Freitas v. Kyo-Ya Hotels & Resorts, LP et al
Filing
52
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 34 , 45 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 11/18/13. "Kyo-yas motion for summary judgment is granted with respect to all claims alleged by Freitas and An unciacion." Associated Cases: 1:12-cv-00358-SOM-KSC, 1:12-cv-00359-SOM-KSC(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
BLAYNE D. K. FREITAS, SR,
)
)
Plaintiff,
)
)
vs.
)
)
KYO-YA HOTELS & RESORTS, LP
)
DBA SHERATON PRINCESS
)
KAIULANI, a Delaware
)
corporation,
)
)
Defendants.
)
_____________________________ )
JUN S. ANUNCIACION,
)
)
Plaintiff,
)
)
KYO-YA HOTELS & RESORTS, LP
)
DBA SHERATON PRINCESS
)
KAIULANI, a Delaware
)
corporation,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 12-00358
CIVIL NO. 12-00359 SOM/KSC
(Consolidated Cases)
ORDER GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
In these consolidated employment discrimination cases,
Plaintiffs Blayne Freitas, Sr., and Jun Anunciacion sue Defendant
Kyo-ya Hotels and Resorts, alleging that they were subjected to a
hostile work environment and terminated based on their ages,
races, and national origins, and in retaliation for having
objected to the alleged discrimination.
Kyo-ya moves for summary
judgment on all claims asserted in the Complaints.
The claims before the court on the present motion are
for disparate treatment, hostile work environment, and
retaliation in violation of Title VII of the Civil Rights Act, 42
U.S.C. § 2000e-2(a), and the Age Discrimination in Employment
Act, 29 U.S.C. § 623 (Counts I, II, and IV), as well as for
intentional infliction of emotional distress (IIED) and
defamation (Counts III and V).1
Freitas also sues for
retaliation under Haw. Rev. Stat § 378-2.
The court grants Kyo-
ya’s motion for summary judgment as to all claims asserted in the
Complaints.
II.
FACTUAL BACKGROUND.
Blayne Freitas is a native Hawaiian who was 51 years
old when he was terminated from his position as a utility steward
at the Sheraton Princess Ka’iulani, the hotel name under which
Kyo-ya does business.
ECF No. 41-1.
See Declaration of Blayne Freitas ¶¶ 6-9,
Jun Anunciacion, who was also a utility steward at
the Sheraton Princess Ka’iulani, is of Filipino descent and was
also 51 years old when he was terminated.
Anunciacion, ¶¶ 3-6, ECF No. 41-6.
1
See Declaration of Jun
Kyo-ya asserts that
In their memorandum in opposition to Kyo-ya’s motion,
Freitas and Anunciacion appear to argue that there are genuine
issues of material fact only as to Count I (discrimination) and
Count IV (retaliation). Nevertheless, because Plaintiffs do not
expressly abandon their other claims, this court addresses all
five counts.
2
Plaintiffs were fired based on their alleged extortion and
harassment of co-worker Wing Chan.
On October 5, 2011, Robert Kubota, an assistant manager
at the hotel, was informed by two other Kyo-ya employees that
Chan was being treated “in a demeaning way” by Freitas.
Declaration of Mark Hirokawa, ¶ 2, ECF No. 35-1.
See
Kubota asked
Chan whether these allegations were true, and Chan responded that
he was being regularly coerced by both Freitas and Anunciacion
into paying them small amounts of money.
Id. ¶ 3.
Chan told
Kubota that Freitas and Anunciacion were asking him to pay two
dollars each time he requested the tray of drinking glasses he
needed to set up tables at the hotel’s restaurant.
Id.
Chan
also told Kubota that this had been going on for about three
months.
Id.
Kubota conveyed this information to Mark Hirokawa,
the human resources manager at the hotel, and Hirokawa conducted
an investigation into the matter.
Id. ¶ 4.
Hirokawa spoke to Chan, who confirmed his prior
allegations and added that “he felt threatened and had been
punched in the body on several occasions [by Freitas and
Anunciacion] when he had refused to pay.”
