Hollister v. Mrs. Gooch's Natural Food Markets, Inc.

Filing 48

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re: 35 . Signed by JUDGE LESLIE E. KOBAYASHI on 1/22/2013. [Order follows hearing held 1/3/2013. Minutes of hearing: doc no. 46 ] (afc)CERT IFICATE 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
VINCENT L. HOLLISTER,
Plaintiff,
vs.
MRS. GOOCH’S NATURAL FOOD
MARKETS, INC., et al.,
Defendants.
_____________________________

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CIVIL NO. 12-00176 LEK-KSC

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Mrs. Gooch’s Natural Food
Market, Inc.’s (“Defendant”) Motion for Summary Judgment
(“Motion”), filed September 7, 2012.

Plaintiff Vincent Hollister

(“Plaintiff”) filed his memorandum in opposition on December 13,
2012, and Defendant filed its reply on December 19, 2012.
matter came on for hearing on January 3, 2013.

This

Appearing on

behalf of Defendant were Jeffrey Harris, Esq., and Kristi
O’Heron, Esq., and appearing on behalf of Plaintiff were
Charles Brower, Esq., and Michael Healy, 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 Complaint in the First Circuit Court
of the State of Hawai‘i on November 15, 2011, which Defendant

removed to this Court on April 3, 2012.

The Complaint alleges

violations of state discrimination laws based on age and gender,
and intentional infliction of emotional distress (“IIED”).
Plaintiff claims that he worked for Defendant in its Whole Foods
Market stores from January 13, 1999 until he was “terminated from
his position of Store Operations Supervisor [(“SOS”)] on
August 19, 2010.”

[Complaint at ¶ 9.]

According to Plaintiff,

in June 2010, Defendant eliminated the SOS position and replaced
it with the Inventory Control Specialist position (“ICS”).

[Id.]

Plaintiff claims that the “company-wide practice” was
to place the SOS in the newly created ICS positions, but that
Defendant’s Kahala store management decided to issue a “special”
assignment to a younger female assistant and Plaintiff for the
ICS position, which created a competition between them.
¶ 9.]

[Id. at

According to Plaintiff, there were instances of

insubordination by the younger female employee for which no
corrective action was taken by management, and that she was not
held accountable for taking personal calls while at work.

On

August 10, 2010, Plaintiff’s younger female co-worker was
selected for the ICS position, and Plaintiff was terminated on
August 19, 2010 because his SOS position had been eliminated.
Plaintiff claims that he was capable of performing his job
function and should not have been terminated.

2

[Id.]

The Complaint alleges the following claims:
(1) violations of Haw. Rev. Stat. § 378-2 due to sex (male) and
age (59) (Count I); (2) a hostile work environment claim based
upon discrimination (Count II); (3) an IIED claim; and (4) a
defamation claim (Count IV).
punitive damages.

Plaintiff also seeks an award of

Counts II (hostile work environment) and IV

(defamation) were dismissed by stipulation on July 10, 2012.
[Dkt. no. 34.]
I.

Defendant’s Motion
Defendant moves for summary judgment on all the claims

in Plaintiff’s Complaint on the grounds that: (1) it did not
discriminate against Plaintiff based on sex or age; (2) Plaintiff
has no emotional distress claim because Defendant did not engage
in “outrageous” conduct; and (3) punitive damages are not
warranted because Defendant did not engage in “willful or wanton
misconduct.”
A.

[Mem. in Supp. of Motion at 1-2.]

Discrimination
Defendant argues that it had a legitimate business

reason for hiring Sonia Limberis (a younger female employee),
rather than Plaintiff for the ICS position based on their
performance before an interview panel.

Defendant required all

applicants for the ICS position to follow the same interview
process, including the completion of an assignment, “taking the
initiative to discuss the position with team leaders in advance
3

of the interview, using paid time to prepare for the interview,
and meeting with the same group of panelists.”

[Id. at 7.]

Defendant asserts that Ms. Limberis submitted a thorough
assignment, gave a superior performance at her interview, and had
experience and skills useful in the new position.

According to

Defendant, Plaintiff “gave a lackluster performance during his
interview, and that panelists considered this to be a key factor
in their decisionmaking.”

