruptive
and that a certain practice in the mailroom was the norm.
Declaration of Elizabeth-Ann K. Motoyama ¶ 13, ECF No. 79-2.
the reasons discussed below, the court strikes the declarations
filed by Kepilino on September 8, 2013.
The Court Strikes the Declarations Filed on September
Defendants’ Motion for Summary Judgment was filed on
June 19, 2013.
See ECF No. 65.
Although initially set to be
heard in August 2013, the motion was ultimately heard on Monday,
September 9, 2013.
See ECF No. 68.
On Friday, September 6, 2013, the court issued its
usual prehearing inclinations.
See ECF No. 78.
language preceding the case-specific inclinations, the court
reminded the parties that supplemental briefing and supplemental
affidavits/declarations responding to the inclinations were
prohibited without leave of court.
The reminder reiterated Local
Rules 7.4 and 56.1(j), which note that, with respect to summary
judgment motions, oppositions and replies are allowed, but “[n]o
further or supplemental briefing shall be submitted without leave
Local Rule 7.4.
Local Rule 56.1(h) states that
affidavits and declarations shall only be attached to a concise
statement, and “[s]upplemental affidavits and declarations may
only be submitted with leave of court.”
The inclinations asked Kepilino to come to the hearing
“prepared to identify any fact(s) in the record supporting a
Title VII retaliation claim, as it does not appear that Kepilino
testified in an administrative hearing concerning a matter
protected by Title VII.”
See ECF No. 78.
Instead of coming to
the hearing and identifying facts already in the record, Kepilino
filed supplemental declarations, in violation of Local Rule
Because Kepilino did not receive leave of court to file
the declarations, the court grants Defendants’ motion to strike
them from the record.
The court notes that HDOT’s motion to strike Kepilino’s
supplemental declaration contended that the declaration was a
See Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266
(9th Cir. 1991) (“The general rule in the Ninth Circuit is that a
party cannot create an issue of fact by an affidavit
contradicting his prior deposition testimony.”).
Circuit has explained that it has
fashioned two important limitations on a
district court’s discretion to invoke the
sham affidavit rule. First, we have made
clear that the rule does not automatically
dispose of every case in which a
contradictory affidavit is introduced to
explain portions of earlier deposition
testimony; rather, the district court must
make a factual determination that the
contradiction was actually a “sham.” Second,
our cases have emphasized that the
inconsistency between a party’s deposition
testimony and subsequent affidavit must be
clear and unambiguous to justify striking the
affidavit. Thus, the non-moving party is not
precluded from elaborating upon, explaining
or clarifying prior testimony elicited by
opposing counsel on deposition and minor
inconsistencies that result from an honest
discrepancy, a mistake, or newly discovered
evidence afford no basis for excluding an
Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998-99 (9th Cir.
2009) (alterations, quotation marks, and citations omitted).
The court recognizes that Kepilino’s supplemental
affidavit of September 8, 2013, conflicts with her earlier
In her deposition, she indicated that, at
the unemployment insurance appeal hearing, she had only testified
about the procedures in the mailroom.
In her supplemental
declaration, she seeks to add that she testified that Motoyama
had not committed misconduct.
Because the court strikes the
supplemental declaration for violating the Local Rules, the court
need not reach the issue of whether the supplemental declaration
is a “sham.”
The court notes that Kepilino’s supplemental
declaration is consistent with Motoyama’s earlier declaration and
that, even if the court did consider it, it would not be
sufficient to raise a genuine issue of fact that would preclude
SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure,
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.”
Fed. R. Civ.
See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134
(9th Cir. 2000).
The movants must support their 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).
the principal purposes of summary judgment is to identify and
dispose of factually unsupported claims and defenses.
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., 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 may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 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 also 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.”).
In adjudicating summary judgment motions, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.
T.W. Elec. Serv., 809 F.2d at 631.
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 fact.”
Kepilino asserts that HDOT retaliated against her in
violation of § 2000e-3(a).
To make out a prima facie case of
such retaliation, Kepilino must show that (1) she engaged in a
protected activity; (2) she was subjected to an adverse
employment action; and (3) a causal link exists between the
protected activity and the adverse action.
F.3d 1234, 1240 (9th Cir. 2000).
Ray v. Henderson, 217
Accord Univ. of Texas S.W. Med.
Ctr. v. Nassar, 133 S. Ct. 2517 (2013) (“The text, structure, and
history of Title VII demonstrate that a plaintiff making a
retaliation claim under § 2000e–3(a) must establish that his or
her protected activity was a but-for cause of the alleged adverse
action by the employer.”).
Protected activities for purposes of § 2000e-3(a) are
subject to an opposition clause and a participation clause.