Id. ¶ 6.
Chan also
said that Freitas and Anunciacion had told him that “he was
homosexual because he touched them and that, if he did not pay
them, they would go to Security and make him lose his job by
reporting that he is homosexual.”
3
Id.
As part of the investigation, Hirokawa and Frank Fujii,
the security director at the hotel, arranged for Chan to carry
eight marked dollar bills to his next encounter with Anunciacion
and Freitas.
When Freitas and Anunciacion were interviewed later
that day, the bills were found in their possession.
Id. ¶ 13.
According to Hirokawa and Fujii, Anunciacion afterwards “admitted
to threatening Chan and to knowing that this was wrong.”
11.
Id. ¶
Anunciacion also signed a document confirming his admission,
after allegedly being given the opportunity to review and make
changes to it.
See Interview with Jun Anunciacion, ECF No. 35-6.
Based on this admission, Anunciacion was suspended that day,
pending further investigation.
Hirokawa Decl. ¶ 14.
denied Chan’s allegations and was not suspended.
Freitas
Id. ¶ 12.
Over the next week, Hirokawa and his colleagues
interviewed 14 other hotel employees regarding the allegations.
Id. ¶ 18.
According to Hirokawa, one employee, Mark Medrano,
said that he had heard Freitas and Anunciacion tell Chan “you owe
me money” up to five times, and had heard Freitas threaten Chan
with statements such as “come here, I’ll choke you” and “I like
to beat you up.”
Id. ¶ 23.
Hirokawa was also told by Medrano
that Chan avoided areas where Freitas and Anunciacion were, out
of fear for his safety.
Id.
Another employee, Colleen Sanchez, told Hirokawa that
she saw Chan “hold his wallet open” for Freitas and Anunciacion
4
with an expression that “indicated ‘help me.’”
Id. ¶ 24.
Another employee, Michael Sato, told Hirokawa that Chan was being
forced to give Freitas money, and that he had witnessed Freitas
racially abuse Chan.
Id. ¶ 25.
After they were accused of harassing and extorting
Chan, Freitas and Anunciacion made several of their own
allegations against Chan.
In particular, Anunciacion accused
Chan of having sexually harassed him, by “touching [him], asking
for kisses, and hugging [him]”.
Anunciacion Decl. ¶ 29.
On October 28, 2011, Hirokawa prepared a report based
on his investigation that “recommended that Freitas and
Anunciacion be terminated, and that Chan be given either a
written warning or a 3-day suspension based on the allegations
about his behavior toward Plaintiffs.”
Hirokawa Decl. ¶ 22.
During the investigation, Hirokawa had been in contact with two
senior decision-makers–-Frederick Orr, the hotel’s general
manager, and Debbie Stephens-Amas, the hotel’s human resources
director.
Id. ¶ 27.
On the day he submitted his report,
Hirokawa met with Orr and Stephens-Amas to discuss his
recommendations.
Id.
Orr was aware that both Freitas and Anunciacion had had
disciplinary problems in the past.
In 2000, Freitas had been
suspended for 20 days for having allegedly threatened to shoot a
co-worker.
Orr Decl. ¶ 9-10.
Anunciacion had previously been
5
given a written warning for having verbally harassed a co-worker.
Id. ¶ 18.
Orr, Stephens-Amas, and Hirokawa agreed to terminate
Freitas and Anuninciacion effective October 31, 2011, and to
suspend Chan for three days.
Id.
After they were terminated,
Freitas and Anunciacion were charged in state court with the
crime of Extortion in the Third Degree based on their alleged
actions involving Chan.
guilty.
ECF. No. 41-2.
A jury found them not
Id.
Orr is currently 68 years old, and his wife is part-
Hawaiian.
Orr Decl. ¶ 9-10.
Stephens-Amas is currently 56 years
old, and her husband is of Filipino descent.
¶ 8-9.
Stephens-Amas Decl.
Hirokawa and Fujii are 50 and 58 years old, respectively.
Hirokawa Decl. ¶; Fujii Decl. ¶10.