[Id.]

The interview panel was comprised of six Kahala store
employees: Assistant Store Team Leader Robin Burton (age 33),
Whole Body Team Leader Sandra Kuo (age 38), Kahala store Receiver
Brian Tomaszewski (age 49), Prepared Foods Buyer Christine
Georgedes (age 33), ICS/Receiving Associate Laurie Kennedy (age
56), and Store Team Leader Lindsay Benson (age 29).

[Defendant’s

Concise Statement of Facts in Support (“CSOF”), Decl. of Lindsay
Benson (“Benson Decl.”), at ¶¶ 4-5.]

The panel conducted

interviews on August 11, 2010, and conducted a preliminary vote,
a discussion, and a second vote.

After the discussion and second

vote, the panel unanimously selected Ms. Limberis for the ICS
position.

The panel noted that Plaintiff “gave vague or

incomplete answers to questions posed and might have difficulty
in training and working with others.”

[Id. at ¶ 6.]

Defendant

argues that Plaintiff cannot show that he was clearly superior to
Ms. Limberis.

[Mem. in Supp. at 8-9.]

4

Next, Defendants argue that Plaintiff cannot provide
evidence demonstrating pretext, that Defendant’s reason for not
hiring him for the ICS position was more likely motivated by
discrimination or is unworthy of credence.

Defendant notes that

two of the interview panelists, Ms. Kennedy and Ms. Georgedes,
were friends of Ms. Limberis, but argues that favoring a friend
is not evidence of discriminatory animus based on age or sex.
Defendant states that each panelist had only one vote in a panel
of six employees, neither “friend” made comments or otherwise
demonstrated animus based on Plaintiff’s age or sex, and
Ms. Kennedy belongs in the same protected age category as
Plaintiff.

[Id. at 11-12.]
Defendant argues that, to the extent Plaintiff relies

on the allegation that former Store Team Leader Larry Hoover
referred to Plaintiff once as “old man,” before Mr. Hoover left
the company, such a comment is a “stray remark”.

It notes that

Mr. Hoover was 60 years old in 2010 and belongs to the same
protected class as Plaintiff.

He left the company on May 5,

2010, three months before the August interviews for the ICS
position.

It argues that there is no causal connection between

the alleged comment and the adverse employment action because
Mr. Hoover had no role as a decisionmaker, and the alleged
comment was not related to any official act by Defendant.
at 16-17.]

5

[Id.

It also argues that the amount of time discussing
Plaintiff’s application materials is not evidence of
discriminatory animus.

Defendant argues that it places

significant emphasis on the interview process as set forth in a
policy manual.

Defendant contends that, while Plaintiff may

contend that the panel’s focus on his inability to get along with
coworkers was irrelevant, the ICS position job description
provided that the individual selected would be required to train
and work with all levels of store management and lead and train
receivers.

[Id. at 18-19.]

To the extend Plaintiff alleges that

Ms. Kennedy coached Ms. Limberis before the interview, Defendant
argues that there is no evidence of discriminatory animus;
rather, Plaintiff was given the same opportunity to use work time
to speak with others about the position and nobody refused to
speak with him about the position.
B.

[Id. at 20-21.]

IIED
Defendant argues that Plaintiff’s IIED claim fails

because there are no allegations of outrageous conduct, and, even
taking the allegations in the Complaint as true, his departure
from the company was not outrageous.

Further, it argues that

there is no evidence that Defendant’s alleged conduct caused
Plaintiff to seek medical treatment, and that any stress he
suffered “was self-induced after he declined the Company’s offer
of paid ‘bridge leave’ while he sought out alternative positions

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in any store across the Company.”
II.

[Id. at 24.]

Plaintiff’s Memorandum in Opposition
Plaintiff argues in his opposition that there is direct

evidence of discrimination in this case because Mr. Hoover
referred to Plaintiff as “old man” several times in front of
Ms. Limberis.

He argues that although Mr. Hoover was no longer

with Defendant when Plaintiff was not selected for the ICS
position, “he was employed in a supervisory capacity at the time
he made the statement.”

[Mem. in Opp. at 7.]