Specifically, Section 704(a) of Title VII provides that an
employer may not “discriminate against any of his employees or
applicants for employment . . . because he has opposed any
practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”
42 U.S.C. § 2000e-3(a).
Defendants’ motion for summary judgment argues that
Kepilino’s testimony at Motoyama’s unemployment insurance appeal
hearing was not a protected activity for purposes of the antiretaliation provision in § 2000e-3(a).
See ECF No. 65-3, PageID
In this regard, Defendants submit evidence that satisfies
their initial burden on this motion, shifting the burden to
Kepilino to demonstrate a genuine issue of material fact as to
whether she engaged in a protected activity.
210 F.3d at 1103.
See Nissan Fire,
Because Kepilino fails to raise a genuine
issue of fact as to whether she engaged in a protected activity,
summary judgment is granted in favor of Defendants on Kepilino’s
Interpreting the facts in the light most favorable to
Kepilino, the court recognizes that she testified at Motoyama’s
unemployment insurance hearing that Motoyama had not been
See Motoyama Decl. ¶ 21, ECF No. 74-10.
thereby helped Motoyama to qualify for unemployment insurance
benefits; the hearing established that Motoyama had not been
terminated for misconduct.
See Haw. Rev. Stat. § 383-30(2)
(disqualification from benefits for misconduct); Motoyama, 864 F.
Supp. 2d at 983 n.15 (indicating that the administrative hearing
resulted in a decision that “employer has not provided sufficient
evidence that there was any willful misconduct on your part”).
However, Kepilino submits no evidence that Motoyama’s hearing
involved anything relating to Title VII.
Nothing in the record
establishes that Motoyama’s filing of charges with the HCRC or
the EEOC was relevant to the administrative hearing concerning
her unemployment insurance benefits.
That hearing appears to
have concerned only whether Motoyama had engaged in misconduct.
Even if the court were to examine Kepilino’s stricken
declaration, it would not find evidence supporting a Title VII
The declaration says merely that Kepilino’s testimony at
the unemployment insurance hearing was that Motoyama’s actions
were not misconduct.
She thus argues that she “opposed the false
reasons” HDOT gave for Motoyama’s termination.
See ECF No. 79-1
Kepilino does not say that Motoyama’s filing of charges
with the HCRC and EEOC or that any alleged retaliation against
Motoyama in violation of Title VII was at issue or even raised at
the hearing concerning Motoyama’s unemployment insurance
The court recognizes, of course, that Kepilino could,
in theory, have a meritorious claim under Title VII even if
Motoyama’s Title VII claim was not meritorious.
City of Bellevue, 860 F.2d 928 (9th Cir. 1988).
See Learned v.
Kepilino’s testimony in support of even an unmeritorious
Title VII claim by Motoyama could support Kepilino’s own Title
VII retaliation claim.
However, Kepilino simply fails to raise a
genuine issue of fact as to whether Title VII was at all relevant
to her testimony in the unemployment insurance hearing.
The record before this court indicates only that
Kepilino may have testified that Motoyama did not engage in
Motoyama’s charges with the HCRC and the EEOC and
Motoyama’s alleged Title VII retaliation claim were not, at least
based on the record, tied to the misconduct at issue in the
unemployment insurance hearing.
Id. at 932 (requiring the
underlying discrimination to reasonably be perceived as
discrimination prohibited by Title VII).
In other words, nothing
in the record indicates that the hearings officer was examining
whether Motoyama’s alleged misconduct was a pretext for
discrimination in violation of Title VII.
For example, the
record does not establish that Motoyama was claiming in the
administrative hearing that she was denied benefits because she
was a member of a class protected by Title VII, or that Kepilino
had opposed a practice made unlawful by Title VII.
only indicates that the hearings officer was examining whether
there was sufficient evidence of willful misconduct to justify
the denial of unemployment insurance benefits to Motoyama.
these circumstances, Kepilino fails to raise a genuine issue of
fact as to whether she opposed any practice or participated in
any manner in an investigation, proceeding, or hearing concerning
a protected activity under Title VII.
See 42 U.S.C. § 2000e-
Summary judgment is granted in favor of HDOT on Claim
II of the Second Amended Complaint.
This order leaves for further adjudication Counts IV
and V (section 378-2 claims against Defendants Dau and
Livermore), which have been stayed pending the Hawaii Supreme
Court’s issuance of a decision in Lales v. Wholesale Motors
Company, 127 Haw. 412, 279 P.3d 77 (Ct. App. 2012) (unpublished),
cert. granted, 2012 WL 4801373 (Haw. Oct. 9, 2012).
The parties are directed to promptly inform this court
when the Hawaii Supreme Court decides Lales.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 29, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Jessica L. Kepilino v. State of Hawaii, et al., Civ. No. 12-00066 SOM/BMK; ORDER
STRIKING DECLARATIONS FILED SEPTEMBER 8, 2013; ORDER GRANTING MOTION FOR SUMMARY
JUDGMENT FILED BY DEFENDANT STATE OF HAWAII, DEPARTMENT OF TRANSPORTATION
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