III.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
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
6
for the purposes of the motion only), admissions, interrogatory
answers, or other materials”; or “showing that the materials
cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible
evidence to support the fact.”
Fed. R. Civ. P. 56(c).
One of
the principal purposes of summary judgment is to identify and
dispose of factually unsupported claims and defenses.
Celotex
Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.
See id. at 323.
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 material fact.”
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.
T.W.
At least some “‘significant
7
probative evidence tending to support the complaint’” must be
produced.
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
material fact.”).
“[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
587).
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.
Id.
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.”
Id.
8
IV.
ANALYSIS.
A.
Disparate Treatment Claims.
Title VII of the Civil Rights Act of 1964 forbids
employment discrimination based on “race, color, religion, sex,
or national origin.”
42 U.S.C. § 2000e-2(a).
The Age
Discrimination in Employment Act prohibits discrimination based
on age.
29 U.S.C. § 623(a)(1) (“It shall be unlawful for an
employer to . . .
discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's age.”).
“When responding to a summary judgment motion, the
plaintiff is presented with a choice regarding how to establish
his or her case.”
McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1122 (9th Cir. 2004).
First, the plaintiff may apply the burden-
shifting analysis set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Under the McDonnell Douglas framework, a
plaintiff must establish a prima facie case of discrimination by
showing that (1) he belongs to a protected class; (2) he was
qualified for the position; (3) he suffered an adverse employment
action; and (4) similarly situated individuals outside of his
protected class were treated more favorably.
See Nicholson v.
Hyannis Air Serv., Inc., 580 F.3d 1116 (9th Cir. 2009).
Once a
plaintiff succeeds in presenting a prima facie case, “the burden
of production, but not persuasion, then shifts to the employer to
9
articulate some legitimate, nondiscriminatory reason for the
challenged action.”
Chuang v. Univ. of Cal. Davis, Bd. of
Trustees, 225 F.3d 1115, 1123-24 (9th Cir. 2000).
“If defendant
meets this burden, plaintiffs must then raise a triable issue of
material fact as to whether the defendant's proffered reasons for
their terminations are mere pretext for unlawful discrimination.”
Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155 (9th Cir.
2010).
A plaintiff can prove pretext “(1) indirectly, by
showing that the employer's proffered explanation is ‘unworthy of
credence’ because it is internally inconsistent or otherwise not
believable, or (2) directly, by showing that unlawful
discrimination more likely motivated the employer.
All of the
evidence—whether direct or indirect—is to be considered
cumulatively.”
Shelley v. Green, 666 F.3d 599, 609 (9th Cir.
2012)(internal quotation omitted).
Alternatively, a member of a protected class suffering
an adverse employment action may rely solely on “direct
evidence.”
“Direct evidence . . . is defined as evidence of
conduct or statements by persons involved in the decision-making
process that may be viewed as directly reflecting the alleged
discriminatory attitude . . . sufficient to permit the fact
finder to infer that that attitude was more likely than not [the
cause of] the employer's decision.”
10
Enlow v. Salem-Keizer Yellow
Cab Co., Inc., 389 F.3d 802, 812 (9th Cir. 2004) (citation
omitted) (emphasis in original).
Under Title VII, an “unlawful employment practice is
established when the complaining party demonstrates that race,
color, religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also
motivated the practice.”
42 U.S.C. § 2000e-2(m).
For an ADEA
claim, on the other hand, a plaintiff has “the burden of
persuasion to establish that age was the ‘but-for’ cause of the
employer's adverse action.”
U.S. 167, 180 (2009).
Gross v. FBL Fin. Servs., Inc., 557
In other words, in an ADEA action, unlike
a Title VII case, a plaintiff must do more than “produce some
evidence that age was one motivating factor in [an employment]
decision.”
Id.
A plaintiff must show, at the summary judgment
stage, that a reasonable trier of fact could conclude, by a
preponderance of the evidence, that the plaintiff would not have
been fired but for impermissible age discrimination.
See, e.g.,
Scheitlin v. Freescale Semiconductor, Inc., 465 F. App'x 698, 699
(9th Cir. 2012) (applying Gross’s “but for” causation standard at
the summary judgment stage).