Plaintiff argues

that, because there is direct evidence of discrimination, the
Court need not rely on the McDonnell Douglas Corp. v. Green, 441
U.S. 792 (1973), burden shifting framework.

[Id.]

In the event

the Court finds no direct evidence of discrimination, Plaintiff
argues that he has established a prima facie case of age and sex
discrimination.

[Id. at 5.]

Plaintiff contends that he had much more experience
that Ms. Limberis, who was his assistant.

He argues that, but

for the elimination of his existing position, he would not have
had to apply and compete for any position within the company.
[Id. at 8-9.]

He asserts that the interview process was

subjective, and that the lone male on the panel initially voted
in favor of giving him the job.

[Id. at 9 (citing Exh. 14

(9/21/10)).]

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With respect to Ms. Kennedy’s and Ms. Georgedes’
friendship with Ms. Limberis, Plaintiff argues that the process
by which friends of Ms. Limberis were selected to the panel
demonstrates discriminatory animus.

He argues that the

“discriminatory bias or animus by Defendant against Plaintiff
based on his age and sex, is evident in the selection of nearly
all women on the panel, nearly half of whom were friends with
Limberis.”

[Id. at 10.]
Plaintiff also argues that “Defendant wrongly failed to

select Plaintiff for the ICS position based on discriminatory
conduct.

As such it is guilty of outrageous conduct.”

[Id. at

11.]
Plaintiff maintains that there are genuine issues of
material fact which preclude summary judgment.

[Id.]

III. Defendant’s Reply
In its reply, Defendant maintains that Plaintiff cannot
establish a prima facie case of discrimination and that there is
no direct evidence of discrimination.

It argues that Mr. Hoover

was a member of the same protected category as Plaintiff and left
the company before the ICS position was created.

His alleged

comment was unrelated to the decisional process, according to
Defendant.

[Reply at 3.]
Defendant asserts that Plaintiff set forth no

admissible evidence showing that he was a clearly superior

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candidate for the ICS position.

It argues that Plaintiff’s own

declaration stating that he had been in a management position for
over ten years, and that he was more qualified for the ICS
position than Ms. Limberis is not sufficient on summary judgment.
Defendant notes that Plaintiff has not identified any particular
skills or qualifications that make him a clearly superior
candidate, and that Plaintiff does not have personal knowledge of
Ms. Limberis’ interview performance.

[Id. at 3-4.]

Next, Defendant argues that there is no evidence that
it exceeded its discretion in choosing between equally qualified
candidates.

It maintains that interview performance is a

legitimate, non-discriminatory basis for distinguishing between
candidates absent evidence showing that an employer’s reliance on
the interview was a discriminatory decision.

Defendant argues

that its reliance on the interview process was not discriminatory
because it advertised the new ICS position, all applicants were
required to complete an assignment prior to interviews, all
applicants were able to consult with coworkers, and the panelists
carefully considered the application materials.

[Id. at 4–6.]

Defendant argues that Plaintiff fails to show that the presence
of alleged “friends” of Ms. Limberis on the panel was
discriminatory or that any panel member had discriminatory animus
or participated in past discrimination.

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[Id. at 7.]

STANDARD
Pursuant to Federal Rule of Civil Procedure 56(a), a
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
Defendants seek summary judgment on all of Plaintiff’s
claims.

The Court first addresses Plaintiff’s sex and age

discrimination and retaliation claims, and then discusses his
remaining state law claims.
I.

Count I - Sex and Age Discrimination
A.

Legal Standard
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 follows the framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), as to Plaintiff’s Haw. Rev. Stat. § 378-2 discrimination
claims.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed.2d 668 (1973), provides a
“useful tool at the summary judgment stage” in
addressing Title VII claims. See McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).
10

Under this framework, Plaintiff has the initial
burden to establish a prima facie case of
discrimination. E.E.O.C. v. Boeing Co., 577 F.3d
1044, 1049 (9th Cir. 2009) (citation and quotation
omitted). “The requisite degree of proof
necessary to establish a prima facie case for
Title VII . . . on summary judgment is minimal and
does not even need to rise to the level of a
preponderance of the evidence.” Cordova v. State
Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.
1997) (citation omitted).
Hughes v. Mayoral, 721 F. Supp. 2d 947, 957-58 (D. Hawai‘i 2010).
A prima facie case under McDonnell Douglas requires a
plaintiff to offer proof that: (1) he belongs to a protected
class; (2) he performed his job adequately or satisfactorily;
(3) he suffered an adverse employment action; and (4) other
similarly situated employees who do not belong to the same
protected class were treated differently.

McDonnell Douglas, 411

U.S. at 802; Cornwell v. Electra Cent. Credit Union, 439 F.3d
1018, 1028 (9th Cir. 2006); Noyes v. Kelly Servs., 488 F.3d 1163,
1168 (9th Cir. 2007).
After a plaintiff establishes a prima facie
showing of discrimination, the burden under the
McDonnell Douglas framework shifts to a defendant
to put forward a legitimate, non-discriminatory
reason for its actions. McDonnell Douglas Corp.,
411 U.S. at 802, 93 S. Ct. 1817. A defendant’s
burden to articulate some legitimate,
nondiscriminatory reason for the challenged action
is merely a burden of production, not persuasion.
Chuang v. Univ. of Cal. Davis Bd. of Trs., 225
F.3d 1115, 1123-24 (9th Cir. 2000). If a
defendant puts forth a legitimate,
nondiscriminatory reason, the burden shifts back
to the plaintiff to show that the given reason is
merely pretext for a discriminatory motive.
Boeing Co., 577 F.3d at 1049 (citation and
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quotation omitted).
Hughes, 721 F. Supp. 2d at 957-58.
“[A] plaintiff’s burden is much less at the prima facie
stage than at the pretext stage.”

Hawn v. Exec. Jet Mgmt., Inc.,

615 F.3d 1151, 1158 (9th Cir. 2010).

That is, circumstantial

evidence of pretext must be specific and substantial, see
Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1163
(9th Cir. 2009), and a plaintiff must do more than merely deny
the credibility of the defendant’s proffered reason.

See Schuler

v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir. 1986).

“A

plaintiff can show pretext directly, by showing that
discrimination more likely motivated the employer, or indirectly,
by showing that the employer’s explanation is unworthy of
credence.”

Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641

(9th Cir. 2003); see also Coghlan v. Am. Seafoods Co., 413 F.3d
1090, 1094–95 (9th Cir. 2005).

“Direct evidence typically

consists of clearly sexist, racist, or similarly discriminatory
statements or actions by the employer.”
1095.

Coghlan, 349 F.3d at

Circumstantial evidence requires an additional inferential

step to demonstrate discrimination.

Id.

Despite this “useful tool” of the McDonnell
Douglas framework, there is nothing that “compels
the parties to invoke the McDonnell Douglas
presumption.” McGinest, 360 F.3d at 1122. “When
responding to a summary judgment motion . . . [the
plaintiff] may proceed by using the McDonnell
Douglas framework, or alternatively, may simply
produce direct or circumstantial evidence
12

demonstrating that a discriminatory reason more
likely than not motivated [the employer].”
Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
2007) (quoting McGinest, 360 F.3d at 1122). If
the plaintiff submits direct or circumstantial
evidence, “a triable issue as to the actual
motivation of the employer is created even if the
evidence is not substantial.” Id. (quoting Godwin
v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
Cir. 1998)).
Hughes, 721 F. Supp. 2d at 957-58.
B.

Prima Facie Case
Viewing the facts in the light most favorable to

Plaintiff, he has made a prima facie case of age and sex
discrimination.

Plaintiff has demonstrated that: (1) he belongs

to a protected class (male and 59 years old during relevant time
period); (2) he performed his job adequately; (3) he suffered an
adverse employment action; and (4) a similarly situated, younger,
female employee was treated differently.
Plaintiff also alleges that Mr. Hoover referred to him
in front of Ms. Limberis as “old man” and that this is direct
evidence of discrimination.
is a “stray remark.”

Defendant argues that such a comment

It notes that Mr. Hoover was 60 years old

in 2010 and belongs to the same protected class as Plaintiff, and
left the company on May 5, 2010, three months before the August
interviews for the ICS position and played no part in the ICS
hiring decision.

The Court agrees with Defendant that Mr.