Freitas and Anunciacion do not attempt to produce any
direct evidence of discrimination.
Therefore, if they are to
survive summary judgment, it must be on the basis of the
McDonnell-Douglas framework.
It is undisputed that Freitas and
11
Anunciacion meet the first three criteria for establishing a
prima facie case.
Each is a member of at least one protected
group under Title VII and is protected by the ADEA.
Kyo-ya does
not dispute that Freitas and Anunciacion were qualified for the
utility steward positions they had held for over 25 years.
Nor
is there any dispute that they both sustained adverse employment
actions when they were terminated from their positions on October
28, 2011.
However, Kyo-ya argues that Freitas and Anunciacion do
not make out a prima facie case because they fail to adduce
“evidence that [their termination occurred] under circumstances
which give[s] rise to an inference of unlawful discrimination.”
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In Title VII cases, such an inference can be drawn if similarly
situated individuals outside of the relevant protected category
are treated more favorably than the plaintiff.
See Chuang v.
Univ. of California Davis, Bd. of Trustees, 225 F.3d 1115, 1123
(9th Cir. 2000).
For an ADEA claim, the inference can be drawn
if the plaintiff is replaced by a substantially younger employee
with equal or inferior qualifications.
See Diaz v. Eagle Produce
Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).
Freitas and Anunciacion do not point to a single
“similarly situated” individual who was outside of their
protected categories and treated more favorably than they were.
12
At most, Freitas and Anunciacion vaguely suggest they were
treated less favorably than Chan, their alleged victim.
While,
unlike Plaintiffs, Chan was Chinese, Chan and Plaintiffs were not
similarly situated.
Chan worked in a different position within
the hotel, and engaged in alleged conduct very different from
what Freitas and Anunciacion allegedly did.
Vasquez v. Cnty. of
Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003) (noting that
employees “are similarly situated when they have similar jobs and
display similar conduct”).
Freitas and Anunciacion do not even argue that
discrimination can be inferred from the race or national origin
of their replacements, or even suggest that they were replaced by
employees of a different race or national origin from them.
Kyo-
ya states that Anunciacion was replaced by an employee who, like
Anunciacion, was of Filipino descent.
Neither Freitas nor
Anunciacion alleges anything at all regarding the race or
national origin of either’s replacement.
Given the absence of evidence of an employee who was
similarly situated but treated more favorably, a requirement for
a Title VII claim, the court turns to Plaintiffs’ ADEA claim.
Plaintiffs assert that Kyo-ya hired “two younger employees with
less qualifications” to replace them.
No. 40.
Memo in Opp. at 15, ECF.
The only pertinent information that either Plaintiff
provides regarding the replacement employees is found in
13
Anunciacion’s deposition testimony.
Anunciccion testified that
he and Freitas were replaced by workers “in their early 30's” and
that their first names were “Reynante” and “Danilo.”
See
Deposition of Jun Anunciacion at 74-78, ECF No. 35-33.
Freitas
also testified in his deposition that one position was filled by
someone name "Reynente," who was allegedly Filipino, but Freitas
did not indicate his age.
See Freitas Depo. at 180-182, ECF No.
35-32.
A plaintiff cannot establish that he has been replaced
by a substantially younger employee with equal or inferior
qualifications when he “present[s] no specific evidence
establishing the identity, age, or inferior qualifications of
th[at] employee.”
Ritter v. Hughes Aircraft Co., 58 F.3d 454,
457 (9th Cir. 1995).
Anunciacion’s vague recollection does not
constitute the requisite “specific evidence.”
Notwithstanding Anunciacion’s vagueness, this court
relies, for purposes of this motion, on Kyo-ya’s admission that
Anunciacion was replaced by a substantially younger employee.
See Motion for Summary Judgment at 9, ECF No. 34-1 (stating that
Anunciacion’s position “was filled by Fredie Agra, who is 39
years old”).
This however does not mean that Anunciacion makes
out a prima facie case under the ADEA.
Nothing in the record
speaks to the replacement employee’s qualifications.
14
While “the requisite degree of proof necessary to
establish a prima facie case for Title VII and ADEA claims on
summary judgment is minimal and does not even need to rise to the
level of a preponderance of the evidence,” Coghlan v. Am.
Seafoods Co. LLC., 413 F.3d 1090, 1094 (9th Cir. 2005), Kyo-ya’s
admission, absent any evidence that any replacement had equal or
inferior qualifications when compared to Anunciacion, is
insufficient to establish a prima facie case.
Diaz, 521 F.3d at
1208, n.2 (“Generally, an employee can satisfy the last element
of the prima facie case only by providing evidence that he or she
was replaced by [an] . . . employee with equal or inferior
qualifications.”).
As to Freitas, Kyo-ya asserts that he was never
replaced.
See Motion for Summary Judgment at 9, ECF No. 34-1.
Even assuming Freitas was indeed replaced by a younger employee,
the record is again silent as to that replacement’s
qualifications.
Even if Freitas and Anunciacion were able to make out
prima facie cases, Kyo-ya has provided a reason for Anunciacion’s
termination--the extortion and harassment of Chan--that is “[o]n
its face . . . legitimate [and] nondiscriminatory.”
McGinest v.
GTE Serv. Corp., 360 F.3d 1103, 1137 (9th Cir. 2004).2
2
Freitas and Anunciacion allege that Kyo-ya fails to
articulate a legitimate reason for their termination because
nearly all of Kyo-ya’s evidence, much of it based on the
interviews Hirokawa conducted as part of his investigation, is
15
“In response to [a] defendant's offer of
nondiscriminatory reasons, the plaintiff must produce specific,
substantial evidence of pretext . . . in order to avoid summary
judgment.”
Wallis v. J.R. Simplot Co., 26 F.3d 885, 890 (9th
Cir. 1994) (internal citation omitted).
In support of their
argument that their dismissal was pretextual, Freitas and
Anunciacion suggest that Fujii “forced Chan to cooperate to
orchestrate false accusations against [them] so that they could
be terminated.”
Memo in Opp. at 15, ECF No. 40.
During the
hearing on Kyo-ya’s motion for summary judgment, Plaintiffs’
counsel suggested that Kyo-ya should therefore be liable under a
“cat’s paw” theory.
Under such a theory, “[t]he employer is at
fault because one of its agents committed an action based on
discriminatory animus that was intended to cause, and did in fact
cause, an adverse employment decision.”
Staub v. Proctor Hosp.,
inadmissible hearsay. First, even without this evidence, Kyo-ya
would still meet its burden of articulating a legitimate,
nondiscriminatory reason for the termination decision. See,
e.g., Orr Decl. ¶ 8. Second, Freitas and Anunciacion’s argument
reveals a basic misunderstanding about what is at issue in this
case. Kyo-ya introduces Hirokawa’s statements not to prove the
truth of Chan’s allegations, but to demonstrate that Kyo-ya
conducted a thorough and impartial investigation into the
allegations against Freitas and Anunciacion. See Calmat Co. v.
U.S. Dep't of Labor, 364 F.3d 1117, 1124 (9th Cir. 2004) (“If the
significance of an out-of-court statement lies in the fact that
the statement was made and not in the truth of the matter
asserted, then the statement is not hearsay.”).
16
131 S. Ct. 1186, 1193 (2011).
According to Freitas and
Anunciacion, even though Fujii and Hirokawa did not have ultimate
decision-making authority, their discriminatory animus led them
to “orchestrate” the “false allegations” that ultimately led to
Plaintiffs’ dismissal.
Freitas and Anunciacion provide absolutely no evidence
of discriminatory animus on the part of Fujii or Hirokawa, let
alone evidence that is “specific [and] substantial.”
Instead,
Plaintiffs rely entirely on conclusory assertions of
discrimination.
“Mere assertions that [an employer] had
discriminatory motivation and intent . . . [are] inadequate,
without substantial factual evidence, to raise . . . a genuine
issue of material fact as to pretext in order to avoid summary
judgment.”