Hoover’s “old man” comments do not rise to the level of
actionable discrimination under the present circumstances.
13

Even

viewed in the light most favorable to Plaintiff, the evidence
does not demonstrate that Mr. Hoover was a decisionmaker who made
deliberate statements showing discriminatory animus.
Stray remarks uttered in an ambivalent manner and not
tied directly to the Plaintiff’s non-selection for the ICS
position are insufficient to show discrimination.

See Godwin v.

Hunt Wesson, Inc., 150 F.3d 1217, 1221, (9th Cir. 1998); Merrick
v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990)
(holding that stray remark by decisionmaker referring to youth of
employee promoted instead of age discrimination plaintiff was
insufficient to prove the employer relied on illegitimate
age-related criteria); see also Nesbit v. Pepsico, Inc., 994 F.2d
703, 705 (9th Cir. 1993) (finding that the corporate officer’s
remark that “we don’t necessarily like grey hair” was “more than
[a] ‘stray remark’” but at best weak circumstantial evidence).
The Court notes that an age-based remark not made
directly in the context of an employment decision or uttered by a
non-decisionmaker may be relevant, circumstantial evidence of
discrimination.

See Reid v. Google, Inc., 235 P.3d 988, 1006

(Cal. 2010); Shager v. Upjohn Co., 913 F.2d 398, 402 (7th Cir.
1990) (stating that a stray remark “may be relevant evidence,
with greater or less probative value depending on the precise
character of remark”).

In assessing the relevance of age or sex-

based remarks, however, courts in this circuit have noted the

14

importance of a nexus between the remarks and the alleged acts of
discrimination.

See Bowden v. Potter, 308 F. Supp. 2d 1108,

1122–23 (N.D. Cal. 2004) (finding a nexus between at least one
discriminatory remark and plaintiff’s termination); Marques v.
Bank of Am., 59 F. Supp. 2d 1005, 1019 (N.D. Cal. 1999) (noting
that one factor considered by the Ninth Circuit in determining
whether a remark is more than a stray remark is “whether the
comment is related in time and subject matter to the decisional
process”).

Here, the Court does not find a relationship between

the remarks and the employment practices at issue in this
litigation that is sufficient to establish discriminatory animus
on the part of Defendant.
C.

Pretext
Defendant argues that it had legitimate business

reasons for declining to hire Plaintiff for the ICS position, and
Plaintiff cannot provide any evidence demonstrating that these
reasons were pretextual.
In examining the level of proof of pretext
required, the Ninth Circuit distinguishes between
direct and circumstantial evidence. In both
Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
2007), and Godwin [v. Hunt Wesson, Inc., 150 F.3d
1217, 1220 (9th Cir. 1998)], the Ninth Circuit
states: “When the plaintiff offers direct evidence
of discriminatory motive, a triable issue as to
the actual motivation of the employer is created
even if the evidence is not substantial.”
(Emphasis added.) Clemmons ignores the express
limitation to direct evidence and says, “If the
plaintiff submits direct or circumstantial
evidence, ‘a triable issue as to the actual
15

motivation of the employer is created even if the
evidence is not substantial.’ Id. (quoting Godwin
at 1221).” Opposition at 26–27, ECF No. 87
(emphasis added). Godwin made it clear that more
is required when the evidence is purely
circumstantial:
In those cases where direct evidence is
unavailable, however, the plaintiff may come
forward with circumstantial evidence that
tends to show that the employer’s proffered
motives were not the actual motives because
they are inconsistent or otherwise not
believable. Such evidence of “pretense” must
be “specific” and “substantial” in order to
create a triable issue with respect to
whether the employer intended to discriminate
on the basis of sex.
Godwin, 150 F.3d at 1222 (citations omitted)
(emphasis added). This distinction was the focus
in Godwin. The Ninth Circuit was attempting to
reconcile the “apparently differing standards” for
a plaintiff’s burden of proof based on the type of
evidence presented by the plaintiff. See id. at
1221.
Clemmons v. Haw. Med. Servs. Ass’n, Civil. No. 10–00513 SOM/BMK,
2011 WL 6841008, at *11 (D. Hawai‘i Dec. 29, 2011).
1.