Collings v. Longview Fibre Co., 63 F.3d 828, 834 (9th
Cir. 1995) (internal quotation omitted).
Plaintiffs’ bare and
unsupported allegations of a discriminatory conspiracy to oust
them do not come close to meeting the requirement of specific and
substantial evidence.
Freitas and Anunciacion devote most of their briefing
to arguing that the allegations Chan made against them were
false.
However, “[i]n judging whether [a defendant’s] proffered
justifications [are] ‘false,’ it is not important whether they
were objectively false . . . .
Rather, courts only require that
an employer honestly believed its reason for its actions, even if
17
its reason is foolish or trivial or even baseless.”
Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002)
(internal quotation omitted).
Whether or not Freitas and
Anunciacion were actually responsible for extorting Chan, they
provide “no evidence that [Kyo-ya] did not honestly believe its
proffered reasons [for termination].”
Id.
Indeed, Freitas and
Anunciacion do not even attempt to provide evidence–-either
direct or circumstantial--regarding their former employer’s state
of mind.
In their deposition testimony, both Freitas and
Anunciacion indicate that they have no information regarding
their bosses’ beliefs about age, race or national origin.
Freitas Depo. at 128-164, ECF No. 35-32;
78-85, ECF No. 35-33.
See
Anunciacion Depo. at
Instead, the only “evidence” they have of
their employer’s discriminatory animus is the fact that their
supervisors were not of the same race or national origin as
Freitas and Anunciacion, that someone younger took Anunciacion’s
place, and that Kyo-ya chose to terminate them.
Id.
This
conclusory and circular chain of reasoning cannot defeat summary
judgment on the disparate treatment claim in Count I.
B.
Retaliation Claims.
Title VII's anti-retaliation provision forbids
“discriminat[ion] against an employee who has opposed any
unlawful employment practice or who has made a charge, testified,
assisted, or participated in a Title VII proceeding or
investigation.”
42 U.S.C. § 2000e-3(a).
18
To make out a prima
facie retaliation claim under Title VII, a plaintiff must show
that “(1) the employee engaged in a protected activity, (2) she
suffered an adverse employment action, and (3) there was a causal
link between the protected activity and the adverse employment
action.”
Davis v. Team Elec. Co., 520 F.3d 1080, 1093 (9th Cir.
2008); see also Schefke v. Reliable Collection Agency, Ltd., 96
Haw. 408, 426, 32 P.3d 52, 70 (2001) (applying federal standards
to retaliation claims under section 378-2).
“[R]etaliation
claims must be proved according to traditional principles of
but-for causation.”
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133
S. Ct. 2517 (2013).
Freitas and Anunciacion devote a single line of their
opposition brief to their retaliation claim (Count IV), stating
that the “testimony of [Freitas] establishes that he complained
during his questioning of race/national origin discrimination
which supports the claim of retaliation.”
ECF No. 40.
Memo in Opp. at 15,
The relevant “testimony” is itself a single line of
Freitas’s deposition, in which he claims that he told Hirokawa
during questioning that he “thought [he] was being treated
unfairly because [he] was Hawaiian.”
35-32.
Freitas Depo. at 45, ECF
Once again, however, Freitas and Anunciacion do nothing
more than assert a relevant causal relationship.
statement came during Hirokawa’s investigation.
Freitas’s
Nothing in the
record even suggests that Freitas and Anunciacion were terminated
because of an accusation of discrimination made during the
19
investigation into alleged conduct that was ultimately cited as
the reason for their dismissal.
A reasonable juror could not
conclude that Freitas and Anunciacion would still be employed by
Kyo-ya “but for” Freitas’s single-sentence, mid-investigation
accusation of discrimination.
C.
Hostile Work Environment Claims.
“In order to prevail on [a] hostile work environment
claim, [a plaintiff] must show that her workplace [was] permeated
with discriminatory intimidation . . . that [was] sufficiently
severe or pervasive to alter the conditions of [their] employment
and create an abusive working environment.”
Brooks v. City of
San Mateo, 229 F.3d 917, 923 (9th Cir. 2000) (internal quotation
omitted).
“[T]he required level of severity or seriousness
varies inversely with the pervasiveness or frequency of the
conduct.”
Nichols v. Azteca Rest. Enterprises, Inc., 256 F.3d
864, 872 (9th Cir. 2001).
The only evidence Freitas and Anunciacion offer in
connection with their hostile work environment claim (Count II)
relates to Chan’s alleged sexual harassment.
The claim, however,
is against Kyo-ya, not Chan, and there is no evidence that any
supervisor at Kyo-ya even knew about Chan’s alleged conduct, much
less failed to take corrective action.
See Swenson v. Potter,
271 F.3d 1184, 1191-92 (9th Cir. 2001) (“Title VII liability is
direct, not derivative: An employer is responsible for its own
actions or omissions, not for the co-worker's harassing conduct .
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. . . [Therefore a]n employer cannot be held liable for
misconduct of which it is unaware.”).
Nor do Freitas and Anunciacion provide any evidence
that their workplace was either “subjectively [or] objectively .
. . perceived as abusive,” Fuller v. City of Oakland, Cal., 47
F.3d 1522, 1527 (9th Cir. 1995), and the frequency of Chan’s
alleged actions is totally unclear.
Plaintiffs simply do not
have a viable hostile work environment claim.
D.
State Law Claims.
Freitas and Anunciacion also bring state law claims for
IIED and defamation (Counts III and V).
The defamation claim,
which is not mentioned in Plaintiffs’ Opposition to Kyo-ya’s
motion for summary judgment, is purportedly based on “defamatory
statements regarding Plaintiffs’ lack of competence” made “in the
course of the [alleged] discrimination.”
1-2.
Complaint at 7, ECF No.
To prove defamation under Hawaii law, Freitas and
Anunciacion must establish four elements: (1) a false and
defamatory statement concerning another; (2) an unprivileged
publication to a third party; (3) negligence by the publisher;
and (4) either actionability of the statement irrespective of
special harm, or the existence of special harm caused by the
publication.
See Wilson v. Freitas, 121 Hawai'i 120, 128, 214
P.3d 1110 (App.2009).
Freitas and Anunciacion never identify
particular defamatory statements, state why any statement by Kyo-
21
ya was false, or specify any unprivileged publication to a third
party.
In short, Freitas and Anunciacion do not even attempt to
explain how their defamation claims meet the most elementary
requirements of Hawaii law.
The same is true of Freitas’s and Anunciacion’s IIED
claims.
Under Hawaii law, “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 Haw.
92, 106-07, 73 P.3d 46, 60-61 (2003).
Freitas and Anunciacion
fail to allege how Kyo-ya’s conduct was outrageous.
Nagata v.
Quest Diagnostics Inc., 303 F. Supp. 2d 1121, 1127 (D. Haw. 2004)
(“Liability [for IIED] has been found only where the conduct has
been so outrageous in character, and so extreme in degree, as to
go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.”)
(quoting RESTATEMENT (SECOND) OF TORTS § 46, cmt. d (1965)).
In summary, Plaintiffs’ claims under federal and state
law cannot survive the present motion.
The evidence in the
record suggests that Kyo-ya investigated allegations against
Freitas and Anunciacion that were serious enough that they led to
criminal extortion charges.
While Freitas and Anunciacion were
ultimately found not guilty of extorting and harassing Chan, no
22
evidence suggests that Kyo-ya acted wrongfully or out of any
impermissible animus.
V.
CONCLUSION.
Kyo-ya’s motion for summary judgment is granted with
respect to all claims alleged by Freitas and Anunciacion.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 18, 2013.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Blayne D.K. Freitas, Sr. v. Kyo-Ya Hotels and Resorts, LP dba
Sheraton Princess Kaiulani, Civ. No, 12-00358; Jun S. Anunciacion
v. Kyo-Ya Hotels and Resorts, LP dba Sheraton Princess Kaiulani,
Civ. No. 12-00359 SOM/KSC (Consolidated Cases); ORDER GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT.
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