Interview Performance

The evidence shows that the interview panel decided
that Ms. Limberis outperformed Plaintiff at the interview, and
that it placed greater weight on the interview in making its
decision.

Plaintiff argues that the interview process was highly

subjective, but does not assert that he performed better than
Ms. Limberis during the interview or application process.
Defendant asserts that interview performance is a
legitimate, non-discriminatory basis for distinguishing between
16

candidates.

In Gibo v. City and County of Honolulu, Civil No.

07-00627 LEK, 2009 WL 2017874, at *9-10 (D. Hawai‘i July 10,
2009), this Court concluded that the age-discrimination plaintiff
failed to show pretext where an interview panel scored applicants
based only on their responses during an interview, but did not
consider annual evaluations, and the plaintiff was instructed to
hurry during his interview and purportedly penalized for giving
short answers.

Like the plaintiff in Gibo, Plaintiff has not

established that Defendant’s reliance on the decision of the
interview panel was discriminatory.
Both of the applicants here were subject to the same
application and interview process, including the completion of an
assignment.

Both had the opportunity to discuss the position

with team leaders in advance of the interview, and were
interviewed by the same group of panelists.

Plaintiff does not

rebut Defendant’s evidence that Ms. Limberis submitted a thorough
assignment, performed well during her interview, and had
experience and skills that would be useful in the new position,
including her background in training other employees.

Although

Plaintiff maintains the interview process must have been
subjective and unfair because he believes he was the more
qualified candidate, an “employee’s subjective personal judgments
of [his or] her competence alone do not raise a genuine issue of
material fact.”

Bradley v. Harcourt, Brace and Co., 104 F.3d

17

267, 270 (9th Cir. 1996).

Plaintiff has presented no evidence

with respect to the interview process, other than his speculation
and assessment of his own qualifications, that Defendant’s
decision to and hire Ms. Limberis had anything to do with
Plaintiff’s sex or age.
2.

Panel Composition

Plaintiff argues that the make up of the interview
panel and Ms. Liberis’ friendship with two of its members is
evidence of discrimination.

Defendant argues that panel

composition is not evidence of discriminatory animus because it
included members of the same age and sex as Plaintiff, three
panelists volunteered to participate in the panel, and
Ms. Kennedy sat on another panel that selected a 65 year old male
for the ICS position at a Santa Barbara Whole Foods store.
in Supp. at 14.]

[Mem.

The Court notes that Plaintiff provides no

evidence of discriminatory animus on the part of any of the
individual interviewers.

See Turner v. Pub. Serv. Co. of Colo.,

563 F.3d 1136, 1146 (10th Cir. 2009) (“Nor does the fact that
Turner’s interview panel consisted of four men raise any
concerns.

Turner proffered no evidence that any of the

interviewers held discriminatory attitudes or participated in
past discrimination.”).

Plaintiff also fails to explain exactly

how the interview panel’s composition disadvantaged men, or older
employees.

18

Plaintiff relies on evidence that the lone male on the
panel originally selected Plaintiff for the position, but changed
his vote following the panel’s discussion.

The notes that

Mr. Tomaszewski provided to Ms. Benson indicate that he “reevaluated his first vote and given the fact that I liked both
candidates and thought either one could do the job and also given
the fact that the ICS position seemed to tilt more towards
training. . . .”

[Defendant’s CSOF, Benson Decl., Exh. 14

(9/21/10 Signed Statement), at 11013300008.]

At best, this

unsworn statement indicates that the lone male on the panel
changed his mind after further discussion, but does not indicate
any discriminatory animus on the part of the other panel members
or management’s composition of the panel.
With respect to the alleged friendship between Ms.
Liberis, Ms. Kennedy, and Ms. Georgedes, the Court notes that
there is no allegation that Ms. Kennedy or Ms. Georgedes favored
Ms. Liberis for the position because of her age or sex.

Several

courts have held that “[a]s a matter of law, favoring an employee
because of friendship is not favoring the employee because of
[protected class].”

Bell v. Crowne Mgmt., LLC, 844 F. Supp. 2d

1222, 1237 n.27 (S.D. Ala. 2012) (citing Greene v. Potter, 557
F.3d 765, 771 (7th Cir. 2009); Swackhammer v. Sprint/United Mgmt.
Co., 493 F.3d 1160, 1170–71 (10th Cir. 2007)).

See also Caldwell

v. State of Washington, 278 Fed. Appx. 773, 776, 2008 WL 2080683,

19

at *1 (9th Cir. 2008) (“Even accepting all of [plaintiff’s]
allegations and reasonable inferences therefrom as true, the
evidence suggests only that the stated reasons for failing to
promote [plaintiff] were a pretext for offering the position to a
personal friend of [plaintiff’s supervisor], not that they were a
pretext for racial discrimination.”); Dove v. Bayer Healthcare
LLC, No. C 05-02873 JSW, 2006 WL 1663845, at *6 (N.D. Cal.
June 15, 2006) (Holding that a co-worker’s “promotion
demonstrates at best, that an under-qualified individual was
promoted to another position within the same department based on
his friendship with a supervisor.

This does not constitute

evidence demonstrating that other, similarly situated employees
outside of Plaintiff’s protected class were treated more
favorably.”).
Plaintiff also urges the Court to deny summary judgment
based on his allegation that Ms. Kennedy coached Ms. Liberis,
which enable her to outperform him at the interview.

Plaintiff

acknowledged at his deposition that he did not have any basis for
saying that Ms. Kennedy coached Ms. Limberis other than his view
that they had a personal friendship and his view that he was more
qualified.

[Defendant’s CSOF, Exh. 1 (7/20/12 Dep. Tr.) at 102.]

Even assuming Ms. Kennedy did assist Ms. Limberis in preparing
for the interview, Defendants presented evidence that all
candidates were encouraged to, and in fact did, consult with

20

members of the interview panel in order to prepare.

To the

extent the alleged coaching was a result of a personal
friendship, without any other indicia of discriminatory animus,
Plaintiff has not shown a genuine issue of material fact with
respect to his coaching allegations and age or sex-based
discrimination for the same reasons as discussed above.
Plaintiff’s assertions fall short of the “specific” and
“substantial” type of circumstantial evidence that Plaintiff is
required to demonstrate to create a triable issue as to whether
Defendant intended to discriminate on the basis of her sex or
age.

In sum, the Court concludes that Plaintiff has not

established that Defendant’s legitimate business reasons for
selecting the younger, female candidate were pretextual, and
Defendant is entitled to summary judgment on Plaintiff’s age and
sex discrimination claims.
II.

Count III - IIED
“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).

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Plaintiff asserts that “Defendant wrongly failed to
select Plaintiff for the ICS position based on discriminatory
conduct.

As such it is guilty of outrageous conduct.”

Opp. at 11.]

[Mem. in

The Court disagrees.

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)).

“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

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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[.]”). Under Hawai‘i law,
termination alone is not sufficient to support an
IIED claim; rather, what is necessary is a showing
of something outrageous about the manner or
process by which the termination was accomplished.
As stated in Ingle, “[a]lthough intentional
infliction claims frequently are asserted in
connection with employee dismissals, recovery is
rare. Imposition of liability on this tort theory
is likely only in the unusual case when an
employer deliberately taunts an employee, or when
an employer handles an employee with outrageous
insensitivity.” Ingle, 1995 WL 757746, at *4
(quotation omitted; emphasis added); see also
Courtney v. Canyon Television & Appliance Rental,
Inc., 899 F.2d 845, 852 (9th Cir. 1990)
(“[d]ischarge, without evidence of more, does not
create a case for emotional distress.”).
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, or 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 and state law,
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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.”).
Defendant is entitled to summary judgment on
Plaintiff’s IIED claim.

Because there are no remaining claims,

the Court does not reach the issue of punitive damages.
CONCLUSION
On the basis of the foregoing,

Defendant Mrs. Gooch’s

Natural Food Market, Inc.’s Motion for Summary Judgment, filed
September 7, 2012, is HEREBY GRANTED.

The Clerk’s Office is

directed to close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 22, 2013.

/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

VINCENT L. HOLLISTER V. MRS. GOOCH’S NATURAL FOOD MARKETS, INC.,
ET AL; CIVIL NO. 12-00176 LEK-KSC; ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT

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